Madras High Court
D.Latha vs The Director General Of Police on 24 September, 2021
Writ Appeal Nos.244 and 245 of 2020
Writ Petition No.14251 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal Nos.244 and 245 of 2020
and
Writ Petition No.14251 of 2020
Writ Appeal Nos.244 and 245 of 2020:
D.Latha ... Appellant in both Writ Appeals
vs.
1. The Director General of Police,
Directorate General CRPF,
CGO Complex, Lodhi Road,
New Delhi 110 003.
2. The Inspector General of Police (TRAINING),
Training Directorate CRPF,
Sector-I, R.K.Puram,
New Delhi.
3. The Inspector General of Police,
Southern Sector, CRPF,
Road No.10C, Jubilee Mills,
Near MLA/MPS Colony,
Gayathri Hills,
Hyderabad 500 033.
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Writ Appeal Nos.244 and 245 of 2020
Writ Petition No.14251 of 2020
4. The Deputy Inspector General of Police,
Central Training College CRPF,
Coimbatore District - 17.
Tamil Nadu. ... Respondents in both Writ Appeals
Writ Appeals filed under Clause 15 of Letters Patent against the
common order dated 29.01.2020 passed by this Court in W.P.No.4550 of
2018 and W.P.No.39513 of 2016.
For Appellant in both W.As. : Mr.M.Elango
For Respondents in both W.As.: Mr.K.Srinivasa Murthy,
Senior Panel Counsel for
Central Government
Writ Petition No.14251 of 2020:
D.Latha ... Petitioner
vs.
1. The Director General of Police,
Directorate General CRPF,
CGO Complex, Lodhi Road,
New Delhi 110 003.
2. The Inspector General of Police (TRAINING),
Training Directorate CRPF,
Sector-I, R.K.Puram, New Delhi.
3. The Inspector General of Police,
Southern Sector, CRPF,
Road No.10C, Jubilee Mills,
Near MLA/MPS Colony,
Gayathri Hills, Hyderabad 500 033.
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Writ Appeal Nos.244 and 245 of 2020
Writ Petition No.14251 of 2020
4. The Deputy Inspector General of Police,
Central Training College CRPF,
Coimbatore District – 17,
Tamil Nadu.
5. The Commandant,
O/o. IGP, Principal Central Training College,
CRPF, Coimbatore 17. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a writ of Certiorari, calling for the records relating
to the order dated 06.03.2018 passed by the 4th Respondent in proceedings
No.P.VIII-3/2017-FC-1, and quash the same.
For Petitioner : Mr.M.Elango
For Respondents : Mr.K.Srinivasa Murthy,
Senior Panel Counsel for
Central Government
COMMON JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
Aggrieved by the common order dated 29.01.2020 passed by the
learned Single Judge in W.P.No.4550 of 2018 and W.P.No.39513 of 2016,
the Writ Petitioner viz. D.Latha, has come up with the above Writ Appeals.
She has also filed W.P.No.15251 of 2020 seeking to quash the order dated
06.03.2018 passed by the 4th Respondent vide proceedings No.P.VIII-
3/2017-FC-1.
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Writ Appeal Nos.244 and 245 of 2020
Writ Petition No.14251 of 2020
2. As the issue involved in the Writ Appeals and the Writ Petition
is one and the same, all the cases are taken up for disposal by a common
judgment.
3. According to the Appellant/Writ Petitioner, she joined the
Central Reserve Police Force (CRPF) as a Constable on 28.03.1995 and
posted at Central Training College, CRPF, Coimbatore. In the year 2009, she
sustained an injury in her right ankle and underwent treatment.
Subsequently, the Appellant/Writ Petitioner was transferred to 213 (Mahila)
Bn vide DIGP (Estt) Dte Genl Signal No.T.IX.15 (ACO)/2016-Estt, dated
19.02.2016. Challenging the said order of transfer, the Appellant/Writ
Petitioner filed W.P.No.13403 of 2016 before this Court. However, the same
was dismissed by an order dated 07.08.2017.
