Jitendra Kumar vs Union Of India & Others
2018 Latest Caselaw 2578 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Case :- WRIT - A No. - 2551 of 2010 
 
Petitioner :- Jitendra Kumar 
 
Respondent :- Union Of India & Others 
 
Counsel for Petitioner :- Indra Prasad Yadav 
 
Counsel for Respondent :- A.S.G.I.,Deepak Varma,Shashi Kant Upadhyay 
 

 
Hon'ble Mrs. Vijay Lakshmi,J. 

The petitioner was posted as a constable in Central Reserve Police Force (hereinafter referred to as CRPF), when he was dismissed from service vide impugned order dated 13.2.2009 passed by respondent no. 2- Commandant, 46 Battalian, CRPF, 56 A.P.O. Sri Nagar. Being aggrieved, the petitioner filed an appeal against the order of his dismissal under Rule 28 of the Central Reserved Police Force Rules, 1955 (hereinafter referred to as Rules, 1955), but his appeal was dismissed by the Appellate Authority i.e. Deputy Inspector General of Police, CRPF, Rampur (U.P.) vide order dated 29.4.2009. The petitioner filed a revision under Rule 29 of the Rules, 1955, against the order passed in appeal, which was also dismissed vide order dated 21.8.2009 passed by the Inspector General of Police, Centre Sector, CRPF, Lucknow.

Now the petitioner has invoked the extra ordinary jurisdiction of this court by means of the present writ petition praying for the following two reliefs:

I. to issue a writ, order or direction in the nature of certiorari, quashing all the aforesaid orders dated 13.2.2009, 29.4.2009 and 21.8.2009.

II. to issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner in service with all service benefits.

Heard Sri Indra Prasad Yadav, learned counsel for the petitioner and Sri Shashi Kant Upadhyay, learned Standing counsel appearing for the respondents. Perused the record.

Some relevant background facts are that a departmental enquiry was held against the petitioner with the following two charges:

(I) While functioning as a Constable/G.D. in CRPF, he, during evening roll call on 23.9.2008 misbehaved with the BHM using filthy language in presence of all the police men present there, asking him to shut up his mouth otherwise he would shoot him. Thus he committed misconduct against discipline of force, which is a punishable offence.

(II) While functioning as a Constable CRPF, he misbehaved with his seniors time and again and did not mend his ways despite being earlier punished several times for indiscipline. Thus he is a habitual offender and is liable to be punished.

The petitioner filed his written statement and he was afforded opportunity to defend himself and he availed the opportunity. However, after conclusion of the enquiry, both the charges levelled against him, were found fully proved by the enquiry officer. The disciplinary authority, namely the Commandant, having been convinced with the report of the enquiry officer, dismissed the petitioner from service with effect from 13.2.2009. The appellate and revisional authorities namely D.I.G. and I.G.(respondent nos. 3 and 4) confirmed the order of dismissal.

Challenging the legality and correctness of the orders impugned, learned counsel for the petitioner has contended that the the departmental enquiry has not been conducted in a free and fair manner. The witnesses have given evidence against the petitioner under pressure of their superior officers. The enquiry officer has not recorded the statement of two important witnesses namely Sub Inspector (Administration), Shabbir Ahmad and a Havildar/ G.D. Randhir Singh. Instead he has recorded the statement of one Constable/ G.D. Krishna Sharan, whose name was not even mentioned in the memorandum of charges. Moreso, the Enquiry officer has not considered the statement of the petitioner.

It is further contended that the charge no. II is related to earlier incidents and misconduct of the petitioner for which he was already awarded punishment earlier but the Enquiry officer has illegally, once again punished the petitioner for the same offence, which is not permissible under law as no one can be punished twice for the same offence.

It is further contended that extreme punishment of dismissal from service has been awarded to the petitioner by the disciplinary authority, which is shockingly disproportionate to the misconducted allegedly committed by the petitioner. In this regard reliance has been placed on the law laid down in the following two judgments rendered by Apex Court.

1. Bhagat Ram Vs. State of Himachal Pradesh and others, (1983) 2 SCC 442 in which hon'ble Apex Court has held as under:

"The penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution."

