Sunil Kumar vs Union of India

Pushpendra Singh Bhati, J

The matter pertains to the year 2005 and is listed in the hearing category.

This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:

“i. By an appropriate writ, order or direction, the punishment order dated 21.01.2003 Annex.13, appellate order 09.06.2003 Annex.14 and revisional order 22.01.2004 Annex.15 may be quashed.

ii. Any other appropriate writ, order or direction which this Hon’ble Court deems fit in the facts and circumstances of the case, may be passed in favour of the humble petitioner.

iii. Cost may be awarded.”

Mr. Dheeraj Jangid, learned counsel appearing on behalf of the petitioner submits that the petitioner was charge-sheeted for disobedience of the order of his superior vide charge-sheet dated 22.09.1998. The departmental inquiry culminated in an award of censure dated 29.09.2000.

3.1. It is further submitted that the petitioner preferred an appeal against the said order, which came to be decided on 22.03.2001. By the said order, the departmental inquiry and the punishment were set aside and a de novo inquiry was directed, primarily on the ground that the petitioner had sought opportunity to cross-examine certain witnesses.

3.2. Thereafter, a fresh charge-sheet dated 19.04.2001 was issued. The subsequent inquiry culminated in a punishment order imposing stoppage of two grade increments for a period of two years with cumulative effect under Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as “the Rules of 1955”).

3.3. Learned counsel also submits that the petitioner preferred an appeal, wherein the punishment was modified from stoppage of two grade increments to stoppage of one grade increment with cumulative effect vide order dated 09.06.2003. The revision petition preferred thereafter was dismissed vide order dated 22.01.2004.

3.4. Learned counsel submits that Rule 28 of the Rules of 1955 expressly restricts the right of appeal in respect of certain punishments enumerated under Rule 27. It is pointed out that censure falls under Serial No. 9 of the Table in Rule 27. In view of the statutory scheme contained in Rule 28(b), the appeal preferred by the petitioner against such punishments was not maintainable, and the respondents ought to have dismissed it in limine. It is thus contended that the very entertainment of the appeal, and the consequential revisional proceedings, are without jurisdiction. Rule 27 & Rule 28(b) of the Rules of 1955 are reproduced hereunder:

“Rule 27:

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 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.

SI.

Punishment

Subedar

Sub-

Others

Consts. &

Remarks

No

(ins-

Inspector

except

enrolled

pector)

Const. &

followers

enrolled

followers

1

2

3

4

5

6

7

1

Dismissal or removal

DIGP

DIGP

Comdt.

Comdt.

To

be

from the Force

inflicted

after

formal

departme

ntal

enquiry

2.

Reduction to a lower

DIGP

DIGP

Comdt.

Comdt.

time-scale of pay or

service

3.

Reduction to a lower

DIGP

DIGP

Comdt.

Comdt.

stage in the time-scale

of pay for a specified

period

To

be

4.

Compulsory retirement

DIGP

DIGP

Comdt.

Comdt.

inflicted

5

Fine of any amount not

DIGP

DIGP

Comdt.

Comdt.

after

exceeding one month’s

formal

pay and allowances

departme

6.

Confinement in the

-

-

-

Comdt.

ntal

enquiry

Quarter Guard

exceeding seven days

but more than twenty-

eight days with or

without punishment drill

or extra guard fatigue or

other duty

7.

Stoppage of increment

DIGP

DIGP

Comdt.

Comdt.

8.

Removal from any office

DIGP

DIGP

Comdt.

Comdt.

May be

of distinction or special

inflicted

emolument in the Force

without a

formal

departme

ntal

enquiry

9.

Censure

Comdt.

Comdt.

A.   Comdt.

A.  Comdt.

Or

Coy

Or

Coy

Comdr.

Comdr.

10.

Confinement to quarter

-

-

-

Comdt.

Guard for not more than seven

days with or

without punishment or

extra guard fatigue or

other duty

11

Confinement to quarters

-

-

-

Comdt.

lines, camp, fatigue

duties, etc., for a term

not exceeding one

month

Rule 28:

“28. Appeal.- (b) No appeal shall lie against an order by the competent authority inflicting any of the punishments mentioned in—

(1) [Serial Nos. 8 to 11 of the Table in rule 27;]

(2) Clauses (a) , (b) and (c) of section 13;

(3) Against an order discharging recruit before the termination of his period of training”

3.5. Learned counsel further submitted that the right of appeal is purely statutory in nature and, in the absence of an enabling provision, no appellate authority could have exercised such jurisdiction. Consequently, all proceedings flowing from such an appeal are liable to be set aside.

Despite the matter being called twice, none appears on behalf of the respondents to assist this Court.

Heard learned counsel for the petitioner and perused the material available on record along with the relevant statutory provisions.

This Court finds that the statutory scheme contained in Rules 27 and 28(b) of the Rules of 1955 unequivocally bars the maintainability of an appeal against punishments falling under Serial Nos. 8 to 11 of the Table appended to Rule 27, which expressly includes the punishment of censure at Serial No. 9. Once the statute itself imposes a clear prohibition on such appellate remedy, the appellate authority could not have assumed jurisdiction to entertain and decide the appeal preferred by the petitioner.

6.1. It is a settled principle of law that the right of appeal is neither inherent nor founded in equity; it is purely a statutory creation and can be exercised only when expressly conferred by the statute. In the absence of any statutory provision enabling such a remedy, the assumption of appellate jurisdiction is rendered ex facie without authority of law.

6.2. The Hon’ble Apex Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement [(2010) 4 SCC 772, decided on 12.04.2010] has authoritatively held that courts cannot create or assume a right of appeal by interpretative process. The relevant observation read as under:

“29. By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same.”

6.3. In the present case, since the appeal itself was not maintainable in view of the statutory bar, the appellate proceedings and the revisional proceedings, being founded upon a non-maintainable appeal, stand vitiated for want of jurisdiction.

On this limited but fundamental ground, the writ petition stands allowed. Accordingly, the punishment order dated 21.01.2003 (Annex.13), the appellate order dated 09.06.2003 (Annex.14), and the revisional order dated 22.01.2004 (Annex.15), along with all consequential proceedings, are hereby quashed and set aside. The earlier order dated 29.09.2000 (Annex. 2) awarding censure shall alone survive and remain operative. All pending applications, if any, stand disposed of.