4. In the meantime, in view of her medical condition, the
Appellant/Writ Petitioner submitted an Application on 17.10.2016 to the
fourth Respondent herein, seeking permission to retire under Voluntary
Retirement Scheme (VRS) and the same was received by the fourth
Respondent on 18.10.2016. It is the case of the Appellant/Writ Petitioner,
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that, she is entitled to apply under Voluntary Retirement Scheme as per Rule
43(d)(i) of the Central Reserve Police Force Rules, 1955 (hereinafter referred
to as 'CRPF Rules'). As the said Application under Voluntary Retirement
Scheme was rejected by the Respondents, the Appellant/Writ Petitioner filed
W.P.No.39513 of 2016 to accept her Application dated 17.10.2016 for
Voluntary Retirement.
5. Thereafter, Disciplinary proceedings were initiated against the
Appellant/Writ Petitioner by the Commandant, Central Training College,
CRPF, Coimbatore, by issuing a Charge Memo dated 21.11.2016. As the
Respondents were unable to serve notice on the Writ Petitioner, the inquiry
was conducted ex-parte. Ultimately, Disciplinary proceedings ended with a
punishment of dismissal of the Writ Petitioner from service by the
proceedings dated 02.11.2017 of the Commandant, Central Training College,
CRPF, Coimbatore. Challenging the said order of dismissal, the Writ
Petitioner filed W.P.No.4550 of 2018.
6. Both Writ Petitions in W.P.No.39513 of 2016 and W.P.No.4550
of 2018 filed by the Appellant/Writ Petitioner were taken up for disposal
together by the learned Single Judge.
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7. Before the learned Single Judge, learned counsel for the Writ
Petitioner submitted that, the Writ Petitioner's Application dated 17.10.2016
under Voluntary Retirement Scheme was filed as per Rule 43(d)(i) of CRPF
Rules and that, if no orders are passed after 90 days from the date of such
Application, voluntary retirement submitted by the Writ Petitioner is deemed
to take effect on the expiry of three months' Notice period.
8. It was stated by the learned counsel appearing for the
Respondents before the learned Single Judge that, the Writ Petitioner
reported before the Commandant, Central Training College, CRPF,
Coimbatore on 29.08.2016, after remaining unauthorizedly absent for a
period of 138 days from 13.04.2016 to 28.08.2016 without prior permission
from the competent Authority and he produced a Fitness Certificate, dated
28.08.2016 issued by Dharmapuri Medical College. Since, the Fitness
Certificate issued by Dharmapuri Medical College was not clear, the Writ
Petitioner was referred to Composite Hospital, CRPF, Avadi. But, the Writ
Petitioner deserted the campus on 22.09.2016 on her own, without obtaining
permission from the competent Authority.
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9. On hearing both sides, the learned Single Judge observed that,
the Disciplinary proceedings against the Writ Petitioner were initiated on the
ground of unauthorised absence and there is no question of applying the
deemed provision of acceptance of the Writ Petitioner's voluntary retirement
with effect from 16.01.2017, on which date, three months' notice period came
to an end. The learned Single Judge dismissed the Writ Petitions in
W.P.No.4550 of 2018 and W.P.No.39513 of 2016, by a common order dated
29.01.2020, with liberty to the Writ Petitioner to file a Revision Petition
before the next superior Authority, viz. Inspector General of Police (IGP),
within two weeks from the date of receipt of a copy of the order.
10. Learned counsel for the Appellant/Writ Petitioner submitted that,
the Appellant/Writ Petitioner is deemed to have retired from service on
16.01.2017, on which date, the notice period of three months' came to an end
as per Rule 43(d)(vi) of CRPF Rules. He went on to contend that, an
employee has the right to opt voluntary retirement and that, the approval of
the superior Officer under Rule 43(d)(vi)(a) of CRPF Rules, is necessary to
proceed against the Appellant and in the absence of the same, Respondents
ought not to have initiated Disciplinary proceedings against the Appellant.
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11. Learned Senior Central Government Panel Counsel appearing
for the Respondents submitted that, the Writ Petitioner wilfully deserted the
campus w.e.f. 22.09.2016 and did not report to duty till the date of her
dismissal. Further, the Charge Memo sent to the Writ Petitioner's address
was returned undelivered. He further submitted that, no procedural
irregularities were noticed in the Departmental enquiry and the Writ
Petitioner was given ample opportunity to defend herself at all stages of the
enquiry. It is his contention that, the Writ Petitioner, being a disciplined
member of the Force, did not seem to have bothered to intimate about her
whereabouts to the competent Authority. Hence, according to the learned
counsel, the punishment awarded by the Disciplinary Authority is lawful and
appropriate, and does not warrant interference of this Court.
