(O&M) Hira Lal vs Union Of India And Ors
2022 Latest Caselaw 1133 P&H

       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                      RSA No.3618 of 2011 (O&M)
                    Date of decision: 3rd March, 2022

Hira Lal
                                                             ... Appellant
                                      Versus
Union of India & others
                                                           ... Respondents

CORAM: HON'BLE MR. JUSTICE FATEH DEEP SINGH

Present:   Mr. Sandeep Goyat, Advocate for the appellant.
           Mr. S.K. Sharma, Advocate
           Sr. Panel Counsel UOI for the respondents.

FATEH DEEP SINGH, J.

This is an appeal by the appellant Hira Lal whereby he has

sought to impugn and challenge judgment and decree dated 28.05.2011

whereby the Court of learned Additional District Judge, Narnaul had

allowed the appeal of the appellant Union of India and set aside the

findings of the Court of learned Civil Judge (Senior Division), Narnaul

dated 23.01.2009 which had earlier decreed the suit of the then plaintiff

(now appellant).

Admittedly, the appellant had worked with the Central

Reserve Police Force (in short, 'CRPF') from the date when on

01.01.1982 he was recruited as a Constable. The allegations against him

are that the appellant had misbehaved with a lady official of the

department while under intoxication. On these allegations, an enquiry

was duly held after chargesheet was issued under Section 11(1) of the

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Central Reserve Police Force Act, 1949 (in short, 'the Act') and vide

impugned order Ex.P6 he was removed from service. It is in these

circumstances, the appellant has challenged his dismissal by filing a suit

for declaration etc. praying that no such punishment could be imposed as

the chargesheet was only for a minor punishment and the order of

dismissal was for a major one.

The stand of the defendants was of admission as far as

enrolment of the plaintiff in the department on the rank of Constable was

concerned, but it is alleged that he was habitual of committing several

offences for which he had been regularly awarded punishment. The

categoric stand of the defendant department is that a departmental

enquiry under Section 11(1) of the Act read with Rule 27 of the Central

Reserve Police Force Rules, 1955 (in short, 'the Rules') was conducted

and upon holding of due enquiry, offering him reasonable opportunity of

hearing and show-cause notice, it was established as to the charges so

levelled against him and thus, vide orders dated 03.10.1999 he was

removed from service. The Court below had framed the following

issues:-

1. Whether the order passed by defendants, No.P-

VIII/9/99 ECII dated 08.10.1999 by which plaintiff was

removed from service is illegal null and void? OPP

2. Whether the plaintiff is entitled for the relief claimed in

the suit? OPP

3. Whether the suit is not maintainable? OPD

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4. Whether the plaintiff has no cause of action to file the

suit? OPD

5. Whether the plaintiff has no locus standi to file the

suit? OPD

6. Whether the Court has no jurisdiction to try the suit?

OPD

7. Relief.

The plaintiff examined PW1 Inspector Karan Singh of CRPF

and thereafter Hira Lal himself stepped into the witness box as PW2 to

reiterate his stand and in the process proved documents Ex.P1 to Ex.P9.

Thereafter, PW3 Matav was examined to support his case and upon

tendering of documents Ex.P12 to Ex.P18 closed the evidence.

The defendants tendered affidavit of SI Subhash Yadav

Ex.DW1/A to reiterate the stand of the defendant department and in the

process proved documents Ex.D1 to Ex.D5 and closed their evidence. It

is under these circumstances the impugned findings were returned.

In view of the recent pronouncement in 'Kirodi (since

deceased) through his LR vs. Ram Parkash & others' Civil appeal

No.4988 of 2019; SLP(C) No.11527 of 2019 decided on 10.05.2019, the

Hon'ble Supreme Court has clearly held under Section 41 of the Punjab

Courts Act, 1918 which has its application to the States of Punjab and

Haryana, that there is no necessity of framing substantial question of law

for disposal of an appeal.

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Heard Mr. Sandeep Goyat, Advocate for the appellant;

Mr.S.K. Sharma, Advocate Senior Panel Counsel for Union of India

representing the respondents and perused the records of the case.

