Irshad Ahmad Tantary vs The Union Of India
2021 Latest Caselaw 376 Jhar

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                  IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 4817 of 2017

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Irshad Ahmad Tantary, son of Sh. Nabi Tantry, resident of Sanghus, Tehsil:Achabal, PO and PS Achabal, District-Anantnag (J&K) ..... Petitioner

-- Versus --

1.The Union of India, through Secretary, Home, Govt. of India, New Delhi

2.The Addl. DIGP, CRPF, PO Dhurwa, PS-Nagri, Ranchi, Jharkhand

3.The Commandant, 22nd Bn., CRPF, Hazaribagh, PO and PS Hazaribagh, District-Hazaribagh(Jharkhand)

4.The Chief Judicial Magistrate cum Commandant, 22nd Bn., CRPF, Hazaribagh, PO+PS+District-Hazaribagh (Jharkhand)

5.The Officer Command, D/DD/CRPF, Giridih, PO+PS+District-Giridih (Jharkhand) ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. S.K. Sharma, Advocate

For Respondent(UOI):- Mr. Akashdeep, Advocate

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11/27.01.2021 Heard Mr. S.K. Sharma, the learned counsel for the

petitioner and Mr. Akashdeep, the learned counsel for the respondents.

2. The petitioner has preferred this writ petition for quashing

the order dated 16.07.2003 contained in Annexure-3. Further prayer is

made for quashing the order dated 17.07.2003 whereby the petitioner

has been dismissed from the service. The prayer for consequential

benefits has also been prayed for.

3. The petitioner is a permanent resident of the State of

Jammu and Kashmir. The petitioner was working as constable in 22 nd

Bn., CRPF, at Hazaribagh had submitted leave application before

respondent no.3 for grant of leave of 10 days w.e.f. 06th September,

2002. The petitioner was allowed the said leave and was proceeded on

leave and was required to join on 19.09.2002. On 12.09.2002, the

petitioner received a letter from militant organization calling him not to

go back till some enquiry regarding his involvement. The petitioner

because of threat to his family members by militant organization, the

petitioner was forced to stay at home and could not resume the duty

before 19.09.2002. The petitioner sent telegram to that effect to the

respondent no.3. The letter received by the petitioner from the militant

organization was sent to the Commandant-7 RR, C/o 56 APO, which was

sent to 22nd Bn CRPF. The respondent no.5 presented an application on

14.02.2002 under section 10(m) of Central Reserve Police Force Act,

1949 [hereinafter to be referred as the Act]. On 01.01.2003 the

petitioner was directed to be arrested and produced by Sr. S.P., Anantnag,

J&K. The petitioner was charged with offence of overstaying from leave

under section 10(m) of the Act. The petitioner reported back on

29.01.2003 and resumed his duties in D/22 CRPF located at Garhwa and

he has also explained the reason for overstaying. The petitioner was

allowed to join duty. The warrant issued against the petitioner was also

cancelled. On 05.06.2003 the petitioner was directed to attend the Court

of respondent no.4 on 12.06.2003. The petitioner was explained the

charge. The petitioner replied that he has already explained the reasons.

The respondent no.4 by order dated 16.07.2003 held the petitioner guilty

for overstaying under section 10(m) of the Act and sentenced him to

undergo imprisonment till rising of the Court. The respondent no.3 in

exercise of power under section 12(i) of the Act dismissed the petitioner

from service on the ground that he has been convicted of offence of

overstaying from leave. Aggrieved with this, the petitioner has moved

before the High Court of Jammu & Kashmir at Srinagar in S.W.P. No.714

of 2014. The said writ petition was not entertained on the ground of

territorial jurisdiction of that Court, however, the writ petition was

disposed of granting liberty to the petitioner to challenge the impugned

order before the appropriate jurisdictional Court. The observation was

also made that the said court may consider the challenge without

reference to the delay and laches as the petitioner has prosecuted his

case from 2004 till the order was passed in that writ petition on

07.09.2016. Thereafter, the petitioner has filed this writ petition before

this Court.

