Gauhati High Court
Hitesh Talukdar vs The Union Of India And 5 Ors on 1 February, 2021
Page No.# 1/20
GAHC010134802019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4150/2019
HITESH TALUKDAR
S/O MAHINDRA TALUKDAR, VILL. AND P.O. NIZAMATI, P.S. TIHU, DIST.-
NALBARI (ASSAM). PIN- 781355.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY SECRETARY, HOME AFFAIRS, GOVERNMENT OF INDIA,
NEW DELHI- 110001.
2:THE DIRECTOR GENERAL POLICE
CRPF
BLOCK NO. 1
C.G.O. COMPLEX
LODHI ROAD
NEW DELHI
PIN- 110003
INDIA.
3:THE INSPECTOR GENERAL
NORTH WEST SECTOR
CRPF
HALLOMAJRA
CHANDIGARH- 160002.
4:THE DY. INSPECTOR GENERAL POLICE
CRPF
HQ RANGE
CHANDIGARH- 160002.
5:THE DY. INSPECTOR GENERAL POLICE
GC
Page No.# 2/20
CRPF
JALANDHAR
PUNJAB
PIN- 144805.
6:THE COMMANDANT
68TH BN CRPF
VEENER MILLS PVT. LTD. MANKHOOLI
TINSUKIA
ASSAM
PIN- 786601
Advocate for the Petitioner : MR. N BARMAN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
Date : 01-02-2021
This writ petition under Article 226 of the Constitution of India is preferred assailing two
orders dated 07.08.2018 and 26.09.2018 and seeking setting aside of the afore-mentioned two
orders. The petitioner has also sought for a direction for his re-instatement in the post of Head
Constable, General Duty in the Central Reserve Police Force ('the CRPF' or 'the Force', for
short).
2. It is the case of the petitioner that he was appointed as a Constable, CRPF on 04.07.2000
and after joining the service in the Force, he completed the necessary training. Thereafter, he
continued to serve the Force at different places. Because of his sincerity in service, he was
selected for SPG in the CRPF and he discharged such duties from 2008 to 2015. In the year
2016, he was promoted to the post of Head Constable (HC)/General Duty (GD) and was posted
in 68 Bn, CRPF at Tinsukia.
2.1. Because of some compelling situation, the petitioner had to submit a letter of resignation
addressed to the Commandant, 68 Bn, CRPF on 06.08.2018 and the same was forwarded
Page No.# 3/20
through the Officer Commanding, B/68 Bn, CRPF. On receipt of the said application, the same
was forwarded by the Officer Commanding, B/68 Bn, CRPF to the Commandant, 68 Bn, CRPF on
06.08.2018 itself. In the said application, the petitioner stated that due to some domestic
problems he had been facing, he was tendering resignation voluntarily from service so as to
sort out the domestic problems. The resignation tendered by the petitioner was accepted by
the Commandant, 68 Bn, CRPF immediately on the same day, 06.08.2018 and immediately on
the next day, an office order dated 07.08.2018 was passed to that effect.
2.2. The petitioner after submitting resignation, realized that instead of resolution of the
problems, the situation became more complicated in the domestic front and he and his family
members had to face financial constraints. Showing his willingness to join the Force again, the
petitioner submitted an application before the Director General of Police, CRPF on 07.09.2018.
On receipt of the application of the petitioner dated 07.09.2018 seeking his re-instatement, the
office of the Inspector General of Police, North West Sector, CRPF forwarded the same to the
Commandant, 68 Bn, CRPF vide his letter dated 07.09.2018 with the request to examine the
matter in terms of Rule 26(4) of the Central Civil Services (Pension) Rules, 1972 ['the CCS
(Pension) Rules, 1972', for short] and to take a decision as the Commandant, 68 Bn, CRPF was
the appointing authority for the petitioner, Ex-HC/GD.
2.3. The Commandant, 68 Bn, CRPF thereafter, stated to have considered the matter of re-
instatement of the petitioner and by his order dated 26.09.2018, the prayer for re-instatement
of the petitioner into his earlier post of HC/GD was rejected. On being aggrieved by the said
two orders of the Commandant, 68 Bn, CRPF, the petitioner submitted a representation before
the Director General, CRPF on 25.10.2018 praying for re-consideration of the matter of his re-
instatement. The decision about not re-instating the petitioner in the post of HC/GD was
further reiterated by another communication dated 17.12.2018. Thereafter, the petitioner has
approached this Court by way of this writ petition seeking the reliefs, as mentioned
hereinabove.
3. I have heard Mr. N. Barman, learned counsel for the petitioner and Mr. R.K. Deb
Choudhury, learned Assistant Solicitor General of India (ASGI) for all the respondents.
