No.020260105 Const. Indra Joishi vs The Union Of India And 3 Ors
2022 Latest Caselaw 2663 Gua

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GAHC010118262013




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/413/2013

            NO.020260105 CONST. INDRA JOISHI
            S/O SRI GOPAL JOISHI R/O VILL- NATUN BASTI P.O. and P.S. HAFLONG,
            DIST. DIMA HASAO N.C. HILLS, ASSAM.



            VERSUS

            THE UNION OF INDIA and 3 ORS
            REP.B Y THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
            AFFAIRS, NEW DELHI- 110066.

            2:THE DIRECTOR GENERAL

             SASHASTRA SEEMA BAL
             NEW DELHI- 110066.

            3:THE DEPUTY INSPECTOR GENERAL
             SECTOR HQRS. SSB. HPC COLONY
             BARAUNI BEGUSARAI
             BIHAR PIN- 854301.

            4:THE COMMANDANT
             18TH BN. SSB.
             BIRPUR P.O. BIRPUR
             DIST. SUPAUL
             BIHAR
             PIN-854340

Advocate for the Petitioner   : MR.B KUMAR

Advocate for the Respondent : ASSTT.S.G.I.
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                                    BEFORE
                  HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                             ORDER

02.08.2022 Heard Mr. K. Paul, learned counsel for the petitioner and Mr. R.K.D. Choudhury, learned ASGI for all the respondents.

2. The petitioner has prayed for setting aside the order dated 10.03.2006,

issued by the Commandant, 18th Bn, SSB, Birpur, by which the petitioner was relieved from service on resignation due to domestic problems with effect from 10.03.2006 and the order dated 30.07.2012, by which the petitioner's appeal has been rejected. The impugned order dated 10.03.2006 states that the petitioner had been released on resignation at his own request, on completion of 3 (three) months notice period with effect from 10.12.2005 to 10.03.2006.

3. The petitioner's case is that he did not submit any resignation letter as he was on leave from 06.12.2005 to 16.12.2005. The petitioner's further case is that the petitioner was kept in the Quarter Guard on 04.03.2006 as he was not keeping well. Thereafter, personnel from the Battalion forcibly took resignation letters from the petitioner on 05.06.2006 and on 06.06.2006.

4. The petitioner's counsel submits that besides the above, the said impugned order dated 10.03.2006 has to be set aside, as the mandatory counseling to be done to the petitioner in terms of the Notification dated 17.05.1990 was not undertaken by the respondent authorities. In this regard, the petitioner's counsel has relied upon the judgment of this Court in the case of Gyani Singh Vs. Union of India & Ors. reported in 2013 (1) GLT 306 and in the case of Biswarup Mukherjee Vs. Union of India & Ors. reported in 2017 (3) GLT 251. He also submits that the service conditions of the petitioner, at the relevant point of time was governed by the CRPF Act and Rules.

5. Mr. R.K.D Choudhury, learned ASGI submits that though the pleaded case Page No.# 3/7

of the petitioner would indicate otherwise, the petitioner has now relied upon the 2 judgments of this Court with regard to the Notification dated 17.05.1990, requiring counseling of a person who prays for resignation. He further submits that the records would show that the petitioner had been granted leave from 07.12.2005 to 16.12.2005 and not from 06.12.2005 to 16.12.2005. The learned ASGI also submits that if the petitioner had been forcibly made to write resignation letters on 05.03.2006 and 06.03.2006, he could have easily brought up the said issue, prior to the date the petitioner's resignation would have taken effect i.e. 10.03.2006. He thus submits that the contention of the petitioner that he did not submit any resignation letter on 10.03.2006 is false and an afterthought.

6. I have heard the learned counsels for the parties.

7. The impugned order dated 10.03.2006 states that the petitioner has been relieved from service on resignation due to domestic problems, at his own request, on completion of the 3 (three) months notice period with effect from 10.12.2005 to 10.03.2006. The petitioner thereafter submitted an appeal dated 20.04.2006, praying for reinstatement into service on the ground that he had been forcibly made to write resignation letters on 05.03.2006 and 06.03.2006. In his appeal, the petitioner has also written that he had gone to Nepal on 04.03.2006 to meet his ailing cousin. The averments made by the petitioner in the writ petition is in contradiction to the content of the impugned order dated 10.03.2006 and as such, this Court is of the view that there are disputed questions of fact. The official records have been brought before this Court and on perusal of the same, I find that the petitioner had been granted leave from 07.12.2005 to 16.12.2005 and not from 06.12.2005 to 16.12.2005. As such, the submission made by the counsel for the petitioner that he could not have written a resignation letter during his leave period does not hold water.