4. Mr. Sharma, the learned counsel for the petitioner assailed

the impugned order on the ground that the petitioner was on leave which

was granted by the competent authority. The petitioner was compelled to

not join on 19.09.2002 in view of the fact that the militant organization

threatened the petitioner with dire consequence. He submits that this

letter was transmitted to the CRPF Commandant. He submits that calling

of that letter is also requested in one of the paragraph of writ petition by

this Court. He took to the Court to section 10(m) of the Act. By way of

referring to this section, he submits that the procedure has been

prescribed in section 10(m) of the Act which is less heinous offence and

sub section(m) of that section speaks about leave without sufficient

cause overstays leave granted to a person the said section should be

applied. He submits that section 11 speaks of minor punishment. He

further draws attention of the Court to Rule 27 of the Central Reserve

Police Force Rules, 1953 [hereinafter to be referred to as the Rules]. He

submits that the procedure for the award of punishment has been dealt

with in this Rules. By way of referring dismissal or removal from the post

the Commandant, however, remarks is there of taking lenient view.

He submits that without any formal departmental enquiry the petitioner

has been dismissed from service. He further referred to Sub-Rule(cc) of

Rule 27 of the Rules and submits that any penalty is required to be

imposed upon the member of the force on the ground of conduct which

has led to his conviction on a criminal charge. By way of referring this

sub-rule, he submits that the petitioner is not convicted on a criminal

charge. He submits that the allegation against the petitioner is of civil in

nature. He submits that the nature of punishment imposed upon the

petitioner has been examined by Punjab & Haryana High Court in case of

"Zuber Ahmed v. The Union of India and Others"[CWP No.15348 of

1999]. He relied on paragraph nos.18, 22, 28, 29, 30, 53 and 54 of the

said judgment, which are quoted hereinbelow:

"18. In the present case the Commandant/6th respondent has acted as both Chief Judicial Magistrate and Disciplinary Authority which may not be legally impermissible in terms of s. 16 read with r. 27 but at the same time raises a cause of serious concern of impartiality and bias in the mind of this Court of such dual exercise of jurisdiction, one fine evening, for the court to thoroughly satisfy itself on the question whether the punishment fits the offence or the offence the punishment or whether it was committed at all as alleged and whether there has been any miscarriage of justice in dealing with the petitioner and to apply extensively the rule against bias which ensures that no one should be a judge in his own cause. Here was a prosecutor, a judge and a disciplinary authority all rolled into one dynamite stick with three pins.

The cause of worry really is whether such a triad of absolute, unbridled power of such wide amplitude may result in prejudice per se or a reasonable likelihood of bias or a substantial loss of probity and impartiality in the eyes, so to speak, of twelve good men and true who might always expect dispassionateness and non-arbitrariness in acts of holders of public office which if led astray may cause a permanent scar on the judicial mind leaving a bad taste in the mouth. But we can also not discount, as is equally well settled, that mere possibility of abuse of a provision of

law cannot be a ground to declare the provision invalid and to say this while we are not on the vires of the provision. Yet, what disturbs this Court even more radically than anything else is that the so called 'confessional statement' before the police has solely been used against the petitioner as a ground for conviction which was stoutly denied at the trial while claiming innocence of PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 the charge framed. Smt Gurdev Kaur could not say with any certitude as to who the man was who trespassed into her privacy at night. It also seems rather peculiar that Smt Gurdev Kaur did not raise an alarm herself when her mouth was muffled [in the charge framed on March 5, 1993 read as: 'caught hold of mouth of Smt Gurdev Kaur'... 'by an unidentified man 'in uniform'], face covered, holding a rifle and it was her 'children' to raise the alarm, as picturesquely recorded in the judgment of the Chief Judicial Magistrate. It is more plausible that a woman, whose modesty is being outraged, would herself raise the alarm, more so, the wife of none other than the personal aide of the then ex-Chief Minister, Punjab and residing in the rear side of the private residence in a servants quarter. However, since this Court is not exercising appellate jurisdiction against the order of the Chief Judicial Magistrate, nothing further can or should be said at least till the present stage of the discussion on facts. This Court has gone thus far to examine the case of the petitioner to satisfy itself that grave injustice has not been visited upon the petitioner and whether he is to be condemned for all times to come with an order of dismissal based on moral turpitude. It may be remembered all the time that the right to impose a penalty carries with it the duty to act fairly, justly and reasonably.