4. It is submitted by Mr. Barman, learned counsel for the petitioner that the petitioner was
Page No.# 4/20
facing some domestic problems since a long time and the situation got aggravated during the
month of August, 2018. During the said period, he had also faced some unwanted situation in
his battalion. The Company Commandant getting annoyed with the petitioner on some issues,
asked him to write resignation and to give his domestic problem as the reason behind such
resignation. Finding the situation difficult to cope up and not seeing any immediate solution to
his problems, the petitioner on the spur of the moment, had decided to submit an application
on 06.08.2018 seeking his release from service. The petitioner was under the belief that if he
would submit his release from service and attend to the domestic problems immediately, the
situation faced by him would be resolved.
4.1. When after being discharged from service, the petitioner tried to resolve the domestic
problems he was facing but as it became more complicated instead of any resolution and the
family of the petitioner started facing severe financial constraints, he decided to approach the
respondent authorities with the prayer for his re-instatement in service. The petitioner had
submitted the application for his re-instatement immediately on 07.09.2018.
4.2. Learned counsel for the petitioner has submitted that the letter of resignation was not
written in his handwriting. The letter of resignation was in Hindi and the petitioner was not
conversant in writing a letter in Hindi. The signature of the petitioner was taken on the letter
after the same was written in somebody else's hand. It cannot, he submits, be presumed that
the contents of the said letter was wholly according to the petitioner and it is indicative of the
fact that submission of resignation was not a voluntary act. He further submits that though the
letter of resignation was submitted hastily on his behalf for the above situation on 06.08.2018,
the respondent authorities had also discharged him from service on 07.08.2018 hastily by
completing all the formalities on 06.08.2018 and without following the procedure laid down in
the Central Reserve Police Force Act, 1949 ('the CRPF Act', for short) and the Central Reserve
Police Force Rules, 1955 ('the CRPF Rules', for short). He has specifically referred to the
Schedule to the CRPF Act read with Section 5 and Section 6 thereof and also Rule 16 to Rule
17A of the CRPF Rules to emphasize that notwithstanding submission of any application of
discharge/resignation on behalf of a member of the Force, it is incumbent on the part of the
respondent higher authorities in the CRPF to follow the procedure laid down in the Schedule
and no decision on discharge/resignation could have been taken prior to elapse of the
mandatory period stipulated in that behalf from the date of tendering resignation.
Page No.# 5/20
4.3. He has further submitted that the DIG, CRPF by his communication dated 07.09.2018 had
directed the appointing authority i.e. the Commandant, 68 Bn, CRPF to consider the
application of the petitioner for re-instatement in terms of Rule 26(4) of the CCS (Pension)
Rules, 1972 but the appointing authority failed to consider the same in the proper perspective.
He further submits that it is evident from the order dated 26.09.2018 that the appointing
authority had rejected the same by not taking into account relevant considerations. Some new
immaterial issues were raised by the appointing authority to reject the application but the
same were not in existence when the letter of resignation was considered by the same
authority on 06.08.2018/07.08.2018.
4.4. Lastly, to buttress the submissions, he has relied upon the decisions of this Court in Gyani
Singh vs. Union of India, reported in 2013 (1) GLT 306, and in Biswarup Mukherjee vs. Union of
India, reported in 2017 (3) GLT 251.
5. Per contra, Mr. Deb Choudhury, ASGI has submitted that the petitioner had taken
inconsistent stands at different points of time. On one hand, it is pleaded by him that an
untoward incident which occurred on 05.08.2018, had compelled him to write the resignation
letter on the advice of his higher authorities. He, at the same time, in his letter of resignation
dated 06.08.2018, had mentioned that the domestic problems was the root cause for submitting
his letter of resignation.
5.1. It is further submitted by him that on receipt of the letter of resignation on 06.08.2018, the
petitioner was personally explained about the consequences he would face after his
resignation but as the petitioner stood firm on his decision to resign, the application had to be
forwarded along with a vigilance certificate and an undertaking certificate to the appointing
authority for doing the needful. The petitioner was also heard by the appointing authority
before accepting the letter of resignation and the petitioner was explained about the loss he
would be visited with in the event of his resignation.
5.2. It is further submitted by him that the respondent authorities had followed the procedure
laid down in the office order dated 07.03.2017 in accepting the letter of resignation of the
petitioner. When the application of the petitioner seeking his re-instatement was forwarded to
Page No.# 6/20
the appointing authority the same was considered in the manner as was asked for and it was
found that the matter of re-instatement of the petitioner into service not merited and
accordingly, the decision was conveyed by the order dated 26.09.2018.
6. I have considered the submissions of the learned counsel for the parties and also
perused the materials on record brought by the parties through their pleadings. I have also
considered the decisions relied on behalf of the petitioner.
