2903WP2566.14-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2566 OF 2014
PETITIONER :- Sunil S/o Shalikram Rewatkar, Aged about
30 years, Occ. Nil, R/o. Khondali, Tal. Katol,
Dist. Nagpur.
...VERSUS...
RESPONDENTS :- 1) Union of India, Through its Secretary,
Ministry of Home, New Delhi.
2) Director General of Police, Directorate,
CRPF, Block No.1, Central Office Complex,
Lodhi Road, New Delhi.
3) Inspector General of Police, Western
Sector I, CGO Complex, Konkan Bhavan,
Belapur, CRPF, Navi Mumbai-400614.
4) Dy. Inspector General of Police, Pune Range,
CRPF, Pune.
5) Commandant-97 BN, CRPF, Dhurwa, Dist.
Ranchi (Jharkhand).
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Mr. G.N.Khanzode, counsel for the petitioner.
Mrs.Mugdha Chandurkar, counsel for the respondents.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 29.03.2017 ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 2/7 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this writ petition, the petitioner challenges the order of the disciplinary authority dismissing the petitioner from services as a constable in the Central Reserves Police Force, as also the orders of the appellate and the revisional authorities upholding the order of the disciplinary authority.
2. The petitioner joined the services of the Central Reserve Police Force on 20/03/2001 as a constable. According to the petitioner, he had applied for leave on 04/09/2004 in view of his mother's ailment. The leave was sanctioned to the petitioner with effect from 06/09/2004 to 26/09/2004. The petitioner, however did not join his duties on 27/09/2004. The petitioner applied for grant of further leave on 09/10/2004 and also annexed a certificate to the said application that the petitioner was sick. The leave was not granted. Again the petitioner applied for leave on 30/10/2004 stating therein that the petitioner had not yet recovered, along with a medical certificate. The respondents however did not sanction the leave. The Commandant wrote to the petitioner on 04/10/2004, 15/10/2004, 29/10/2004 and 05/01/2005 asking the petitioner to immediately join the duties. The petitioner however did not join the duties despite the service of the said ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 3/7 communications. The respondents, therefore, conducted an enquiry against the petitioner and held that both the charges levelled against the petitioner, one of overstaying the leave after 26/09/2004 and the second of disobeying the order of his superior were proved. The petitioner had received the charge-sheet, but he did not defend the charges. The petitioner also did not participate in the enquiry. The petitioner filed the departmental appeal and revision but without success. The petitioner has challenged the orders of the disciplinary, appellate and revisional authority in the instant petition.
3. Shri Khanzode, the learned counsel for the petitioner, took this court through the provisions of section 10 of the Central Reserve Police Force Act, 1949 to submit that for overstaying the leave, the petitioner could not have been punished with imprisonment for a term which could extend to a period of one year or with fine which may extend to three months' pay or with both. It is submitted that in view of section 11, only a minor punishment could have been imposed upon the petitioner for having overstayed the leave or having disobeyed the orders of his superiors. It is submitted that the punishment of dismissal from service could not have been imposed on the petitioner for the charges of overstaying the leave or disobedience of the order of the Commandant asking the petitioner to join the duties. It is submitted ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 4/7 that the procedure prescribed in Rule 27 of the Central Reserve Police Force Rule, 1955 was not followed before imposing the penalty on the petitioner. It is submitted that since the procedure provided in Rule 27 was not followed by the respondents, the order of the disciplinary authority is liable to be set aside. It is submitted that the enquiry could not have been conducted by the respondents behind the back of the petitioner.