22. In view of the complexities of the matter emerging from the case papers and the original record of the trial, involving intermingling of service law issues with the criminal law of sentencing and in order to command full assistance, this Court appointed Mr. Anil Malhotra to be the learned amicus which request he gracefully accepted. Since I found some thorny but significant issues involving criminal law interpretation which required due expert deliberation of a learned senior criminal practitioner as well, I requested Mr. Malhotra on January 14, 2015 to request Mr. R.S. Cheema, PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 Senior Advocate, learned Senior Counsel of this Court if he could find time from his current professional

preoccupations at New Delhi to provide his valuable insights in the matter through the good offices of the learned amicus curiae for the consideration of this Court. This Court expresses its gratitude to Mr. Cheema to have not only supplied inputs in writing through the amicus upon discussion held between them and reduced in writing per kind hand of the amicus but I am even more thankful that Mr. Cheema has taken out his precious time on his own to address the Court as well on February 6, 2015 on the specific query posed by this Court as to the implications of the conviction and sentence imposed in criminal law till the rising of the Court of Chief Judicial Magistrate in the light of the charge framed in the criminal trial faced by the petitioner and further as to what were its implications on the punishment of dismissal from service separately imposed. Earlier, in addition to his detailed written submissions the amicus placed on record further additional written submissions dated January 21, 2015 containing the view point of the learned Senior Counsel as also the further supplementary submissions of the learned amicus. On January 28, 2015, the amicus also placed on record of this Court a 90 pages compilation comprising of 6 Judgements, extracts of the Criminal Procedure Code, 1898 (Cr.P.C., 1898) as also relevant parts of the 41st Report of the Law Commission of India, Volume 1, September 1969, suggesting changes to be made in the Cr. P. C., 1898. The learned senior counsel urged his thoughtful views on the aspects of criminal law and writ jurisdiction rolling into one before this Court lending considerable clarity on the intermingled PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 proposition arising in the present case whereby dismissal from service was based solely on a conviction till the rising of the court to which views I will refer at the appropriate place in the discussions in this judgment, and for which sagacious advice this court is indeed grateful.

28. A combined reading of s. 12 and r. 27 leaves serious doubt in this Court whether r.27 can be avoided altogether as unlike Article 311 (2) (a) of the Constitution which affords public servants certain protections on conviction and the statutory limitations prescribed therein but s.12 of the Act, which is pre Constitution, does not speak of conduct which led to conviction to be the operating rule of dismissal when it is discretion based by the use of the word 'may' therein. Mere incantation of the words "conduct which led to the conviction" is not constitutionally sufficient. There is more to it. Disciplinary

authority cannot divorce itself from duty to disclose reason which weighed in its mind and led it to inflict the severest civil punishment of dismissal. The contours of criminal and civil liability by virtue of those words get merged in the final dispensation and remain inseparable. Toward this end there is nothing clearly noticeable in the impugned order of dismissal whether dismissal was alone the best choice or facts demanded so for the court to apply the well recognized principle of non-interference in the choice of punishment imposed by the executive authority. Even Article 311 (2) (a) does not confer automatic power to dismiss simpliciter on mere conviction except when conduct which led to conviction justifies the action taken. These words have been used in the dismissal order passed by the 6th respondent when he refers to conduct which led to conviction but then the order is bereft of reasoning, however brief they could have been, but surely indicative of process of reasoning and due application of mind. But substantive provisions of S. 12 do not speak of such express words as "conduct which led to conviction" and limit PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 themselves to the following expressions: "12. Place of imprisonment and liability to dismissal on imprisonment.--

(1) Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him as well as of any medals and decorations received by him.

