N.K. Dalip Singh vs Union Of India And Ors.
1997 Latest Caselaw 1041 Del

JUDGMENT

Devinder Gupta, J.

(1) The petitioner was enrolled as Constable on 2.1.1996 (sic. 2.1.1976) in Central Reserve Police Force (hereinafter referred to as "C.R.P.F."). As a result of the findings of the departmental inquiry on 7 separate charges framed against the petitioner, he was dismissed from service w.e.f. 31.7.1982 by order (Annexure-P-16) passed by the Commandant, 60th Bn. C.R.P.F., Rajbagh, Srinagar (J&K). Feeling aggrieved,the petitioner approached Jammu and Kashmir High Court. Learned Single Judge allowed the petitioner's Writ Petition No. 382/82, titled as Dalip Singh v. Commandant, 60 Bn. C.R.P.F. and Others through his judgment (Annexure-P.8) on 26.7.1995 on the ground that the petitioner had neither been supplied with the copy of the inquiry report, nor was called upon to show cause against the proposed punishment. Decision of learned Single Judge (Annexure- P.8) was challenged by the respondents in appeal (L.P.A. 50/85). Division Bench of Jammu and Kashmir High Court through its judgment (Annexure-P-9) modified the order of learned Single Judge in so far as it had quashed the whole proceedings culminating in awarding of punishment to the petitioner. While confirming the judgment of learned Single Judge in so far as it quashed the order of termination, liberty was reserved to the respondents to proceed against the petitioner after supplying to him copy of the inquiry report and in serving upon him a show cause notice against the proposed punishment, before passing any final order, in terms of Article 311(2) of the Constitution of India.

(2) After the petitioner was duly served with a copy of the inquiry report and show cause notice against the proposed punishment and after considering the reply (Annexure-P-4) to show cause notice, fresh order (Annexure-P.1) was passed by the Commandant 60th Bn.C.R.P.F. Nowgong, Assam on 27.2.1987.

(3) The earlier order of dismissal from service was now changed to that of removal from service under Section 11(1) of the Central Reserve Police Force Act read with Rule 27 of the Crpf Rules, 1955 and making it clear that punishment will not render the petitioner unsuitable for further service in any other department.

(4) Still feeling aggrieved, the petitioner preferred appeal (Annexure-P.3) which was dismissed on 13.5.1987 by the Deputy Inspector General of Police through order (Annexure-P-2). Further revision (Annexure-P-14) preferred by the petitioner was rejected on 2.2.1988 by order (Annexure-P-15). Mercy petition to Director General made on 28.12.1989 was also rejected on 13.2.1990. After a lapse- of more than 5 years of rejection of the mercy petition, the petitioner took chance by preferring this petition in this Court seeking to quash the aforementioned orders of removal from service, rejection of his appeal and revision.

(5) Learned Counsel for the petitioner during the course of arguments, urged that out of seven charges framed against the petitioner, three were held as not proved by the Inquiry Officer. Against charge No. 4, the Appellate Authority held that the same does not amount to misconduct. For the remaining three charges, learned Counsel for the petitioner contended that having regularised the period of absence as period spent on duty, the same stood withdrawn and thus there was no cause surviving against the petitioner. Moreover, charges No. 5 and 6 were only minor with respect to absence from duty, for which punishment of removal from service is disproportionate, for which reliance was placed by him on the decision of Supreme Court in Union of India and Others v. Giriraj Sharma, . In the alternative, it was submitted that the petitioner having rendered substantial service in National cause ought to have been allowed at least to earn his pension by modifying the punishment.

(6) The petitioner has not rendered any satisfactory, plausible or sufficient explanation for the delay in approaching this Court. The impugned order was passed on 27.2.1987. The petitioner thereafter availed of statutory remedies and ultimately his mercy petition was disposed of on 13.2.1990. No explanation for the delay of more than five years in approaching the Court has been given except only when the Court called upon him to give one, which he did by filing his affidavit dated 21.8.1997. We are not satisfied with the reasons stated therein. It is stated that he could not approach the Court earlier since he was under a bona fide belief that he had to file petition only before Jammu and Kashmir High Court, which he could not do for want of distance. The petitioner is resident of Rewari and it is not believable that he was not aware of the legal remedies which he could avail since he had already got conducted the proceedings in Jammu and Kashmir High Court. Explanation offered by him is flimsy. There being an inordinate and unexplained delay and for that reason also we are not inclined to interfere with the impugned order. Even otherwise also on merits, we find no illegality, irregularity or impropriety having been committed by the respondents in passing the impugned orders.

(7) In so far as the procedural aspect, there is no manner of doubt and it is not disputed that the petitioner was given full opportunity to defend himself in departmental proceedings, which were conducted perfectly in accordance with the relevant rules applicable to C.R.P.F. personnel. The four charges, which alone were held to have been proved against the petitioner were as follows : "ARTICLE-IV While functioning in F/60CRPF the aforesaid Naik Dalip Singh was guilty of misconduct in his capacity as a member of the force u/Section 11(1) of Crpf Act, 1949 in that he levelled several allegations against his Coy. Commander Shri Herjinder Singh, Deputy SP. vide his aforesaid letter. Article-V That the said Naik Dalip Singh while functioning as Naik attached with F/60 Crpf at training camp Kota near group centre, Crpf Bantalab, Jammu during Dece., 1981 was guilty of disobedience of orders in his capacity as member of the force u/Section 11(1) of Crpf Act, 1949 in that he was ordered on 4.12.81 to report back to his Coy. at Srinagar, but he failed to carry out the orders given to him. Article-VI That during December, 81 while functioning as Naik the said Nk Dalip Singh was guilty of misconduct in his capacity as a member of the force u/Section 11(1) of Crpf Act, 1949 in that he remained absent without leave or permission from Competent Authority for the period from 4.12.81 to 9.12.81 (AN) and from 9.12.81 (AN) to 10.12.81 (AN). Article-VII On completion of the enquiry the Enquiry Officer submitted report on 11.7.82. The Articles of charge (i) to (iii) were not proved and the Articles of charge (iv) to (viii) were proved without any doubt. The Competent Authority."

