Sunil S/O Shalikram Rewatkar vs Union Of India, Through Its ...
2017 Latest Caselaw 1260 Bom

 2903WP2566.14-Judgment                                                                         1/7


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


                      WRIT PETITION NO.  2566  OF    2014


 PETITIONER :-                        Sunil S/o Shalikram Rewatkar,  Aged  about
                                      30 years, Occ. Nil, R/o. Khondali, Tal. Katol,
                                      Dist. Nagpur. 


                                         ...VERSUS... 


 RESPONDENTS :-                  1) Union   of   India,   Through   its   Secretary,
                                    Ministry of Home, New Delhi. 

                                 2) Director   General   of   Police,   Directorate,
                                    CRPF, Block No.1, Central Office Complex,
                                    Lodhi Road, New Delhi. 

                                 3) Inspector   General   of   Police,   Western
                                    Sector   I,   CGO   Complex,   Konkan   Bhavan,
                                    Belapur, CRPF, Navi Mumbai-400614.  

                                 4) Dy. Inspector General of Police, Pune Range,
                                    CRPF, Pune. 

                                 5) Commandant-97   BN,   CRPF,   Dhurwa,   Dist.
                                    Ranchi (Jharkhand). 


 ---------------------------------------------------------------------------------------------------
                   Mr. G.N.Khanzode, counsel for the petitioner.
             Mrs.Mugdha Chandurkar, counsel for the respondents.
 ---------------------------------------------------------------------------------------------------



                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    MRS.SWAPNA JOSHI
                                                                     ,   JJ.

DATED : 29.03.2017

2903WP2566.14-Judgment 2/7

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this writ petition, the petitioner challenges the order of

the disciplinary authority dismissing the petitioner from services as a

constable in the Central Reserves Police Force, as also the orders of the

appellate and the revisional authorities upholding the order of the

disciplinary authority.

2. The petitioner joined the services of the Central Reserve

Police Force on 20/03/2001 as a constable. According to the petitioner,

he had applied for leave on 04/09/2004 in view of his mother's ailment.

The leave was sanctioned to the petitioner with effect from 06/09/2004

to 26/09/2004. The petitioner, however did not join his duties on

27/09/2004. The petitioner applied for grant of further leave on

09/10/2004 and also annexed a certificate to the said application that

the petitioner was sick. The leave was not granted. Again the petitioner

applied for leave on 30/10/2004 stating therein that the petitioner had

not yet recovered, along with a medical certificate. The respondents

however did not sanction the leave. The Commandant wrote to the

petitioner on 04/10/2004, 15/10/2004, 29/10/2004 and 05/01/2005

asking the petitioner to immediately join the duties. The petitioner

however did not join the duties despite the service of the said

2903WP2566.14-Judgment 3/7

communications. The respondents, therefore, conducted an enquiry

against the petitioner and held that both the charges levelled against

the petitioner, one of overstaying the leave after 26/09/2004 and the

second of disobeying the order of his superior were proved. The

petitioner had received the charge-sheet, but he did not defend the

charges. The petitioner also did not participate in the enquiry. The

petitioner filed the departmental appeal and revision but without

success. The petitioner has challenged the orders of the disciplinary,

appellate and revisional authority in the instant petition.

3. Shri Khanzode, the learned counsel for the petitioner, took

this court through the provisions of section 10 of the Central Reserve

Police Force Act, 1949 to submit that for overstaying the leave, the

petitioner could not have been punished with imprisonment for a term

which could extend to a period of one year or with fine which may

extend to three months' pay or with both. It is submitted that in view of

section 11, only a minor punishment could have been imposed upon the

petitioner for having overstayed the leave or having disobeyed the

orders of his superiors. It is submitted that the punishment of dismissal

from service could not have been imposed on the petitioner for the

charges of overstaying the leave or disobedience of the order of the

Commandant asking the petitioner to join the duties. It is submitted

2903WP2566.14-Judgment 4/7

that the procedure prescribed in Rule 27 of the Central Reserve Police

Force Rule, 1955 was not followed before imposing the penalty on the

petitioner. It is submitted that since the procedure provided in Rule 27

was not followed by the respondents, the order of the disciplinary

authority is liable to be set aside. It is submitted that the enquiry could

not have been conducted by the respondents behind the back of the

petitioner.