Appreciating the submissions of the two sides, the Act by

way of Section 9 deals with offences and punishments under which more

heinous offences have been enlisted and which reads as follows:-

"9. More heinous offences - Every member of the Force who-

(a) begins, excites, causes or conspires to cause or joins in any mutiny, or being present at any mutiny, does not use his utmost endeavour to suppress it, or knowing, or having reason to believe in , the existence of any mutiny, or of any intention or conspiracy to mutiny or of any conspiracy against the State does not, without delay, give information thereof to his superior officer; or

(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer, whether on or off duty, knowing or having or having reason to believe him to be such; or

(c) shamefully abandons or delivers up any post or guard which is committed to his charge, or which it is his duty to defend ; or

(d) directly or indirectly holds correspondence with, or assists or relieves any person in arms against the State or omits to discover immediately to his superior officer any such correspondence coming to his knowledge; or who, while on active duty,-

(e) disobeys the lawful command of his superior officer; or

(f) deserts the Force; or

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(g) being a sentry, sleeps upon his post or quits it without being regularly relieved or without leave; or

(h) leaves his commanding officer, or his post or party , to go in search of plunder ; or

(i) quits his guard, picquet, party or patrol without being regularly relieved or without leave; or

(j) uses criminal force to, or commits an assault on, any person bringing provisions or other necessaries to campo or quarters, of forces a safeguard or breaks into any house or other place for plunder, or plunders, destroys or damages property of any kind; or

(k) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters; or

(l) displays cowardice in the execution of his duty.

shall be punishable with imprisonment for a term which may extend to fourteen years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay or with fine to that extent in addition to such sentence of transportation or imprisonment."

While Section 10 of the Act deals with less heinous offences

which are reproduced as below:-

"10. Less heinous offences - Every member of the Force who-

(a) is in a state of intoxication when on, or after having been warned for, any duty or on parade or on the line of march; or

(b) strikes or attempts to force any sentry; or

(c) being in command of a guard, piquet or patrol, refuses to receive any prisoner or person or person duly

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committed to his charge or without proper authority releases any person or prisoner placed under his charge or negligently suffers any such prisoner or person to escape; or

(d) being under arrest or in confinement, leaves his arrest or confinement, before he is set at liberty by lawful authority; or

(e) is grossly in-subordinate or insolent to his superior officer in the execution of his office ; or

(f) refuses to superintend or assist in the making of any fieldwork or other work of any description ordered to be made either in quarters or in the field; or

(g) strikes or otherwise ill-uses any member of the force subordinate to him in rank or position ; or

(h) designedly or through neglect injures or loses or fraudulently disposes of his arms, clothes, tools, equipments, ammunition or accountrement or any such articles entrusted to him or belonging to any other person ; or

(i) malingers or feigns or produces disease or infirmity in himself, or intentionally delays his cure, or aggravates his disease or infirmity; or

(j) with intent to render himself or any other person unfit for service , voluntarily causes hurt to himself or any other person; or

(k) does not, when called upon by his superior officer so to do or upon ceasing to be a member of the force forthwith deliver up, or duly account for, all or any arms,. Ammunition, stores, accountrements or other property issued or supplied to him or in his custody or possession as such member; or

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(l) knowingly furnishes a false return or report of the number or state of any men under his command or charge or of any money, arms ammunition, clothing, equipments, stores or other property in his charge, whether belonging to such men or to the Government or to any member of or any person attached to the force or who through design or culpable neglect, omit, or refuses to make or send any return or report of the matters aforesaid ; or

(m) absent himself without leave, or without sufficient cause overstays leave granted to him: or

(n) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline: or

(o) contravenes any provision of this Act for which no punishment is expressly provided: or who, while not on active duty:-

(p) commits any of the offences specified in clauses

(e) to (l) (both inclusive) of section 9.

shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months pay, or with both."

