Tulsi Dass S/O. Suraj Prakash vs Union Of India Thr. Secretary ...
2017 Latest Caselaw 1696 Bom

                                                                                                          WP.3626.16
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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT NAGPUR, NAGPUR.
                                            ...

WRIT PETITION NO.3626/2016

Tulsi Dass s/o Suraj Prakash Aged 54 years, occu: Nil R/o House No.270, Main Bazar, Narela, Delhi-110040 ..PETITIONER

v e r s u s

1) Union of India Through Its Secretary Ministry of Home Affairs North Block, Cabinet Secretariat New Delhi.

2) The Central Reserve Police Force Through Its Director General Block No.1, CGO Complex, Lodhi Road New Delhi.

3) The Additional Director-General South Zone, CRPF, Road No.10-C Jubilee Hills, Hyderabad-500 033.

4) The Inspector General of Police Western Sector, CRPF, 3rd floor CGO Complex, CBD Belapur Navi Mumbai - 400 614 (Maharashtra)

5) The Deputy Inspector General of Police CRPF, Nagpur Range-440 019 (Maharashtra)

6) The Commandant -113 BN, CRPF Police Station, Dhanora Dist. Gadchiroli, Maharashtra. ...RESPONDENTS ...........................................................................................................................

Mr. H.S. Chitalay, Advocate for petitioner Mr.S.A.Chaudhari, Advocate for Respondent Nos.1 to 3, 5 and 6 ............................................................................................................................

                                                                             WP.3626.16




                                    CORAM:  B.P. DHARMADHIKARI    &
                                                                  
                                               MRS
                                                  . SWAPNA  JOSHI, JJ
                                                                     . 
                                    DATEOF RESERVING:  15.03.2017
                                    DATE OF PRONOUNCEMENT: 13.04.2017


JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)

1. Rule. Rule made returnable forthwith. The matter is taken up for

final hearing with the consent of learned counsel for respective parties,

at the stage of admission itself.

2. By this petition, the petitioner challenges the order of Disciplinary

Authority, compulsorily retiring the petitioner from service as a

Constable in Central Reserve Police Force('CRPF'), so also the orders of

Appellate and revisional authorities upholding the order of Disciplinary

Authority.

3. The petitioner was working as a Head Constable with CRPF and

was posted at Gachiroli (Maharashtra). A departmental enquiry was

initiated against the petitioner on 10.06.2013 under Section 11(1) of the

Central Reserve Police Force Act,1949 with Rule 27 of the Central

Reserve Police Force Rules,1955(for the sake of brevity it will be referred

to as "the Act" and "the Rules" respectively).

4. The charges framed against the petitioner were as under :

(a) that the petitioner while functioning as a Head Constable had committed an act of misconduct in his capacity as a member

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of the Force under section 11(1) of the Act, in that, on 19.1.2013, while he was returning from leave, he misbehaved with one civil lady teacher in intoxicated condition at Murumgaon Bus Stop, Gadchiroli (Maharashtra) which is prejudicial to good order and discipline of the Force.

(b) that the petitioner while functioning as Head Constable in the Unit and during his entire service period has committed an act of misconduct in his capacity as a member of the Force u/s 11(1) of the Act, in that, he is a habitual offender which is prejudicial to good order and discipline of the Force.

5. The departmental enquiry was concluded and the report was

submitted vide memo dated 14.11.2013 to the respondent no.6, by the

Inquiry Officer. As per the report, the articles of charge-I were found

"not fully proved" and the articles of charge-II were found to be "fully

proved". The respondent no.6 found that there was no reasonable and

sufficient evidence to prove charge-I levelled against the petitioner and

the charge-II was found to be proved against the petitioner. The

respondent no.6 imposed the punishment of compulsory retirement

from service against the petitioner with effect from 17.02.2014.

6. The petitioner being aggrieved, preferred an Appeal before the

Competent Authority ie, Respondent no.5-Dy. Inspector General of

Police, CRPF on 03.03.2014 seeking reinstatement and quashing of the

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aforesaid order. The respondent no.5 vide order dated 16.04.2014

rejected the Appeal of the petitioner and while dismissing it, reserved the

liberty in favour of the petitioner, to file revision Application under the

Act and the Rules. The Revision Petition was rejected vide order dated

21.11.2014. The petitioner being aggrieved, preferred a petition with

Director General, CRPF, on 09.02.2015. It too came to be rejected vide

order dated 10.11.2015.

