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Home > SC > Criminal Law > Central Reserve Police Force Act > Union of India & Ors. Vs. Ghulam Mohd. Bhat



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Union of India & Ors. Vs. Ghulam Mohd. Bhat

Posted on 24 June 2009 by jyoti

Title

Union of India & Ors. Vs. Ghulam Mohd. Bhat



Coram

ARIJIT PASAYAT, DR. AR. LAKSHMANAN



Act

Central Reserve Police Force Act



Subject

Service Matter:

Central Reserve Police Force Act, 1949-Sections 9, 10 and 11-Central Reserve Plaice Rules, 1955-Rule 27-Employee reporting for duty long after sanctioned leave-Competent Authority passing an order of removal from service-High Court quashing the order of removal on the ground that it is without jurisdiction under the Act-Correctness of-Held, the competent authority has jurisdiction to pass an order of removal from service under the Act for such misconduct.

Respondent was working as a Constable in Central Reserve Police Force. The respondent reported for duty long after the sanctioned leave period without prior sanction. The competent authority initiated departmental proceedings for misconduct and passed an order of removal from service. The respondent filed a Writ Petition before High Court challenging the order. The High Court allowed the Writ Petition of the respondent on the ground that the order of removal is without jurisdiction in terms of section 10(m) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Rules, 1955.

In appeal to the Court, the appellants contended that the punishments under section 11 of the Act were in lieu of or in addition to an order of suspension or dismissal; and that Rule 27 of the Rules permits the authority to pass an order of removal from service for such misconduct.



Citation

2005 AIR 4289, 2005(4 )Suppl.SCR367 , 2005(13 )SCC228 , 2005(8 )SCALE509 , 2005(9 )JT212



Head Notes

Allowing the appeal, the Court

HELD: 1.1. The use of words `in lieu of, or in addition to, suspension or dismissal', appearing in Section 11(1) of the Act shows that the authorities are empowered to award punishment of dismissal or suspension to a member of force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clause (a) to (e) of Section 11 of the Act. [373-d]

1.2. Section 11 of the Act deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10 of the Act. Hence, the order of removal from service suffers from no infirmity. [373-f; 374-d]

Dr. Dattatraya Mahadev Nadkarni (since deceased by his L.Rs.) v. Municipal Corporation of Greater Bombay, AIR (1992) SC 786, State of U.P. v. Ashok Kumar Singh, [1996] 1 SCC 302 and Mithilesh Singh v. Union of India and Ors., [2003] 3 SCC 309, referred to.

A. Sharan, Additional Solicitor General, Mrs. Rekha Pandey, Ms. Sushma Suri and P. Parmeswaran for the Appellants.

Ugra Shankar Prasad (N.P.) for the Respondent.



Judgment Made On

20/10/2005

CASE NO.:
Appeal (civil) 4950 of 1999

JUDGMENT:
J U D G M E N T


ARIJIT PASAYAT, J.

Challenge in this appeal is by the Union of India and
its functionaries to the judgment rendered by a learned
Single Judge of the Jammu and Kashmir High Court holding that
the order of removal from service passed by the departmental
authorities in terms of Section 11(1) Central Reserve Police
Force Act, 1949 (in short the 'Act') read with Rule 27 of the
Central Reserve Police Rules, 1955 (in short the 'Rules') is
without jurisdiction.

The background facts need to be noted in brief:

The respondent as a Constable in Central Reserve Police
Force (in short 'CRPF') joined the duty at Srinagar after
being detailed for duty from Assam along with a group of
fresh trainees. He applied for leave on 18th January, 1992
which was sanctioned. He reported for duty long after the
sanctioned leave period was over on 8th December, 1992.
Departmental proceedings were initiated for misconduct on
account of overstay beyond sanctioned leave for 315 days
without prior permission or sanction from the competent
authority. On 21.6.1993 on the basis of the report of the
inquiry officer, the competent authority passed order of
removal from service. The same was challenged by the
respondent by filing a writ petition in the Jammu and Kashmir
High Court. By impugned order dated 5.8.1997 a learned Single
Judge held that since the respondent was proceeded against in
terms of Section 10(m) of the Act read with Rule 27 of the
Rules, the order of removal is without jurisdiction. It was
observed that Section 10(m) only provided for minor
punishment and did not provide for the punishment of removal
from service. Accordingly the order of removal was quashed
but, however, liberty was given to proceed in accordance with
the provisions of the Act and the Rules.

Learned Additional Solicitor General appearing for the
appellants submitted that the view taken by the High Court is
clearly indefensible. It was submitted that Section 11 did
not provide for only minor punishment. It provided that the
enumerated punishments were in lieu of or in addition to
order of suspension or dismissal as the case may be. Rule 27
clearly permitted the order of removal from service and no
interference by the High Court was called for. There is no
appearance on behalf of the respondent in spite of service.

The scope and ambit of Section 11 and Rule 27 has been
called for determination in this appeal. A few provisions
having relevance need to be noted. Undisputedly, overstay
without sanctioned leave is dealt with in Section 10(m) of
the Act. It relates to lessor offences. Section 11(1) and
Rule 27 read as follows:-

"Section 11 - Minor Punishment:
1) The Commandant or any other authority or
officer as may be prescribed, may, subject to
any rules made under this Act, award in lieu
of, or in addition to, suspension or dismissal
any one or more of the following punishments to
any member of the Force whom he considers to be
guilty of disobedience, neglect of duty,
remissness in the discharge of any duty or of
other misconduct in his capacity as a member of
the Force, that is to say:-

a) reduced in rank;
b) fine of any amount not exceeding one month's
pay and allowances;
c) confinement to quarter, lines or camp for a
term not exceeding one month;
d) confinement in the quarter-guard for not more
than twenty eight days, with or without
punishment drill or extra guard, fatique or
other duty; and
e) removal from any office of distinction or
special emolument in the Force.