7. A perusal of the letter of resignation dated 06.08.2018 shows that the letter was written in
Hindi and the petitioner signed the same in English. It was stated therein that the petitioner
due to his domestic problems, wanted to proceed on voluntary resignation from service so that
the domestic problems could be solved. It was prayed that his request for voluntary
resignation from service be accepted with immediate effect so that he could solve his own
problems. The said letter of resignation was forwarded by the Officer Commanding, B/68 Bn,
CRPF to the Commandant, 68 Bn, CRPF on 06.08.2018 itself along with a vigilance certificate in
English and an undertaking certificate in Hindi for further necessary action at the end of the
Commandant, 68 Bn, CRPF, with the endorsement to accept the petitioner's request for
discharge from service. In the vigilance certificate dated 06.08.2018, the Officer Commanding,
B/68 Bn, CRPF had certified that the petitioner who was considered for discharge from service
with immediate effect, was free from vigilance angle and no DE/PE was pending or was being
contemplated against him. It was further certified that the petitioner's integrity was beyond
doubt. In the undertaking certificate written in Hindi, it was stated that the petitioner after
proceeding on voluntary resignation from service would not claim to rejoin the force. In the
extract copy of personal interview/audience register dated 06.08.2018, it was recorded that
the petitioner was heard in person and he requested for discharge from service. The petitioner
was stated to have been briefed regarding financial hardship he was likely to face in future but
the petitioner was found insisting for his early release. Citing such grounds, it was mentioned
that the petitioner's request for discharge was accepted and a decision was taken to pass order
to discharge him with effect from 07.08.2018.
8. Accordingly, the office order came to be passed by the Commandant, 68 Bn, CRPF on
07.08.2018 which is reproduced hereunder :
Page No.# 7/20
OFFICE OF THE COMMANDANT-68 BN, CRPF, VEENER MILLS PVT. LTD.
MANKHOOLI, TINSUKIA, ASSAM
No. D.V. I/2018-68-EC-1 Dated, the August, 2018
OFFICE ORDER
Under the provisions contained in Rule 17 and 7 (b) of CRPF Rules, 1955 read with
Directorate General, CRPF, New Delhi letter No. M.V. 03/82 Legal Misc dated 29.04.82
and G.O.I. MHA U.O. No. 5026/19/2001-pers-I dated 07.09.2001, application for
resignation from service dated 06.08.2018 tendered by No. 001391094 HC/Gd HITESH
TALUKDAR of 68 Bn is hereby accepted with effect from 07.08.2018 (AN). Accordingly,
he is struck off from the strength of this Unit with effect from the same date i.e.
07.08.2018 (AN).
Sd/- Surinder Kumar
COMMANDANT - 68 BN CRPF
07.08.2018
No. D.V. I/2018-68-EC-1 Dated, the August, 2018
Copy forwarded to :-
01. The Dy. Inspector General of Police, CRPF, HQ Range, Chandigarh for
information and necessary action please.
02. The Dy. Inspector General of Police, GC, CRPF, Jalandhar in duplicate for
information and necessary action please.
Sd/- Surinder Kumar
COMMANDANT - 68 BN CRPF
07.08.2018
9. The petitioner had thereafter, submitted an application to the Directorate General of
Police, CRPF at Chandigarh on 07.09.2018 praying for his re-instatement in the Force after
being discharged. In the said application, the petitioner had stated that as he was facing some
domestic problems from a long time, he was mentally disturbed and unable to give
concentration in his duties and unable to take any right decision at that time, he tendered his
resignation under pressure which was accepted on 07.08.2018. After having discharged from
service, the petitioner had found that the problems had become more complicated and the
financial condition of the family had deteriorated severely. As a result of being discharged, his
wife and children had to face severe financial constraints and the family had reached the stage
of hunger. As it was not possible for him to tolerate anymore he having no other earning
source, would like to join the Force again to serve and to look after his family. On receipt of the
said application for re-instatement, the same was forwarded to the Commandant, 68 Bn, CRPF
by the Headquarter with the request to examine the matter in terms of Rule 26(4) of the CCS
(Pension) Rules, 1972 and to take a decision at his end as the appointing authority. On receipt
of the said application for re-instatement dated 07.09.2018, the Commandant, 68 Bn, CRPF as
the appointing authority had intimated the petitioner vide his order dated 26.09.2018 that his
Page No.# 8/20
prayer for re-instatement had been rejected.
10. The respondents have, in their affidavit, referred to an order dated 07.03.2017 of the
Director General, CRPF with regard to acceptance and withdrawal of discharge/resignation
from service and the voluntary retirement of Force personnel whereby the Director General
had intimated about the procedure to be followed in connection with applications received
from the Force personnel for acceptance and withdrawal of discharge/resignation from
service, after noticing numerous instances of such requests from Force personnel for their re-
instatement into service after discharge/resignation from service. Since a person who tenders
application for discharge/resignation loses all his consequential benefits like pension, medical
facilities, gratuity, leave encashment, etc., it has been emphasized therein that the authority
competent to accept the resignation should personally explain the growing unemployment
problems and the consequences of discharge to the persons seeking discharge from service.
