IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13131 of 2000 SAZI AHMAD Versus THE UNION OF INDIA & ORS ----------- 07- 19.11.2008 Heard Mr. Ram Suresh Roy for the petitioner, and Mr. Sanjay Kumar, learned Additional Standing Counsel for the Central Government. It arises out of a disciplinary proceeding under the Central Reserve Police Force Act 1949 (hereinafter referred to as `the Act’), and the Central Reserve Police Force Rules 1955 (hereinafter referred to as the Rules), whereby the petitioner has been dismissed from the services of the Force in terms of Section 11(1) of the Act, for his overstay after the leave granted to him, without sufficient cause, within the meaning of Section 10(m) of the Act. 2. A brief narration of facts essential for the disposal of the writ petition may be indicated. The petitioner was a Constable in the Force. He obtained prior permission and was on authorized leave from 7.10.97 to 5.12.97. He did not report for duties on 6.12.97, and ever thereafter. He was declared `deserter’ within the meaning of Section 9(f) of the Act. Orders were issued for his arrest, vide order dated 3.12.98 (Annexure 9). The petitioner approached this Court by preferring CWJC No.2951 of 1999, and interim protection was granted to the petitioner. Court of inquiry was held under the provisions of the Act/Rules, leading to the Office Order dated 20.5.99 (Annexure 11), whereby the punishment of dismissal from service in terms of Section11(1) of the Act was imposed on him. His aforesaid CWJC No.2591 of 1999, was still pending in this Court. The same - 2 - was disposed of by order dated 8.2.2000 (Annexure 12), whereby the petitioner was given the liberty to prefer statutory appeal. The petitioner’s appeal has been rejected by order dated 29.4.2000 (Annexure 13). The petitioner thereafter preferred statutory revision which has been rejected by the order dated 4.9.2000 (Annexure 14). Both the orders are impugned herein. 3. While assailing the validity of the impugned orders, learned counsel for the petitioner submits that the respondent authorities have failed to realize that the petitioner was on authorized leave from 7.10.97 to 5.12.97, and he could not report for duties on 6.12.97 because he had not recovered from his ailment. He next submits that his application for extension of leave was unreasonably rejected. He further submits that the punishment of dismissal from service is not prescribed in Section 11 of the Act and, therefore, the impugned order is bad in law. He lastly submits that the punishment is disproportionate to the gravity of the proven charges. 4. Learned Government Counsel has supported the impugned action. He relies on the judgment of the Supreme Court reported in 2005 (13) SCC 228 (Union of India vs. Ghulam Mohd. Bhat). 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that the petitioner was on authorized leave from 7.10.97 to 5.12.97. He was, therefore, duty-bound to report for duties on 6.12.97, and he did not report for duties on that day and ever thereafter. I must at this stage - 3 - clarify that in view of the language used in the said order dt. 3.12.98 (Annexure 9), some confusion is created whether or not action was taken in terms of Section 9(f) and/or Section 10(m) of the Act. Learned Govt. Counsel follows the line of least resistance and submits that, for the purpose of the disposal of this writ petition, it may be taken that action was taken in terms of Section 10(m) of the Act which reads as follows:- “10. Less heinous offences. – Every member of the Force who – ….. ………. ……. (m) absents himself without leave, or without sufficient cause overstays leave granted to him, or ……. ……… …….. 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.” There is no need to enter into the controversy whether or not action was initiated under Section 9(f) and/or Section 10(m) of the Act because no punishment of imprisonment has been awarded to the petitioner. Punishment with civil consequences alone has been inflicted on the petitioner. However, without adjudicating the issue, I proceed on the assumption that the respondents have taken action in terms of Section 10(m) of the Act. 6. This takes me on to the question of appropriateness of the punishment inflicted upon the petitioner. The petitioner’s case is entirely covered by the judgment of the Supreme Court in Ghulam Mohd Bhat (supra). The facts of that case were identical. The respondent therein was also on authorized leave in the beginning. He overstayed without prior permission and, therefore, the punishment of - 4 - dismissal was inflicted on him. While explaining the scope of Section 11 of the Act, their Lordships observed that the punishments indicated in clauses (a) to (e) of Section 11, are in lieu of or in addition to suspension or dismissal from service. Therefore, for an identical “less heinous offence” the respondent therein was awarded the punishment of removal from service. Their lordships have observed that overstay beyond the sanctioned leave is a very serious matter with respect to members of the uniformed Services. That was a case where he had overstayed more 300 days. In the present case, it is much more than that. As stated hereinabove, the petitioner did not report on 6.12.97, and never thereafter. In the facts and circumstances of the present case, it appears to me that the petitioner is indeed guilty of committing a “less heinous offence” within the meaning of Section 10(m) of the Act. In such a situation, the overstay on leave for much more than 300 days can undoubtedly be visited with the punishment of dismissal from service. 7. In the result, I do not find any merit in this writ petition. It is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar ) mrl - 5 -