Ramakrishna T.N. vs Government Of India

The present writ appeal is arising out of an order dated 14.06.2017 passed by the learned Single Judge in W.P.No.12342 of 2011.

The facts of the case reveal that the appellant was serving as a Constable in Central Reserve Police Force. He was appointed in the year 1997. He applied for leave for 15 days in the year 2005 and the leave expired on 15.09.2005. He was supposed to report to duty on 16.09.2005 and as he did not report to duty, he was declared as deserter vide office order dated 27.02.2006 by invoking provisions as provided under Rule 31(c) of the Central Reserve Police Force Rules, 1955 (for short, the Rules). A charge memo was issued on 04.03.2006 and thereafter, an enquiry officer was appointed. Before the enquiry officer, the appellant pleaded guilty of the misconduct. It was also stated by the appellant that he was suffering from Jaundice and thereafter, the enquiry officer submitted a report holding the charge established. A copy of the enquiry report was furnished to the appellant. The appellant submitted his explanation and the disciplinary authority not being satisfied with the explanation submitted by the appellant passed the order of dismissal from service on 25.06.2006. The appeal preferred against the same was rejected on 20.01.2007 and the revision was also rejected on 24.06.2010. The writ petition was preferred challenging the order of dismissal and it was pleaded that some minor punishment should have been inflicted upon the appellant and it was also argued before the learned Single Judge that the appellant was suffering from Jaundice and therefore, some lenient view should have been taken by the employer. The learned Single Judge has dismissed the writ petition and paragraphs 14 to 17 of the order passed by the learned Single Judge are reproduced as under:

"14. Coming back to the issue, admittedly petitioner deserted the force and was absent for 248 days. The Central Reserve Police Force is required to deal with any contingency on security of the country and Force has to be attentive and alert to respond to any threat to grave law and order and security. It must keep its personnel alert and ready to respond to any emergency. The Force makes its assessment of readiness by counting on number of personnel on duty. Thus, if a Constable of the Force remains absent for a long time, it would certainly cause grave inconvenience on its alertness and may have deleterious effect in overall readiness of Force for maintenance of peace in the country. Therefore, absence from duty of a Constable from the Central Reserve Police Force and more so, when such absence was for a very long time has to be viewed seriously and cannot be treated as minor misconduct.

In State of Punjab v Dr. P.L.Singla ((2008) 8 SCC 469), Supreme Court held as under:

"14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorised absence (unless the rules require otherwise). Where the punishment awarded for the unauthorised absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorised absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment."

Central Reserve Police Force provides medical facilities to its members. Even assuming that petitioner was affected by 'Jaundice' and could not have returned to his unit where he was working, he ought to have informed his unit and got admitted to authorized hospital to take treatment. Thus, on the plea of suffering with Jaundice, petitioner could not have remained absent from duty for such a long time without informing the competent authority the reason of his absence. It is also appropriate to note from the record that several reminders were sent to the petitioner to report to duty, but he did not respond. This entire issue was assessed by the enquiry officer and has not accepted the plea sought to be raised by the petitioner on his absence on the ground that he was hospitalized for taking treatment of jaundice.

I see no reason to upset the finding of fact recorded by the enquiry officer and accepted by the disciplinary authority. No case is made out for interference. Writ petition deserves to be dismissed and is accordingly dismissed.

Miscellaneous petitions, if any, pending in this writ petition shall stand closed."

This Court has carefully gone through the documents on record. No procedural irregularity has been pointed out in the matter of departmental enquiry. The departmental enquiry was held in consonance with the statutory provisions as contained under the Central Reserve Police Force Act, 1949 (for short, the Act), read with the Rules.

Learned counsel for the appellant, before this Court, has vehemently argued that some lesser punishment should have been given to the appellant keeping in view Section 10 of the Act.

Sections 10 and 11 of the Act are reproduced as under:

"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, picquet or patrol, refuses to receive any prisoner or person duly 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 insolvent to his superior officer in the execution of his office; or

(f) refuses to superintend or assist in the making of any field-work 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 injuries or loses or fraudulently disposes of his arms, clothes, tools, equipments, ammunition or accoutrements, 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, accoutrements or other property issued or supplied to him or in his custody or possession as such member; or

(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, omits or refuses to make or send any return or report of the matters aforesaid; or

(m) absents 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.

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 quarter-guard 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 emolument in the Force.

(2) Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specially authorised in this behalf by the Commandant.

(3) The assistant commandant, a company officer or a subordinate officer, not being below the rank of subedar or inspector, commanding a separate detachment or an outpost, or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishments for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a criminal Court, that is to say,-

(a) confinement for not more than seven days in the quarter-guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance;

(b) punishment drill, or extra guard, fatigue or other duty, for not more than thirty days, with or without confinement to quarters, lines or camp;

(c) censure or severe censure:

Provided that this punishment may be awarded to a subordinate officer only by the Commandant.

(4) A jemadar or sub-inspector who is temporarily in command of a detachment or an outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause (b) of sub-section (3) for not more than fifteen days."

