IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.08.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.18980 of 2008 S.Selvam .. Petitioner V. 1. The Commandant, 28, Bn, C.R.P.F., Avadi, Chennai – 600 065. 2. The Deputy Inspector of Police, Chennai Range, Central Reserve Police Force, Avadi, Chennai – 600 065. 3. The Inspector General of Police, Southern Sector, Central Reserve Police Force, Banjara Hills, Hyderabad-34. 4. The Director General of Police, Central Reserve Police Force, 15, C.G.O. Complex, Lodhi Road, New Delhi. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for an issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the 4th Respondent in his Order No.R.II-6/2005-Pers.II dated 01.03.2005 and quash the same and to direct the respondents to re-appointment to the Petitioner as constable in Group Centre, CRPF, Avadi, Chennai with all benefits. For Petitioner : Mr.M.MD.Ibrahimali For Respondents : Mr.M.Rajasekaran, ACGSC https://hcservices.ecourts.gov.in/hcservices/ ORDER M.VENUGOPAL,J. The Petitioner has filed the instant Writ Petition praying for an issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the 4th Respondent/Director General of Police, Central Reserve Police Force, New Delhi, in his order No.R.II-6/2005-Pers.II dated 01.03.2005 and to quash the same and to issue a direction to the Respondents to re-appoint him as Constable in Group Centre, CRPF, Avadi, Chennai with all benefits. 2.The Petitioner joined in the Central Reserve Police Force during the year 1990 as Constable at Avadi, Madras. He had unblemished record of 7 years service in the Central Reserve Police Force. 3.According to the Petitioner, he was granted 30 days leave from 04.08.1995 to 03.09.1995 by the 4th Respondent/Director General of Police, New Delhi. With effect from 1991-1996 F/Bn, was deployed at DETT DODA (J&K). Because of his illness, after the expiry of the leave, he could not report for duty. Further, he explained the delay in joining duty and produced the medical certificate. He reported for duty on 15.09.1995, but the 1st Respondent/Commandant , 28, Bn, C.R.P.F., Avadi, Chennai noted the date as 16.09.1995. 4.It is the case of the Petitioner that on 22.09.1995 he was called by the Officer commanding to explain the absence for 11 days. He explained in detail and also produced a Medical Certificate. However, the Officer commanding imposed a punishment for six days confinement to the lines. Moreover, the forfeiture of all pay and allowances during the currency of aforesaid punishment also was ordered. The pay for six days amounting to Rs.567/- in the month of April 1996 by the commanding officer, as per the order No.668/96-97 B.V.No.145/96-97 and TA/DA for that period of Rs.45/-, by means of an order dated 22.09.1995 to 27.09.1995 C.C.No.2442/95-96-GC-AVD BV No.804/95-96-28 Bn have been recovered by the 1st Respondent. 5.The Petitioner was issued with the Memorandum dated 09.01.1996 in respect of the following Article of Charges: ARTICLE-I That No.901160813 CT.S.Selvam of F/28 Bn, CRPF while functioning as a constable (CD) committed an offence of disobedience of orders in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949, in that, he refused to undergo the terms of punishment of one day pack drill for two hours awarded to him on https://hcservices.ecourts.gov.in/hcservices/ 22.09.1995 and subsequently 6 days quarters guard awarded on 22.09.1995, in the orderly room by his officer commanding which he refused to undergo on 24.09.1995, in the orderly room by his officer commanding, which he refused to undergo on 24.09.1995 he was again awarded punishment of 2 Hours pack drill for 10 days to run concurrently which he continued to disobey. ARTICLE-II That during the aforesaid period and while functioning in the aforesaid office, the said No.901160813 Ct. S.Selvam was guilty of misconduct in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 in the he addressed a petitioner/complained against his senior directly to higher authorities without exhausting the normal channels". 6.The 1st Respondent had ordered an enquiry on the Articles of Charges and the Enquiry Officer submitted a report on 11.05.1996. The 1st Respondent, on 30.01.1997, had stated that the Enquiry Officer failed to note the lacuna that there was contradiction recorded in Article I of Charge and the punishment recorded in the orderly room Register. 7.On 07.02.1997, the 1st Respondent issued a Memorandum for the same Article of Charges with some modifications. Feeling aggrieved by the Memorandum dated 07.02.1997 issued by the 1st Respondent, the Petitioner filed W.P.No.5253 of 1997 before this Court and this Court, by an order dated 10.03.1997, had directed the Petitioner to file objections for the Memorandum dated 07.02.1997. 8.The Petitioner on 11.03.1997 submitted his Written Statement. But, the 1st Respondent had ordered for a De novo enquiry. The Enquiry Officer had submitted the report. Thereupon, the 1st Respondent had issued a show cause notice on 27.04.1998 along with the enquiry report directing him to file objections within 15 days. On 10.05.1998, he submitted the Written Statement. The 1st Respondent passed the impugned order dated 19.05.1998, by awarding him the punishment of removal from service with effect from 19.05.1998. 