Naresh Wasudeo Khanzode vs Commandant, Cnetral Reserve ...
2017 Latest Caselaw 4995 Bom

WP  959/13                                                1                              Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                         WRIT PETITION No. 959/2013
Naresh Wasudeo Khanzode,
aged 33 years, Occ. Nil,
r/o Ganesh Nagar, near ITI College,
Ward No.1, Buldana (122 Battalion
at Srinagar).                                                                       PETITIONER

                                       .....VERSUS.....
1.    Commandant, Central Reserve
      Police Force, 
      122 Battalion Anderia Mod,
      Mehruli, New Delhi.
2.    Deputy Inspector General of Police,
      Central Reserve Police Force,
      Talegaon, Pune.

3.    Inspector General of Police,
      Central Reserve Police Force,
      HQ, Western Centre, New Mumbai
      400 614.                                                                          RESPONDENTS

                     Shri R.S. Sunderam, counsel for the petitioner.
                   Mrs. M.R. Chandurkar, counsel for the respondents.


                                          CORAM :SMT.VASANTI  A  NAIK AND
                                                         A.D. UPADHYE, JJ.                  

DATE : 25 TH JULY, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

By this writ petition, the petitioner challenges the order of the

disciplinary authority dismissing the petitioner from service as also the

orders of the appellate and the revisional authority upholding the

punishment.

2. The petitioner was appointed as a member of the Central

Reserved Police Force on 08.08.2001. It is the case of the petitioner that

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the petitioner sought leave due to his mother's ailment in August-2016.

Leave was sanctioned to the petitioner from 15.08.2006 to 03.09.2006.

However, the petitioner overstayed the sanctioned leave and

unauthorizedly remained absent from duty from 04.09.2006 to

14.11.2006. On 12.12.2006, the order directing the petitioner to undergo

one hour pack drill was passed by the Commandant of 122 Battalion and

the punishment of line-imprisonment for a period of 21 days was imposed

upon the petitioner and the pay of the petitioner for the said period was

also forfeited. On 12.12.2006, a memorandum of charge was served on

the petitioner. By the said memorandum, two charges were levelled

against the petitioner, one in regard to his unauthorized absence for 72

days from 04.09.2006 to 14.11.2006 and the second in regard to the

failure on the part of the petitioner to accept the one hour pack drill in

terms of the order of the Commandant of 122 Battalion, dated

12.12.2006. A departmental enquiry was conducted against the

petitioner on the aforesaid charges. Though the notice of the enquiry

proceedings was served on the petitioner, the petitioner failed to

participate in the enquiry and did not examine any witnesses. The

enquiry officer found that the petitioner was guilty of the charges levelled

against him. In view of the proof of the charges, the punishment of

dismissal of the petitioner from service was passed. Being aggrieved by

the order of the disciplinary authority, the petitioner filed an appeal

before the appellate authority. The appellate authority dismissed the

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appeal filed by the petitioner. Same was the fate of a revision filed by the

petitioner against the orders of the disciplinary and the appellate

authorities. Being aggrieved by the orders of the disciplinary, appellate

and revisional authorities, the petitioner has filed the instant petition.

3. Shri Sunderam, the learned counsel for the petitioner,

submitted that the respondents were not justified in conducting a

departmental enquiry against the petitioner for overstaying the leave

under the provisions of Section 11 of the Central Reserve Police Force

Act, 1949, as punishment was inflicted upon the petitioner under Section

10(m) of the Act. It is stated that after the Commandant of the Battalion

had imposed the punishment of 21 days line-imprisonment, forfeiture of

pay and one hour pack drill, the respondents were not justified in

initiating the departmental enquiry against the petitioner. It is submitted

that the punishment of dismissal after holding a departmental enquiry

would amount to double jeopardy as the petitioner was also punished by

the Commandant under Section 10(m) of the Act. It is submitted that

only punishment of reduction in rank, imposition of fine, confining to

quarters, removal from any office, etc. could have been passed under the

provisions of Section 11 of the Act. It is stated that while conducting the

departmental enquiry Rule 27 of the Central Reserve Police Force Rules

was not adhered to. It is submitted that the procedure that was required

to be followed in terms of Rule 27(4) was not followed during the course

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of the departmental enquiry. It is submitted that the punishment of

dismissal is extremely harsh and disproportionate to the act of misconduct

committed by the petitioner. It is stated that merely for unauthorized

absence, the punishment of dismissal from service could not have been

imposed. The learned counsel relied on the judgment of the Hon'ble

Supreme Court, reported in AIR 2005 SC 4289 (Union of India & Others

Versus Gulam Mohd. Bhat) to substantiate the submission that a lesser

punishment should have been imposed upon the petitioner.

4. Mrs.Chandurkar, the learned counsel for the respondents,

supported the orders of the authorities. It is submitted that the petitioner

was directed to undergo line imprisonment and one hour pack drill in

terms of the order of the Commandant of the Battalion dated 12.12.2006.

It is submitted that the petitioner did not undergo the said imprisonment

and refused to perform the one hour pack drill. It is submitted that in

view of the refusal on the part of the petitioner to perform one hour pack

drill, an additional article of charge, apart from the charge of

unauthorized absence was framed against the petitioner by the order

dated 12.12.2006. It is submitted that on a combined reading of the

provisions of Sections 10, 11 and 12, it could be said that a member of

the Central Reserve Police Force could be sentenced to imprisonment

under Section 10(m) of the Act and also could be dismissed from service.