It has been pointed out that while it is not in the interests of the Government to retain an
unwilling Government servant in service, but a care has to be taken that no one is allowed to
proceed on discharge without any compelling reasons. As a model employer, the
administration must conduct itself with high probity and candour with its employees and
should always be graceful enough to respond to their problems. It is further indicated therein
that prior to accepting discharge/resignation, the accepting authority should obtain an
undertaking to the effect that he has been explained in detail about the likely financial
hardship he may face in this uncertain and difficult economic age after his
discharge/resignation. The concerned commandants have been directed thereby to explain to
the individuals about consequences of discharge/resignation/voluntary retirement. A
reference has also been made to the provisions in Rule 26 of the CCS (Pension) Rules, 1972.
11. The events leading to the acceptance and rejection for the request for re-instatement and
the procedure adopted by the respondent have been stated in the affidavit. As per the
respondents, when the petitioner by his application dated 06.08.2018 intended to resign
voluntarily from service due to domestic problems, the petitioner was personally explained by
the Company Commandant about the financial hardship the petitioner might face after his
resignation, but the petitioner was found to have made up his mind and the Company
Commandant forwarded the application along with the vigilance certificate and the
undertaking certificate to the Commandant, 68 Bn, CRPF for his needful action. Thereafter, the
Page No.# 9/20
petitioner was called for personal interview/audience register on 06.08.2018. On his
appearance before the Commandant, 68 Bn, CRPF, the petitioner was asked about the reasons
behind his resignation from service particularly when he had served the nation for nearly 18
years and would be entitled for pensionary benefits after completion of 20 years of service. It
was told by the petitioner that his domestic problems could only be solved when he remained
physically present with the family and requested for immediate acceptance of his resignation.
The petitioner was thereafter explained about the growing unemployment problem and the
likely financial hardship after his resignation but the petitioner was found to have made out his
mind for resignation. Since it was not in the interests of the employer to retain an unwilling
employee in service, the resignation of the petitioner was accepted by the Commandant, 68
Bn, CRPF w.e.f. 07.08.2018.
12. The petitioner was found to have returned at the Headquarter, CRPF, NW Sector to submit
a representation dated 07.09.2018 praying for re-instatement in service. On receipt of the said
request, the I.G., CRPF, NW Sector by a letter dated 07.09.2018 requested the Commandant, 68
Bn, CRPF to examine the request of the petitioner in terms of Rule 26(4) of the CCS (Pension)
Rules, 1972 and to take a decision at his end as the appointing authority. Thereafter, the
representation of the petitioner for his re-instatement was examined by the appointing
authority in terms of the existing rules, behaviour report received from the Officer
Commanding, B/68 Bn and other service conditions. Finding no merit in the petitioner's
representation in the light of priciples envisaged in Rule 26(4) of the CCS (Pension) Rules,
1972, the appointing authority rejected the said representation finding it devoid of merit and
the decision so taken was communicated vide a letter dated 26.09.2018. The decision was
again communicated to the petitioner by the DIG, CRPF by his letter dated 17.12.2018.
13. The provisions of Section 5, Section 6 and the Schedule to the CRPF Act, 1949 and also
Rule 16 and Rule 17 of the CRPF Rules, 1955 have been referred to buttress the contentions on
behalf of the petitioner that the three months notice is mandatory for discharge of a member of
the Force from the service, like the petitioner, who was serving on substantive basis in the post
of Head Constable/GD at the relevant time, and such acceptance of discharge/resignation
within one day was in breach of the procedure prescribed by the CRPF Act and CRPF Rules.
14. For ready reference, Section 5, Section 6 and Schedule to the CRPF Act are quoted
Page No.# 10/20
hereunder :-
"Section 5. Enrolment. - Before a person is appointed to be a member of the force, the
statement contained in the recruiting roll set out in the Schedule shall be read out and, if
necessary, explained to him in the presence of an officer appointed under sub-section (1)
of section 4, and shall be signed by such person in acknowledgement of its having been
so read out to him :
Provided that any person who has for a period of six months served with the
Force, shall, on appointment to the Force thereafter, be deemed to be a member of the
Force notwithstanding that provisions of this section have not been complied with in his
case.
" Section 6. Resignation and withdrawal from the Force. - No member of the Force shall
be at liberty to -
(a) resign his appointment during the term of his engagement, except before the
expiration of the first three months of his service; or
(b) withdraw himself from all or any of the duties of his appointment, without the
previous permission in writing of the Commandant or Assistant Commandant or any
other officer authorized by the Commandant to grant such permission."
