Ram Naresh Sharma vs Union Of India Through Its ...
2015 Latest Caselaw 6317 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                   Decided on : 26.08.2015
+      W.P.(C) 1256/2013
       RAM NARESH SHARMA                                   ..... Petitioner
                         Through: Ms. Rekha Palli, Sr. Advocate with
                         Ms. Ankita Patnaik and Ms. Shruti Munjal,
                         Advocates.
                         versus
       UNION OF INDIA THROUGH: ITS SECRETARY AND ORS
                                           ... Respondents

Through: Mr. Ankur Chhibber with Mr. Prashant Sivarajan, Advocates.

Mr. B.K. Raut, Pairvi Officer, CRPF.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (OPEN COURT) %

1. The petitioner joined the CRPF as Constable in the year 1991 and

subsequently promoted to the post of Head Constable. He was posted on the

duties of Guard Commander at SAF Headquarters, New Delhi with effect

from 14.04.2011. On 28.06.2011, he was performing Guard Commander

duty at SAF Headquarter from 2000 hours till 0800 hours and during this

period, he left the said post without permission of the Competent Authority.

Also on 07.07.2011, he sought personal interview of the DIGP, Cobra

Headquarters, New Delhi, without proper intimation/permission of his Unit

W.P.(C) No.1256/2013 Page 1 Commandant. A chargesheet dated 10.08.2011 was issued to him for

violation of Section 9(i) and Section 10(n) of CRPF Act, 1949. An Enquiry

Officer was appointed and an enquiry was duly conducted. The petitioner

had participated in the enquiry proceedings. The prescribed procedure of

rule and law was duly followed and the petitioner was heard and given

opportunity to defend his case. The petitioner had duly cross-examined the

witnesses. He was also given opportunity to produce defence witnesses. The

proceedings of the enquiry report was also sent at the home address of the

petitioner vide letter dated 04.02.2012 in terms of para 7(A) GOI

Instructions of Rule 15 of CCS (CCA) Rules, 1965 . The petitioner was also

afforded an opportunity to make any representation or produce any witness

or any documentary proof in his defence or to appear in person before the

Disciplinary Authority. Necessity to send the enquiry report by post arose

since the petitioner, during the pendency of the enquiry, had allegedly on

05.01.2012 at about 20.25 hours, while performing duties at the Second

Guard Commander at Unit Quarter Guard, indiscriminately fired few rounds

from his service weapon from the roof top of Quarter Guard under the

influence of illicit liquor for which he was placed under suspension with

effect from 05.01.2012 and an FIR No.11/2012 dated 05.01.2012 was also

W.P.(C) No.1256/2013 Page 2 registered at PS Narela, Delhi. The petitioner, thereafter, was dismissed

from service vide order dated 23.02.2012. The petitioner submitted an

appeal to the DIG, Range Office, CRPF Imphal (Manipur) being Appellate

Authority. The said appeal was dismissed vide order dated 27.06.2012. The

petitioner also preferred a Revision Petition and the said Revision Petition

was also dismissed vide order dated 15.12.2012. The petitioner in the

enquiry had pleaded guilty to the charge of directly seeking interview

without seeking permission/intimation of Commandant (violation of Section

10(n) of CRPF Act) and as regard the charge of remaining absence from

duty was concerned, he had admitted during enquiry that he had gone to his

house for 1 ½ hours.

2. The petitioner's case is that the penalty of dismissal from service is

disproportionate to the misconduct. It is further submitted that his

unblemished meritorious record of 21 years of service was not considered.

He had earned about 25 awards and medals during his tenure of 21 years of

service. It is further submitted that he was not given the proper opportunity

to explain the circumstances under which he had to leave the post.

3. The contention of the respondents is that the petitioner had pleaded

guilty of the charges framed against him. It is further argued that it is not

W.P.(C) No.1256/2013 Page 3 that the petitioner had only left the sensitive platoon post of SAF

Headquarters, New Delhi, unattended, but had also failed to follow the chain

of command which is considered gross indiscipline and such type of act on

the part of personnel of the disciplined force requires to be dealt sternly.

4. In the present case, given the statement of witnesses during enquiry

and admission of guilt by the petitioner, the charges stand duly proved.

However, where the Authority is conferred wide discretion in choice of the

punishments, such a choice is open to judicial review. Where, on

considering the other relevant factors, it appears that penalty is unduly harsh

and unwarranted, can be interfered with. The Courts can only question the

proportionality of punishment, if under the given circumstances of the case,

it can be said that the penalty is disproportionate to the proved charges.

5. It goes without saying that penalty should be commensurate to the

nature of the offence, and there should be some rationale for the choice by

the disciplinary authority. At times, the penalty, seen in the background of

the misconduct, conveys the logic or rationale for its imposition. In the

present case, the misconduct alleged was absence from duty for about 2

hours. Given the arguments of the respondents, it seems that the penalty of

dismissal from service has been awarded with the sole object of maintaining

W.P.(C) No.1256/2013 Page 4 discipline of the Force. Where the charges stand proved, there is little scope

for the Courts to interfere with such a finding. The Court does not act as

Court of Appeal. Power of review is confined only to the decision making

process and where due procedure has been followed, the Court refrains itself

from interfering with such findings.

6. In the present case, the petitioner had 21 years of service and thus has

earned his pension. Not only this, he had during his tenure of 21 years

earned 20 cash awards and medals and had also worked as NSG Commando

from 2006-2011. There is no denial that his service of 21 years had been

meritorious. The petitioner has also urged that he has three school going

children, taking education and depended old parents. Given these

circumstances, the extreme penalty of dismissal was plainly unreasonable

and disproportionate. Concededly, there was no enquiry with the allegations

of firing which took place on 05.01.2012. The chargesheet leading to his

dismissal related to his absence on 28.06.2011. The CRPF could not--

without any enquiry or hearing--taken into account the firing incident

which occurred much later, i.e. on 05.01.2012 to justify the petitioner's

dismissal. Doing so would be unfair, because what was proved was absence

without leave; what was never subject to any enquiry was the firing incident.

W.P.(C) No.1256/2013 Page 5

7. In view of the totality of the facts and circumstances, nature of

misconduct, and meritorious antecedents of petitioner, we are of the opinion

that the penalty of dismissal from service is irrational and defies logic. The

said penalty is modified to one of compulsory retirement. The respondent

CRPF shall pass appropriate consequential orders in this regard treating the

penalty of dismissal w.e.f. 23.02.2012 as an order of compulsory retirement

from the same date. The petitioner's terminal benefits and pension

depending on the number of qualifying years he has served shall be taken

into account and pension benefits made available to him. All consequential

benefits in this regard admissible to the petitioner on the basis of such

modified penalty of compulsory retirement shall be released to him within

ten weeks from today.

The writ petition is partly allowed in these terms.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

AUGUST 26, 2015 BG

W.P.(C) No.1256/2013 Page 6