It is submitted that since the petitioner had overstayed the leave for more

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than 72 days and had also refused to perform the pack drill for one hour,

the petitioner was not entitled to serve the Central Reserve Police Force.

It is submitted that the procedure under Rule 27 of the Rules of 1955 was

duly followed while conducting the departmental enquiry. It is stated

that time and again, the petitioner was served with the notice of the

enquiry but, the petitioner did not participate in the enquiry and did not

examine any witness. It is stated that if an opportunity is granted to the

member of the force but the member of the force does not avail the said

opportunity, the competent authority cannot be blamed for not following

the procedure under Rule 27 of the Rules. The learned counsel relied on

a judgment reported in 2014(4) Mh.L.J. 774 (Ramesh s/o Mahadu

Wankhede Versus Director General, Central Reserve Police Force, New Delhi

& Others) and an unreported judgment - order of this Court dated

19.06.2015 in Writ Petition No.2324 of 2014 to substantiate her

submission that the punishment of dismissal from the Central Reserve

Police Force would not be harsh or disproportionate in case where a

member of Central Reserve Police Force, which is a very disciplined force,

remains unauthorizedly absent for quite some time. The learned counsel

sought for the dismissal of the writ petition.

5. On hearing the learned counsel for the parties and on a

perusal of the provisions of the Act of 1949, it appears that the

respondents were entitled to impose punishment upon the petitioner

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under Section 10 as well as 11 of the Act. Under Section 10 of the Act,

any member of the force who absents himself without leave or without

sufficient cause overstays the leave granted to him, could be punished

with imprisonment for a term which may extend to one year or a fine

which may extend to three months pay, or both. Taking a serious note of

the unauthorized absence of the petitioner for 72 days, the Commandant

of the Battalion passed an order on 12.12.2006, imposing 21 days line

imprisonment on the petitioner and asking him to perform one hour pack

drill. The petitioner refused to perform one hour pack drill. After the

respondents noticed that the petitioner had refused to perform one hour

pack drill, a charge-sheet was served on the petitioner on 12.12.2006,

leveling two charges against the petitioner, one pertaining to his

unauthorized absence for 72 days and the second pertaining to the refusal

on the part of the petitioner to obey the orders of the superiors to accept

one hour pack drill. The departmental enquiry was conducted against the

petitioner on the aforesaid two charges in accordance with Rule 27 of the

Rules of 1955. Though the petitioner was served with the notice of the

enquiry, the petitioner did not bother to defend the charges levelled

against him and also did not examine any witness in support of his

defence. Opportunity was granted to the petitioner from time to time

during the enquiry, as could be gathered from the office order

No.PA16/2006 of February, 2007. If the petitioner did not participate in

the enquiry, the petitioner cannot be heard to state that the respondents

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had failed to follow the procedure as laid down in Rule 27(4) of the Rules

of 1955. We find that not only was the charge of remaining

unauthorizedly absent from duty for a period of 72 days proved against

the petitioner but the other charge of not obeying the orders of the

Commandant / Superior of performing one hour pack drill was also

proved against him. As rightly submitted by the respondents, the

petitioner was a member of the disciplined force and it was expected of

the petitioner as a member of the disciplined force not to have overstayed

the leave from 04.09.2006 to 14.11.2006. It was also expected of the

petitioner as a member of the disciplined force to have obeyed the order

of the Commandant of the Battalion to perform one hour pack drill. The

petitioner had flatly refused to perform one hour pack drill and, therefore,

while taking action against the petitioner under Section 11 of the Act, the

respondents rightly levelled a charge of remaining unauthorizedly absent

for 72 days as well as dis-obedience of the orders of the superiors, against

him. We do not find that there is double jeopardy in view of the

imposition of the sentence of 21 days line imprisonment and forfeiture of

pay under Section 10 of the Act and the order dismissing the petitioner

from service after conducting a departmental enquiry in pursuance of the

provisions of Section 11 of the Act read with Rule 27 of the Rules of

1955. On a combined reading of the provisions of Section 10, 11 and 12

of the Act of 1949, it cannot be said that a member of the Central Reserve

Police Force cannot be dismissed from service if an order of imprisonment

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and forfeiture of pay and allowances is passed against him under Section

10 of the Act. On a reading of sub Section 2 of Section 12 of the Act, it is

clear that even a dismissed member of the force could be imprisoned in

terms of the order imposed upon him under Section 10 of the Act. In the

circumstances of the case, we do not find that the punishment inflicted

upon the petitioner is shockingly disproportionate to the misconduct

proved against the petitioner. A member of the Central Reserve Police

Force is required to maintain a greater standard of discipline and since

the conduct of the petitioner was unbecoming of a member of the Central

Reserve Police Force, the respondents had rightly inflicted the

punishment of dismissal on the petitioner from service. In the

circumstances of the case, the judgment reported in AIR 2005 SC 4289

(Union of India & Others Versus Gulam Mohd. Bhat) cannot come to the

rescue of the petitioner while challenging the impugned orders.

Since there is no scope for interference with the impugned

order, the writ petition is dismissed with no order as to costs. Rule stands

discharged.

              JUDGE                                        JUDGE
APTE