Shivanand Nivruti Munde vs Deputy Inspector Gen.Of Police ...
2017 Latest Caselaw 4147 Bom

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                                                          wp1718.04.odt

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.1718 of 2004

   Shri Shivanand Nivruti Munde,
   R/o Vikllage - Dhotra (Nandai),
   PO - Saramba, Tahsil/Deulgaon Raja,
   Distt. Buldhana - 443 206.                      ... Petitioner


       Versus


  1. Deputy Inspector General of Police,
     Central Reserve Police Force,
     Bhopal (M.P.).

  2. Commandant,
     132 Battalion,
     Central Reserve Police Force,
     Waging Khanau,
     Manipur.                                      ... Respondents



  Smt. R.D. Raskar, Advocate for Petitioner.
  None for Respondents.



                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 6 July, 2017

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Oral Judgment (Per R.K. Deshpande, J.) :

1. The petitioner was appointed as Constable on 30-3-1991

under the services of the Central Reserve Police Force and was

posted at Jammu. He was discharged from Battalion

Headquarters Location, Jammu for further reporting at Dett/132

Battalion at his company at Manipur along with another

Constable Pancham Singh under the command. While

performing journey from Jammu to Manipur, the petitioner

deserted from BP Mali at Delhi Railway Station on 12-3-2003 at

2130 hours without obtaining prior permission from the

competent authority and thus committed an act of misconduct in

his capacity as a member of the Force.

2. The office order was issued on 20-6-2003 informing him

in respect of this act of misconduct. On 3-7-2003, the

memorandum was issued levelling the charge along with the

statement of imputations of misconduct/misbehavour in support

of such charge. The petitioner submitted his statement of

defence on 6-10-2003. The Enquiry Officer found him guilty in

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his report dated 22-10-2003. After considering the mercy

petition submitted by the petitioner on 29-10-2003, the action of

dismissal of the petitioner from service was taken on 7-11-2003.

3. The petitioner preferred this petition on 10-3-2004. It

was admitted on 21-10-2004, and by way of interim order, the

respondents were directed to pay the subsistence allowance to

the petitioner. There was no stay to the order of dismissal.

4. The charge levelled against the petitioner has been

established. The petitioner does not dispute the factual aspects,

but furnished the explanation for the act of misconduct. The

explanation is not found to be satisfactory by the disciplinary

authority, and in exercise of the power conferred under

Section 11(1) of the Central Reserve Police Force Act, 1949 read

with Rule 27 of the Rules framed thereunder, the punishment of

dismissal from service was imposed on 7-11-2003.

5. We find that there is a statutory appeal provided in

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Rule 28 of the Central Reserve Police Force Rules, 1955 and

thereafter a revision under Rule 29 of the said Rules. The

question of satisfaction of the explanation provided by the

petitioner could have been easily considered by the appellate or

the revisional authority along with the question of

disproportionate punishment urged before this Court. Against

the order passed by the appellate or the revisional authority, it

was permissible for the petitioner to have approached the Central

Administrative Tribunal invoking the jurisdiction under

Section 19 of the Administrative Tribunals Act, which was then

functioning.

6. In the matter of service under the Central Reserve Police

Force, where strict discipline is required to be maintained, the

question of disproportionality of punishment imposed has to be

agitated before the departmental authorities in appeal or revision

and it is their prerogative to decide the manner and the extent of

compromise with discipline. It becomes a matter of

administrative exigency. In the absence of such consideration by

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all the authorities below, it is not possible for us to interfere in

the order of punishment imposed in exercise of our jurisdiction

under Article 226 of the Constitution of India.

7. In view of above, the petition is dismissed. Needless to

say that it shall be open for the petitioner to prefer an appeal or a

departmental revision, as is permissible in law, and if there is a

question of condonation of delay, the authorities concerned to

consider the fact that the present petition was pending before

this Court from 10-3-2004 to this date. All issues are kept open

to be agitated in such appeal or revision, that may be filed, as we

have not adjudicated anything on the merits of the matter.

8. With these observations, the petition is dismissed. Rule

stands discharged. No order as to costs.

                  JUDGE.                         JUDGE.

   Lanjewar