12. Heard the learned counsel on either side and perused the material
documents available on record.
13. It is not in dispute that, the Appellant/Writ Petitioner joined the
services of the Central Reserve Police Force in the year 1995. Though, an
averment has been made by the Appellant/Writ Petitioner that, she sustained
injuries in the year 2009, and that she underwent treatment in the Hospital,
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this Court is not inclined to go into the said aspect, as, issues that require
consideration in the present case on hand are, as to whether there is deemed
Voluntary Retirement of the Appellant and whether the employer is right in
proceeding against the employee departmentally and imposing the
punishment of dismissal from service for the charge of unauthorized absence.
14. The Appellant/Writ Petitioner submitted an Application for
Voluntary Retirement on 17.10.2016 in terms of Rule 43(d)(i) of CRPF
Rules. The said Rule contains a deeming provision that, on completion of
three months from the date of making an Application for Voluntary
Retirement, the retirement will take effect. According to the Respondents
herein, when the Commandant, Central Training College, CRPF, Coimbatore
has issued a Charge Memo dated 21.11.2016 against the Appellant/Writ
Petitioner, the said deeming provision of Voluntary Retirement Scheme will
not be applicable to her. The contention of the Appellant that, the
Respondents cannot issue a Charge Memo without the approval required
under Rule 43(d)(vi)(a) of the CRPF Rules, moreso, when she had already
submitted an Application for Voluntary Retirement, may not hold water as
Charge Memo is issued by the competent Authority and once a Charge Memo
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is issued, Application for Voluntary Retirement cannot be effective.
However, subsequently, on 02.11.2017, Respondents have imposed the
punishment of dismissal from service.
15. On the other hand, it is stated by the Respondents that, the
Commandant, Central Training College, CRPF, Coimbatore has issued a
Charge Memo to the Appellant/Writ Petitioner, and in view of the same, the
question of obtaining prior permission to proceed with the departmental
enquiry may not arise. Hence, according to the Respondents, the provision
quoted by the Appellant/Writ Petitioner that, on the expiry of the notice
period under Voluntary Retirement Scheme, the employer-employee
relationship ceases, cannot be accepted.
16. Further, learned counsel appearing for the Respondents
contended that, the averment of the Appellant/Writ Petitioner that, she
suffered an injury in her right ankle in the year 2009 and underwent treatment
for the same, is not correct. Had she actually sustained injuries, there would
have been some evidence on record to that effect and she is unnecessarily
trying to project that, she had sustained injuries and it has nothing to do with
the issue on hand. In any event, the Writ Petitioner was transferred to 213
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Mahila Battalion on 19.02.2016 and the Writ Petition filed by her in
W.P.No.13403 of 2016 questioning the said order of transfer, stood
dismissed.
17. In the case on hand, the Commandant, Central Training College,
CRPF, Coimbatore is the Authority competent to issue Charge Memo to the
Appellant/Writ Petitioner, which would mean that the Application for
Voluntary Retirement submitted by the Appellant/Writ Petitioner has not
been accepted by the Respondents. Hence, as stated supra, the question of
deeming provision of Voluntary Retirement Scheme attracting the present set
of facts, may not be applicable.
18. For the sake of convenience, Rule 43(d)(i) and Rule
43(d)(vi)(a) of the CRPF Rules, 1955, are extracted below:
43. Superannuation -
(d)(i) any member of the Force who has put in
not less than 20 years of qualifying service may, by
giving notice of not less than three months in writing to
the appointing authority, retire from service voluntarily
and unless the exigencies of service require otherwise,
he shall be permitted to retire.
...
(vi) a notice to retire voluntarily under clause (i)
after completion of 20 years of qualifying service shall
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require acceptance by the appointing authority if the
date of retirement on the expiry of the period notice
would be earlier than the date on which the member of
the Force concerned could have retired under sub-rule
(a). Such acceptance may be generally given in all
cases except where-
(a) any Disciplinary proceedings are pending or
contemplated against the member of the Force
concerned for the imposition of a major penalty and the
Disciplinary Authority, having regard to the
circumstances of the case is of the view that the
imposition of the penalty of removal or dismissal from
the service would be warranted in the case;
(b) ...