" THE SCHEDULE - Recruiting Roll -
After you have served in the Force for such period as the Central Government may
prescribe, you may, at any time when not on active duty, apply for discharge, through the
officer to whom you may be subordinate, to the Commandant, and you will be granted
your discharge after two months, from the date of your application, unless your
discharge would cause the vacancies in the Force to exceed one-tenth of the sanctioned
strength in which case you shall be bound to remain until this objection is waived or
removed. But when on active duty, you shall have no claim to a discharge, and you shall
be bound to remain to do your duty until the necessity for retaining you in the Force
ceases when you may make your application in the above-mentioned manner :
Provided that, if you wish to withdraw from the Force, you may submit your resignation
at any time before the expiration of the first three months of your service, but, not
afterwards until the completion of the period prescribed as aforesaid; the Commandant
may either accept your resignation forthwith or at the end of three months from the date
of its receipt :
Provided, also, that the Commandant may, if he thinks fit, allow you to resign at any time
on your giving three months' notice of your wish to do so.
---------------------------------------------------------------------
Signature of the member of the Force in acknowledgement of the
above having been read out to him.
----------------------------------------------------------------------
Signature for impression of the member's left thumb to be taken in
the presence of the enrolling officer.
-----------------------------------------------------------------------
Signed in my presence after I had ascertained that the candidate
understood the purport of what he signed.
Page No.# 11/20
Place : ----------------------------------------------------------------------
Date : Commandant or otherwise authorised enrolling officer.
14.1. Rule 16, Rule 17 and the Rule 17A of the CRPF Rules, 1955 are quoted hereunder :
"16. Period of Service.-
(a) All members of the Force shall be enrolled for a period of three years. During
this period of engagement, they shall be liable to discharge at any time on one
month's notice by the appointing authority. At the end of this period those not
given substantive status shall be considered for quasi-permanency under the
provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not
declared quasi-permanent under the said rules shall be continued as temporary
Government employees unless they claim discharge as per schedule to the Act.
Those who are temporary shall be liable to discharge on one month's notice and
those who are quasi-permanent shall be liable to discharge on three month's
notice in accordance with the said rules, as amended from time to time.
(b) Should the Central Government decide at any time to disband the Force or
any part of it either before termination of the period for which a member of the
Force is enrolled or at any time thereafter, he shall be liable to discharge, without
compensation from the date of disbandment.
(c) No member of the Force shall withdraw from the duties of his office without
the express permission of the Commandant or an accredited gazetted officer.
(d) The appointing authority may, during the period of initial appointment of a
member of the Force appointed under section 4 and 5 of the Act, permit him, for
good and sufficient reason, to resign from the Force with effect from such date as
may be specified in the order accepting his resignation :
Provided that on the acceptance of his resignation any such member of the Force
shall be required to refund to the Government all the cost of training imparted to
him in the Force or a sum equal to three months' pay and allowances, received by
him prior to the date of his resignation whichever is less.
Explanation. -
(1) For the purpose of this sub-clause 'during the period of initial appointment'
shall mean the period before a member of the Force is declared quasi-permanent.
(2) The appointing authority may refuse to permit a member of the Force to
resign if any emergency has been declared in the country either due to internal
disturbances or external aggression.
(e) The appointing authority may give substantive status to such members of the
Force as are found suitable in all respects.
17. Discharge.- Subject to the provisions of the Schedule appended to the Act, any
member of the Force shall at any time before he has completed three months' service
or after the completion of the full period of service for which he is engaged, be
entitled to claim his discharge from the Force by applying to his appointing authority
through the proper channel.
Page No.# 12/20
17A. Recoveries on Resignation and discharge:- A member of the Force
seeking resignation under rule 16 or discharge under rule 17 from service shall be
required to refund to the Government a sum equal to three months pay and
allowances received by him or her prior to the resignation or discharge, as the case
may be, or the cost of training imparted to him or her in the Force, whichever is
higher:
Provided that in the case of a member of the Force seeking discharge from service
under rule 17 within the period of three months from the date of enrolment, the sum
equal to three months pay and allowances shall be calculated with reference to three
months pay and allowances which would have been received but for discharge:
Provided further that a member of the Force tendering resignation of seeking
discharge from service for accepting a job under the Central or State Governments or
local bodies, after having been granted cadre clearance for the same, shall not be
required to refund the sum as provided hereinabove."
15. The Schedule to the Act has prescribed that a member of the Force may, at any time when
he is not on active duty, apply for discharge, through the Officer to whom he is subordinate and
he would be granted discharge after 2 (two) months, from the date of his application, unless his
discharge would cause the vacancies in the Force to exceed one-tenth of the sanctioned
strength in which case he shall be bound to remain until the objection is waived or removed.