7. Being aggrieved by the orders passed by respondent nos.2 to 6

imposing punishment of compulsory retirement, the petitioner has

preferred the present petition.

8. Learned counsel for the petitioner, Mr. H.S.Chitaley, vociferously

argued that the punishment of compulsory retirement could not have

been imposed upon the petitioner as the same has not been provided as

a punishment u/s 11 of the Act. He submitted that when charge-I has

not been proved, there is no question of charge-II being proved as

charge-II which was framed against the petitioner related to his past

conduct, which pertained to incidents of the petitioner being late in

joining duty. The punishment for such misconduct was awarded and

those misconducts were minor peccadilloes. According to learned

counsel as the petitioner has already undergone punishment imposed, no

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further punishment could have been imposed for past misconduct as it

amounted to petitioner being punished twice for the same conduct. In

other words, it is submitted that it would amount to double jeopardy.

9. In support of his contentions, Mr Chitaley, placed reliance upon

the judgment in the case of Vijay Singh vs. State of UP and others

reported in AIR 2012 SC 2840, wherein it is held by the Hon'ble Apex

Court that the only question involves in this appeal is as to whether the

disciplinary authority can impose punishment not prescribed under

statutory rules after holding disciplinary proceedings? The answer was

given in negative and it was held that the order of punishment being

outside the purview of statutory rules is a nullity and cannot be enforced

against the appellant.

10. Mr. Chitaley, further, relied upon the judgment in the case of State

Bank of India vs. T.J. Paul, reported in AIR 1999 SC 1994, wherein the

punishment of removal to set aside as punishment awarded is

disproportionate to gravity of misconduct and the matter was remanded

to appellate authority for imposition of other punishments other than

removal. The said judgment was followed by this Court in case of Press

Trust of India Employees Union and another vs. Press Trust of India

Limited and another, reported in 2007 (3)AIR BOM R.19, wherein it was

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held that, "now it is well-settled principle of law that where the certified

Standing Orders provide for enumerated penalties it is not open to the

management to impose punishment that is not contemplated therein."

11. According to Mr. Chitaley, as far as second charge is concerned,

being present in the boundary of (CRPF) (inside gate) in intoxicated

condition, by itself, does not constitute service misconduct. In this

context, it is submitted by the learned counsel for the petitioner that

Sections 9 and 10 of the Act provide for classification of offences as

heinous offences and less heinous offences. Consumption of liquor is

not an offence under any of the aforesaid condition. In these

circumstances, without framing any charge against the petitioner, it is

alleged that the conduct of the petitioner is prejudicial to good order and

discipline. It is thus apparent that the impugned order imposing

punishment is bad in law and deserves to be set aside. It is further

submitted that from the record, it is apparent that the petitioner did not

consume liquor on duty and was only proceeding to join service after

leave period was over. According to the learned counsel, the petitioner

has not committed any service misconduct.

12. Mr. S.A. Chaudhari, learned counsel for respondent nos. 1 to 3, 5

and 6 contended that the competent authority, after considering the pros

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and cons of the acts and after finding the petitioner guilty, has awarded

the punishment of compulsory retirement. The said punishment has not

been provided u/s.11(1) of the Act, however, harsh punishment of

dismissal or suspension from service are also prescribed. The petitioner

has not been awarded punishment of dismissal but a punishment of

compulsory retirement, on taking a sympathetic approach by the

competent authority, was imposed. It is a lesser punishment than what is

prescribed in the Act. Shri Choudhari, further, submitted that though

Section 11 of the Act provides for minor punishment, the provision

provides for dismissal or suspension from service. Mr.Chaudhari, placed

reliance upon the judgment in case of Union of India vs. Ghulam Mohd.

Bhat, reported in (2005 ) 13 SCC 228. He also placed reliance upon the

judgment in the case of Union of India vs. Diler Singh in Civil Appeal

No.1133/2016.