(2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the Force, he may, if the Court or the Commandant so directs, be confined in the quarter-guard or such other place as the Court or the Commandant may consider suitable."

29. S. 12 has not been amended to fine tune it with Article 311 (2) (a) of the Constitution. It stands where it was in 1949, though the rules are post Constitution framed in 1955. However, the concept of misconduct in its constitutional protections and conduct which led to conviction on a criminal charge was introduced for the first time after more than three decades by sub rule (cc) to r.27 and inserted in r.27 of the CRPF, Rules by S.O 3117 dated July 15, 1971 through rule making power avoiding amendment process through Parliament. To appreciate its

newfound setting in r.27 it would be profitable to reproduce the text of r.27 (cc) as it stands:-

"27 (cc) Notwithstanding anything contained in this rule:

(i) Where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge: or

(ii) Where the authority competent to impose the penalty is satisfied for reasons to be recorded by it PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules: or

(iii) Where the Director General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such order thereon as it deems fit."

30. In my humble view the CRPF Act is a special law and a complete code in itself governing the relationship between the parties, where in the rules lies enacted substantive law in its procedural part in r.27 (cc) echoing the theme of Article 311 of the Constitution which is rare to find. It is also not known or understood as to how the disciplinary authority views the word 'may' in s.12 and why the Commandant would not suffer limitations prescribed by r.27 and whether he could completely sidetrack, by pass or circumvent the provision. The rule is part of the Act and is supplemental in nature. It appears to fill a gap left in s.12. Rule 27 by itself creates a substantive procedural right to due process incorporating a valuable safeguard against arbitrary action. Criminal conviction and disciplinary action are severable and are not ipso facto mother and child that cannot be separated in their relationship except by event of death. Having conducted the trial and concluded it and recorded sentence of imprisonment till the rising of the Court, fairness-in-action then demanded that the petitioner should have been heard before dismissal on his rights protected by r. 27. While passing the dismissal order on his administrative side, the 6th respondent was acting as a disciplinary authority and not as Chief Judicial PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 Magistrate. He would, therefore, suffer restrictions on

his powers as are imposed by law or available to him to exercise in a reasonable manner. He could act only within the limitations of the statutory framework of which he was a creature, both as court and administrator.

53. Rule 27 provides the procedure for award of punishment and is the code on disciplinary proceedings. A formal departmental enquiry is mandatory. After all the charge was not such a grave that could not await disciplinary proceedings or brook no delay. The Commandant as trial court also did not think the offence/misconduct serious enough to impose anything beyond simple imprisonment till the rising of the Court.

54. In Mohd Zakir v. Union of India and others; 1996 (5) SLR 788, the Allahabad High Court while dealing with the provisions of the CRPF Act and rules in question held that no order of dismissal can be passed in a routine manner. A dismissal order can be passed only if the charges are serious in nature. It was held as under: -

"17. The authority awarding the punishment under s. 12 of the Act, it appears did not consider this aspect of the matter and without applying his mind in a routine manner dismissed the petitioner from service, merely because an action under s. 10(m) was taken against him. It may also be considered that the use of word PARITOSH KUMAR 2015.05.04 14:57 I attest to the accuracy and integrity of this document CWP No.15348 of 1999 'may' is also significant in s. 12(1) of the Act which indicates that the authority must apply his mind objectively before awarding the punishment of dismissal from the Force. The action of dismissal being very severe major punishment has to be awarded only if there are very serious charges and the action of dismissal from service should be commensurate to the gravity of the charges. Merely because a person has been directed for imprisonment would not automatically mean that his services are liable to be dismissed from the Force or he would be deemed to be dismissed from service in view of the provisions of s. 12 of the Act. The authority has to apply his mind and provide reasons as to why in case he is dismissing the incumbent from service on the ground that he was imprisoned and an action of dismissal from service was necessary on the facts and circumstances of the case."