(Underlined for emphasis)

Rule 27: Procedure for the Award of Punishment
 (a) The punishment shown as items 1 to 11 in
column 2 of the table below may be inflicted or
non-gazetted officers and men of the various
ranks shown in each of the headings of columns
3 to 6, by the authorities named below such
headings under the conditions mentioned in
column 7.


Sl.. No
Punishment
Subedar
(Inspector)
Sub-
Inspector
Others
except
Const. &
enrolled
followers
Const. &
enrolled
followers
Remarks
1
2
3
4
5
6
7
1
Dismissal or removal from the Force
DIGP
DIGP
Comdt.
Comdt.
To be
inflicted
after formal
departmental
enquiry.
2
Reduction to a lower time-scale of pay,
grade, post or service
DIGP
DIGP
Comdt.
Comdt.
To be
inflicted
after formal
departmental
enquiry.
3
Reduction to a lower stage in the time-
scale of pay for a specified period.
DIGP
DIGP
Comdt.
Comdt.
-do-
4
Compulsory retirement
DIGP
DIGP
Comdt.
Comdt.
-do-
5
Fine to pay amount not exceeding one
month's pay and allowances.
DIGP
DIGP
Comdt.
Comdt.
-do-
6
Confinement in the Quarter Guard
exceeding seven days but not more
than twenty eight days with or without
punishment drill or extra guard fatigue
or other duty.
-
-
-
Comdt.
-do-
7
Stoppage of increment.
DIGP
DIGP
Comdt.
Comdt.
-do-
8
Removal from any office of
distinction of special emolument in
the Force.
DIGP
DIGP
Comdt.
Comdt.
May be
inflicted
without a
formal
departmental
enquiry.
9
Censure
Comdt.
Comdt.
Asst.
Comdt. Or
Coy
Comdr.
A Comdt.
Or Coy
Comdr.

10
Confinement to Quarter Guard for nor
more than seven days with or without
punishment or extra guard fatigue or
other duty.
-
-
-
Comdt.

11
Confinement to Quarters lines, camp,
punishment drill, fatigue duties etc. for
a term not exceeding one month.
-
-
-
Com dt.



........................."

A bare perusal of Section 11 shows that it deals with
minor punishment as compared to the major punishments
prescribed in the preceding section. It lays down that the
Commandant or any other authority or officer, as may be
prescribed, may, subject to any rules made under the Act,
award any one or more of the punishments to any member of
the force who is found guilty of disobedience, neglect of
duty, or remissness in the discharge of his duty or of other
misconduct in his capacity as a member of the force.
According to the High Court the only punishments which can
be awarded under this Section are reduction in rank, fine,
confinement to quarters and removal from any office of
distinction or special emolument in the force. In our
opinion, the interpretation is not correct, because the
section says that these punishments may be awarded in lieu
of, or in addition to, suspension or dismissal.

The use of words 'in lieu of, or in addition to,
suspension or dismissal', appearing in sub-section (1) of
Section 11 before clauses (a) to (e) shows that the
authorities mentioned therein are empowered to award
punishment of dismissal or suspension to the member of force
who is found guilty and in addition to, or in lieu thereof,
the punishment mentioned in clause (a) to (e) may also be
awarded.

It may be noted that Section 9 of the Act mentions
serious or heinous offences and also prescribes penalty
which may be awarded for them. Section 10 deals with less
heinous offences and clause (m) thereof shows that absence
of a member of the force without leave or without sufficient
cause or overstay without sufficient cause, is also
mentioned as less heinous offence and for that also a
sentence of imprisonment is provided. It is, therefore,
clear that Section 11 deals with only those minor
punishments which may be awarded in a departmental inquiry
and a plain reading thereof makes it quite clear that a
punishment of dismissal can certainly be awarded thereunder
even if the delinquent is not prosecuted for an offence
under Section 9 or Section 10.

It is fairly well settled position in law that
removal is a form of dismissal. This Court in Dr. Dattatraya
Mahadev Nadkarni (since deceased by his L.Rs.) v. Municipal
Corporation of Greater Bombay (AIR 1992 SC 786) explained
that removal and dismissal from service stand on the same
footing and both bring about termination of service though
every termination of service does not amount to removal or
dismissal. The only difference between the two is that in
the case of dismissal the employee is disqualified from
future employment while in the case of removal he is not
debarred from getting future employment. Therefore,
dismissal has more serious consequences in comparison to
removal. In any event, Section 11(1) refers to Rules made
under the Act under which action can be taken. Rule 27 is
part of Rules made under the Act. Rule 27 clearly permits
removal by the competent authority. In the instant case the
Commandant who had passed the order of removal was the
competent authority to pass the order.

This Court had occasion to deal with the cases of
overstay by persons belonging to disciplined forces. In
State of U.P. v. Ashok Kumar Singh (1996 (1) SCC 302) the
employee was a police constable and it was held that an act
of indiscipline by such a person needs to be dealt with
sternly. It is for the employee concerned to show how that
penalty was disproportionate to the proved charges. No
mitigating circumstance has been placed by the appellant to
show as to how the punishment could be characterized as
disproportionate and/or shocking. (See Mithilesh Singh v.
Union of India and Ors. (2003 (3) SCC 309). It has been
categorically held that in a given case the order of
dismissal from service cannot be faulted. In the instant
case the period is more than 300 days and that too without
any justifiable reason. That being so the order of removal
from service suffers from no infirmity. The High Court was
not justified in interfering with the same. The order of
the High Court is set aside. The appeal is allowed but under
the circumstances there shall be no order as to costs.








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