Telangana High Court

Badhanapuri Sudhakar vs The Union Of India And 4 Others on 28 October, 2022

Bench: P.Madhavi Devi

          THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

                WRIT PETITION No. 31557 of 2021

ORDER:

This writ petition has been filed by the petitioner seeking a writ of

mandamus declaring the order vide No.J.II-1/2016-EC.II-216, dated

28.10.2016 by the 5th respondent in rejecting the representation of the

petitioner dated Nil-03.2016, as unlawful, illegal and unconstitutional

and consequently to set aside the same and direct the respondents to

reinstate the petitioner in the same post forthwith and pass such other

order or orders as the Hon'ble Court deems fit and proper.

2. Brief facts leading to the filing of the present writ petition are

that the petitioner was enlisted as a constable in CRPF Unit on

10.03.2010 and after completion of his basic training, the petitioner

had reported to 216 Battalion (Bn) during May, 2011 and was posted

to A/216 Battalion on 23.11.2014. It is submitted that before

23.11.2014, the petitioner had made a leave application to go and see

his old age parents as his mother was suffering from serious ill-health

and also his wife who had delivered a boy and requested for grant of

leave, but the 5th respondent refused to grant leave and it is alleged

that the 5th respondent had torn the leave application and threatened

the petitioner with dire consequences. It is submitted that it was in

these circumstances, that the petitioner was forced to submit a letter

dated 23.11.2014 to the 5th respondent to discharge him from service

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on the ground that there is no person to look after his old age parents

and his son, who was born on 16.09.2014. The petitioner further made

a representation dated Nil-03-2016 to the 1st respondent through

proper channel and also a copy of the legal notice dated 11.06.2016

was also submitted to the 2nd respondent vide his Hindi letter dated

27.06.2016, which was forwarded to the 3rd respondent for further

necessary action. Since, the respondents did not consider the

petitioner's representation Nil-03-2016 and legal notice dated

11.06.2016, he filed a Writ Petition i.e., W.P.No.395 of 2017 seeking a

direction to the respondents No.1 to 4 to consider this representation

dated Nil-03-2016. The writ petition was posted before the Court on

02.11.2021 and during the course of hearing, the respondents had

informed that an order dated 28.10.2016 was already passed rejecting

the application of the petitioner dated Nil-03-2016. In view of the

above, the petitioner sought permission to withdraw the said writ

petition with a liberty to file a fresh writ petition, challenging the

rejection order dated 28.10.2016. Accordingly, the present writ petition

was filed.

3. Learned counsel for the petitioner submitted that after

submitting the resignation letter dated 24.11.2014, according to the

CRPF Rules, the competent authority to accept the same has to wait

for completion of 3 months from the date of notice since the petitioner

was a quasi-permanent employee having more than 4 years of service.

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It is submitted that the same is contemplated under Rule 16 of the

CRPF Rules 1955, whereas, the 5th respondent accepted the

resignation letter w.e.f. 13.12.2014, which is not in accordance with

the extent rules.

4. It is submitted that though the petitioner intended to withdraw

the resignation letter before the completion of 3 months time, he could

not do so, as he had to settle his problems and therefore, he submitted

that his letter to withdraw his resignation and to rejoin duty was

submitted belatedly and the 3rd respondents had already passed orders

on 15.10.2015, not allowing the petitioner to withdraw his resignation

as contemplated under sub-Rule 4(iii) of Rule 26 of CCS (Pension)

Rules, 1972 stating that the date on which resignation become

effective and the date on which person is allowed to resume duty as a

result of permission to withdraw his resignation is more than 90 days.

5. Learned counsel for the petitioner submits that he belongs to

Scheduled Tribe and he is the only bread earner of his family and since

he was living in a backward village and his father was suffering from

paralyses and his mother expired on 15.09.2015 as she was suffering

from kidney ailment, and the delivery of his wife and compelled

domestic problems prevented the petitioner from approaching the

respondents within time, but these factors were not taken into account

by the respondents while rejecting the petitioner's claim vide letter

dated 15.10.2015. Therefore, he is seeking a declaration that the order

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of the respondents dated Nil-03-2016 as illegal, arbitrary and

consequently to direct the respondents to reinstate the petitioner into

service with consequential benefits.

