Gauhati High Court
No. 941240423 Hc/Gd Sukram ... vs The Union Of India And 4 Ors on 25 January, 2021
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GAHC010274652019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8355/2019
NO. 941240423 HC/GD SUKRAM BASUMATARY
(HEAD QUARTER COMPANY), GROUP CENTRE, CENTRAL RESERVE
POLICE FORCE, GHY, ASSAM- 781023
VERSUS
THE UNION OF INDIA AND 4 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE DIRECTOR GENERAL
CENTRAL RESERVE POLICE FORCE
CGO COMPLEX
LODHI ROAD
NEW DELHI- 110003
3:THE DY. INSPECTOR GENERAL OF POLICE
CENTRAL RESERVE POLICE FORCE
RAIPUR RANGE
RAIPUR
CHATTISGARH-
4:THE COMMANDANT
223 BATTALION
CENTRAL RESERVE POLICE FORCE AT LOCATION (TO BE SERVED
THROUGH RESPONDENT NO. 3)
5:THE DY. INSPECTOR GENERAL OF POLICE
GROUP CENTRE
CENTRAL RESERVE POLICE FORCE AMERIGOG
GHY- 2
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Advocate for the Petitioner : MR. A R TAHBILDAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 25-01-2021
Heard Mr. A.R. Tahbildar, learned counsel for the petitioner. Also heard Mr. K.K. Parasar,
learned CGC appearing for all the respondents.
2. The petitioner has assailed the office Order dated 05.10.2015, by which he has been
awarded the penalty of stoppage of three increments for 3 years with cumulative effect, in
exercise of the powers conferred under Section 11(1) of the CRPF Act, 1949 read with Rule
27 of the CRPF Rules, 1955.
3. The brief facts of the case is that while the petitioner was posted in the 223 Battalion
of the CRPF, he alongwith 9 other CRPF personnel were placed under suspension on
16.09.2013 on charges of disobedience, dereliction of duty and remissness in discharge of
duty. Consequently, a disciplinary proceeding was initiated against the petitioner and 9 other
CRPF personnel, on the ground that while they had been deputed for P.I. training to SWATI
Ambikapur, they consumed alcohol and did not board the train, which resulted in them not
being given the P.I. training. They further disobeyed the order of the Senior Officer and
refused to return to Mana camp and misbehaved with their Senior Officer. Further, when they
were ordered to hand over their ammunition, explosives and other stores by the Staff Officer,
who was the 2 I/C, they disobeyed his orders and misbehaved with him.
After the Departmental Proceedings was completed, the petitioner was awarded the
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penalty of stoppage of three increments for 3 years with cumulative effect.
4. The petitioner's counsel submits that such penalty not being contemplated under the
aforesaid provisions of law, the respondents could not have imposed the said penalty upon
the petitioner. In support of his submission, the learned counsel for the petitioner has relied
upon the decision of this Court passed in Rahul Kumar Vs. Union of India & Ors. ,
reported in 2018 (5) GLT 544. He submits that in terms of the decision of this Court in
Rahul Kumar (Supra), this Court had set aside the penalty imposed, which was also not
provided for in the CRPF Act, 1949 and the CRPF Rules, 1955 and moulded the relief to
minimize litigation.
5. The petitioner's counsel further submits that the respondents have already acted upon
the penalty imposed upon the petitioner, i.e. stoppage of increments for 3 years has already
been completed. However, the cumulative effect of the stoppage of three increments is for all
times to come and as such, the same would affect the pension and other service benefits of
the petitioner. He accordingly submits that the penalty imposed upon the petitioner should be
moulded, so that there is no cumulative effect on the stoppage of the increments, in line with
the directions passed in Rahul Kumar (Supra).
6. Mr. K.K. Parasar, learned CGC appearing for all the respondents fairly concedes that the
respondents could not have imposed a penalty upon the petitioner that was not contemplated
under the CRPF Act, 1949 and the CRPF Rules, 1955, inasmuch as, the stoppage of
increments for 3 years should have been done without cumulative effect. He however submits
that the petitioner has not availed of the appeal provision, as provided under Rule 28(e) of
the CRPF Rules, 1955.
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7. I have heard the learned counsels for the parties.
