Ex. Constable Radhey Raman Yadav vs Union Of India And Others
2022 Latest Caselaw 2580 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No.49
 

 
Case :- WRIT - A No. - 72166 of 2005
 

 
Petitioner :- Ex. Constable Radhey Raman Yadav
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- M.M. Khan,Mustaqeem Ahmad,Rajesh Kumar,Yashodanand Shukla
 
Counsel for Respondent :- K.C. Sinha A.S.G.I.,Jitendra Prasad Mishra,Kaushik Chatterjee,Kaushik Chatterji,M.P.Shukla,Prem Narayan Rai,S.C.
 

 
Hon'ble Siddhartha Varma, J.

Heard Sri Rajesh Kumar assisted by Sri Yashodanand Shukla, learned counsel for the petitioner and Sri Jitendra Prasad Mishra, learned counsel for the respondents.

This writ petition has been filed against an order of dismissal dated 20.3.1992 and also against the orders dated 27.4.2005 and 5.9.2005 passed in the appeal and the revision respectively. By these orders the appeal and the revision filed by the petitioner were also dismissed.

The petitioner who was working as a Constable in the Central Reserve Police Force eversince 1985 was always much appreciated for his work and, therefore, had also been awarded with various rewards and appreciations from the Governor, the Director General of Central Reserve Police Force, Inspector General of Police and the Commandant. Apart from these awards, the petitioner was also a recipient of various cash rewards.

The facts of the case are that when the petitioner was on duty on 24.12.1991, a fellow Constable by the name of Haidar Ali informed the petitioner about the serious illnesses of his mother and that of his child. Upon getting the information, the petitioner was very upset. He tried to give an application on 24.12.1991 for 16 days' leave. However, no orders were passed on that application. On the next day, it was a Christmas holiday and no officer was available for the granting of leave and, therefore, on 26.12.1991, the petitioner after writing an application and after leaving the same in the office of the Commandant of the Headquarter, left for his village. From his village also, the petitioner kept writing through post. When the petitioner re-joined his duty on 23.1.1992, he was placed under suspension on 24.1.1992 and thereafter he was also served with a charge of desertion on 25.1.1992. An Enquiry Officer was appointed and thereafter the Enquiry Officer submitted his enquiry report upon the completion of the enquiry. On 20.3.1992, an order of dismissal was passed for the petitioner's unauthorized absence. The petitioner filed an appeal and when that was rejected on 27.4.2005, he filed a Revision. Upon the dismissal of the Revision on 5.9.2005, the instant writ petition was filed.

Learned counsel for the petitioner has submitted that under the Central Reserve Police Force Act, 1949, sections 9 to 12 deal with offences and punishments. Section 9 deals with "more heinous offences" while section 10 deals with "less heinous offences". Section 11 deals with minor punishments and section 12 deals with punishments which are ranging from dismissal to imprisonment. Since learned counsel for the petitioner had brought to the notice of the Court sections 9 to 12, they are being reproduced here as under :-

"OFFENCES AND PUNISHMENTS

More heinous offences.

9. Every member of the force who-

(a) begins, excites, causes or conspires to cause or joins in any mutiny, or being present at any mutiny, does not use his utmost endeavour to suppress it, or knowing, or having reason to believe in, the existence of any mutiny, or of any intention or conspiracy to mutiny or of any conspiracy against the State does not, without delay, give information thereof to his superior officer; or

(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer, whether on or off duty, knowing or having or having reason to believe him to be such; or

(c) shamefully abandons or delivers up any post or guard which is committed to his charge, or which it is his duty to defend; or

(d) directly or indirectly holds correspondence with, or assists or relieves any person in arms against the State or omits to discover immediately to his superior officer any such correspondence coming to his knowledge; or who, while on active duty,-

(e) disobeys the lawful command of his superior officer; or

(f) deserts the Force; or

(g) being a sentry, sleeps upon his post or quits it without being regularly relieved or without leave; or

(h) leaves his commanding officer, or his post or party, to go

in search of plunder; or

(i) quits his guard, picquet, party or patrol without being regularly relieved or without leave; or

(j) uses criminal force to, or commits an assault on, any person bringing provisions or other necessaries to campo or quarters, of forces a safeguard or breaks into any house or other place for plunder, or plunders, destroys or damages property of any kind; or

(k) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters; or

(l) displays cowardice in the execution of his duty shall be punishable with imprisonment for a term which may extend to fourteen years or 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 that extent in addition to such sentence of transportation or imprisonment.