Provided that -
(i) in cases, referred to in item (a) and item (b)
above, approval of the Government in the case of
Superior Officers, of the Inspector-General in the case
of Subordinate and under Officers, of the Deputy
Inspector – General in the case of other members of the
Force except enrolled followers and of the
Commandant in the case of enrolled followers shall be
obtained;
(ii) in other cases, acceptance by the appointing
authority may be presumed and the retirement of the
member of the Force concerned may take effect in
terms of the notice, unless the appointing authority
passes an order to the contrary before the expiry of the
period of notice;
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19. The learned Single Judge has rightly held that, when the final
order has been passed by the Appellate Authority, the remedy lies only by
way of a Revision and that, the original order of the Authority cannot be
questioned. Hence, we are of the view that, as Charge Memo is issued to the
employee by the competent Authority, the deeming provision will not be
applicable to the case of the Appellant, to enable him to contend that, there
will be cessation of employer-employee relationship on completion of three
months' notice period from the date of submission of Application under
Voluntary Retirement Scheme. Hence, Writ Appeal No.244 of 2020 shall go.
20. As to the challenge of the order dated 02.11.2017 passed by the
Disciplinary Authority, this Court is of the view that, the order of the
Disciplinary Authority gets merged with the order dated 06.03.2018 passed
by the Appellate Authority, and hence, the question of challenging the
original order alone is not going to help the Appellant. Hence, the learned
Single Judge has rightly observed that, when Rule 29 provides for a
Revision, it is open to the Appellant to approach the Authority by filing a
Revision.
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21. In view of the foregoing, we are of the view that, Writ Appeal
No.245 of 2020 will have to be dismissed, as the order of the Disciplinary
Authority gets merged with the order of the Appellate Authority, moreso, in
the light of the fact that, the order of Appellate Authority is tested in
W.P.No.14251 of 2020.
22. Now, the issue to be decided is, whether the order dated
06.03.2018 passed by the Appellate Authority which is under challenge in
W.P.No.14251 of 2020, needs to be interfered with by this Court, in the light
of the Rules quoted by the learned counsel for the parties.
23. On a perusal of the Charge Memo issued to the Appellant/Writ
Petitioner, it is seen that, she was unauthorizedly absent from duty and did
not obey the orders of the Authorities concerned. Being a member of the
Disciplined Force, as her conduct has caused prejudice to the interest of the
employer, the Disciplinary Authority passed an order of dismissal from
service, which was confirmed by the Appellate Authority. Though the Writ
Petitioner tried to project that, she has not committed any misconduct, a
detailed enquiry has been conducted, and she could not bring an iota of
evidence in her favour. However, in the normal circumstances, when the
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Appellate Authority has confirmed the order of the Disciplinary Authority,
and when there is an alternative remedy of Revision available, as has been
held by the learned Single Judge, this Court is not inclined to interfere with
the orders of the Authorities concerned. Having rendered more than 22 years
of service, whether the Writ Petitioner has absented herself in the previous
years of service, is not known to us, as nothing adverse to the Writ Petitioner
is on record.
24. The Writ Petitioner was advised to avail Medical rest from
15.11.2015 to 12.04.2016. However, after availing medical rest, she ought to
have reported at Central Training College, CRPF, Coimbatore on 12.04.2016
(A.N.) for further review, but she failed to do so and remained absent from
13.04.2016 on her own, without the permission of the competent Authority.
25. It is no doubt true that, in a Disciplined Force, permission of the
Authorities is sought to be obtained and the Writ Petitioner should have
appeared before the Medical Board and based on the evidence, she should
have either continued in service or availed leave with permission. After
reporting for work, a Charge Memo has been issued to the Writ Petitioner
and thereafter, she continued to be absent till final orders were passed.
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Though, absence from duty appears to be minor charge, it amounts to serious
misconduct in a Disciplined Force.
26. From the contention of the employee, it appears that, she did not
continue to work and the factum appears that, she did not obey the order of
transfer and questioned it initially by way of a Writ Petition, which came to
be dismissed. Hence, unauthorized absence is distinctly proved in the present
set of facts. Even, if a Revision is filed, there is a meagre chance for the
Revisional Authority to interfere with the punishment.