Rule 27 of the Rules is reproduced as under:-

"27. Procedure for the Award of Punishments:

(a) The Punishments shown as items 1 to 11 in column 2 of the table below may be inflicted on 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:

TABLE

Sl. No.

Punishment

Subedar (Inspector)

SubInspector

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.

3.

Reduction to a lower stage in the time-scale of pay for a specified period.

DIGP

DIGP

Comdt.

Comdt.

4.

Compulsory retirement

DIGP

DIGP

Comdt.

Comdt.

To be inflicted after formal departmental enquiry.

5.

Fine of any amount not exceeding one month's pay and allowances.

DIGP

DIGP

Comdt.

Comdt.

6.

Confinement in the Quarter Guard exceeding seven days buy not more than twenty-eight days with or without punishment drill or extra guard fatigue or other duty.

-

-

-

Comdt.

7.

Stoppage of increment.

DIGP

DIGP

Comdt.

Comdt.

8.

Removal from any office of distinction or special emolument in the Force.

DIGP

DIGP

Comdt.

Comdt.

May be inflicted without a formal departmental enquiry.

9.

Censure

Comdt.

Comdt.

Asstt.Comdt. or Coy Comdr.

Asstt.Comdt. or Coy Comdr.

10.

Confinement to Quarter Guard for not 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.

-

-

-

Comdt.

Note:-1. When the post of Deputy Inspector General remains unfilled for a period of over one month at a time the Commandant shall exercise the powers of punishing the Subedars (Inspectors) and Sub Inspectors except the powers of ordering dismissal or removal from the force.

Note:- 2. When the post of Commandant remains unfilled for a period of over one month at a time consequent on the incumbent proceeding on leave or otherwise, the Assistant Commandant shall exercise the powers of punishment vested in the Commandant, except the powers of ordering dismissal or removal from the Force.

Explanation:- (a) Dismissal of a member of the Force precludes him from being re-employed in Government service, while removal of any such member from the Force shall not be disqualification for any future employment (other than an employment in the Central Reserve Police Force) under the Government.

(b) When non-gazetted officers or men of the various ranks are to be punished for any offence, a departmental enquiry, if necessary under clause (a), shall be held by the Commandant or other superior officer under the orders of the Commandant, provided that when the charge is against an officer of the rank of Subedar (Inspector) or Sub-Inspector the enquiry shall be held by an authority to be designated for the purpose by the Deputy Inspector General. Where the officer conducting the enquiry in the case of a Subedar (Inspector) or a Sub-Inspector considers that a punishment under items (1) to (5) and (7) of the Table is called for, he shall complete the departmental proceedings and forward the departmental proceedings and forward the same to the Deputy Inspector General for orders.

(c) The procedure for conducting a departmental enquiry shall be as follows:-

(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry.

(2) At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty" after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral;

(i) it shall be direct;

(ii) it shall be recorded by the Officer conducting, the enquiry himself in the presence of the accused;

(iii) the accused shall be allowed to cross examine the witnesses.

(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If he accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty", he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.

(6) If the Commadant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant who shall record his findings and pass orders, where he has power to do so.

(cc) Notwithstanding anything contained in this rule-

(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or

(iii) where the Special Director - General or Additional Director - General heading zone or Director - General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.

(ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General.

(d) (1) Where two or more members of the Force, including those on deputation to the Force are concerned in any case, the Inspector General or any other authority competent to impose the penalty of dismissal from service on all such members of the Force may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

Note - Where in such a proceeding, the misconduct of a deputationist is to be dealt with, the consent of the disciplinary authority competent to impose the penalty of dismissal shall be obtained for the taking of such a disciplinary action.

(2) Such order shall specify-

(i) the authority which may function as the disciplinary for such a common proceeding;

(ii) the penalties specified in the table of sub-rule

(a) above which such disciplinary authority shall be competent to impose;

(iii) whether such disciplinary authority shall hold the Departmental enquiry himself or may designate any other enquiry officer for that purpose; and,

(iv) that the enquiry shall be held in accordance with the provisions of sub rule (a) and sub rule (c) ."

In the present case, in the light of the aforesaid statutory provisions of law, the appellant was declared as a deserter after conducting an enquiry. Office order was passed declaring him as a deserter and in the case of a deserter, keeping in view Rule 27 of the Rules, major punishment has rightly been inflicted upon the appellant. It is not a case of overstay for a period of few days. It is overstay for a period of 248 days. The other important aspect of the case is that the appellant is a habitual offender so far as overstay without leave is concerned. He was absent for 74 days from 10.02.2000 to 23.04.2000. He was absent for 97 days from 15.02.2002 to 22.05.2002. He was again absent without any leave from 16.03.2003 to 17.03.2003 i.e., for 2 days and again from 23.05.2005 to 18.06.2005 i.e., for 27 days and in those circumstances, the disciplinary authority has inflicted a punishment of dismissal from service. This Court does not find any reason to interfere with the order passed by the learned Single Judge.

The writ appeal is accordingly dismissed. The miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.