4. Mrs. Chandurkar, the learned counsel for the respondents, has supported the orders of the authorities. It is submitted that the petitioner did not join the duties after the leave period expired and also did not respond to the directions issued by the Commandant vide communications dated 04/10/2004, 15/10/2004, 29/10/2004 and 05/01/2005, asking the petitioner to join the duties. It is submitted that the procedure as prescribed by the rules was followed and the petitioner was supplied with the charge-sheet and was asked to participate in the enquiry. It is stated that the petitioner did not file the written statement and failed to participate in the enquiry. It is submitted that sections 9 and 10 of the Act refer to the punishments that are liable to be imposed for committing the offences specified in sections 9 and 10 and while imposing the punishment the procedure that is laid down in the Code of Criminal Procedure is liable to be ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 5/7 followed. It is stated that the petitioner was not tried for the offences punishable under sections 9 and 10 of the Act and the petitioner was proceeded against in a departmental enquiry, as per rule 27 of the Rules. It is stated that though the petitioner was served with the notice in the enquiry and also the charge-sheet, the petitioner failed to avail the opportunity that was granted to him and hence, the petitioner cannot complain that the respondents had not conducted the enquiry in a fair and judicious manner. It is submitted that the mercy petition filed by the petitioner was dismissed in 2011 and the petitioner has belatedly filed this petition in the year 2014.
5. On hearing the learned counsel for the parties, it appears that there is no scope for interference with the concurrent orders passed by the disciplinary, appellate and revisional authorities. The petitioner was granted leave only till 26/09/2004. The petitioner overstayed the leave and for the first time asked for further leave vide communication dated 19/10/2004. A similar application was made by the petitioner on 30/10/2004. The petitioner only sent the aforesaid two applications. Since the petitioner was a member of the disciplined force, the services of the petitioner were required and the petitioner could not have overstayed the leave, the Commandant asked the petitioner to join his duties vide communications dated 04/10/2004, 15/10/2004, ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 6/7 29/10/2004 and 05/01/2005, but the petitioner did not join the duties. The two charges levelled against the petitioner pertain to overstaying the leave after 26/09/2004 and disobedience of the orders of the superiors. Though the petitioner was served with the charge-sheet and the notices in the enquiry, the petitioner did not participate in the enquiry. The petitioner cannot then complain that the respondents had not followed the procedure as laid down in Rule 27 of the Rules. The enquiry officer rightly held in the circumstances of the case that the petitioner was guilty of the charges that were levelled against him and the petitioner had deserted the services of the respondents as he failed to join the duties despite the communications issued by the Commandant and failed to participate in the enquiry. The petitioner was a member of a disciplined force and the petitioner could not have acted in a casual manner, in which the petitioner acted despite the directions of the Commandant to join the duties. The enquiry was conducted in June, 2005, but the petitioner had not joined the duties till that date. The petitioner neither joined the duties till June, 2005 on the pretext that he was suffering from malaria and also did not participate in the enquiry. The petitioner cannot therefore be heard to say that the respondents have not followed the procedure as laid down by the Rules while conducting the enquiry. Though the petitioner was granted the opportunity, the petitioner did not avail the same. The ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 00:54:29 ::: 2903WP2566.14-Judgment 7/7 submission made on behalf of the petitioner that in view of the provisions of sections 9, 10 and 11 of the Act, the petitioner could have been punished with imprisonment for a term of one year and with fine which may extend to three months' pay or both but the petitioner could not have been dismissed from service is not well founded and is liable to be rejected. Sections 9 and 10 of the Act deal with the offences that are heinous or not so heinous. A member of the force could be prosecuted for the offences punishable under sections 9 and 10 of the Act and could be punished for the commission of said offences in addition to the punishment that may be imposed on the member of the force under section 11 of the Act for the misconduct committed by him. The reliance placed by the counsel for the petitioner on the provisions of sections 9, 10 and 11 of the Act to canvass that the petitioner could not have been dismissed from service for the misconduct committed by him is not well founded and is liable to be rejected. We do not find any reason to interfere with the impugned orders in exercise of the writ jurisdiction.
In the result, the writ petition fails and is dismissed with no order as to costs. Rule stands discharged.
JUDGE JUDGE
KHUNTE
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