6. Learned counsel for the petitioner reiterated the

submissions/averments made in the writ affidavit and placed reliance

upon the judgment of the Hon'ble Supreme Court in the case of Punjab

National Bank Vs. P.K.Mittal1, for the proposition that when an

employee gives a notice of resignation, it becomes effective only on the

expiry of notice period, i.e., three months from the date thereof in that

case and since the withdrawal letter was written before the resignation

become effective, the resignation was held to have been withdrawn

with the result that the respondent continued to be in the service of

the bank. He also placed reliance upon the judgment of the Guwahati

High Court in the case of Biswarup Mukherjee Vs. Union of India

and others2, dated 15.06.2017 wherein it was held that even if

resignation was voluntary, the accepting authority was duty bound to

abide by the notice period, mandated by the Schedule of the CRPF Act

and also apply his mind on the necessity for retention of the constable,

in the larger interest of the organization. He therefore, prayed for relief

to reinstate the petitioner into service.

1989 AIR 1083

W.P (C).No.6356 of 2011

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7. Learned Standing counsel for Central Government relied upon

the averments made in the counter affidavit filed on behalf of the

respondents No.1 to 5. It is stated that the petitioner had voluntarily

submitted his resignation letter dated 23.11.2014 and after recovery of

training charges of Rs.1,01,873/- on 12.12.2014, from him and on

completion of due formalities, the notice for resignation/discharge

from service submitted by the petitioner was accepted w.e.f.

13.12.2014 under the provisions contained in Rule 17-A of CRPF

Rules, 1955 read with Chapter-47 of Swamy's Establishment and

Administration Manual and he was struck off from the strength of 216

Battalion w.e.f. 13.12.2014 vide 216 Battalion Officer order dated

12.12.2014.

8. It is submitted that the petitioner had preferred an appeal dated

Nil to the IGP, Southern Sector, Hyderabad, on 17.04.2015 with a

request to reinstate the petitioner into service, but his plea was

rejected by IGP, Southern Sector, CRPF, Hyderabad, vide orders dated

15.10.2015, as the appeal was submitted by him after 90 days of

proceeding on resignation which is beyond time limit as prescribed in

Sub Rule-4(iii) of Rule 26 of CCS (Pension) Rules, 1972. It is submitted

that aggrieved by the decision of the IGP, Southern Sector, CRPF,

Hyderabad, the petitioner filed a Writ Petition i.e., W.P.No.7671 of

2016, which was subsequently withdrawn with a liberty to submit

necessary application before the 1st respondent for redressal of his

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grievance, within a period of one month from the date of receipt of a

copy of the order and the respondents was directed to consider and

dispose of the same within a period of two months thereafter.

9. It is submitted that thereafter the petitioner has filed an

application dated Nil-03-2016 addressed to MHA to reinstate him into

service and the respondents vide letter dated 05.09.2016 had

intimated that MHA has not accepted the above request of the

individual for condonation of delay of excess of 15 days to withdraw

the resignation and to permit him to continue in service in the same

capacity with all consequential benefits. The decision was also

conveyed vide letter dated 14.09.2016 to 216 Battalion by DIGP (Law)

Directorate with a direction to issue speaking order as per rules and

also directed to forward the copy of speaking order to the petitioner.

10. It is submitted that thereafter the petitioner had filed Writ

Petition i.e., W.P.No.395 of 2017 before this Court with a prayer to

withdraw his resignation from service which was accepted by the

Commandant-216 Battalion vide orders dated 12.12.2014 and when

the petitioner was informed that his representation was rejected vide

orders dated 28.11.2016, this Court had permitted the petitioner to

withdraw the writ petition with a liberty to challenge the rejection order

dated 28.11.2016.

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11. The contentions of the petitioner that he had applied for leave

which was not granted by the 5th respondent, is not denied by the

respondents. It is submitted that the writ petition is not maintainable

as the petitioner has not proved his bonafide and the reasonable cause

in filing an appeal before the appellate authority belatedly. All the

relevant documents are also filed along with the counter affidavit.

12. Having regard to the rival contentions and the material on

record, this Court finds that the only issue for adjudication in this writ

petition is whether the resignation of the petitioner has been accepted

in accordance with rules or not. The petitioner has submitted his

resignation on 23.11.2014. The petitioner has completed four years of

service as on the date of resignation and therefore, he was a quasi-

permanent employee.