In the instant case, the copy of the enquiry proceedings Ex.P1

including evidence Ex.P2, Ex.P3, Ex.P4 and the forwarding of the

departmental enquiry report Ex.P5 leading to passing of orders dated

08.10.1999 Ex.P6 shows that he has been departmentally dealt with for

two charges, first that on 16.06.1999 he was found loitering around SO's

club recreation room located at barrack No.1 and misbehaved with steno

of the office and the second charge is that on the same day he was found

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in a state of intoxication and is alleged to have committed offence under

Section 11(1) of the Act read with Rule 27 of the Rules.

As has been contended on behalf of the appellant by

Mr.Sandeep Goyat, Advocate, the appellant Hira Lal head constable is

admitted to have put in more than 17 ½ years of service and there is no

other proven indiscipline against him prior to the present incident that is

alleged to have taken place on 16.06.1999. The claim of the learned

counsel representing the Union of India that he was habitual to such

misconducts, has not been substantiated or corroborated on the records by

any means.

Since the appellant has been chargesheeted under Section 10

of the Act which deals with minor offences but has been awarded major

punishment of dismissal from service and therefore, is in contravention of

the principle of natural justice and the rule of Audi Alteram Partem and

therefore, goes to the very root of the impugned order under challenge.

The learned trial Court has held that in the absence of any substantial

ground or accusation of heinous nature, the delinquent official has been

given the gravest form of punishment of removal from service, and has

rightly held it so. Rule 36 of the Rules which deals with offences covered

under Section 9 pertaining to more heinous offences is reproduced

below:-

36. Judicial trials .--(a) All trials in relation to anyone of the offences specified in section 9 or 10 shall be held in accordance with the procedure laid down in the Code of Criminal Procedure, 1898.

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(b) All persons sentenced to imprisonment under the Act shall be confined in the nearest jail:

Provided that if the sentence of imprisonment is for one month or less, "or where the Commandant is satisfied that due to the difficulty of transport and escort of the person sentenced to imprisonment, to the nearest jail, it is so desirable." Such persons shall be confined in the Quarter Guard of the Force.

However, the accusations so levelled against the appellant do

not fall under that category.

Section 10 of the Act deals with less heinous offences in

which the case of the appellant falls as per the accusations so levelled

against him. Thus, the very procedure followed by the authorities against

the appellant has resulted in causing prejudice to the case of the appellant

and resulting in miscarriage of justice. The learned first appellate Court

has purely relied upon interpreting Section 11(1) of the Act and has

wrongly held that when chargesheet for minor offence has been served,

there is no bar for imposition of a major punishment by the authorities.

No doubt, under Section 11 powers vest with the Commandant or such

authority so empowered to award punishment in addition to minor

punishment but there needs to be judicious satisfaction and a speaking

order as to why it is necessitated so. But in the instant case, the impugned

order is silent on that. What are the basis which have led to passing of the

impugned order of dismissal, is anybody's guess. The malice on the part

of the authorities is evident that the statutory remedy by the plaintiff

appellant by way of appeal under Rule 28 of the Rules was still under

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process and without passing any order thereon he has been dismissed

from service and therefore, circumventing the statutory departmental

remedy so provided under the Act and the Rules governing the force and

subverting right of the appellant to file revision in terms of Rule 29 of the

Rules, is another distressing feature for the authorities. Even the alleged

departmental enquiry violates the procedure laid in Rule 27 of the Rules.

The impugned punishment is certainly as a sudden surprise at his back

which necessitates indulgence by this Court in setting aside the impugned

judgment and decree of the first appellate Court. In the fitness of things,

it would be desirable to remand back the case with the direction to

respondent authorities that in case they feel it so, may adopt the

procedure prescribed under the Act and the Rules in consonance with the

settled law after ensuring fairness and opportunity of hearing and

thereafter, pass any order that they might deem fit under the

circumstances. Any exercise shall be undertaken preferably within a

period of three months from the date of receipt of certified copy of this

order. In the meanwhile, the appellant shall be granted provisional

allowance from the date when the impugned order was passed and he was

thrown out of service till the conclusion of the proceedings.

The appeal stands disposed off in those terms.

                                             (FATEH DEEP SINGH)
                                                   JUDGE
March 3, 2022
rps
             Whether speaking/reasoned                     Yes/No
               Whether reportable                          Yes/No

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