CWP No. 8552 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8552 of 2010 Date of decision: 11.05.2010 Surinder Sabharwal son of Sh. Khari Ram ...... PETITIONER VERSUS Director General, Central Reserve Police Force and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjiv Sharma, Sr. Advocate, with Mr. Shekhar Verma, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. The petitioner, who is an Ex-Constable (General Duty) Central Reserve Police Force, has challenged the order dated 12.12.2006 (Annexure P-2) declaring him to be a deserter and the order dated 19.02.2008 (Annexure P-17), vide which punishment of dismissal from service has been imposed on the petitioner under Section 11 (1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as 'the CRPF Act, 1949') and all consequential proceedings with a further prayer CWP No. 8552 of 2010 2 that a writ, order or direction in the nature of mandamus be issued directing the respondents to accept the prayer of the petitioner seeking discharge from service w.e.f. 01.05.2006 and make payment of statutory dues which includes gratuity and provident fund in accordance with law with a further prayer for directing the respondents to decide the appeal filed by the petitioner at Annexures P-18 to P-20 forthwith. Briefly, the facts as have been pleaded in the case are that the petitioner joined the Central Reserve Police Force on 11.05.2003 as a Constable (General Duty). The father of the petitioner is a chronic heart patient and is almost blind and in his late seventies. The mother of the petitioner is also in her late seventies. The petitioner got married on 19.09.2004 and soon after his marriage, his wife was detected with a gynecological problem as she was unable to conceive. She was taking treatment from a doctor and in the year 2006, the petitioner was informed that his wife has been treated successfully. The petitioner availed of leave from 06.01.2006 to 07.03.2006 while he was posted with 91 Battalion, CRPF, Halvating, Shiv Sagar, Assam to come back to his native place so that he could reside with his wife and parents. His father fell ill seriously and he got busy with his treatment. The petitioner called his colleague in the base camp and requested him to seek instructions from the Commandant for extension of the leave period but he was informed that extension of leave was not possible. The gynecologist asked the petitioner to extend his stay for some more time, otherwise the entire treatment of his wife would be of no use and he may remain issueless for his entire life. The petitioner tendered his resignation in writing by registered post in April, 2006 but did not retain a copy thereof. He, however, submitted another resignation letter dated 01.05.2006 CWP No. 8552 of 2010 3 (Annexure P-1) in accordance with Section 6 of the CRPF Act, 1949. By this time, the petitioner had completed 2 years and 11 months of service with the respondents. The Commandant of the Battalion-respondent No. 2, without taking any action on the written resignation submitted by the petitioner, arbitrarily started disciplinary proceedings against the petitioner and ordered enquiry under Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as 'the CRPF Rules, 1955) and also declared him deserter at his back without following due procedure vide order dated 12.12.2006 (Annexure P-2). The petitioner served a legal notice dated 01.02.2007 (Annexure P-3) and asked the respondents to accept his resignation. In the meanwhile, on 05.01.2007, the mother of the petitioner fell from the roof and as a result of the injury sustained by her, she lost control over her lower limbs and was confined to bed. His wife was 3-4 months pregnant. The petitioner was struck in a quagmire where on one hand, he was declared as a deserter and on the other hand, he had to look after his paralytic mother, pregnant wife and almost blind father. The petitioner was again served with a notice of 15 days to join the enquiry proceedings by the Enquiry Officer vide order dated 11.05.2007 (Annexure P-6). He refuted all the charges against him vide his communication dated 21.05.2007 (Annexure P-7) and the petitioner further requested that in view of his domestic problems, it would not be possible for him to join the enquiry proceedings in Jammu and Kashmir and the venue of the enquiry may be shifted to Chandigarh, Pinjore or Gurgaon. The petitioner was again directed by the Enquiry Officer to join the departmental proceedings vide order dated 23.07.2007 (Annexure P-8), to which the petitioner again replied that the venue of the enquiry may be changed as he cannot remain away from his family for a long period. On 07.09.2007 (Annexure P-10), CWP No. 8552 of 2010 4 the petitioner was informed that in response to his resignation letter dated 01.05.2006, he was informed vide letter dated 20.07.2006 that he should report back to the base camp and after deposit of his training expenses, his resignation letter would be accepted but he had not responded to that. He was, vide this letter dated 07.09.2007 (Annexure P-10), intimated that as per the Rules, the resignation of the worker while sitting at his home cannot be accepted. He was further directed to report for duty on or before 15.09.2007 and deposit the training expenditure whatsoever it is, so that he can get retirement. On