5. By way of relying on this judgment, Mr. Sharma, the learned

counsel for the petitioner submits that Section 12 and Rule 27 of the Act

was considered by the Punjab & Haryana High Court and after much

discussion, Punjab & Haryana High Court interfered with the punishment

order. He submits that the case of the petitioner is covered in view of the

said judgment. He further relied in the case of "State (Union of India) v.

Ram Saran", (2003) 12 SCC 578. Paragraph no.12 of the said judgment is

quoted hereinbelow:

"12. Residual question is what would be an appropriate sentence. It is not disputed and rather fairly conceded that for a person in a disciplined service like CRPF, any act of indiscipline deserves adequate and stringent punishment under the Act. In terms of Section 10(m) an employee who absents himself without leave or without sufficient cause overstays leave granted to him can be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay or with both. The offence has been treated as one of "less heinous offences". More heinous offences are provided in Section 9. The Assistant Commandant has found the explanation given by the respondent to be not acceptable. Therefore, he has been rightly held to have committed a less heinous offence. Taking note of the relevant aspects, we feel the fine of two months' pay which the respondent was drawing at the time when the proceedings were initiated would meet the ends of justice. By altering the punishment we are not belittling the gravity of offence but, in our view deterrent punishment must be resorted to when such absence is resorted to avoid and evade undertaking a testing or trying venture or deployment essential at any given point of time, and not as a routine in the normal course. The appeal is allowed to the extent indicated above."

6. He further relied in the case of "The Inspector General Of

Police vs Alex Stephen" [Writ Appeal No.1741 of 2004] of Madras High

Court. A copy of which has been produced before this Court. Paragraph

no.12 of the said judgment is quoted hereinbelow:

"12.In these circumstances, we feel that the punishment of dismissal from service is disproportionate to the misconduct, which is overstayal of leave for 114 days. We are quite conscious of what the Supreme Court is held in the two decisions referred to above regarding the discipline that must be maintained in a service like Central Reserve Police Force. But, this is not a case as in Union of India v. Ghulam Mohd. Bhat (cited supra) where he was absent for 300 days without any justification. In this case, he has given reasons and an attempt appears to have been made by the respondent to get sanction for leave in March 1993. At the same time, we also feel that he cannot be just awarded a fine of two months' pay as was given in State (Union of India) v. Ram Saran (cited supra). That would be letting him off too lightly when we take into account the seriousness of the misconduct. In fact, we considered whether to send it back to the authorities for deciding the quantum of punishment after observing that dismissal would be disproportionate to the misconduct committed considering the extenuating circumstances as explained by the respondent. But, since the respondent has already been facing these proceedings and the consequential litigation for 16 years, we are of the opinion that following the decision of the Supreme Court in Union of India v. Ghulam Mohd. Bhat, we will consider Section 11 of the Act and Rule 27 of the Rules and impose a punishment that would be justifiable for the misconduct committed by the respondent. We hope the respondent will not commit this misconduct in future and this punishment should be a deterrent to him. We set aside the order of the learned Single Judge and while doing so, we modify the punishment to reduction in rank to Constable in lieu of dismissal. The appeal is therefore allowed accordingly. No costs. Consequently, WAMP. No.3262 of 2004 is closed."

7. Per contra, Mr. Akashdeep, the learned counsel appearing

on behalf of the respondent-Union of India submits that the case of the

petitioner is fit to be rejected on the ground of delay and laches itself. He

submits that the impugned order was passed in the year 2003 whereas

the petitioner has approached this Court in the year 2017 and on this

ground the writ petition is fit to be rejected. He further submits that the

contention of the petitioner is totally wrong with reference to threatening

by the militant group. He submits that this aspect of the matter has been

dealt with in paragraph no.17 and 27 of the counter affidavit. Lastly,

Mr. Akashdeep, the learned counsel submits the case of the petitioner is

fit to be rejected in view of case of "Nagendra Tiwary v. The State of

Jharkhand and Others" [W.P.(S) No.4401 of 2008] which was dismissed

by order dated 19.07.2019. On these grounds, he submits that the writ

petition is fit to be dismissed.