27. At this juncture, it is worth referring to the Apex Court decision
in the case of Director General of Police, Railway Protection Force vs.
Rajendra Kumar Dubey (Civil Appeal No.3820 of 2020, dated
25.11.2020), wherein, with reference to its judgment rendered in the case of
Union of India vs. P.Gunasekaran, reported in (2015) 2 SCC 610, the Apex
Court has held as under:
"In Union of India Vs. P.Gunasekaran, this Court
held that the High Court in exercise of its power under
Articles 226 and 227 of the Constitution of India shall not
venture into re-appreciation of the evidence. The High
Court would determine whether: (a) the enquiry is held by
the competent authority; (b) the enquiry is held according
to the procedure prescribed in that behalf: (c) there is
violation of the principles of natural justice in conducting
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the proceedings; (d) the authorities have disabled
themselves from reaching a fair conclusion by some
considerations which are extraneous to the evidence and
merits of the case; (e) the authorities have allowed
themselves to be influenced by irrelevant or extraneous
considerations; (f) the conclusion, on the very face of it, is
so wholly arbitrary and capricious that no reasonable
person could ever have arrived at such conclusion; (g) the
disciplinary authority had erroneously failed to admit the
admissible and material evidence; (h) the disciplinary
authority had erroneously admitted inadmissible evidence
which influenced the findings; (i) the finding of fact is
based on no evidence.
In paragraph 13 of the judgment, the Court held that:
"13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry,
in case the same has been conducted in accordance with
law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on
which findings can be based;
(vi) correct the error of fact ,however grave it may
appear to be;
(vii) go into the proportionality of punishment
unless it shocks its conscience."
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28. In the case on hand, as the Appellant/Writ Petitioner has
absented herself from duty without prior permission from the competent
Authority after availing leave initially on being advised for medical rest, it
appears that, she does not have the intention to continue in service. Hence,
we are of the view that, permitting the Appellant/Writ Petitioner to continue
in service is not going to help her, moreso, the Disciplined Force. However,
in the present set of facts and in view of the ratio laid down by the Apex
Court in the judgment cited supra, the punishment of dismissal from service
imposed on the Appellant/Writ Petitioner, appears to be harsh. Though the
scope of interference is very limited, the Apex Court in the case of
B.C.Chaturvedi vs. Union of India, (1995 (6) SCC 749), has held that,
depending upon the charges, the Court is empowered to mould the relief.
29. It is laid down under Articles 226 and 227 of the Constitution of
India that, the High Court shall not go into the proportionality of punishment,
unless it shocks its conscience. In view of the foregoing, while we agree that,
the employee shall not be allowed to continue in service, instead of
confirming the punishment of dismissal of service imposed on the employee
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by the Disciplinary Authority, as confirmed by the Appellate Authority, we
modify the same into one of 'compulsory retirement', as the punishment
imposed is shockingly disproportionate, in order to enable the Appellant/Writ
Petitioner to get her terminal benefits for the long service of 22 years
rendered by her, provided, there is no break in her service.
30. In fine, Writ Appeal Nos.244 and 245 of 2020 are dismissed
and Writ Petition No.14251 of 2020 is disposed of with the above
direction. No costs.
[S.V.N.,J.] [A.A.N.,J.]
24.09.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
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Writ Appeal Nos.244 and 245 of 2020
Writ Petition No.14251 of 2020
To:
1. The Director General of Police,
Directorate General CRPF, CGO Complex,
Lodhi Road, New Delhi 110 003.
2. The Inspector General of Police (TRAINING),
Training Directorate CRPF,
Sector-I, R.K.Puram, New Delhi.
3. The Inspector General of Police,
Southern Sector, CRPF, Road No.10C,
Jubilee Mills, Near MLA/MPS Colony,
Gayathri Hills, Hyderabad 500 033.
4. The Deputy Inspector General of Police,
Central Training College CRPF,
Coimbatore District – 17, Tamil Nadu.
5. The Commandant,
O/o. IGP, Principal Central Training College,
CRPF, Coimbatore 17.
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Writ Appeal Nos.244 and 245 of 2020
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S.VAIDYANATHAN,J.
AND
A.A.NAKKIRAN,J.
(aeb)
Common Judgment in
W.A.Nos.244 and 245 of 2020
and
W.P.No.14251 of 2020
24.09.2021
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