Manoj Singh vs Union of India

Tejinder Singh Doabia, J.—Petitioner, while performing the duties of Constable in the Central Reserve Police Force was found to have

committed an act of disobedience in his capacity as a member of the service. What was alleged against him was that he willfully overstayed after

availing 30 days earned leave. He was supposed to report back on the expiry of leave which was sanctioned in his favour with effect from 8th Jan

'94 to 6th Feb '94. He remained absent without proper permission upto 4th April '95. It was this misconduct of his, which was the subject matter

of enquiry. Proceedings were, held against the petitioner under Section 11(1) of the Central Reserve Police Force Act of 1949. Petitioner was

given ten days time to submit his reply. The Enquiry Officer found him guilty of remaining absent. Petitioner's case was considered by the

Commandant of the Battalion. He was ordered to be removed from service with effect from 15th Sept '95 i.e. the date on which the order of

removal came to be passed. The period of suspension from 5th April '95 to 15th Sept '95 was treated to be as such and he was not allowed any

emoluments for this period except the subsistence allowance. The period of absence from 7th Feb '94 to 4th April '95 was treated as Diesnon.

The medals and decorations earned by the petitioner were ordered to be forfeited under Section 12(1) of CRPF Act of 1949.

The learned counsel for the petitioner submits :

i/ That when the respondents have treated the period of absence as dies non, then the presumption would be that the absence period has been

regularised and if it is regularised, the question of imposing punishment by treating the petitioner absent would not arise. For this, reliance is being

placed on a decision of the Supreme Court of India reported as State of Punjab v. Bakshish Singh, 1991(1) Administrative Total Judgments 191.

In the above case, the respondent Bakshish Singh, had gone to a civil court. The civil court recorded a finding that the unauthorised absence

from duty having been regularised by treating the period of absence as leave, the charge would not survive. It was on this finding, the suit was

decreed. The First Appellate court confirmed the finding. When appeal was taken before the Punjab and Haryana High Court, this High Court

remanded the matter. This aspect of the matter was considered. What is said in paragraph 11 of the judgment is being reproduced below :

...The trial court also recorded a finding that unauthorised absence from duty having been regularized by treating the period of absence as leave

without pay, the charge of misconduct did not survive. It was with this finding that the suit was decreed. The lower appellate court confirmed the

finding that since the period of unauthorised absence from duty was regularised, the charge did not survive but it did not say a word about the

finding relating to the opportunity of hearing in the departmental proceedings. Since those findings were not specifically set aside the lower

appellate court was silent about them, the same shall be treated to have been affirmed. In the face of these findings, it was not open to the lower

appellate court to remand the case to the punishing authority for passing a fresh order of punishment. The High Court before which the second

appeal was filed by the State of Punjab, did not advert itself to this inconsistency as it dismissed the appeal summarily, which indirectly reflects that

it allowed an inconsistent judgment to pass through its scrutiny.

It is accordingly submitted by the petitioner that the aforementioned observations would apply to the facts of this case also. It is urged that the

respondents having regularised the period of absence by ordering it to be treated as dies non, were not within their rights to pass further order of

removal.

The aforementioned judgment does apply to the facts of this case and would be good and sufficient for setting aside the order impugned passed

by the respondents.

There is yet another aspect of the matter. Action has been taken against the petitioner under Section 11(1) of the Act referred to above. For

facility of reference, this Section is being reproduced below :

Minor Punishments (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, or 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/ reduction in rank;

b/ fine of any amount not exceeding one month's pay and allowances;

c/ confinement to quarters, lines or camp for a term not exceeding one month;

d/ confinement in the quarterguard for not more than twenty eight days; with or without punishment drill or extra guard, fatigue or other duty, and

e/ removal from any office of distinction or special emoluments in the Force.

A perusal of the above indicates that this deals with minor punishments. It appears that the word `minor punishment' has been dealt with in

contra distinction with other punishments which have other serious consequences. However, a perusal of the aforementioned Section would

indicate that the punishments which can be awarded are the one of suspension or dismissal. So far removal is concerned, this is dealt with in

subsection (1)(e). This deals with removal from any office of distinction or special emoluments in the Force. Therefore, it can safely be concluded

that the punishment of removal is not visualised by Section 11(1) of the Central Reserve Police Force Act, 1949. For this reason and for the

reasons given in the judgment of the Supreme Court noticed above, this writ petition deserves to be allowed and is allowed hereby. Petitioner shall

stand reinstated with all consequential benefits minus monetary benefits. This is because in these proceedings, it is not possible to record a finding

that during this period, the petitioner was not gainfully employed elsewhere. Petitioner, as indicated above, shall stand reinstated with effect from

the date, a copy of this order is made available to the respondents by the petitioner.

Disposed of as such.