But when the member of the Force is on active duty, he will have no claim to a discharge and
he shall be bound to remain to do his duty until the necessity for retaining him in the Force
ceases when he can make his application in the manner mentioned therein. The Schedule to
the CRPF Act clearly indicates that the application for discharge is not to be accepted
mechanically merely on the ground that a member has voluntarily applied for discharge. The
provisions in the Schedule has made it clear that normally a member will not be discharged
before two months of the application and secondly, such application for discharge after two
months also cannot be allowed if it would cause vacancy in the Force to exceed one-tenth of
the sanctioned strength. Till such situation is removed or waived, any such application for
discharge cannot be entertained. The provision further indicates that if one is on active duty, a
member cannot be discharged till the authorities decided on the necessity for retaining of the
member in the Force. The provisions in the CRPF Act and the CRPF Rules go to indicate that an
application for resignation/discharge is not to be disposed of hastily. Due care and attention
has to be given by taking into consideration the interest of the member of the Force and also
the interests of the Force.
16. Under Rule 16(a) of the CRPF Rules, discharge in case of quasi permanent member of the
Force is permitted on three months' notice. Rule 17 has laid down that a member of the Force
Page No.# 13/20
shall at any time before he has completed three months' service or after the completion of the
full period of service for which he is engaged, entitled to claim his discharge from the Force by
applying to the appointing authority through proper channel but the same is subject to the
provisions of the Schedule appended to the Act.
17. The above provisions of the CRPF Act came up for consideration before this Court in
Gyani Singh (supra) as well as in Biswarup Mukherjee (supra). In Gyani Singh (supra), it has
been observed as under :
"(19) The above provisions, therefore, make it abundantly clear that whenever a
member makes an application for discharge, the authorities would not grant
discharge before two months and that too, without examining whether such a
discharge would lead to more vacancies than 1/10 th of the sanctioned strength and
when on active duty, whether his necessity is required or not. In other words, there
has to be a conscious application of mind on the aforesaid consideration regarding
the strength of the Force before the authorities decide on any application for
discharge.
The aforesaid provisions have been made in the larger interest of the Force so that
any such application for discharge does not disturb the optimal level of functioning
of the Force which are enjoined upon to discharge various duties of sensitive
nature as well as maintaining law and order through out the country.
(20) Apart from considering the interest of the Force as stated above, the
authorities also have to consider the interest of the member concerned.
This is clearly evident from the guidelines/instructions/circular/letter dated
17.5.1990 issued by the Director General of CRPF enjoining upon all the
competent authorities/ appointing authorities to counsel such members who
seek discharge/ resignation from the force of the peril of unemployment and
the consequential hardships one may face after leaving the service. The
authorities are directed to advice and counsel such members from taking such
an extreme steps of leaving the service. Therefore, to ensure that such advice
and counseling takes place genuinely and not to reduce it to a mere formality, it
was required that the authorities concerned take an undertaking in writing
Page No.# 14/20
from the concerned member of having been explained of such eventualities and
keep such an undertaking on record.
It may not be far fetched to assume that the aforesaid guidelines/
instructions/circular/ letter was issued not only in the interest of the individual
but also in the larger interest of the society.
It may, perhaps, be seen from this aspect also that when a person trained in
arms, after leaving the service gets confronted with the spectre of
unemployment and other hardships, may prove to be a serious danger to the
society. Therefore, insistence on adhering to the instruction as laid down in
17.5.1990 cannot be lightly brushed aside as it serves as a preventive measure
against any possible harm to the individual as well as to the larger interest of
the society.
(21) Therefore, any application for discharge has to be dealt with by the
authorities concerned, from two perspectives; one from the perspective of the
individual and another from the perspective of the Force and the society at
large."
18. Thus, in Gyani Singh (Supra), it has been held that the provisions of the Schedule has
made it abundantly clear that whenever a member makes an application for discharge the
authorities would not grant discharge before two months without examining the other factors.
There has to be a conscious application of mind of all the relevant aspects including the
strength of the Force before the authorities decide on the application for discharge. Since the
provisions have been made in the larger interest of the Force so that any such application for
discharge does not disturb the optimal level of functioning of the Force which are enjoined
upon to discharge various duties of sensitive nature as well as maintaining law and order
throughout the country. Apart from considering the interest of the Force the authorities should
also consider the interest of the member of the Force concerned while considering the
application for discharge.
19. The above observations made in Gyani Singh (supra) are also reiterated in Biswarup
Mukherjee (supra). In Biswarup Mukherjee (supra), a member of the Force was discharged
w.e.f. 26.07.2011 on the basis of purported resignation tendered by him on 25.07.2011. The
Page No.# 15/20
order was challenged inter-alia on a ground that it was not a case of voluntary resignation but
was forced upon the member of the Force by the Commandant after he was punished with
quarter guard and beaten mercilessly. In the said context, the Court held, by referring to the
Schedule to the Act and other provisions, that the required notice period of three months was
disregarded and discharge was ordered forthwith. Therefore, the mandatory counseling was
highly unlikely. Even if the resignation was assumed to be voluntary, the accepting authority
was duty bound to abide by the notice period, mandated by the Schedule of the Act and also
to apply his mind on the necessity for detention of the constable in the larger interest of the
organization. Having found the discharge order issued forthwith on the immediate next date of
submission of resignation, it was held that norms were disregarded by the hasty action of the
accepting authority and the petitioner therein was directed to be reinstated.