Accepting the report and considering the reply to show cause notice against the proposed punishment, the Commandant in his order while awarding punishment held: "After taking into consideration of pros and coins of the Articles of charges, findings of the E.O. and reply to the show cause notice, I find that the gravity and nature of offences are such which adversely reflect on the conduct of No. 660010185 Nk Dalip Singh and render him unfit, unsuitable and undesirable member of disciplined force where discipline is of paramount importance and cannot be comprised to ensure smooth and orderly behaviour and functioning of the members of the force. However, keeping in view his long service I take a little lenient view and instead of dismissing him from service I impose the penalty of his removal from service with effect from 28.2.87 (AN) under Section 11(1) of the Crpf Act, 1949 read with Rule 27 of the Crpf Rules, 1955. This punishment will not render him unsuitable for further service in any other department."

Keeping in view the Court judgment where the other penalties have been set aside and also the provisions of ER-54(4) and 54-A(2), the following orders are issued : (A)Period of desertion from 4.12.81 (AN) to 9.12.81 (AN) will be treated as spent on duty. (b) Period from 10.12.81 to 20.12.81 will be treated as spent on duty. (c) Period of suspension w.e.f. 21.12.81 to 21.7.82 (AN) will be treated as duty. (d) Since the said Snick has been reinstated into service as a result of Court judgment solely on grounds of non-compliance with the requirement of Clause (2) of Article 311 of the Constitution of India and has not been exonerated on merits he will be paid proportionate pay and allowances for the intervening period from 1.8.82 to 8.2.87 i.e. date of dismissal, to date of reinstatement which shall not be less than the subsistance allowance and other allowances admissible under FR. 53. The payment already made to him during suspension and subsequently as a result of Court order will be taken into account while making him final payment. He was issued notice under FR- 54(4) to obtain his views about regularisation of this period and in his reply the individual has claimed that he should be paid full pay and allowances but after thoroughly checking the rule position it has been found that it is not possible to give him full pay and allowances of this period since it is not covered by the rules as the Court order has not exonerated him on merits."

The Appellate Authority while deciding the appeal against the above order, in its order (Annexure-P.2) dated 18.5.1987 though held that the fourth charge as worded was not in itself a misconduct but held that levelling of several allegations against the Company Commander was an act of grave misconduct. The following observations were made by the Appellate Authority : "Having carefully gone through the enquiry proceedings alongwith the appeal and para wise comments thereon offered by the disciplinary authority (Commandant - 60 Bn CRPF) I find that the prosecution could not substantiate the Articles of charge 1 to III. Article of charge Iv has also not been worded correctly as making allegations against his Coy. Commander is in itself not a misconduct. The charge ought to have been of making baseless allegations, however, the accused (now appellant) failed to establish any one of the allegations he levelled against his Coy. Commander. Thus he made false allegations against his Coy. Commander, which is an act of grave misconduct."

Appellate Authority concurred with the findings on Charges No. 5 to 7, which were held to have been duly proved.

(8) Out of the 4 charges, which were held against the petitioner, charge No. 5 was that the petitioner had disobeyed and failed to carry out the orders given to him on 4.2.1991. The question whether punishment was disproportionate to the charges held to have been proved against the petitioner was duly considered and examined by the Appellate Authority as well as by the Revisional Authority and the Director General, C.R.P.F. in their respective orders. The ratio of the decision in Giriraj Sharma's case (supra) relied upon by learned Counsel for the petitioner would not be applicable in the instant case inasmuch as it was not an ordinary case of absence without leave as was the case of Giraraj Sharma but a case of deliberate disobedience to carry out order given to him by the Competent Authority. The petitioner being a member of disciplined force was expected to carry out and obey valid orders passed by his superiors. The very act of having disobeyed and failed to carry out valid orders passed is nothing but an act of grave misconduct, for which also a lenient view was taken by the Commandant by converting the earlier penalty of dismissal to that of removal from service. While passing the order, the period of absence was ordered to be treated as period on duty and the period of suspension also to be a period on duty. The submission that period of desertion or absence thus stood converted into a period spent on duty will have the effect of making charge No. 6 redundant, has no force, inasmuch as this order of punishment was passed after a finding had been recorded that the petitioner had remained absent without leave. It was only while considering the case for imposition of penalty that by taking a lenient view, to enable the petitioner to earn pay and allowances for the intervening period that the said period was ordered to be treated as period spent on duty. This order passed in consonance with the provisions contained in Fr 54 will not have the effect of rendering the charge of absence from duty as ineffective or invalid. No interference is called for in the impugned orders. The writ petition is dismissed with no orders as to costs.