Mohd.Ibrahim Paddar vs Union of India and Ors.

What is the relevant time for determining the factum of person being a member of the force for the purposes of Sec. 11 of the Central Reserved

Police Force Act, 1949, (here inafter referred to as the Act) is the main question to be determined in this case, when a person is deemed to

become the member of the fore under Sac. 2 (d) of the Act for the purposas of incurring a liability of punishment either under sec. 10 or under

Sec. II to be determined by reference to various provisions of the law as contained in the Act having regard to the facts and circumstances of the

case.

The facts giving rise to the filing of this petition are that the petitioner claims to have joined the CRPF 22nd Bn and serving in the force since 5.2

1969. It is submitted that the petitioner was employed in the force on 5.2.1969 after having undergone the ability test and interview conducted by

the authorities at Khannabal (Anantnag). The petitioner claims to have produced the original school leaving certificate issued by the Headmaster,

Govt, High School, Qazigund, in support of his date of birth (Annexure P 1) In the year 1981 i.e, about 19 years after he had joined the force,

respondent No. 6 initiated disciplinary action against the petitioner vide his letter No. O. 111988BN22 dated 2561988 on the alleged ground of

the petitioner having filed some school leaving certificate stated to have been issued by the Headmaster, Govt. High School, Khannabal

(Anantnag). It is submitted that instead of ascertaining the correctness and the fact whether the alleged certificate which was being made a basis for

the disciplinary action against the petitioner, was genuine or not, he was awarded the punishment vide the order impugned. It is submitted that the

petitioner had never been a student of Govt. High School, Khannabal but, in fact, had studied at Qazigund. The petitioner was not afforded

reasonable opportunity to explain the circumstances or the allegations levelled against him. It is alleged that on the basis of unilateral cryptic

enquiry, punishment of removal from service and forfeiture of all medals and decorations was imposed upon the petitioner. The order impugned

has been challenged on various grounds as detailed in para 9 of the petition.

No counteraffidavit has been filed in the case and the respondents were set exparte vide the court order dated 1.1.1992. I, however, allowed Dr.

Bhan, learned Central Govt. standing council, to appear in the case who opted only to address arguments.

I have heard learned counsel for the parties and perused the record. The charges against the petitioner which were enquired read as under:

i) That the said No. 690100074 CT/DVR Mohd Ibrahim Paddar of HQ 22 BN CRPF committed an act of misconduct in capacity as a member

of the force in that he had produced false/bogus Education certificate (School Leaving Certificate) of 8th class pass issued by Govt. High School,

Khannabal, Anantnag at the time of his enlistment in CMP.

ii) That the said No. 690100074 CT/DVR Mohb Ibrahim Paddar of HO/22BN CRPF committed an act of misconduct in capacity as a member

of the force in that he managed to get himself enlisted in CRPF by forging an Education certificate, thus he bad cheated the Recruitment Officer as

well as the CRPF Department.

After completion of the enquiry the Commandant, 22nd BN CRPF in exercise of his powers under Sec. 11 (1) of the Act read with Rule 27 of the

rules framed under the act ordered the removal from service of the petitioner from the date of issue of the orders. The medals and oilier

decorations, if any, earned by the petitioner during the period of service, were also directed to be forfeited under the provisions of Sec. 12 (1) of

the Act. The record reveals that the petitioner pleaded not guilty to charges on 10101988, the petitioner is alleged to have confessed the

allegations. The enquiry officer, Shri H. M. Singh, vide his report dated 14121988, found, ""There are two conflicting versions which need detailed

verification on the subject. Therefore, it is not possible to exactly decide whether the charges are proved or otherwise. However, In the reply

submitted on 3.12.1988, one Balraj Kohli, Assistant commandant, however, submitted that the petitioner had commuted the offence as is evident

from his report dated 3011990. The impugned order appears to have thereafter been passed on 821990.

Mr. Naik, learned counsel appearing for the petitioner has submitted that the misconduct alleged to have been committed by the petitioner, is

stated to be or, ""at the time of his enlistment in CRPF. ""Elaborating his argument further, he has submitted that the misconduct or any offence even

if committed, pertains to a date earlier than the time when the petitioner became a member of the force within the meaning of Sec. 2 (e) of the Act.

It is contended that as the alleged misconduct is not stated to have been committed by the petitioner in his capacity as a member of the force, the

action taken against him was without jurisdiction. It is contended that the respondents slept over the matter for about two decades and opted to

take action against the petitioner without assigning any reason for not having taken the action at an early date.

The act has been enacted to provide for the constitution and regulation of the CRPF. A person becomes a member of the force only when he is

appointed to the force by the Central Govt. after compliance of the formal statutory obligations. Under Sec. 5 of Act before a person is appointed

to be a member of the force, statement contained in the recruiting roll set out in schedule has to be read out and, if necessary, explained to him in

presence of an officer appointed under subsection (I) of Sec. 4 which is required to be signed by the person who is appointed to the force in

acknowledgment of it its having been so read out to him. The respondents have very categorically stated that the school leaving certificate was

produced by the petitioner before his appointment and that he had cheated the respondent by production of the alleged forged certificate. Be it as

it may, the admitted position of any other offence but he could not been held guilty is that the said certificate was produced by the petitioner at a

time before he became a member of the force. He might have been guilty of an offence under Sec. 11 as he was not a member of the force at the

time of his alleged misconduct. The respondents might have opted to take action under any other provision of law or under the penal code but

were not justified in awarding punishment to the petitioner. I am aware of the consequences which may follow on account of this judgement, but,

that is for the respondents and the Central Legislate to rectify the mistake by incorporating appropriate provision in the Act as is provided under

sections 43 & 44 of the Army Act.

In view of this finding there is no necessity of deciding the other pleas raised by the petitioner. It is held that the enquiry initiated, conducted and

concluded resulting in the passing of the order impugned against the petitioner was without jurisdiction.

The petition is accordingly allowed by setting aside the order of removal of the petitioner from service as issued by respondent No, 5 vide his No:

P. VIIM/8822ECI dated 8.2.1990. The proceedings dings initiated against the petitioner under Sec. 11 of the Act are also quashed. The petitioner

shall be taken back in service, if he has not crossed the age of superannuation, and shall be paid all consequential benefits.

There shall be no order as to costs

C.M.P. NO 4700 of 1991 shall stand disposed of accordingly.