20. The order of the Director General, CRPF dated 07.03.2017 has also emphasized that the
authority competent to accept the resignation should personally explain the consequences of
discharge to the persons seeking discharge from service. All due care has to be taken by the
appointing authority that no one is allowed to proceed on discharge without any compelling
reasons. As a model employer, the appointing authority must conduct itself with high probity
and candour with its employees and should always be graceful enough to respond to their
problems. From the said order, it is clear that a duty was enjoined upon the Commandant, in
case of non-Gazetted Officer, to explain about the consequences of discharge and the
accepting authority for resignation/discharge must obtain an undertaking from the individual
officers to the effect that he has been explained in detail. A copy of such undertaking has been
directed to be kept on record.
21. Reverting back to the factual background of the case in hand, it is found that an
undertaking certificate was obtained from the petitioner on 06.08.2018 wherein the petitioner
was found to have certified that after he proceeded on voluntary resignation from service he
would not claim for rejoining the Force and his request for discharge be accepted. The
undertaking certified was in the following terms :-
" UNDERTAKING CERTIFICATE
I, Force No. 001391094 HC/GD Hitesh Talukdar, B/68 Bn, certified that after my
Page No.# 16/20
proceeding on voluntary registration from service, I will not claim to re-join the force.
Therefore, Kindly accept my request for discharge from service.
Applicant
Sd/-06/08/2018
Force No. 001391094
HC/GD Hitesh Talukdar
B/68 Bn, CRPF,
Tinsukia, Assam"
The undertaking so obtained from the petitioner was apparently not in terms of the
guidelines formulated by the Director General, CRPF on 07.03.2017. There is no reflection in
the undertaking that the petitioner was explained in detail about the consequences likely to
ensue from his sudden decision of resignation and it was not obtained by the appointing
authority, but by an authority subordinate to the appointing authority prior to sending the
matter to the appointing authority. Though it has been asserted that the petitioner was
explained about the consequences of discharge there was no reflection of the same in the
undertaking except the attestation of the Officer Commanding, 68 Bn, CRPF in the undertaking
certificate.
22. In the abstract copy of the personal interview/audience register dated 06.08.2018, it
was mentioned that the petitioner was heard in person and he was explained regarding
financial hardship he was likely to face in future but in the said abstract copy of personal
interview/audience register, nothing is discernible to indicate that the petitioner had
subscribed his signature in such personal interview/audience register. The decision to accept
the resignation, tendered by the petitioner on 06.08.2018, on 06.08.2018 with the issuance of
the discharge order on 07.08.2018, is found to be in disregard to the provisions contained in
the CRPF Act and the CRPF Rules, more particularly, the provisions contained in the Schedule
to the CRPF Act and without giving due consideration to the compelling reasons cited by the
petitioner for which he stated to have tendered resignation after 18 years of dedicated
services. The case papers made available to the Court do not indicate that due counseling was
accorded to the petitioner before his discharge and the respondent authorities were truly alive
to the situation and consequences like to be faced by such a member of the Force. The
credibility of the personal interview/audience register comes under a cloud in the absence of
Page No.# 17/20
the signature of the petitioner on it and it, thus, cannot be assumed that the petitioner was
made a part in such deliberation. It is also not reflected that the authorities had applied their
minds on the organizational need for retention of the Head Constable in the operation. An
undertaking, as required under the order dated 07.03.2017, was not seen to be obtained by the
appointing authority after proper counseling. The infringement of the Guidelines as contained
in the order dated 07.03.2017 for dealing with the resignation and discharge of personnel in
the CRPF organization is clearly discernible in the case.
23. When the petitioner when on 07.09.2018 submitted his application for re-instatement, the
I.G., CRPF, NW Sector had forwarded the same to the appointing authority to consider the case
of re-instatement in the light of the provisions contained in Rule 26(4) of the CCS (Pension)
Rules, 1972.
24. For ready reference, Rule 26(4) of the CCS (Pension) Rules, 1972 is quoted hereunder :
"Rule 26. Forfeiture of service on resignation.
(4) The Appointing Authority may permit a person to withdraw his resignation in the
public interest on the following conditions, namely :-
(i) that the resignation was tendered by the Government servant for some compelling
reasons which did not involve any reflection on his integrity, efficiency or conduct
and the request for withdrawal of the resignation has been made as a result of a
material change in the circumstances which originally compelled him to tender the
resignation;
(ii)that during the period intervening between the date on which the resignation
became effective and the date from which the request for withdrawal was made, the
conduct of the person concerned was in no way improper;
(iii)that the period of absence from duty between the date on which the resignation
became effective and the date on which the person is allowed to resume duty as a
result of permission to withdraw the resignation is not more than ninety days ;
(iv)that the post, which was vacated by the Government servant on the acceptance of
his resignation or any other comparable post, is available."
