Govind Tible vs The Chief Secretary, State Of ...
2003 Latest Caselaw 350 Bom

JUDGMENT

R.M. Lodha, J.

1. Heard.

2. The Petitioner who was appointed vide order dated 29.11.1990 as constable (GD) in Central Reserve Police Force (for short 'CRPF') reported for duty to the Additional Deputy Inspector General of Police, Group Centre, CRPF, Nagpur on 10.12.1990. The Petitioner was undergoing rotational training at Lachi Camp on 15.4.1994. The personnel undergoing rotational training including the Petitioner at Lachi Camp were ready to move down for outdoor exercise on Amarpur Reserve Forest area and were waiting for civil police vehicle. When the vehicle did not arrive till 8 hours, the in-charge training - Shri P.K. Choudhary, A/Commandant asked them to break off and directed them to go to their respective barracks. Shri P.K. Choudhary, A/Commandant OC E/64/B CRPF and Dr. Lowrence Bando Medical Officer of 37 Bn. CRPF were sitting outside the Quarter Guard at Lachi Camp. The Petitioner is alleged to have appeared before P.K. Choudhary, A/Commandant and enquired about the sanction of his leave. He seemed to be in a disturbed manner without wearing his belt, head gear and putting his rifle on his shoulder. The Petitioner seemed to have asked Shri P.K. Choudhary about his leave to which Shri P.K. Choudhary replied that during the training period, sanction of leave had been restricted and his leave could be considered on arrival of DC(OPS). The Petitioner allegedly was not satisfied with the reply of Shri P.K. Choudhary and started arguing. Shri P.K. Choudhary advised the Petitioner to put down his rifle and asked him to stand in attention position but he refused to do so. Shri P.K. Choudhary then called Guard Commander HC Gulab Singh and tow other guards of 37 Battalion CRPF and asked them to take the rifle of the Petitioner. The Petitioner alleged to have brought his rifle to hip position pointing the gun barrel towards the Guard Commander instead of handing over the rifle to guard commander. Seeing that situation, Shri P.K. Choudhary got hold of the barrel and pushed upward. At the same time, the guard personnel also overpowered the Petitioner and snatched the rifle from him. Later on, the rifle was inspected but there was no round in the chamber and safely catch of the rifle was also locked. In the background of this conduct of the Petitioner, he was chargesheeted on 5.6.1994 for the misconduct punishable under Section 9(b) and 9(e) of the CRPF Act, 1949. The enquiry was instituted. An enquiry Officer was appointed to enquire into the charges against the Petitioner. By order dated 28.7.1994, the memorandum of charges dated 5.6.1994 was modified partially and the Petitioner was informed that he would be proceeded with for the misconduct punishable under Section 11(1) of the CRPF Act, 1949 instead of Sections 9(b) and 9(e) of the said Act. The enquiry officer held that the charges were proved beyond any doubt and opined that the Petitioners was not fit person to be retained in service. The disciplinary authority upon consideration of enquiry report, by his order dated 31.10.1995 imposed the penalty of dismissal from service and also directed that all medals and decorations, if any, earned by the Petitioners shall be forfeited under Section 12(1) of the CRPF Act, 1949. Aggrieved thereby, the Petitioner preferred appeal but without any success. The Appellate Authority by order dated 19.6.1996 dismissed the appeal and affirmed the order of disciplinary authority. Aggrieved by the order of dismissal passed by the disciplinary authority and the order passed by the appellate authority confirming the order of disciplinary authority, the present Writ Petition has been filed.

3. Ms. Sheetal Gulhane, learned Counsel for the Petitioner, submitted before us that by order dated 28.7.1994, the charges were modified and instead of the Petitioner being proceeded for the misconduct punishable under Sections 9(b) and 9(e) of the CRPF Act, 1949, the Petitioner was charged for the misconduct punishable under Section 11(1) of CRPF Act, 1949 and since Section 11(1) provides for minor punishment, the order of dismissal is illegal. The submission of the learned Counsel for the Petitioner is that Section 11(1) does not contemplate award of punishment of dismissal. According to her, the punishments contemplated under Section 11 of the CRPF Act are:-

(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.

Thus the submission of the learned Counsel for the Petitioner is that punishment by way of dismissal under Section 11 is unsustainable.

