Prem Chand Sharma vs Uoi
2009 Latest Caselaw 5007 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision :4th December, 2009

+                      W.P.(C) No.5653/1998

PREM CHAND SHARMA                         ..... Petitioner
                 Through: Mr.Manish Kr.Singh, Advocate

                   versus

UOI                                           ..... Respondents
                         Through: Mr.Ashwani Bhardwaj , Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                     No
     3. Whether the judgment should be reported in the Digest? No

PRADEEP NANDRAJOG, J. (Oral)

1. Various grounds to challenge the inquiry held against the

petitioner terminating in his being dismissed from service have

been raised in the memorandum of the writ petition.

2. But notwithstanding various grounds urged in the

memorandum of the writ petition, learned counsel for the

petitioner urges only one point; being that, the impugned

order of dismissal from service having been passed by the

Deputy Inspector General of Police, CRPF, Hyderabad is

without jurisdiction and hence is illegal.

3. To make good the point, it is urged that in terms of Rule

27 of the CRPF Rules 1955, the Commandant of the Unit was

the Disciplinary Authority of the petitioner who was working as

a Constable, and hence the penalty could be imposed, if at all,

by the Commandant. It is urged that the Service Rules

envisage an appeal against the order passed by the

Commandant before the Deputy Inspector General of Police.

In a nutshell, the submission urged is that the appellate

authority having usurped the power of the primary authority

has resulted in a valuable right of the petitioner being

infringed. The other facet of the submission is that the order

of dismissal from service has been passed by a person having

no authority to do so.

4. Conceding to the position that the disciplinary authority

of the petitioner was the Commandant and that the order of

dismissal from service has been passed by the DIG CRPF at

Hyderabad, it is justified by the respondents that since the

Commandant of the Battalion was on leave and report of

inquiry was received, the next higher authority above the

Commandant i.e. DIG CRPF passed the order in question.

5. It is no doubt true that under Rule 27 of the CRPF Rules,

pertaining to Constables, the post held by the petitioner, the

Disciplinary Authority is the Commandant. But, the question

which needs to be adjudicated is: whether in the absence of

the post of Commandant being manned due to the

Commandant being on leave, could the next higher officer

pass the order in question.

6. The issue is no longer res-integra and stands concluded

by a decision of the Supreme Court.

7. In the decision reported as (2006) 4 SCC 348 A. Sudhakar

vs. Postmaster General, Hyderabad & Anr. it was held that

ordinarily a penalty should be imposed by the Disciplinary

Authority, but there was no bar in law to the next higher

authority being the appellate authority to impose the penalty

in question, but subject to the condition that such exercise of

power by the next higher authority should not deprive the

right of appeal available under the statute in favour of the

delinquent.

8. In the instant case, we note that the DIG CRPF was

constrained to pass the order in question after disciplinary

proceedings were concluded because there was no

Commandant attached to the Battalion in question where the

petitioner was posted.

9. We note that the right of appeal available to the

petitioner has been retained intact. In that, an appeal was

preferred to the Inspector General CRPF, which has been

dismissed vide order dated 26th May, 1998.

10. It is thus apparent that the statutory right of appeal

under the Rules which was available to the petitioner has not

been taken away and has remained intact; in fact has been

exercised by the petitioner.

11. We note that the reason for dismissing the appellant

from service is that he gave false information to obtain leave

and during his period of leave was involved in a murder case

registered at P.S. Suraj Pur, Ghaziabad and was arrested by

the local police and sent to jail.

12. It may be noted that the petitioner obtained leave by

falsely informing that his father had died. The fact has been

found to be false at the inquiry.

13. We further note that a charge memorandum listing out

the articles of charge was duly served upon the appellant. A

proper inquiry was conducted. Report of the inquiry officer

was made available to the petitioner for his comments and

only thereafter the order of dismissal from service was passed

by the Deputy Inspector General CRPF.

14. Since the sole point urged at the hearing of the appeal

stands settled against the petitioner in view of the decision in

A. Sudhakar's case (supra), we dismiss the writ petition.

15. No costs.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

DECEMBER 04, 2009 'JK'