S.H. Basudev Sharma vs Union Of India

M.V. Muralidaran, J

This writ petition has been filed by the petitioner seeking to set aside the orders of the disciplinary authority; appellate authority and the revisional authority and to direct the respondent authorities to award him any of the punishments/penalty provided in Section 11(3)(a)(b) and (c) of the CRPF Act, 1949 for the offence committed by him.

There is no dispute that departmental enquiry was initiated against the petitioner for submission of fake CEA claim amounting to Rs.19,000/- in respect of his son Lenin Sharma. There is also no dispute that departmental enquiry was conducted, after following due procedures and by an order dated 17.8.2015, respondent No.5 imposed penalty of pay reduced from Rs.9430/-plus grade pay of Rs.2000/- per month to Rs.5200/- plus grade pay Rs.2000/- per month in the time scale of pay for a period of five years. The order of respondent No.5 further states that the petitioner will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments or pay.

Aggrieved by the said punishment/penalty, the petitioner had preferred an appeal before respondent No.4 and by an order dated 24.11.2015, the fourth respondent, rejected the appeal of the petitioner holding that no cogent reasons were available to interfere with the order of the disciplinary authority dated 17.08.2015. Aggrieved by the order of the appellate authority, as per the provisions contained in Rule 29 of CRPF Rules, 1955, the petitioner had preferred a revision petition before the third respondent and the same came to be rejected by the said authority on 16.4.2016.

Assailing all three orders of the respondent authorities, the petitioner has Filed the present petition before this Court contending that both the disciplinary authority and the appellate authority have overstepped their powers and authority and that the order dated 17.08.2015 was purportedly issued under Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules.

The learned counsel for the petitioner contends that nowhere in Section 11(1) it is provided that the Commandant has the power and authority to impose the penalty, which was imposed in the present case. He further contends that only In Section 11(3)(a)(b) and (c) of CRPF Act, the penalty/punishment which can be awarded in cases of minor offences, such as the offence committed by the petitioner, was stated.

Per contra, the learned counsel for the respondent authorities supported the orders Impugned in this petition and contended that admittedly the petitioner pleaded guilty of committing the misconduct in his capacity as a member of the Force for his attempt to make personal monetary gains by fraudulent means for which he could have been awarded punishment of dismissal from service as contemplated under the relevant provisions of the Act and Rules. However, in the present case, the authorities took a lenient view and did not impose the punishment of dismissal from service. Therefore, the punishment imposed on the petitioner is perfectly correct and the authorities have not committed any mistake in awarding the punishment of reduction of pay stated in the order impugned.

Heard Mr. M. Devananda, the learned counsel for the petitioner and Mr. S. Suresh, the learned A.S.G. for the respondents and also perused the materials available on record.

The learned counsel for the petitioner has contended that the Commandant has initiated the departmental enquiry without any authority of law. The said contention of the petitioner cannot be accepted for the reason that the Commandant is not only the appointing authority but also the disciplinary authority under Section 2(d) of the CRPF Act and Rule 7(b) of CRPF Rules. Since the petitioner admitted the guilt and has not challenged the Findings of the Enquiry Officer etc., at the relevant point of time, the said contention of the petitioner cannot be entertained, at this distant point of time. Therefore, the said contention is rejected.The only question to be decided in this petition is whether the punishment/penalty imposed by the disciplinary authority is disproportionate to the offence committed by the petitioner.

By the impugned order dated 17.08.2019, the fifth respondent arrived at the conclusion in the following manner:

"6. After carefully considering the departmental enquiry proceeding, statements of the prosecution witness, documents and its merit/demerit, the undersigned has come to the conclusion that offence committed by No.055152004 ConstabIe/General Duty S.H.Basudev Sharma of D/109 is unpardonable and condemnable and it is necessary to dispose off strictly as a disciplined. Hence, the undersigned issued the following orders under Section 11 (1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules' 1955 against the aforesaid official:

I hereby impose the penalty of "Pay reduced from Rs.9430/- plus grade pay of Rs.2000/-per month to Rs.5200/- plus grade Pay Rs.2000/- per month in the time scale of pay for a period of five (05) years. It is further directed that No. 055152004 Constable/General Duty H.H.Basudev Sharma of D/109 will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments or pay. "

The appellate authority, rejected the appeal of the appellant by observing as under:

"8. ..... The appellant rendered 10 years long service and holding a responsible post should be an example to his junior in the case of performance of duties as well as in such matters, but he displayed fraudulent means for his personal gains. The grade offence committed by the appellant deserves severe punishment. However, considering his 10 years long service, disciplinary authority compelled to take lenient view. Neither any injustice has been done to him nor has the principle of natural justice been f/outed. The punishment imposed upon the appellant is just, fair and commensurate with the gravity of offence committed by him and hence, it cannot be said to be illegal or arbitrary."

By the order dated 16.04.2016, the revisional authority, rejected the revision of the petitioner. The operative portion of the order reads thus:

"8.Now at the stage of revision petition, the Petitioner has not brought out any new facts or material evidence worth consideration. Therefore, by virtue of powers vested in me under Rule 29 of CRPF Rules, 1955, I find no cogent reasons to interfere with the Order No.P.VIII.11/2015-109-EC.II dated 17/08/15 of the Commandant 109 Bn, CRPF and order No.R.XIII-17/2015-EC-e dated 24.11.2015 of the DIGP, CRPF, Bangalore Range and confirm the action taken against No.055152004 CT/GD S.Basudeba Sharma of 109 Bn, CRPF by the disciplinary as well as the appellate authority and reject his revision petition being devoid of merit."