4. By order dated 5.6.1994, the Petitioner was chargesheeted. The Statement of Article of Charges framed against the Petitioner and the Imputation of misconduct in support of the Article of charges framed against the Petitioner read thus:

STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST NO. 901006361 CT/GD GOVIND TIBLE OF E/64 BNB CRPF.

ARTICLE - I

That No. 901006361 CT/GD Govind Tible of E/64 Bn CRPF while functioning as CT/GD in E/64 BN CRPF committed an offence of misconduct in his capacity as a member of the Force under Section 9(b) of CRPF Act 1949 in that he attempts to use criminal force and commits an assault on his superior Officer/and guard Commander on 15/4/94 at Lachi Training Camp.

Sd/- 5/6/94      

(T.M. BAXLA) 2 I/C    

For COMMANDANT 64 BN CRPF

ARTICLE - II

That the said No. 901006361 CT/GD Govind Tible of E/64 Bn CRPF while functioning as CT/GD in E/64 Bn CRPF committed an offence of misconduct in his capacity as a member of the Force under Section 9(3) of CRPF Act 1949 in that he disobeyed the lawful command of his superior and refused to deposit his personal arms to the guard commander on 15/4/94 at Lachi Camp.

Sd/- 5/6/94        

(T.M. BAXLA 2 I/C      

For COMMANDANT 64 BN CRPF

ANNEXURE - II

STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF THE ARTICLE CHARGES FRAMED AGAINST NO. 901006361 CT/GD GOVIND TIBLE OF E/64 BN

As per training programme, on 15/4/94 personnel undergoing Rotational Training at Lachi Camp were ready to move out for outdoor exercise to Amarpur reserve forest area at 0600 hrs. and were waiting for civil police vehicle. When the vehicle did not arrive till 0800 hrs. the I/C Training Shri P.K. Choudhary A/Commandant asked them to break off and directed them to go to their respective barracks. Shri P.K. Choudhary, A/Comdt. OC E/64 Bn CRPF and Dr. Lowrence Bando Medical Officer of 37 Bn. CRPF were sitting outside the Quarter Guard at Lachi Camp. No. 901006361 CT/GD Govind Tible of E/64 appeared before P.K. Choudhary, A/Comdt. and enquired about the sanction of his leave in an extremely disturbed manner without wearing his belt, head gear and putting his rifle on his shoulder. In response, Shri P.K.

Choudhary, A/Comdt. replied to the constable that during training period sanction of leave had been restricted and his leave could be considered on arrival of DC/(OPS). The But the constable allegedly was not satisfied that the reply of the Coy.Commander and started arguing. Shri P.K. Choudhary A/C further advised the individual to put down his rifle and asked him to stand in attention position but he refused to dos o. Shri P.K. Chaudhary then called Guard Commander HC Gulab Singh and two other guards of 37 Batallion CRPF and asked them to take the rifle of the Petitioner. The Petitioner alleged to have brought his rifle to hip position pointing the gun barrel towards the Guard Commander instead of handing over the rifle to guard commander. Seeing that situation, Shri P.K. Choudhary got hold of the barrel and pushed upward. At the same time, the guardpersonnel also overpowered the Petitioner and snatched the rifle from him. Later on, the rifle was inspected but there was no round in the chamber and safety catch of the rifle was also locked. Thus he has committed more heinous offence by attempting to use criminal force and commits an assault on his superior officer which is punishable under Section 9(b) and 9(e) of CRPF Act 1949.

5. By the other dated.... July, 1994, the Enquiry Officer was appointed to enquire into the charges levelled against the Petitioner punishable under Section 9(b) and9(e) of the CRPF Act. The said order reads thus:

"OFFICE ORDER

Whereas an inquiry under Section 9(b) and 9(e) of CRPF Act 1949 is being held against No. 901006361 CT/GD Govind Tible of E/64 Bn CRPF.

2. And whereas the undersigned considers that an enquiry officer should be appointed to inquire into the charges framed against him.