2. Ranjit Thakar Vs. Union of India and others (1987) 4 SCC 611 where it has been held that

"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias."

Learned counsel for the petitioner has contended that the petitioner has been dismissed from service on the grounds of minor mistakes committed by him. On earlier occasions also, he was punished with harsh punishments for trivial things. For example when in a state of high fever, the petitioner refused to wear uniform and requested to take him to the hospital in civil dress, he was punished with confinement to lines for 3 days. It is further submitted that when the petitioner was posted at Sri Nagar his mother fell ill at Jammu, therefore, he became mentally disturbed and went to Jammu by aeroplane, but he was awarded punishment of seven days' packed drill for that and now once again he has been awarded the maximum punishment of dismissal from service for a minor offence of using filthy language and for the same offences for which he has already suffered punishments earlier.

Learned counsel has further contended that learned appellate authority and learned revisional authority have mechanically affirmed the orders challenged before them, without keeping in view the basic principle of law that the sentence awarded to the petitioner is wholly disproportionate to the alleged misconduct committed by the petitioner, therefore, the impugned orders be quashed and the petitioner be reinstated in service.

Per contra, learned counsel for the respondents has contended that in view of the strict discipline required to be observed by members of armed forces, the petitioner has been rightly awarded the punishment of dismissal from service and the impugned orders are just and proper.

Considered the rival submissions advanced by learned counsel for the parties.

In paragraph no. 4 of the counter affidavit filed by the respondents sworn, by DIG, CRPF, two charges framed against the petitioner in the departmental enquiry are mentioned, which are reproduced as under:

I. That the No. 015267561 CT/GD Jitendra Kumar while functioning as CT/GD committed misconduct in his capacity as a member of the Force u/s 11(1) of CRPF Act 1949 and Rule 27(b) of CRPF Rules, 1955, in that he, in presence of force personnel, threatened no. 811180272 HC/GD Shekharan and (BHM) to shoot him and misbehaved with him during evening roll call on 23.9.2008, which is against the good discipline of the Force and a punishable offence.

II. That the No. 015267561 CT/GD Jitendra Kumar while functioning as CT/GD committed misbehaviour in his capacity as a member of the Force u/s 11(1) of CRPF Act 1949 and Rule 27(b) of CRPF Rules, 1955, in that he time and again, committed indiscipline case for which he is punished. His above offence is against the good discipline of the Force and punishable.

From a perusal of the aforesaid charges it is evident that the charge no. 1 relates to an incident of misbehaveour by the petitioner to the HC/GD and (BHM) using filthy language whereas the second charge is related to the earlier incidence of indiscipline committed by the petitioner for which he has already been punished, as mentioned earlier.

Both the charges have been found proved against the petitioner by the enquiry officer and as a result the punishment of dismissal from serves has been awarded to the petitioner.

The CRPF Act, 1949 provides for two kinds of offences and punishments. Section 9 of the Act provides for more heinous offence and section 10 of the Act provides for less heinous offence. Section 11 provides for minor punishments and section 12 provides for dismissal if a person is sentenced with imprisonment. However, the word used in section 12 is "may", which shows that the power under this section is discretionary.

The offending acts are classified and are defined as ''heinous offence' under Section 9 (a) to (e) and less heinous offences under Section 10(a) to (p). The punishment for heinous offence is imprisonment for life or a term of not less than seven years, and with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay or with fine to the extent in addition to such sentence. The less heinous offences are to be punished with imprisonment for a term which may extend, to one year or with fine which may extend to three month's pay or with both. The 'more heinous offences' include mutiny, using criminal force in assaulting on a superior officer, shamful abandonment of duty etc. whereas less heinous offences include disobeying of lawful command of superior officer, desertion of force, using of criminal force, gross insubordination, cowardice in execution of duty etc. Section 10 (n) of CRPF Act, which is a residuary clause, provides for punishment of an offence, the commission of which, though not specified in this Act, is prejudicial to good order and discipline.