13. Rules 16 to 18 of CRPF Rules, 1955 deals with period of service,

discharge, recoveries on resignation and discharge and discharge

certificate, etc. For the purpose of ready reference, they are reproduced

here under:

16. Period of Service: (a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month's notice by the appointing authority. At the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not declared quasi-permanent under the said rules shall be continued as temporary Government employees unless they claim discharge as per schedule to the Act.

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Those who are temporary shall be liable to discharge on one month's notice and those who are quasi-permanent shall be liable to discharge on three month's notice in accordance with the said rules, as amended from time to time.

(b) Should the Central Government decide at any time to disband the Force or any part of it either before termination of the period for which a member of the Force is enrolled or at any time thereafter, he shall be liable to discharge, without compensation from the date of disbandment.

(c) No member of the Force shall withdraw from the duties of his office without the express permission of the Commandant of all accredited gazetted officer.

(d) The appointing authority may, during the period of initial appointment of a member of the Force appointed under section 4 and 5 of the Act, permit him, for good and sufficient reason, to resign from the Force with effect from such date as may be specified in the order accepting his resignation: Provided that on the acceptance of his resignation any such member of the Force shall be required to refund to the government all the cost of training imparted to him in the force or a sum equal to three months pay and allowance, received by him prior to the date of his resignation whichever is less.

(e) The appointing authority may give substantive status to such members of the Force as are found suitable in all respects.

17. Discharge: Subject to the provisions of the schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through the proper channel.

17.A Recoveries of resignation and discharge: A member of the Force seeking resignation under rule 16 or discharge under rule 17 from service shall be required to refund to the Government a sum equal to three months pay and allowances received by him or her prior to the resignation or discharge, as the case may be, or the cost of training imparted to him or her in the Force whichever is higher:

Provided that in the case of a member of the Force seeking discharge from service under rule 17 within the period of three months from the date of enrolment, the sum

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equal to three months pay and allowances shall be calculated with reference to three months pay and allowances which would have been received but for discharge:

Provided further that a member of the Force tendering resignation or seeking discharge from service for accepting a job under the Central or State Governments or local bodies, after having been granted cadre clearance for the same, shall not be required to refund the sum as provided herein above.

18. Discharge Certificate: Every member on leaving the Force shall be entitled to a discharge Certificate in the prescribed Form CRP-26.

14. From literal reading of Rule 16(a)- it is clear that if a quasi-

permanent employee is to be discharged from service by CRPF, a

minimum of three months of notice is to be given.

Clause (d)- provides that the appointment authority may, during

the period of initial appointment permit him, for good and sufficient

reason, to resign from the force with effect from such date as may be

specified in the order accepting his resignation.

15. Proviso makes it clear that on the acceptance of his resignation

any such member of the force shall be required to refund all the cost of

training imparted to him in the force or a sum equal to three months

pay and allowance, received by him prior to the date of his resignation

whichever is less.

16. From a reading of above rules, it appears that an employee has

to give a clear notice of three months for his resignation and it would

become effective only after the lapse of said three months. It is settled

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law that before a resignations become effective, the petitioner can

withdraw the said resignation letter. The petitioner has submitted his

withdrawal letter dated 17.04.2015 and the three months notice of

resignation letter would lapse on 23.02.2015.

17. The argument of the learned counsel for the petitioner is that the

respondents have not waited for 90 days to lapse, before accepting

resignation letter on 12.12.2014. Therefore, according to the learned

counsel for the petitioner, the acceptance of the resignation letter on

12.12.2014 is bad in law. It is submitted that as held by the Hon'ble

Supreme Court in the case of Punjab National Bank (supra), the

resignation letter would become effective only after the lapse of three

months from the date of resignation letter. The respondents therefore,

could not have given effect to it from 13.12.2014 onwards. It is

submitted that as held by the Hon'ble Guwahati High Court the

resignation could have been withdrawn before the resignation become

effective. In the said case, the High Court had considered the case of a

CRPF constable and after considering the relevant rules, sections and

the guidelines issued with regard to the resignation and withdrawal of

the resignation, the High Court has held as under:

5. Under rule 16 of the CRPF Rules, discharge on three months' notice for quasi-permanent constable is permitted but the appointing authority is obliged to permit resignation, only for good and sufficient reason, under sub-rule (d) of rule 16.