8. In the case of Rahul Kumar (Supra), this Court has held in paragraph Nos. 16 & 17,
as reproduced below:-
"16. Future prospect of the petitioner is relevant factor to be considered while
taking a decision to impose penalty in a disciplinary proceeding which is seemed to be
done in the instant case. However, the penalty imposed of stoppage of annual
increment with cumulative effect for 1 year apart from being harsh vis-a-vis the nature
of charge read with the explanation, is not a prescribed penalty either in the Act or the
Rules. As held by the Hon'ble Apex Court in the case of State Bank of India (supra) the
authorities cannot impose any penalty which is not one of the enumerated penalties
under the rules in force. This Court exercising powers under Article 226 of the
Constitution of India can, in appropriate cases mould the relief to minimise litigation
and the time undertaken in such litigation. In this connection, one may refer to the
landmark judgment of the Hon'ble Apex Court laid down in the case of B.C. Chaturvedi
v. Union of India & Others, reported in (1995) 6 SCC 749.
17. In view of such settled position of law and taking into consideration Rule 27
of the aforesaid Rules, the impugned order of penalty dated 28.11.2014 as well as the
order of the Appellate Authority of April, 2015, which are interfered with in the
following manner:
i. The first punishment of stoppage of annual increment for 1 year would be
without cumulative effect.
ii. The period of 32 days from 17.09.2013 to 18.10.2013 shall not be treated as
'Dies Non'. It is made clear that the petitioner would not be entitled to any pay for the
said period but would be deemed to be in continuous service for consideration of other
notional benefits.
iii. The said penalty shall not come as an impediment for future service career
of the petitioner.
The writ petition is accordingly disposed of in the terms as indicated above.
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The records produced by Ms. A. Gayan, is returned to her."
A perusal of paragraph Nos. 16 & 17, as quoted above, would go to show that this Court
had held that there could not have been imposition of "cumulative effect" on the penalty of
stoppage of increments, as the same was not contemplated under the concerned Act and
Rules. Further, as the Court was of the view that the penalty imposed was harsh, besides the
same not being prescribed under the Acts and Rules, this Court while exercising the powers
under Article 226 of the Constitution moulded the penalty imposed upon the petitioner in that
case. Accordingly, this Court in Rahul Kumar (Supra) interfered with the penalty order, by
holding that the first punishment of stoppage of annual increment for one year with
cumulative effect, would be without cumulative effect.
9. In the case of State Bank of India & Ors. Vs. T.J. Pal , reported in (1999) 4 SCC
759 and Vijay Singh Vs. State of U.P. & Ors., reported in (2012) 5 SCC 242, the Apex
Court has held that punishment/penalty not prescribed under the statutory Rules cannot be
imposed. Thus, the Disciplinary Authority could not have inflicted the penalty of stoppage of
increments for 3 years with cumulative effect on the petitioner, as the imposition of
"cumulative effect" on the penalty of stoppage of increments was not prescribed in the CRPF
Act and Rules.
10. In the case of Rahul Kumar (Supra), this Court had moulded the relief by setting
aside the portion of penalty which could not be imposed, after holding that the penalty
imposed had been harsh, besides not being contemplated under the Acts and Rules. In the
present case , this Court finds that the penalty imposed was unconscionable and violative of
Article 14 of the Constitution, given the fact that the stoppage of increments for 3 years "with
cumulative effect" was beyond the prescription of the Act and Rules.
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11. In the facts and circumstances of this case, as the stoppage of increments for 3 years
has already been acted upon by the respondents, this Court is of the view that the portion of
the penalty which is not in consonance with the Act and Rules should be done away with, as
the same would minimize litigation, which would be in consonance with the judgment of the
Apex Court in B.C. Chaturvedi Vs. Union of India & Ors., reported in (1995) 6 SCC
749. Further, though this Court could have sent back the matter to the Disciplinary Authority
for taking a fresh decision on the penalty to be imposed, which should be prescribed within
the applicable Acts and Rules, the same is not being done as the respondents have already
acted upon the penalty inflicted upon the petitioner and there has already been stoppage of
increments for 3 years.
12. In view of the reasons stated above and taking into consideration Rule 27 of the CRPF
Rules 1955, the impugned office Order dated 05.10.2015 is interfered with to the extent that
there shall be no cumulative effect on the stoppage of increments for 3 years inflicted upon
the petitioner. Any consequential benefit that might follow from setting aside the "cumulative
effect" of the penalty, from the penalty imposed upon the petitioner, should be given to the
petitioner.
13. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