receipt of communication dated 07.09.2007, the petitioner sought some information under the Right to Information Act, 2005 vide an application dated 29.09.2007 (Annexure P-11) so that he could deposit training expenses and obtain discharge from the service. In response to the said application, a communication dated 11.03.2008 (Annexure P-12) was received by him, according to which, the said information could not be granted to him as the Central Reserve Police Force has been given exemption from the Right to Information Act, 2005 as per Section 24 (1) of the Act. The respondents started sending warrants of arrest against the petitioner, against which the wife of the petitioner represented to respondents No. 1 and 2 requesting therein that the resignation submitted by the petitioner be directed to be accepted by respondents No. 3 and 4 and she was willing to make payment of the training related expenses. These communications are appended as Annexures P-13 and P-14 respectively. To this communication, the response dated 18.03.2008 was received that the petitioner if wishes to resign from the Force, then he should, on his own, apply and no action can be taken on the representation of the wife of the petitioner. On 19.03.2008 (Annexure P-16), he again made a mercy petition with a prayer that he may CWP No. 8552 of 2010 5 be discharged from service. On 22.03.2008, the petitioner was informed that he has been dismissed from service vide order dated 19.02.2008 (Annexure P-17). Thereafter, the petitioner gave various representations to the respondents to re-consider their decision and simply discharge the petitioner from service. Copy of these representations dated 27.10.2008, 03.02.2009 and 01.08.2009 are appended as Annexures P-18 to P-20 respectively. The petitioner has, through this writ petition, challenged order dated 12.12.2006 (Annexure P-2) and order dated 19.02.2008 (Annexure P-17). Counsel for the petitioner contends that as per the CRPF Act, 1949 and the CRPF Rules, 1955, all the employees are temporarily employed and can be discharged at any time after payment of one month's salary. He, on this basis, contends that the petitioner had a good and sufficient reason to resign from the Force and, therefore, his resignation dated 10.05.2006 (Annexure P-1) should have been accepted by the respondents. The petitioner was always ready and willing to deposit the dues which the respondents would have directed the petitioner to deposit, therefore, the same should have been accepted. His further contention is that Rule 31 of the CRPF Rules, 1955 deals with desertion and absence without leave. According to the said Rule, the said proceedings could have only been initiated after the punishing authority makes up its mind to hold an enquiry against the member of the Force under Sections 9 and 10 of the CRPF Act, 1949. Thus, the order dated 12.12.2006 (Annexure P-2) cannot be sustained as for the first time on 01.05.2007, the petitioner received the order of the officer/punishing authority that it intends to hold an enquiry against the petitioner under Rule 27 of the CRPF Rules, 1955. He submits that the CWP No. 8552 of 2010 6 petitioner could not have been dismissed from service as Section 12 of the CRPF Act, 1949 provides for dismissal only in case of passing of sentence under the Act and it is a matter of record that no sentence has been passed against the petitioner. As a matter of fact, the petitioner was charge-sheeted under Section 11 (1) of the CRPF Act, 1949, which only provides for imposition of minor penalties but strangely enough, the petitioner was dismissed from service under Section 11 of the CRPF Act, 1949 which does not provide for major penalties. His further submission is that his representations dated 27.10.2008, 03.02.2009 and 01.08.2009 (Annexures P-18 to P-20) are still pending with the respondents as no decision has been conveyed and, therefore, a direction be issued that the same may be considered and decided expeditiously. Counsel for the petitioner further contends that as per Section 6 (a) and (b) of the CRPF Act, 1949, any member of the Force is at liberty to resign and withdraw from Force with the prior permission of the superior officers. As per Rule 16 of the CRPF Rules, 1955, all members of the Force are enrolled for a period of three years and during this period of engagement, they shall be liable to discharge at any time on a month's notice by the appointing authority. The petitioner had completed more than 2 years and 11 months of service with the respondents, therefore, the resignation submitted by the petitioner should have been accepted by the respondents. He refers to sub-rule (d) of Rule 16 of the CRPF Rules, 1955 to contend that the appointing authority can accept the resignation of the member of the Force for good and sufficient cause. Rule 17 of the CRPF Rules, 1955 provided that any member of the Force can seek discharge after a period of his engagement, which is three CWP No. 8552 of 2010 7 years, subject to deposit of three months' salary and other expenses. He, on this basis, prays that the writ petition be allowed. I have heard the counsel for the petitioner and have gone through the records of the case. First dealing with the contention of the counsel for the petitioner that the resignation submitted by the petitioner vide letter dated 01.05.2006 should have been accepted by the respondents as the same was for good and sufficient reasons. For dealing with this contention, the relevant provisions of the CRPF Act, 1949 and the CRPF Rules, 1955 need to be gone into. Section 6 of the CRPF Act, 1949 deals with resignation, which reads as follows:- “6. Resignation and withdrawal from the Force.- No member of the Force shall be at liberty to- (a) resign his appointment during the term of his engagement, except before the expiration of the first three months of his service; or (b) withdraw himself from all or any of the duties of his appointment, without the previous permission in writing of the Commandant or Assistant Commandant or any other officer authorized by the Commandant to grant such permission.” Rules 16, 17, 17-A and 18 of the CRPF Rules, 1955, which relate to resignation and discharge of the member of the Force, read as CWP No. 8552 of 2010 8 follows:- 16.Period of Service.-(a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to be discharged at any time on one month's notice by the appointing authority at the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services(Temporary Service) Rules, 1965. those not declared quasi-permanent under the said rules shall be continued as temporary Government employees unless they claim discharge as per schedule to the Act. Those who are temporary shall be liable to discharge on one month's notice and those who are quasi-permanent shall be liable to discharge on three months' noticed in accordance with the said rules, as amended from time to time. (b) Should the Central Government decide at any time to disband the Force or any part of it either before termination of the period for which a member of the Force is enrolled or at any time thereafter, he shall be liable to discharge, without compensation from the date of disbandment. (c) No member of the Force shall withdraw from the duties of his office without the express permission of the Commandant or an accredited gazetted officer. (d) The appointing authority may, during the period of initial appointment of a member of the Force appointed under [Section 4 and 5] of the Act, permit him, for good and sufficient reason, to resign from the Force with effect from such date as may be specified in the order accepting his resignation: CWP No. 8552 of 2010 9 Provided that on the acceptance of his resignation any such member of the Force shall be required to refund to the government all the cost of training imparted to him in the Force or a sum equal to three months' pay and allowances, received by him prior to the date of his resignation whichever is less. Explanation.-(1) For the purpose of this sub-clause “during the period of initial appointment” shall mean the period before a member of the force is declared quasi-permanent. (2) the appointing authority may refuse to permit a member of the Force to resign if any emergency has been declared in the country either due to internal disturbances or external aggression. (e) The appointing authority may give substantive status to such members of the Force as are found suitable in all respect. 17. Discharge.- Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through the proper channel. [17A. Recoveries on resignation and discharge.- A member of the Force seeking resignation under rule 16 or discharge under rule 17 from service shall be required to refund to the Government a sum equal to three months pay CWP No. 8552 of 2010 10 and allowances received by him or her prior to the resignation or discharge, as the case may be, or the cost of training imparted to him or her in the Force, whichever is higher. Provided that in the case of a member of the Force seeking discharge from service under Rule 17 within the period of three months from the date of enrolment, the sum equal to three months pay and allowances shall be calculated with reference to three months pay and allowances which would have been received but for discharge: Provided further that a member of the Force tendering resignation of seeking discharge from service for accepting a job under the Central or State Governments or local bodies, after having been granted cadre clearance for the same, shall not be required to refund the sum as provided herein above.] 18. Discharge Certificate.-Every member on leaving the Force shall be entitled to a Discharge Certificate in the prescribed Form CRP-26.” A perusal of Section 6 of the CRPF Act, 1949 mandates previous permission in writing of the competent authority for resignation and withdrawal from the Force by any member of the Force. It is thus not an unilateral action on the part of the member of the Force to withdraw from the Force. This position is further fortified under Rule 16 (c) and (d) of the CRPF Rules, 1955, wherein it is provided that no member of the Force CWP No. 8552 of 2010 11 shall withdraw from the duties of his office without the express permission of the Commandant or an accredited gazetted officer. Sub-Clause (2) of Rule 16 of the CRPF Rules, 1955 provides for a situation where the resignation, despite fulfilling the other conditions as mandated under clause (d), can be refused by the appointing authority if any emergency has been declared in the country either due to internal disturbances or external