The discharge of CRPF constable is made subject to the

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Schedule appended to the CRPF Act, which also mandates a notice period for acceptance of resignation from CRPF personnel. That apart, before resignation is accepted, the authority under the applicable Guideline of 17.5.1990, must explain in detail about the likely hardship, the constable will face after his discharge and an undertaking about the counselling must be retained in the Battalion record.

6. Before proceeding further, it would be appropriate now to extract Rule 17 of the CRPF Rules, the Schedule to the CRPF Act and the Guidelines issued by the Director General, CRPF on 17.5.1990, to appreciate whether the discharge of the constable was in accordance with the applicable norms:

(A) CRPF Rules, 1955 "17. Discharge. -- Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through proper channel."

(B) CRPF Act, 1949 "Section 6: Resignation and withdrawal from the Force. -- No member of the Force shall be at liberty to--

(a) resign his appointment during the term of his engagement, except before the expiration of the first three months of his service; or

(b) withdraw himself from all or any of the duties of his appointment, without the previous permission in writing of the Commandant or Assistant Commandant or any other officer authorized by the Commandant to grant such permission."

(C) CRPF Act, 1949 THE SCHEDULE Recruiting Roll

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(See section 5) "After you have served in the Force for such period as the Central Government may prescribe, you may at anytime when not on active duty, apply for discharge, through the officer to whom you may be subordinate, to the Commandant, and you will be granted your discharge after two months from the date of your application, unless your discharge would cause the vacancies in the Force to exceed one-tenth of the sanctioned strength in which case you shall be bound to remain until this objection is waived or removed But, when on active duty, you shall have no claim to a discharge and you shall be bound to remain to do your duty until the necessity for retaining you in the Force ceases when you may make your application in the above-mentioned manner:

Provided that, if you wish to withdraw from the Force, you may submit your resignation at any time before the expiration of the first three months of your service, but, not afterwards until the completion of the period prescribed as aforesaid; the Commandant may either accept your resignation forthwith or at the end of three months from the date of its receipt:

Provided, also that the Commandant may, if he thinks fit, allow you to resign at any time on your giving three months' notice of your wish to do so.

(D) CRPF Guidelines on Discharge Directorate General, CRPF, CGO 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) dated 11.2.1988 (published in CRPF

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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 Government servant in service, a care has to be taken that no one is allowed to proceed on discharge/voluntary 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 voluntary 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/voluntary retirement. Such An undertaking should be kept on record.

*********"

7. The petitioner contends that it was not a voluntary resignation and even if it is assumed otherwise, acceptance of resignation was improper without offering counselling to the constable, on the consequences of the resignation. When the provisions of the CRPF Act and Rules and the Guideline, issued by the Director General, CRPF are examined, they indicate that application for resignation from a member of the force, must be dealt with sincerity and both the interest of the individual and also the larger interest of the Force and the society should, be borne in mind.

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8. The Schedule of the CRPF Act, requires that the resignation letter are not be accepted mechanically only because a personnel has applied for voluntary discharge. The prescribed period of notice is mandatory and, therefore, it is provided in the Schedule that discharge should not be automatic or be granted forthwith, until a conclusion is reached that it is no more necessary for retention of the personnel who has resigned. It is also made mandatory to provide counselling for a constable who resigned, to make him understand the serious consequences of being rendered jobless, which will entail grave hardship for the employee and his family.

9. The above provisions make it abundantly clear that resignation letter are not to be accepted on mere asking but the consequences of the vacancy in the Force will have to be deliberated upon by the accepting authority, before discharge can be ordered on resignation.

10. The Guideline issued on 17.5.1990, by the Director General, CRPF also requires the employer to examine the consequences of the resignation from the perspective of the personnel, as the peril of unemployment and hardship for the discharged constable is required to be explained to him, with certain solemnity. In fact, high probity and candor of a model employer is expected of the accepting authority, under the Guideline and in order to ensure that the required counselling was done and all consequences were explained, a specific undertaking is required to be obtained from the resigning constable and that should be kept in the records.

11. The above discussion makes it clear that the norms of discharge are meant to address not only the interest of the constable but also to protect the organizational interest and also the larger interest of society. Commenting on this aspect, this court in Gyani Singh v. Union of India, (2013) 3 GLR 201, said the followings:

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"********* It may not be far fetched to assume that the aforesaid guidelines/instructions/circular/letter was issued not only in the interest 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.