8. The above being said, the further question that has arisen is with regard to whether mandatory counseling is required to be undertaken in terms of the Notification dated 17.05.1990 and whether the same has been undertaken by Page No.# 4/7

the respondents before releasing the petitioner on resignation.

9. The relevant extract of the Notification dated 17.05.1990 is reproduced below:-

"(D) CRPF Guidelines on Discharge Directorate General, CRPF, CCO Complex, Lodhi Road, New Delhi Dated 17th May, 1990

"Sub: Acceptance & withdrawn of Resignation:

2. In this context, the instructions regarding the procedure to be followed in accepting the resignation and withdrawal of resignation, as contained in DRT's O.M. No.28034/25/87Estt.(A) Writ Petition (C) No.6356/2011 4 of 8 dated 11.2.88 (published in CRPF Gazette for the month of may, 1988) should be clearly understood and explained to the men.

3. It is imperative that the authority competent to accept the resignation should therefore, personally explain the growing unemployment problems and consequences of discharge to the persons seeking discharge from service, while it is not in the interest of government to retrain an unwilling Govt. servant in service, a care has to be taken that no one is allowed to proceed on discharge/vol. Retirement without any compelling reasons. As a model employer, the administration must conduct itself with high probity and condour with its employees and should always be careful enough to reasoned to their problems.

4. The authority competent to accept the resignation should therefore, ensure personally that the person seeking discharge vol. Retirement has genuine and compelling reasons. To ensure it the authority concerned should obtain an undertaking from the individuals to the effect that he has been explained in detail about the likely hardships, which, he may face in this uncertain and difficult economic age after his discharge/vol. Retirement. Such An undertaking should be kept on record."

10. In the case of Biswarup Mukherjee (supra), this Court has held that the above Notification dated 17.05.1990 was mandatory and counseling had to be given to the person who has applied for resignation. This Court in Biswarup Mukherjee (supra) held that the Notification dated 17.05.1990 made it abundantly clear that resignation letters are not to be accepted on mere asking, but the consequences of the vacancy in the Force will have to be deliberated Page No.# 5/7

upon by the accepting authority, before discharge can be ordered on resignation. This Court in Gyani Singh (supra) has also held in paragraph Nos. 20, 21 and 31 that the guidelines/instructions provided in the Notification dated 17.05.1990, require the authorities concerned to take an undertaking in writing from the concerned member of the force, after having explained to him the eventualities regarding the peril of unemployment and the consequential hardships one may face after leaving the service. The undertaking was to be kept on record. It also held that the guidelines/instructions given in the Notification dated 17.05.1990 would have the force of law, inasmuch as, the same was not repugnant or contrary to any specific provisions of the CRPF Acts and Rules, but rather such guidelines/instructions/circular had been issued to effectuate the provisions of the Acts and Rules. Paragraph Nos. 20, 21 and 31 are reproduced below:-

"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 from the concerned member of having been explained of such eventualities and keep such an undertaking on record.

It may not be farfetched to assume that the aforesaid guidelines/instructions/circular/letter was issued not only in the interest Page No.# 6/7

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.

31. As regards the contention of the learned counsel appearing for the respondents that the aforesaid guideline/instruction/circular dated 19.5.1990 is not mandatory and violation of such instructions therein would not render the impugned order illegal, it has to be mentioned that the said guideline/instruction/circular would have the force of law inasmuch such guideline/instruction/circular is not repugnant or contrary to any specific provisions of the CRPF Acts and Rules but rather such guideline/instruction/circular has been issued to effectuate the provisions of the Acts and Rules.

Even otherwise also such guideline/instruction/circular being beneficial not only to the interest of the individual members but also the society at large, cannot be ignored by the authorities. Such guideline/instruction/circular ought to be substantially complied with as otherwise the whole public purpose for issuing such a guidelines/instruction/circular would be frustrated."

11. On consideration of the entire case, though this Court does not doubt the veracity of the averments made by the respondent authorities that the Page No.# 7/7

petitioner had submitted a resignation letter on 06.12.2005 with 3 (three) months notice, which was to be counted from 10.12.2005 and was to take affect from 10.03.2006, this Court finds that non-compliance of the Notification dated 07.05.1990 before issuing the impugned order dated 10.03.2006, is not sustainable in terms of the judgments of this Court in Gyani Singh (supra) and Biswarup Mukherjee (supra). There is nothing in the records to show that the requirements provided in the Notification dated 07.05.1990 has been complied with by the State respondents. As such, the impugned order dated 10.03.2006 and Appellate order dated 30.07.2012 are hereby set aside. The petitioner should be reinstated into service. The question of payment of back wages is left entirely to the discretion of the authorities concerned. However, the other consequential benefits, except for the back wages, should be given by the authorities.

The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant