IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR. JUSTICE C.T.SELVAM Writ Appeal No.1741 of 2004 1. The Inspector General of Police Central Reserve Police Force 8th Sector, Hyderabad – 34. 2. The Deputy Inspector General of Police Central Reserve Police Force Avadi, Madras. 3. The Commandant 58th Battalion Central Reserve Police Force 56, A.P.O. .. Appellants/Respondents vs. Alex Stephen .. Respondent/Petitioner Writ Appeal against the order dated 27.06.2003 passed in Writ Petition No.17502 of 1995 on the file of this Court. Petition filed under Article 226 of the constitution of India, to issue a writ of Certiorarified Mandamus calling for the records comprised in the proceeding of the third respondent in office order No.VIII-9/93-58/EC/II dt. 29.7.1993, order No.R.III-14/93 EC.1 dt.21.1.1994 passed by the 2nd respondent and that of the first respondent in order No.R.XIII-15/94-Adm.I dt.18.8.94 and quash the proceedings of the Respondents dt. 29.7.1993, 21.1.94 and 18.8.94 respectively and consequently directing the respondents herein to re-instate the petitioner in service with all attendant benefits. For Appellants : Mr.B.Santhakumar Sr. Panel Counsel for Central Govt. For Respondent : Mr.Rathina Asokan --- https://hcservices.ecourts.gov.in/hcservices/ Judgment (Judgment of the Court was delivered by PRABHA SRIDEVAN,J.) For overstayal of leave, the respondent was awarded the punishment of dismissal. The appellate authority and the revisional authority confirmed the order of dismissal. The learned Single Judge was of the opinion that the appellate authority and the revisional authority had not applied their mind, but had merely re- produced the ultimate conclusion and therefore, set aside the order of punishment, against which, this writ appeal has been filed. 2. The respondent joined the Central Reserve Police Force under Sports Quota on 02.12.1985 as Lence Naik. The misconduct for which he had been imposed the punishment in question was illegal overstayal between 05.03.1993 and 26.06.1993. According to him, he had received a message that his mother was seriously ill in January 1993. Therefore, he applied for 18 days casual leave, which was sanctioned with effect from 15.02.1993 to 04.03.1993. He should have reported to duty on 05.03.1993. Due to domestic problem, he reported to duty only on 29.06.1993, resulting in 114 days of absence. An enquiry was conducted, during which he admitted that he had overstayed. He gave certain reasons for the unavoidable overstayal. The authorities were not inclined to accept it and awarded him the punishment of dismissal from service. As stated earlier, the appeal and the revision were dismissed. 3. The learned counsel appearing for the appellants submitted that it may not be correct to say that the appellate authority had not given any reason for confirming the order of dismissal and that before the learned Single Judge, the entire contents of the appellate authority's order was not placed and this may be the reason for his conclusion. He has therefore enclosed in the typed- set of papers the entire order passed by the appellate authority, who is the Deputy Inspector General, Central Reserve Police Force and the order is dated 21.01.1994. He read out the order and showed that against every submission made by the respondent, the appellate authority had given his finding and in conclusion had held that the appeal was devoid of merit. Learned counsel submitted that the revisional authority had only to examine whether the appellate authority's order was correct and while confirming the appellate order, it is not necessary for the revisional authority to give detailed reasons, especially when the appellate authority had given elaborate reasons for his decision. Learned counsel also submitted that this Force being a Disciplined Force, unauthorised overstayal especially for 114 days cannot be counted lightly and relied on the decision of the Supreme Court in Union of India v. Ghulam Mohd. Bhat [(2005) 13 SCC 228], where for absence without sanctioned leave for https://hcservices.ecourts.gov.in/hcservices/ 300 days, the Supreme Court considering the scope and ambit of Section 11 of the Central Reserve Police Force Act (hereinafter referred to as "the Act") and Rule 27 of the Central Reserve Police Force Rules (hereinafter referred to as "the Rules"), came to the conclusion that the order of dismissal from service cannot be fault at. In all fairness, the learned counsel also placed before us the decision of the Supreme Court in State (Union of India) v. Ram Saran [(2003) 12 SCC 578], where the Supreme Court had considered the scope of Section 10(m) of the Act, which dealt with absence without leave and where lesser punishment had been awarded. The learned counsel also produced before us the entire file relating to this issue. The unreported judgment of this Court dated 02.12.2008 passed in Writ Appeal No.1819 of 2004 was also produced before us. 4. The learned counsel for the respondent submitted that if the order of the appellate authority is seen, it would clearly show that the appellate authority had examined the contents of the appeal and the comments offered by the Commandant and after extracting this, had concluded that there was no procedural flaw in conducting the enquiry and therefore, the order of the learned Single Judge did not warrant any interference. Without prejudice to the above submission, the learned counsel submitted that when explanation has been given for his overstayal, this Court shall consider a lesser punishment than dismissal. According to the learned counsel, the circumstances were such that the respondent could not come away from his home town earlier than he did and the order of dismissal from service especially after 16 years of service is totally disproportionate to the misconduct. 5. The Central Reserve Police Force Act, 1949 and Central Reserve Police Force Rules 1955 have been produced before us. Section 10 of the Act, which deals with "Less Heinous Offences", reads as follows: "10. Every member of the Force who:- (a) to (l) ... (m) absents himself without leave, or without sufficient cause overstays leave granted to him; or Section 11 of the Act deals with Minor Punishments, which reads as follows: 11(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 https://hcservices.ecourts.gov.in/hcservices/ 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 Rule 27 of the Rules: 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: (GSR – 631 dt. 27.8.83) TABLE Sl. Punishment Subedar Sub Others Consts Remarks (Inspector) Inspector except & enro- Const& lled enrolled follow- followers. wers. --------------------------------------------------------------------------- 1 2 3 4 5 6 7 1. Dismissal or DIGP DIGP Comdt. Comdt. from the Force. 2. Reduction to a lower DIGP DIGP Comdt. Comdt. Time-scale of pay, grade. post or service. 3. Reduction to a lower stage DIGP DIGP Comdt. Comdt. To be in the time scale of pay inflic- for a specified period ted after 4. Compulsory retirement DIGP DIGP Comdt. Comdt. Depa- ment- 5. Fine of any amount DIGP DIGP Comdt. Comdt al not exceeding one enqu- month's pay and iry allowances. (S.No. 1to7) https://hcservices.ecourts.gov.in/hcservices/ 6. Confinement in the - - - Comdt Quarter guard exceeding seven days but not more than twenty eight days with or without punishment drill of extra guard fatigue or other duty. 7. Stoppage of increment DIGP DIGP Comdt. Comdt. 8. Removal from any DIGP DIGP Comdt. Comdt. Office of distinction or special emolument in the Force 9. Censure Comdt. Comdt. Asstt. A.Comdt. Comdt. or Coy or Coy Comdr. Comdr. 10. Confinement to Quarter Guard for - - Comdt. not more than seven days with or without punishment or extra- guard fatigue or other duty. 11. Confinement to quarters lines, - - Comdt. may be camp, punishment inflicted drill, fatigue duties etc. without a for a term not excee- formal ding one month. depart- (GSR-75 G/1 26.1.80) ment enquiry (S.No.8 to 11) Note:- 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. (sub rule (a) and table substituted vide GSR 47 dated https://hcservices.ecourts.gov.in/hcservices/ 5.1.67. GSR 75 dated 141.80 and GSR 631 date 10.8.83) Explanation:- 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 dis- qualification for any future employment (other than an employment in the Central Reserve Police Force) under the Government. 6. The file relating to this matter shows that before the appellate authority, the Department had given parawise comments and we find on a comparison of the parawise comments with the order passed by the appellate authority, that the appellate authority had dealt with submissions of the appellant one by one and given his finding thereafter. Therefore, each paragraph actually deals with the submission of the appellant and the finding of the appellate authority. Paragraph 2 deals with the reason for overstayal and the finding of the appellate authority that the reason given was not tenable. Paragraph 3 deals with the respondent's sending a telegram and the finding of the appellate authority is that it is not accepted and that he had received a letter from the department directing him to report for duty and he should have been done so immediately. Paragraph 4 deals with the respondent's plea that he reported to duty on 26.06.1993, but he was not permitted to join duty. This is dealt with by the appellate authority holding that an enquiry was held to enquire into the charges and the appellant had pleaded guilty and the charges had been proved and punishment had been imposed. In the same way, each paragraph deals with the submissions made by the respondent and the findings of the appellate authority. In fact, we find that though the appeal had been filed out of time, yet to do justice, the appellate authority had entertained the appeal. So, we find no error or injustice or arbitrariness in the approach of the appellate authority. He had given reasons for his conclusion and he had held that the orders already passed by the third appellant did not warrant interference. Against this, a revision is filed and the submission made by the learned counsel for the appellants that once detail reasons are given by the appellate authority, while confirming, the revisional authority need not give detail reasons, is accepted. 7. Now, we go into the question of punishment. Before that we look into the decisions pointed out by the learned counsel for the appellants. In State (Union of India) v. Ram Saran (cited supra), a Constable did not join duty after expiry of leave. A complaint was lodged and in terms of Section 10(m) of the Act, he was sentenced to undergo imprisonment for three months. The Supreme Court held that "keeping in view the essentiality of the force and imminent and ever-alert situation in which with high sense of morale and duty- https://hcservices.ecourts.gov.in/hcservices/ consciousness the member of this service is expected to demonstrate at all times, a serious view of the same is being taken." The Supreme Court then dealt with the punishment to be imposed under the Act for various offences as defined in Sections 9 and 10 of the Act, and held as follows: "12. Residual question is what would be an appropriate sentence. It is not disputed and rather fairly conceded that for a person in a disciplined service like CRPF, any act of indiscipline deserves adequate and stringent punishment under the Act. In terms of Section 10(m) an employee who absents himself without leave or without sufficient cause overstays leave granted to him can be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay or with both. The offence has been treated as one of "less heinous offences". More heinous offences are provided in Section 9. The Assistant Commandant has found the explanation given by the respondent to be not acceptable. Therefore, he has been rightly held to have committed a less heinous offence. Taking note of the relevant aspects, we feel the fine of two months' pay which the respondent was drawing at the time when the proceedings were not initiated would meet the ends of justice by altering the punishment, we are not belittling the gravity of offence, but, in our view deterrent punishment must be restored to when such absence is resorted to avoid and evade undertaking a testing or trying venture or deployment essential at any given point of time, and not as a routine in the normal course. The appeal is allowed to the extent indicated above." 8. In Union of India v. Ghulam Mohd. Bhat (cited supra), a Constable in CRPF overstayed for 315 days beyond sanctioned leave. The learned Single Judge held that since the Constable was proceeded in terms of Section 10(m) of the Act read with Rule 27 of the Rules, the order of removal is without jurisdiction and that 10(m) of the Act only provided for minor punishment and did not provide for punishment of removal from service. Therefore, the Supreme Court dealt with the scope and ambit of Section 11 and Rule 27. The Supreme Court observing that undisputedly overstay without sanctioned leave is dealt with in Section 10(m) of the Act, which refers to lesser offence, held as follows: "6. The use of the words "in lieu of, or in addition to, suspension or dismissal", appearing in sub-section (1) of Section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the https://hcservices.ecourts.gov.in/hcservices/ Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded. 7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. 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 a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10. 8. ... In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Rule 27 is part of the Rules made under the Act. Rule 27 clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order. In conclusion, the Supreme Court held that in the instant case, the overstayal was for 300 days and without any justifiable reason and therefore, the order of removal from service was not interfered with by the Supreme Court. 9. In Writ Appeal No.1819 of 2004, the Head Constable had in fact removed two official radio communications without prior permission from the competent authority. He was removed from service. Against that, Writ Petition No.18675 of 1997 was filed. Learned Single Judge held that though the act amounts to misconduct, the punishment of removal from service was disproportionate to the delinquent and therefore remanded the matter to the disciplinary authority for fresh consideration. Against that the authorities filed an appeal. A Division Bench confirmed the order of the learned Single Judge. 10. In this matter, we find that the misconduct was proved. He had overstayed and he had also admitted the overstayal. The appellate authority had considered his case and confirmed the order of dismissal. The judgments of the Supreme Court referred to above, would show that if the punishment was disproportionate to the misconduct, it is possible for us to modify the punishment to render justice. The reason given by the respondent for his overstayal is that when he went to Kerala, he could not report to duty on date because one Meenakumari with whom he was in love had become pregnant https://hcservices.ecourts.gov.in/hcservices/ and since both of them belonged to different religions, there was some compulsion from both sides. After performance of the marriage, a registered marriage was effected on 27.3.1993 because of the fact that the respondent and his bride belonged to different religions. He has specifically stated that even after the matter was performed, he was prevented from leaving his place because of the hostile attitude of the relatives of both parties. He has also stated that there have been attempts on his life. He has produced the marriage certificate. Therefore, it is indisputable that there was a marriage between the respondent, who is a Christian and one Meenakumari, who is a Hindu. We cannot ignore the social conditions prevailing in our country, especially when the married couple belonged to two different religions or even two different castes and that there is often violence. 11. It is his case that on 18.03.1993, he had sent a telegram for extension of his leave for a further period of two months with effect from 04.03.1993. This telegram was not received by the authorities. However, during the enquiry he had produced a xerox copy of the receipt issued from the Department of Telecommunication and this is found in the file also. 12. In these circumstances, we feel that the punishment of dismissal from service is disproportionate to the misconduct, which is overstayal of leave for 114 days. We are quite conscious of what the Supreme Court is held in the two decisions referred to above regarding the discipline that must be maintained in a service like Central Reserve Police Force. But, this is not a case as in Union of India v. Ghulam Mohd. Bhat (cited supra) where he was absent for 300 days without any justification. In this case, he has given reasons and an attempt appears to have been made by the respondent to get sanction for leave in March 1993. At the same time, we also feel that he cannot be just awarded a fine of two months' pay as was given in State (Union of India) v. Ram Saran (cited supra). That would be letting him off too lightly when we take into account the seriousness of the misconduct. In fact, we considered whether to send it back to the authorities for deciding the quantum of punishment after observing that dismissal would be disproportionate to the misconduct committed considering the extenuating circumstances as explained by the respondent. But, since the respondent has already been facing these proceedings and the consequential litigation for 16 years, we are of the opinion that following the decision of the Supreme Court in Union of India v. Ghulam Mohd. Bhat, we will consider Section 11 of the Act and Rule 27 of the Rules and impose a punishment that would be justifiable for the misconduct committed by the respondent. We hope the respondent will not commit this misconduct in future and this punishment should be a deterrent to him. We set aside the order of the learned Single Judge and while doing so, we modify the https://hcservices.ecourts.gov.in/hcservices/ punishment to reduction in rank to Constable in lieu of dismissal. The appeal is therefore allowed accordingly. No costs. Consequently, WAMP.No.3262 of 2004 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ATR To 1. The Inspector General of Police Central Reserve Police Force 8th Sector, Hyderabad – 34. 2. The Deputy Inspector General of Police Central Reserve Police Force Avadi, Madras. 3. The Commandant 58th Battalion Central Reserve Police Force 56, A.P.O. +1cc to Mr.Rathina Asohan, Advocate Sr 30612 +1cc to Mr.B.Shantha Kumar, Advocate Sr 30546 PUR(CO) km/21.7. W.A.No.1741 of 2004 https://hcservices.ecourts.gov.in/hcservices/