aggression. Under Rule 17 of the CRPF Rules, 1955 also, permission of the appointing authority is mandated and as per Rule 17-A for a member of the Force seeking resignation under Rule 16 or discharge under Rule 17 from service, he or she is required to refund to the Government a sum equal to three months pay and allowances received by him or her prior to the resignation or discharge or the cost of training imparted to him or her in the Force, whichever is higher. Rule 16 (d) provides that the resignation from the Force will take effect from such date as may be specified in the order accepting his resignation. All these provisions lead to only one conclusion that it is discretion vested with the competent authority to accept or not to accept the request for resignation or discharge. Thus merely on submission of a request for discharge or resignation would not mean that the competent authority under the Act and the Rules has to accept the said request for discharge/resignation. The discretion thus is conferred on the competent authority as per the Act and the Rules. The Hon'ble Supreme Court In the case of Moti Ram vs. Param Dev and another, AIR 1993 Supreme Court 1662 had dealt with the term 'resignation' and in para-15 had observed as follows:- “15. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation CWP No. 8552 of 2010 12 to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish e.g. acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.” (emphasis supplied) CWP No. 8552 of 2010 13 A perusal of the above would show that resignation which means an act of giving up or relinquishing the office may take different forms and may assume a unilateral or bilateral character depending upon the nature of the office and the conditions governing it. From the reading of the Act and the Rules, which are applicable to the case in hand, it is apparent that there is no mandate on the respondents to accept the resignation of the petitioner as and when submitted by him. Resignation under the CRPF Act, 1949 and the CRPF Rules, 1955 is of bilateral character and the intention on the part of the petitioner to relinquish his office would not be sufficient to fulfil the requirement of the Act and the Rules governing the service conditions. Acceptance of the request to relinquish the office is essential and unless the same is communicated by the respondents to the petitioner, the same does not become effective. Similar is the position with regard to the request for discharge made by a member of the Force. In any case, in the present case, the petitioner was called upon vide communication dated 30.07.2006 by the respondents to report for duty immediately and his resignation will be accepted only after depositing the training expenditure whatsoever due. The petitioner has taken a plea that he did not receive the said communication. Instead of complying with the instructions issued by the respondents, the petitioner had served a legal notice to the respondents for accepting his resignation. In any case, even if the resignation or discharge request is to be processed or accepted as per Rule 17-A of the CRPF Rules, 1955, member of the Force shall be required to refund to the Government a sum equal to three months pay and allowances received by him or her prior to the resignation or discharge, as the case may be, or the CWP No. 8552 of 2010 14 cost of training imparted to him or her in the Force whichever is higher. Despite various communications sent to him to join duty, the petitioner failed to do so and, therefore, he cannot complain that his resignation has not been accepted. Accordingly, the contention of the counsel for the petitioner cannot be accepted. As regards the contention of the counsel for the petitioner that the petitioner was declared a deserter even before the competent authority had made up its mind to initiate departmental enquiry against him and he has referred to Rule 31 of the CRPF Rules, 1955 in support of this contention. Rule 31 of the CRPF Rules, 1955 reads as follows:- “31. Desertion and Absence without leave.- (a) If a member of the Force who becomes liable for trial under clause (f) of Section 9, or clause (m) of Section 10 or for deserting the Force while not on active duty under clause (p) of Section 10 read with clause (f) of Section 9, does not return of his own free will or is not apprehended within sixty days of the commencement of the desertion, absence or overstayal of leave, then the Commandant shall assemble a Court of Inquiry consisting of at least one Gazetted officer and two other members who shall be either superior or subordinate officers to inquire into the desertion, absence or overstayal of leave of the offender and such other matters as may be brought before them. (b) The court of Inquiry shall record evidence and its findings. The Court's record shall be admissible in evidence in any subsequent proceedings taken against the absentee. CWP No. 8552 of 2010 15 (c) The Commandant shall then publish in the Force Order the findings of the Court of Enquiry and the absentee shall be declared a deserter from the Force from the date of his illegal absence, but he shall not thereby cease to belong to the Force. This shall, however, be no bar to enlisting another man in the place of a deserter.” A perusal of the above Rule would show