25. The above Rule 26(4) indicates that the appointing authority may permit a person to
withdraw his resignation in the public interest on fulfillment of the four conditions indicated
therein, firstly, the resignation was tendered by the Government servant for some compelling
reasons which did not involve any reflection on his integrity, efficiency or conduct and the
request for withdrawal of the resignation has been made as a result of a material change in the
circumstances which originally compelled him to tender the resignation; secondly, in the
Page No.# 18/20
period intervening between the date on which the resignation became effective and the date
from which the request for withdrawal was made, the conduct of the person should not be
improper; thirdly, the period of absence from duty between the date on which the resignation
became effective and the date on which the person is allowed to resume duty as a result of
permission to withdraw the resignation is not more than ninety days; and lastly, the post, which
was vacated by the Government servant on the acceptance of his resignation or any other
comparable post, is available.
26. From the facts appearing from the pleadings of the parties, it is already found that the
resignation was stated to be tendered by the petitioner for facing domestic problems for some
time and after being discharged when he tried to resolve the matter in the domestic front, he
could not resolve the same and having faced severe financial stringency by him and his family
members, he was compelled to change his decision and decided to pray for his re-
instatement. The situation prior to tendering resignation did not make any reflection on the
integrity, efficiency or conduct of the petitioner and he had given an explanation about the
situation due to which he had requested for withdrawal of the resignation. The issue of material
change in circumstances has to be considered in such context. It is noticed that there is no
reflection in the records for the period intervening between the date on which the resignation
became effective i.e. 07.08.2018 and the date on which the request for withdrawal was made,
07.09.2018 to indicate that the conduct of the petitioner was anyway improper during such
period. The petitioner had made the request for his re-instatement on 07.09.2018, meaning
thereby, he had made the request within a period of ninety days. The respondents have not
contended that the post which was vacated by the petitioner on the acceptance of his
resignation had been filled up in the meantime.
27. The relevant aspects as provided in Rules 26(4) of the CCS (Pension) Rules, 1972, as
directed by the Director General, CRPF, were not considered by the appointing authority while
rejecting the application for the petitioner's re-instatement on 26.09.2018. But he had gone
ahead to consider some new materials after calling for them from the petitioner's earlier place
of posting. The appointing authority had ventured to insinuate the character and behaviour of
the petitioner by referring to periods anterior to the date of acceptance of resignation while
rejecting the prayer for re-instatement. The reasons shown in his letter dated 26.09.2018 are
belied by the earlier vigilance certificate dated 06.08.2018 whereby had earlier accepted the
Page No.# 19/20
position that the petitioner was free from vigilance angle and no DE/PE was pending or being
contemplated against him at the time of consideration of his application for resignation. The
said appointing authority had, in clear and unambiguous terms, accepted that the integrity of
the petitioner, as on 06.08.2018, was beyond doubt. The vigilance certificate was issued based
on official records. The vigilance certificate was given in the following words :
" VIGILANCE CERTIFICATE
It is certified that as per this S/Unit office records No. 001391094 HC/GD Hitesh
Talukdar of this s/Unit who is to be considered for discharge from service with immediate
effect is free from vigilance angle and no any DE/PE is pending or being contemplated
against him and his integrity is beyond doubt.
Place :- Tinsukia Sd/- Illegible
Date :- 06/08/18 06.08.2018
Officer Commmanding
B/68 Bn, CRPF"
28. In such view of the matter, this Court is of the considered view that while considering the
petitioner's application for re-instatement in the light of the directives given by the Director
General, CRPF on 07.03.2017 the appointing authority ignored the relevant factors as
contained in Rule 26(4) of the CCS (Pension) Rules, 1972 and as emphasised by the order
dated 07.03.2017, and taken some irrelevant factors for consideration to influence his decision.
29. In the light of the above determination, the impugned discharge order dated 07.08.2018
(Annexure-1) is held to be unsustainable in law and the same is accordingly set aside. For the
discussion above, the order dated 26.09.2018 whereby the request of the petitioners for his re-
instatement was rejected, is also found unsustainable and consequently, the same is also set
aside.
30. The respondents are directed to reinstate the petitioner in service, within eight weeks
from the date of receipt of this order but the authorities are allowed to verify the medical
fitness, upon reinstatement. The period from the date of discharge till reinstatement will be
Page No.# 20/20
notionally treated to be on duty, for the purpose of other service benefits. But back-wages
should not be paid for the interregnum since no service was received, during this period. It is
ordered accordingly.
31. With the above direction, the writ petition is allowed in the manner indicated. There shall,
however, be no order as to cost.
JUDGE
Comparing Assistant