8. Having heard the learned counsels appearing on behalf of

the parties, the Court has gone through the materials on record. It

transpires from Annexure-3 dated 16.07.2003 which is the order passed

by the court of Chief Judicial Magistrate-cum- Commandant, 26th Bn,

Hazaribagh in Case No.3/2002 whereby the petitioner was put under

simple imprisonment till the rising of the court. Thus, it is admitted fact

that the punishment to that effect was only imposed upon the petitioner

by the court of the Chief Judicial Magistrate-cum- Commandant under

the said Act under section 10(m) of the Act. By order dated 07.07.2003,

the petitioner was dismissed from service on the ground that the

petitioner was put on imprisonment on 16.07.2003 till the rising of the

court. This order was passed on the strength of section 12 of the Act.

The Rule 27 clearly stipulates that dismissal or removal from the force is

required to be passed after a formal departmental enquiry which has not

been done in the case in hand. Section 10(m) stipulates that this is

under the less heinous offence and considering all the facts, the Court of

the Chief Judicial Magistrate-cum- Commandant has passed the order of

punishment of imprisonment till the rising of the Court; even assuming

that order was sufficient to dismiss the petitioner, it was incumbent upon

the authority concerned to follow Rule 27 which is focused on a formal

departmental enquiry for dismissal or removal from the force. This has

not been done in the case in hand. Further, Rule 27(cc) clearly speaks

that the punishment was required to be passed if that has been led to

conviction on a criminal charge. The petitioner has not been criminally

charged. In the case the charge is of civil in nature which arises out of a

leave. In view of Rule 27 (cc) of the Rules also the case of the petitioner

is not covered with regard to the charge framed against the petitioner.

The judgments relied by Mr. Sharma, the learned counsel appearing for

the petitioner are helping the petitioner. Rule-27 itself creates a

substantive procedure incorporating valuable safeguards against the

arbitrary action. So far as punishment order dated 16.07.2003 is

concerned that is based on the punishment order passed by the court of

Chief Judicial Magistrate. The argument of Mr. Akashdeep, the learned

counsel for the respondent-State (UOI) so far as delay and laches are

concerned is not accepted by this Court in view of the fact that the

petitioner has already approached Jammu & Kashmir High Court in

S.W.P. No.714 of 2004 which was disposed of by order dated 07.09.2016.

The observation about delay and laches was also made therein, thus, the

petitioner has approached Jammu & Kashmir High Court, immediately

taken by the petitioner for challenging the impugned order. Thus, the

delay and laches ground taken by Mr. Akashdeep, the learned counsel for

the respondent-UOI is not accepted by the Court. The judgment relied

by Mr. Akashdeep, the learned counsel in case of 'Nagendra Tiwary', is

on different footing. In that case, the Court was considering Rule 526

and 543 of the Police Manual and in that case the petitioner was

absconded without any information and without sanction of leave on the

pretext of falling illness and that is why that writ petition was dismissed

and the facts of the present case are on the different footing and this

judgment is not helping the respondents. On the law point, this writ

petition succeeds and thus, the averments made in the counter affidavit

in paragraph nos.22 and 27 are not required to be dealt with.

9. Since, there is remedy to the petitioner under the said Act,

the Court is not inclined to interfere with the order dated 16.07.2003.

The petitioner, if so advised, may take appropriate steps in this regard.

The punishment order is also shocking the conscience of the Court. The

punishment of dismissal from service is disproportionate to the

misconduct which is of overstaying of leave. The Court is conscious of

the fact that the petitioner is working in a disciplined force and that must

be maintained. This is not a case of absentism without any information.

The petitioner communicated the letter received by the petitioner.

10. In view of these facts, the impugned order dated

17.07.2003 is quashed.

11. The matter is remitted back to the respondent no.3 who will

consider the case of the petitioner afresh in the light of the discussion

made hereinabove and will pass the order afresh. He will complete this

exercise within 12 weeks from the date of receipt/production of a copy of

this order.

12. The writ petition stands disposed of accordingly.

( Sanjay Kumar Dwivedi, J) SI/,