13. It is significant to note that in Civil Appeal No.1133/2016 Union

of India vs. Diler Singh (supra), the Hon'ble Apex Court has held that

the opinion has been expressed without referring to the position of law

that has been clearly laid down in the case of Ghulam Mohd. Bhat

(supra). Paragraph 19 reads thus:

"19. The core issue that emerges for consideration is whether

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under Section 11(1) of the Act, the punishment of dismissal can be imposed. The controversy is no more res integra. In Ghulam Mohd. Bhat (supra), while interpreting Section 11 of the Act, it has been held thus:-

"5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments 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 punishments 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 the High Court the only punishments which can be awarded under this Section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.

6. The use of 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

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force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clause (a) to (e) may also be awarded.

7. It may be noted 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 without sufficient cause or overstay 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.

14. It is further worthy to note that on 27.01.2017 this Court had

framed the following questions for consideration :

If Charge No.I is not proved, whether being present in the boundary of CRPF (Inside Gate) in intoxicated condition by itself constitutes a service conduct? If not so, whether in present facts only for past misconduct any punishment could have been inflicted for a charge which is not proved?

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15. In this context, it is beneficial to go through the relevant

provisions of the Act. Section 11(1) of the Act contemplates as under:-

"11. Minor punishments - (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 considers 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 emoluments in the Force.

16. In view of the judgment of the Hon'ble Apex Court in Ghulam

Mohd. Bhat (supra) as confirmed in case of Union of India vs. Diler

Singh in Civil Appeal No.1133/2016, in our considered opinion, the view

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of the Hon'ble Apex Court is applicable to the facts of the present case..

The case-laws tendered by the learned counsel for the petitioner are not

applicable to the facts of the present case.

17. On hearing the learned counsel for both the sides, it is manifest

that the charge-I with regard to the misbehaviour of the petitioner with

a civil lady teacher in an inebriated condition, has not been proved. As

regards part of the said charge that the petitioner was under the

influence of liquor while he was proceeding to report back to duty, when

the petitioner was on leave from 10.12.2012 to 18.01.2013, by itself,

would not be guilty of any misconduct as such.

18. Now coming to the charge-II, when the first charge itself is not

proved, there is no justification that charge-II regarding the petitioner

being an habitual offender, which is prejudicial to good order and

discipline of the Force, being proved. It has come on record that minor

penalty has been imposed on the petitioner. Charge-II itself is not

sustainable as the petitioner was already punished for the said offences

from time to time. As such, punishing the petitioner for the same offence

would tantamount to double jeopardy. It is vividly visible that charge-II

was based on mistakes which were committed by the petitioner

previously for which he was already awarded punishment. Charge-II

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thus does not depict any new misconduct committed by the petitioner.

It, at the most, constitutes past service record which becomes relevant

only while selecting a particular punishment as and when a fresh

misconduct is established.

19. In this view of the matter, we are of the opinion that the charges

levelled against the petitioner are rather indefensible and cannot be

sustained. Hence the following order:

ORDER

i) The Writ Petition is allowed. The impugned orders dated

10.11.2015, 21.11.2014 and 16.04.2014 passed by the respondents are

set aside.

ii) The respondent no.2 is directed to reinstate the petitioner in

service as Head Constable, with immediate effect.

iii) After such reinstatement, the petitioner is entitled to continuity of

service, however, the petitioner would not be entitled to the arrears of

salary or any monetary benefits flowing from the order of continuity of

service for the period during which he was out of service.

(iv) The petitioner would not be entitled for back wages during the

period when he was out of service. His current salary shall be, however,

fixed by notionally releasing increments for the period during which he

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was out of service.

v) Rule made absolute in the aforesaid terms, with no order as to

costs.

JUDGE JUDGE

After pronouncement of the judgment, Advocate Chaudhari requests for

suspending the operation of this judgment for a period of four weeks.

Request is being strongly opposed on behalf of the petitioner, pointing

out that the petitioner has hardly one year of service left before his

superannuation and was out of employment for about three years.

In this situation, we suspend operation of the judgment and order for a

period of four weeks from today. The same shall, however, cease to operate

automatically after expiry of that period.

                JUDGE                                   JUDGE