3. Now therefore, the undersigned in exercise of the powers conferred by the Rule 27 of CRPF Rules 1955 hereby appoints Shri R.S. Jain Dy. Comdt. of this Unit as Enquiry Officer to enquire into the charges framed against No. 01006361 CT/GD Govind Tible of E/64 Bn CRPF vide this Office Memorandum No. P.VIII-9/94-EC-II dated 5/6/1994."

6. By the Memorandum/Office order dated 28.7.1994, partial modification/amendment in the chargesheet was made. The said memorandum/office order reads thus: "No.P.VIII-9/94-64-EC-II Dated the 28 July 1994.

MEMORANDUM/OFFICE ORDER

Reference to this Office Memorandum of even number dated 5/6/94.

2. In partial modification/amendment of this Office Memorandum under reference, the charges framed/levelled against No. 901006361 CT/GD Govind Tible of E/64 Bn CRPF in Annexure-I (Article I & II) and Annexure-II under Sections9(b) and 9(e) of CRPF Act 1949 may be read as "Under Section 11(1) of CRPF Act, 1949" instead of under Section 9(b) and 9(e) of CRPF Act 1949.

7. It would be thus seen that in respect of the misconduct alleged against the Petitioner, initially he was chargesheeted for the offence punishable under Sections 9(b) and 9(e) of the CRPF Act subsequently it was modified and amended by office order dated 28.7.1994 by directing that enquiry shall be proceeded against the Petitioner for the alleged misconduct punishable under Section 11(1) of CRPF Act, 1949 instead of the offence punishable under Sections 9(b) and 9(e). The question before us is: whether for the misconduct so alleged against the Petitioner and found to be proved by the Enquiry Officer, the disciplinary authority under Section11(1) of CRPF Act could have awarded punishment of dismissal.

8. Section 11(1) of the CRPF Act reads thus:

11. Minor punishments.- (1) The Commandant or any other authority of 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 considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty of 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 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 of special emolument in the Force.

(2) .....

(3) .....

(4) ....."

9. A plain reading of the said section would make it clear that award of punishment of suspension or dismissal could be made by commanding or the concerned authority in exercise of the powers conferred under Sub-section (1) of Section 11. It is so because it empowers commanding or the concerned authority to award in lieu of or in addition to suspension or dismissal of delinquent, one or more punishment provided in Clauses (a) to (e) of Section11(1). In other words, what is provided under Sub-section (1) of Section 11 is that in the facts and circumstances of the case looking to the proof of charge and subject to the rules made under the Act, the commanding or the concerned authority may award suspension or dismissal. The said authority in lie of or in addition to suspension or dismissal also award any one or more punishment/s provided in Clauses (a) to (e). In the light of the misconduct proved, thus, in exercise of the power under Section 11(1), the commanding or the concerned authority is competent to award either suspension or dismissal. It he is satisfied, keeping in view the misconduct, that some more punishment is required to be passed against the delinquent, any of the punishments provided under Clauses

(a) to (e) may be awarded. In the event of the commanding or the concerned authority not finding misconduct grave or gross justifying suspension or dismissal and instead he is of the view that punishment provided in Clauses (a) to (e) of Sub-section (1) of Section 11 or anyone of them or more deserves to be passed, he may award such punishment accordingly. It is not necessary for the punishment to be awarded under Sub-section (1) of Section (11) that the delinquent is prosecuted or proceeded with under Sections 9 or 10 of CRPF Act. The title "Minor punishment" given to Section 11 has to be understood in contradiction to the title given to Section 9 "More heinous offences" and Section 10 "Less heinous offences". Section 9 provides for punishment of transportation for life for a term of not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months' pay and Section 10 provides for punishment of imprisonment for a term which may extend to one year and it is in this context Section 11 is entitled "Minor punishment".

10. The question whether under Section 11, punishment of dismissal can be awarded came up for discussion before the Division Bench of Rajasthan High Court in Shyam Singh v. Dy.Inspector-General of Police, Central Reserve Police, Ajmer . The Division Bench of Rajasthan High Court in paragraphs 7 and 8 of the Report held thus:

"(7) The perusal of Section 11 shows that it deals with minor punishments as compared to the heavier punishment prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishment to any member of the Force who is found guilty of disobedience, neglect of duty, or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to learned counsel for the petitioner, the only punishments which can be awarded under this sections are reduction in rank,fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, this interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.