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

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

petitioner did not join the duties after the leave period expired and also

did not respond to the directions issued by the Commandant vide

communications dated 04/10/2004, 15/10/2004, 29/10/2004 and

05/01/2005, asking the petitioner to join the duties. It is submitted

that the procedure as prescribed by the rules was followed and the

petitioner was supplied with the charge-sheet and was asked to

participate in the enquiry. It is stated that the petitioner did not file the

written statement and failed to participate in the enquiry. It is

submitted that sections 9 and 10 of the Act refer to the punishments

that are liable to be imposed for committing the offences specified in

sections 9 and 10 and while imposing the punishment the procedure

that is laid down in the Code of Criminal Procedure is liable to be

2903WP2566.14-Judgment 5/7

followed. It is stated that the petitioner was not tried for the offences

punishable under sections 9 and 10 of the Act and the petitioner was

proceeded against in a departmental enquiry, as per rule 27 of the

Rules. It is stated that though the petitioner was served with the notice

in the enquiry and also the charge-sheet, the petitioner failed to avail

the opportunity that was granted to him and hence, the petitioner

cannot complain that the respondents had not conducted the enquiry in

a fair and judicious manner. It is submitted that the mercy petition filed

by the petitioner was dismissed in 2011 and the petitioner has belatedly

filed this petition in the year 2014.

5. On hearing the learned counsel for the parties, it appears

that there is no scope for interference with the concurrent orders passed

by the disciplinary, appellate and revisional authorities. The petitioner

was granted leave only till 26/09/2004. The petitioner overstayed the

leave and for the first time asked for further leave vide communication

dated 19/10/2004. A similar application was made by the petitioner on

30/10/2004. The petitioner only sent the aforesaid two applications.

Since the petitioner was a member of the disciplined force, the services

of the petitioner were required and the petitioner could not have

overstayed the leave, the Commandant asked the petitioner to join his

duties vide communications dated 04/10/2004, 15/10/2004,

2903WP2566.14-Judgment 6/7

29/10/2004 and 05/01/2005, but the petitioner did not join the duties.

The two charges levelled against the petitioner pertain to overstaying

the leave after 26/09/2004 and disobedience of the orders of the

superiors. Though the petitioner was served with the charge-sheet and

the notices in the enquiry, the petitioner did not participate in the

enquiry. The petitioner cannot then complain that the respondents had

not followed the procedure as laid down in Rule 27 of the Rules. The

enquiry officer rightly held in the circumstances of the case that the

petitioner was guilty of the charges that were levelled against him and

the petitioner had deserted the services of the respondents as he failed

to join the duties despite the communications issued by the

Commandant and failed to participate in the enquiry. The petitioner

was a member of a disciplined force and the petitioner could not have

acted in a casual manner, in which the petitioner acted despite the

directions of the Commandant to join the duties. The enquiry was

conducted in June, 2005, but the petitioner had not joined the duties

till that date. The petitioner neither joined the duties till June, 2005 on

the pretext that he was suffering from malaria and also did not

participate in the enquiry. The petitioner cannot therefore be heard to

say that the respondents have not followed the procedure as laid down

by the Rules while conducting the enquiry. Though the petitioner was

granted the opportunity, the petitioner did not avail the same. The

2903WP2566.14-Judgment 7/7

submission made on behalf of the petitioner that in view of the

provisions of sections 9, 10 and 11 of the Act, the petitioner could have

been punished with imprisonment for a term of one year and with fine

which may extend to three months' pay or both but the petitioner could

not have been dismissed from service is not well founded and is liable

to be rejected. Sections 9 and 10 of the Act deal with the offences that

are heinous or not so heinous. A member of the force could be

prosecuted for the offences punishable under sections 9 and 10 of the

Act and could be punished for the commission of said offences in

addition to the punishment that may be imposed on the member of the

force under section 11 of the Act for the misconduct committed by him.

The reliance placed by the counsel for the petitioner on the provisions

of sections 9, 10 and 11 of the Act to canvass that the petitioner could

not have been dismissed from service for the misconduct committed by

him is not well founded and is liable to be rejected. We do not find any

reason to interfere with the impugned orders in exercise of the writ

jurisdiction.

In the result, the writ petition fails and is dismissed with

no order as to costs. Rule stands discharged.

                        JUDGE                                            JUDGE 
 KHUNTE