Less heinous offences

10. Every member of the force who-

(a) is in a state of intoxication when on, or after having been warned for, any duty or on parade or on the line of march; or

(b) strikes or attempts to force any sentry; or

(c) being in command of a guard, piquet or patrol, refuses to receive any prisoner or person or person duly committed to his charge or without proper authority releases any person or prisoner placed under his charge or negligently suffers any such prisoner or person to escape; or

(d) being under arrest or in confinement, leaves his arrest or confinement, before he is set at liberty by lawful authority; or

(e) is grossly in-subordinate or insolent to his superior officer in the execution of his office; or

(f) refuses to superintend or assist in the making of any fieldwork or other work of any description ordered to be made either in quarters or in the field; or

(g) strikes or otherwise ill-uses any member of the force subordinate to him in rank or position; or

(h) designedly or through neglect injures or loses or fraudulently disposes of his arms, clothes, tools, equipments, ammunition or accoutrement or any such articles entrusted to him or belonging to any other person; or

(i) malingers or feigns or produces disease or infirmity in himself, or intentionally delays his cure, or aggravates his disease or infirmity; or

(j) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or any other person; or

(k) does not, when called upon by his superior officer so to do or upon ceasing to be a member of the force forthwith deliver up, or duly account for, all or any arms, Ammunition, stores, accoutrements or other property issued or supplied to him or in his custody or possession as such member; or

(l) knowingly furnishes a false return or report of the number or state of any men under his command or charge or of any money, arms ammunition, clothing, equipments, stores or other property in his charge, whether belonging to such men or to the Government or to any member of or any

(m) person attached to the force or who through design or culpable neglect, omit, or refuses to make or send any return or report of the matters aforesaid; or

(n) absent himself without leave, or without sufficient cause overstays leave granted to him: or

(o) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline: or

(p) contravenes any provision of this Act for which no punishment is expressly provided: or who, while not on active duty :

(q) commits any of the offences specified in clauses (e) to (1) (both inclusive) of Section 9 shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months pay, or with both.

Minor punishments.

11. (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act award in lieu of or in addition to, suspension or dismissal any one or more of the following punishments to any member of the force whom he considered to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the force, that is to say :

(a) reduction in rank;

(b) fine of any amount not exceeding one month's pay and allowances;

(c) confinement to quarters, lines or camp for a term not exceeding one month;

(d) confinement in the quarter-guard for not more than twenty eight days with or without punishment drill or extra guard, fatigue or other duty; and

(e) removal from any office of distinction or special emolument in the force.

(2) Any punishment specified in clause (c) or clause (b) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the force away from headquarters, provided he is specially authorised in this behalf by the Commandant.

(3) The Assistant Commandant, a Company Officer or a Subordinate Officer, not being below the rank of Subedar or Inspector commanding a separate detachment or an outpost, or in temporary command at the headquarters of the force, may, without a formal trial, award to any member of the force who is for the time being subject to his authority any one or more of the following punishments for the commission of any petty offence against discipline which is not otherwise provided for in this Act or which is not of a sufficiently serous nature to require prosecution before a Criminal Court that is to say :

(a) confinement for not more that seven days in the quarter guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance;

(b) punishment drill, or extra guard, fatigue or other duty, for not more than thirty days, with or without confinement to quarters, lines, or camp.

(4) A Jemadar or Sub-Inspector who is temporarily in command of a detachment or an outpost may in like manner and for the commission of any like offence award to any member of the force for the time being subject to his authority any of the punishment specified in clause (b) of sub-section (3) for not more than fifteen days.

Place of imprisonment and liability to dismissal on imprisonment

12. (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 of the Commandant so directs, be confined in the quarter guard or such other place as the Court or the Commandant may consider suitable."

Learned counsel for the petitioner submits that since under section 10(n), absenting without leave was considered a less heinous offence, the petitioner should have been given a minor punishment. Learned counsel for the petitioner in this regard has heavily relied upon a judgment of this Court in Suresh Dhar Dubey vs. Union of India & Ors. reported in 2018 (2) ADJ 854. Learned counsel for the petitioner further submitted that the Constable Haidar Ali, who had informed him about the illnesses of his mother and that of his child, was never allowed to be produced in the enquiry, else he would have informed the Enquiry Officer with regard to the fact that in fact the mother and the child of the petitioner were ill. Still further, it has been argued by learned counsel for the petitioner that the petitioner had produced the medical prescriptions/certificates which went to show that the mother and the child of the petitioner were ill but these evidence were not considered by the Enquiry Officer. Still further, learned counsel for the petitioner argued that for being absent and that too because of the fact that there was a cause, the petitioner's case ought to have been considered leniently and he should not have been punished with dismissal.

Learned counsel appearing for the Central Reserve Police Force Sri Jitendra Prasad Mishra, however, in reply submitted that the petitioner's absenting without any application from a disciplined force would mean a major offence and, therefore, the petitioner was rightly dismissed from his service.

Having considered the submissions advanced by learned counsel for the parties, the Court is of the view that the order of dismissal from service was disproportionate to the offence committed by the petitioner. In fact the Central Reserve Police Force itself considers absenting without cause to be a "less heinous offence" and for which the punishment also ought to have been a little lesser. The Court also considers that the punishment awarded to the petitioner exceeded the offence. The punishment was, therefore, definitely disproportionate to the offence which was committed by the petitioner.

Under such circumstances, the order dated 20.3.1992 passed by the Commandant, 127th Battalion, Central Reserve Police Force, Allahabad, the order dated 27.4.2005 passed by the Appellate Authority and the order dated 5.9.2005 passed by the Revisional Authority are quashed and are set-aside. The petitioner could have been awarded a minor punishment of fine etc. in the shape of stoppage of a few months' salary. The petitioner shall now be reinstated in service with all backwages. However, the wages of three months shall not be paid to the petitioner which stoppage shall be considered as a fine imposed upon the petitioner.

The writ petition is, accordingly, partly allowed.

Order Date :- 12.05.2022

GS

(Siddhartha Varma, J.)