Section 12 of the Act, which is reproduced below, gives the appointing authority powers to dismiss any person from the Force (who has been sentenced under the Act to imprisonment):-

"12. Place of imprisonment and liability to dismissal on imprisonment- (1) Every person sentenced under this Act to imprisonment may be dismissed from the force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him.

(2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the Force, he may, if the Court or the Commandant so directs, be confined in the quarter-guard or such other place as the Court or the Commandant may consider suitable."

The word used in Section 12 (1) of the Act is ''may', which confers discretion upon the appointing authority. The discretion in the matter of awarding punishment attracts principles of fairness, reasonableness and proportionality. The discretion to be used by the appointing authority must be reasonable and should be in accordance with and based upon severity of the offences.

The first charge against the petitioner is that he misbehaved with BHM using unparliamentary language, asking him to shut up his mouth otherwise he would shoot him. The aforesaid allegation even if assumed to be true, comes under clause (e) of Section 10 of the CRPF Act, 1949 (is grossly in subordinate or insolent to his superior officer) which comes under the category of less heinous offence, the punishments provided for which are reduction in rank, fine, confinement to quarters, removal from any office of distinction or special emolument in the Force.

Dismissal from service is an extreme punishment, which disqualifies an employee from any future employment also. In a catena of judgments, the Hon'ble Apex Court has laid down the law regarding principle of proportionality. According to which the penalty should not be disproportionate to the gravity of the misconduct and it must be commensurate with the gravity of the misconduct.

Moreso, Section 12 of the CRPF Act provides for dismissal of a person, who has been sentenced to imprisonment. The petitioner, admittedly, has not been sentenced with imprisonment. Therefore, the punishment of dismissal from service awarded to him at a minor instance of misbehaviour can definitely be recorded as disproportionate to the offence committed by the petitioner.

In so far as the second charge is concerned, there is no denial of the fact that for earlier instances of all misconducts the petitioner has already been awarded different types of punishments including reduction in salary and physical punishments. The well settled legal position is that a person cannot be punished twice for the same offence otherwise it will be violative of Article 20 of the Constitution of India. Moreover, there is no provision in the CRPF Act providing a separate punishing to a habitual offender. Therefore, the petitioner could not have been punished for the second charge also, as a habitual offender.

The facts of the present case shows that it is not disputed that the petitioner was appointed on the post of Constable/GD in the year 2001. Thus, he had already served CRPF for a period of more than seven years, when the impugned order of dismissal from service was passed by the Disciplinary Authority.

There is no doubt that a high and rigorous discipline is required to be maintained in police force. It is also true that judicial review is not directed against the decision but is directed against "decision making process" and the question of choice of sentence is within the jurisdiction and discretion of the Disciplinary Authority. However, the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence so as to shock the conscience and amount in itself to conclusive evidence of bias. The discretion must be exercised fairly and reasonably after taking into account all the attending circumstances in which the offence was committed.

In the present case the Disciplinary Authority, the Appellate Authority and the Revisional Authority have not taken into consideration the circumstances and have mechanically applied the provisions of section 12(1) of the CRPF Act, 1949 in dismissing the petitioner from service only on the ground that he had he misbehaved with the Head Constable/ GD (BHM) during night roll call and for some other previous instances of misconduct for which the petitioner has already suffered the punishments awarded to him.

In the facts and circumstances of the case, this court is of the considered view that no reasonable person could have taken a view to dismiss the petitioner from service for such instances.

In view of the above, the writ petition is allowed and the impugned orders dated 13.2.2009 dismissing the petitioner from service as well as the appellate order dated 29.4.2009 and the revisional order dated 21.8.2009 are hereby quashed. The petitioner shall be reinstated in service with all benefits with regard to the pension, seniority and pay fixation etc. However, as the petitioner has not worked during the period in between the passing of the impugned order of dismissal dated 13.2.2009 till the date of this judgment, he shall not be paid the salary of the aforesaid period on the principle of "no work no pay". The matter is remanded to the Disciplinary Authority to pass a fresh order, whereby awarding a lesser punishment to the petitioner proportionate to his guilt, affording opportunity of hearing to him.

Order Date :-14.9.2018/ Pcl