The use of the words 'in lieu of, or in addition to, suspension or dismissal' appearing in Sub-section (1) of Section 11 before Clauses (a) to

(e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishments mentioned inn Clauses (a) to (e) may also be awarded.

(8) It may be further pointed out that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and Clause (m) thereof shows that absence of a member of the Force without leave or absence of a member of the Force without leave or without sufficient cause, or over-stay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry, and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10."

11. The view taken by us is squarely fortified by the judgment of the Rajasthan High Court wherein it has been held that Section 11 deals with only those punishments which may be awarded in a departmental enquiry and a plain reading thereof makes it clear that the punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecution for an offence under Section 9 or Section 10.

12. The decision of the Rajasthan High Court in Shyam Singh's case (supra) was followed by the Jammu & Kashmir High Court in Deen Dayal Yadav v. Deputy Inspector General of Police [1974 Lab.I.C. 928]. Relying upon the Rajasthan High Court in Shyam Singh's case (supra) in para 12 of the Report, the Jammu & Kashmir High Court held thus:

"12. The contention of the learned Counsel for the petitioner that no punishment such as removal or dismissal from service could be passed, does not seem to be correct. I have already quoted the section above and it is significant to note that in this section the important words are "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 considers ....." may be passed. The words 'in lieu of or in addition to' in my opinion clearly indicate that in addition to the punishment of dismissal from service the punishments prescribed in Section 11 could be passed or in lieu of a punishment for dismissal. It has also been urged that the punishment such as removal or dismissal from the Force could be passed only under Section 12 which I have quoted above but I think this contention also does not seem to be correct because this section clearly lays down that if any person has been sentenced to imprisonment under the Act, then he can be dismissed and shall also be liable to forfeiture of pay etc. The heading of the section also shows that it deals with place of imprisonment and liability to dismissal or imprisonment. In my opinion it cannot be said that a punishment of removal or dismissal from Force can only be passed under Section 12 of the Act i.e., to say only when a person has been sentenced to imprisonment. I am, strengthened in my view because a similar view has been taken by a Division Bench of Rajasthan High Court in the case of Shyam Singh v. By. Inspector-General of Police, Central Reserve Police, Ajmer where also it was held that from a perusal of Section 12 it is clear that the punishment of dismissal under the section may be given to a delinquent in addition to the sentence of imprisonment awarded to him under the law. If the authorities mean to proceed under the section, it will not be necessary to observe the formalities of a regular disciplinary inquiry and action may be taken up after a person's conviction and punishment of imprisonment under the Act. It has also been further held that Section 12 does not lay down that a person could not be liable to dismissal if he is not convicted or sentenced under the Act. Similarly with regard to Section 1 it was held that the words 'in lieu of' or 'in addition to suspension or dismissal' appearing in Sub-section (1) of Section 11 before Clauses (1) to (e) may also be awarded. It was also held that a perusal of Sections 9, 10 and 11 would clearly show that a delinquent can be punished with dismissal even if he has not been prosecuted for an offence under Section 9 or 10 of the Act. I am therefore, of opinion that the Dy. Inspector General of Police under Section 11 of the Act read with Rule 27 of the Rules could impose a punishment of dismissal or removal from service."

13. The Jammu & Kashmir High Court, thus, took the view that the authorities mentioned in Sub-section (1) of Section 11 are empowered to award punishment of dismissal or suspension of a Member of Force who is found guilty and in addition to or in lieu thereof the minor punishments mentioned in Clauses (a) to (e) may also be awarded. It was also held by the Jammu and Kashmir High Court as has been held by us that the delinquent can be punished with dismissal even if he has not been prosecuted for an offence punishable under Section 9 or 10 of the Act.

14. Thus, there was no impediment for the Disciplinary Authority in awarding punishment of dismissal under Section 11(1) of the CRPF Act and the Rules framed thereunder when the charges levelled against the Petitioner were found proved in the enquiry and the Disciplinary Authority endorsed the view of the enquiry officer that the Petitioner was not a fit person to be retained in service. The Appellate Authority cannot be said to have erred in law in affirming the order of the Disciplinary Authority.

15. Writ Petition, accordingly, has no merit and is dismissed with no order as to costs.