Under the Conduct Rules, every Government servant shall at all times maintain absolute integrity by maintaining devotion to duty and do nothing which is unbecoming of a Government servant. Further, discipline is the backbone of the Police Force. Highest degree of discipline is mandatory for smooth functioning of a Police Force. Being a member of a Uniformed Force, one is desired and expected to maintain absolute discipline, the foundation on which disciplined and reputed Force like CRPF stands.

The learned counsel for the respondent authorities submitted that taking note of the offence committed by the petitioner which is very serious in nature, the disciplinary authority, in exercise of powers vested under Section 11(1) of the CRPF Act and Rule 27 of the CRPF Rules, imposed the punishment. Placing reliance upon the judgment of this Court in W.P.(C) No.22 of 2016, decided on 12.09.2019 (M.Dhanachandra Singh v. Union of India and others), learned counsel contended that in a case where the Commandant awarded penalty of dismissal from service was assailed by way of writ petition and this Court dismissed the said writ petition and following the said decision, the learned counsel prayed for dismissal of the present writ petition.

In the above cited case, this Court, after finding that the petitioner therein, who was a member of disciplined Force, has failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his act of overstaying on leave without permission was prejudicial to the department, dismissed the writ petition. However, in the instance case, the offence alleged is entirely different. Therefore, the respondent authorities cannot seek help of the judgment of this Court in W.P.(C) No.22 of 2016 (supra).

The learned A.S.G., Mr. S. Suresh also produced the following citations as follows :

I. (2005) 13 SCC 228, Union of India vs. Ghulam Mohd. Bhat.

Para 7. ...... 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 punishment of dismissal can certainly be awarded thereunder ......

II. (2016) 13 SCC 71, Union of India vs. Diler Singh

Para 20. We respectfully agree with the said view and opine that under the scheme of the Act, in exercise of power under Section 11(1) of the Act punishment of dismissal can be imposed ......

III. (2008) 7 SCC 580, State of Meghalaya vs. Mecken Singh N. Marak

Para 14. ..... It is now well settled that the High Court, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons thereof .....

Para 15. ..... If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands.

IV. (2005) 12 SCC 182, State of Punjab vs. Mohinder Singh

Para 8. ..... In our view, the respondent being member of a disciplined force could not be permitted to remain absent without taking leave and that too for such a long period....

Time and again, the Hon'ble Supreme Court and the High Courts held that in the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the high Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court although has jurisdiction in appropriate case to consider the question in regard to the quantum of punishment, it has a limited role to play.

It is also well settled that the High Courts, in exercise of powers under Article 226 of the Constitution of India, do not interfere with the quantum of punishment unless there exist sufficient reasons thereof. The punishment imposed by the disciplinary authority or the appellate authority unIess shocking to the conscience of the Court, cannot be subjected to judicial review.

When we look into the factual aspect of the instant matter, the fact remains that it is not the case of the respondent authorities that the CEA amount of Rs.19,000/- claimed by the petitioner has been sanctioned by the authority concerned and the petitioner has availed of the said benefit. While passing the impugned punishment, the disciplinary authority has not taken into account the said factual aspect of the matter.

Section 11 of the CRPF Act, provides :

"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 considered 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 serous 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 punishment specified in clause (b) of sub-section (3) for not more than fifteen days."

Thus, it is clear that Section 11 of the Act deals with minor punishment as compared to the major punishments prescribed in other Section. It lays 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 any duty or of other misconduct in his capacity as a member of the Force.

In the present case, the disciplinary authority himself admitted that the petitioner has rendered 10 years long service in the department, however, the authority stated that the petitioner displayed fraudulence means for his personal gains. As stated supra, the alleged fake claim of Rs.19,000/- has not been sanctioned by the authority concerned and he has also not availed of the said benefit. This Court finds no material on record to show that the petitioner indulged in such activities in past. Therefore, it cannot be contended by the respondent authorities that the offence committed by the petitioner deserves severe punishment.

The punishment of reduction of pay from Rs.9430/-plus grade pay of Rs.2000/- per month to Rs.5200/- plus grade pay Rs.2000/- per month in the time scale of pay for a period of five years and also the direction that the petitioner will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay is admittedly disproportionate to the alleged offence committed by the petitioner and also shocking to the conscience of this Court. Further the alleged commission of offence by the petitioner is not of a sufficiently serious nature to require prosecution before a Criminal Court.

Since the petitioner admitted his guilt and also the fact remains that there was no sanction accorded and he has not availed of the alleged fake claim, this Court feels that the petitioner should be awarded any one of the minor punishments as provided under Section 11(3) (a) (b) (c) of the CRPF Act read with Rule 27 of CRPF Rules and not under Section 11(1) of CRPF Act as imposed by the disciplinary authority. Considering the facts and circumstances of the case, this Court is of the view that the punishment/penalty Imposed on the petitioner is too harsh and disproportionate and also is not in conformity with the relevant provisions of the Act and Rules. Therefore, the impugned orders of all three authorities (supra) are liable to be set aside and the punishment/penalty has to be suitably modified as per Section 11(3)(a)(b)(c) of the Act.

In the result,

(i) The writ petition is allowed.

(ii) The order of the disciplinary authority dated 17.08.2015, confirmed by the appellate authority dated 24.11.2015, which was confirmed by the revisional authority dated 16.04.2016 are set aside.

(iii) The authority concerned is directed to pass an order imposing any one of the punishments/penalties as provided under Section 11(3)(a) (b) and (c) of the CRPF Act read with Rule 27 of the CRPF Rules, within a period of four weeks from the date of receipt of a copy of this order.

(iv) No costs.