*********"

12. The above observation in Gyani Singh (supra) cannot be treated lightly as they bring in the element of public interest in the premature discharge of a trained member of the armed force and the possible exploitation of the trained man, for anti- national activities, if he is pushed to the brink by his jobless circumstances. When we assess the rival contention of the counsel from this perspective, and then examine the facts here, a disturbing scenario emerges. The so-called resignation was signed on 25.7.2011, just after the constable was placed in quarter guard confinement. The resignation letter was written in Hindi but it was signed in English by the petitioner. He speaks of being coerced into appending his signature after the letter was written by someone else. The required notice of 3 months was disregarded and the discharge was ordered forthwith. Therefore, the mandatory counselling was very unlikely. Moreover,

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nothing is produced by the respondents to indicate that the accepting authority examined the organizational needs or showed any concern for the potential damage to the society. Therefore, in my perception, a forced resignation was a distinct possibility, in the present case.

13. But even if we assume that resignation was voluntary, the accepting authority was duty bound to abide by the notice period, mandated by the Schedule of the CRPF Act and also apply his mind on the necessity for retention of the constable, in the larger interest of the organization. But since the discharge order was issued forthwith on 26.7.2011, it has to be held that norms were disregarded by the hasty action of the accepting authority.

14. Another aspect raised by the CGC is now to be considered. The Decipher Sheet, with the endorsement of the Adjutant and the Commandant of the 20th Battalion, annexed to the additional affidavit of 14.3.2017, is a secret document, which is not in public domain. Therefore, in the absence of any signature of the petitioner in the official document makes me believe that it was a created document and was nothing more then a perfunctory exercise, intended to show conformity with the requirement of the D.G.'s Guideline dated 17.5.1990.

15. The credibility of the Decipher Sheet, gets extinguished firstly by the fact that it was not a document in public domain. Moreover, involvement of the petitioner with the deliberation before the Commandant, cannot be assumed in the absence of his signature in the Decipher Sheet. The genuineness of what was written in the secret document becomes doubtful also because, the undertaking of the petitioner given on 26.7.2011 (Annexure B), does not have any reference to the purported counselling, afforded to the constable, by the Commandant. If in reality, the C.O. had counseled the constable, the same should have been reflected in the

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undertaking. But despite the specific requirement of the CRPF Guidelines, counselling was not afforded and it appears to be a case of hasty discharge, without following the prescribed norms of the CRPF Act and the Rules and also the Guidelines of the organization.

16. The case papers made available to the court suggest that counselling was not afforded to the petitioner, before his discharge nor it is reflected that the authorities had applied their mind on the organizational need for retention of the constable in the operation area. The infringement of the Guideline for dealing with the resignation and discharge of personnel in the CRPF organization, is clearly discernible in the case.

17. In so far as FR 56(1A)(b), referred to by the learned CGC, the notice period for acceptance of resignation does not get reduced under this provision since the discharge and resignation in the CRPF are to be considered under specific statutory provision and the D.G/s Guidelines. Moreover, the FR 56(1A) provision relates to retirement under Chapter IX of the Fundamental Rules.

18. As a result of the above conclusion, the impugned discharge order dated 26.7.2011 (Annexure 1), is held to be unsustainable in law and the same is accordingly quashed. The respondents are directed to reinstate the petitioner in service, within eight weeks, from the date of receipt of this order but the authorities are allowed to verify the medical fitness, upon reinstatement. The period from the date of discharge, till reinstatement will be notionally treated to be on duty, for the purpose of other service benefits. But backwages should not be paid for the interregnum since no service was received, during this period. It is ordered accordingly.

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18. Therefore, this Court is also of the opinion that the respondents

could not have accepted the resignation letter of the petitioner before

the expiry of 3 months/90 days from the date of resignation and

therefore, it has to be set aside and the respondents are therefore,

directed to reinstate the petitioner into service without any back

wages. However, notional service shall be considered only for the

purpose of retirement benefits and the petitioner shall not be eligible

for any monetary benefits.

19. The writ petition is accordingly partly allowed. There shall be no

order as to costs.

Miscellaneous applications, if any pending, shall also stand