9.Being dissatisfied with the order of punishment passed in the impugned order dated 19.05.1998 by the 1st Respondent, the Petitioner filed an Appeal on 05.06.1998 before the 2nd Respondent. 10.The 2nd Respondent rejected the Appeal filed by the Petitioner. He filed a Revision before the 3rd Respondent/Inspector General of Police, Southern Sector, Central Reserve Police Force, Hyderabad, who rejected the Revision Petition on 15.03.1999. https://hcservices.ecourts.gov.in/hcservices/ 11.The Petitioner filed W.P.No.6409 of 1999 before this Court challenging the order passed by the Respondents 1 to 3. The said Writ Petition was allowed by this Court on 19.11.2002. But the Department filed W.A.No.1698 of 2003 and the Division Bench of this Court was pleased to allow the Writ Appeal as per the order dated 16.07.2004, following the decision of the Hon'ble Supreme Court in Laxmi Shankar Pandey V. Union of India and others [(1991) 2 Supreme Court Cases 488 : AIR 1991 SC 1070]. The Petitioner was permitted to make a representation to the 4th Respondent for re-appointment as a fresh appointee. 12.The Petitioner made a representation dated 25.08.2004 to the 4 th Respondent. Also, he filed Special Leave Petition before the Hon'ble Supreme Court against the order of the Writ Appeal No.1698 of 2003 dated 16.07.2004. The Hon'ble Supreme Court, in Civil Appeal No.2936 of 2008 (Arising out of S.L.P.(C).No.26367 of 2004) filed by the Writ Petitioner/Appellant, on 23.04.2008, had, inter alia, passed the following order: "6.It appears that the re-appointment order has not been issued by the Director General because of certain provisions which do not permit the appointment of a person after the age limit of 23 years and for the personnel who has been removed on disciplinary ground. 7.It is submitted by the learned counsel for the appellant that the aforesaid considerations do not apply when the matter has been directed to be placed by the High Court before the Director General for consideration of re-appointment. 8.In our view, the appropriate remedy for the appellant would be to approach the High Court again against the order of refusal for re- appointment by the Director General passed on the representation of the appellant. 9.Accordingly, we uphold the impugned judgment of the Division Bench removing the appellant from the post of Constable. We, however, give liberty to the appellant to approach the High Court again to challenge the order of refusal for re-appointment by the Director General passed on the representation of the appellant. 10.With the aforesaid observation, the appeal stands disposed of." 13.The Writ Petitioner submitted his representation before the 4th Respondent/Director General of Police, CRPF, New Delhi for providing him the re-appointment, which was rejected, by an order February, 2005/dated 01.03.2005, in the following manner: https://hcservices.ecourts.gov.in/hcservices/ "The case in respect of No.901160813 Ex. Ct. S.Selvam of 28 Bn, for re-employment to any suitable post as a fresh appointee in C R P F has been considered in accordance with the directives of Hon'ble High Court of Judicature at Madras. As per provisions contained in Para 1.51 (a) of Recruitment Manual, Ex-CRPF personnel may be re- employed in the Force provided they are medically fit, not discharged on disciplinary grounds or inefficiency and within prescribed age limit and fulfil other conditions as laid down. The individual was removed from service on disciplinary grounds and also is not within the prescribed maximum age limit of 23 years being the individual is of 38 years age. Thus the individual does not fulfil the eligibility criteria for re- employment in C R P F. Therefore, the representation dated 25.08.2004 in respect of No.901160813 Ex. Ct. S.Selvam of 28 Bn, CRPF is hereby rejected." 14.The Learned Counsel for the Petitioner urges before this Court in pursuance of the direction issued by this Court in W.A.No.1698 of 2003 dated 16.07.2004, the Petitioner submitted his representation on 25.08.2004, but the 4th Respondent rejected the representation on the basis that he was not fulfilling the eligibility criteria for re-employment, which is highly arbitrary and an illegal one, in the eye of law. 15.It is the submission of the Learned Counsel for the Petitioner that the Hon'ble Supreme Court, in Civil Appeal No.2936 of 2008 (Arising out of S.L.P.(C) No.26367 of 2004), dated 23.04.2008, has granted liberty to the Petitioner to approach this Court again to challenge the order of refusal for re-appointment by the 4th Respondent passed on the representation of the Petitioner. But this fact has not been taken into consideration by the 4th Respondent in a proper and real perspective. 16.Lastly, it is the contention of the Learned Counsel for the Petitioner that the 4th Respondent, taking into account of the remaining length of service of the Petitioner, should have considered the representation of the Petitioner, in pursuance of the directions issued by the Division Bench of this Court dated 16.07.2004 in W.A.No.1698 of 2003 following the Hon'ble Supreme Court decision in Laxmi Shankar Pandey V. Union of India and others [(1991) 2 Supreme Court Cases 488 : AIR 1991 SC 1070]. 17.Per contra, it is the contention of the Learned Counsel for the Respondents 1 to 4 that the Petitioner misbehaved with his https://hcservices.ecourts.gov.in/hcservices/ senior, disobeyed lawful order for three times and further, he levelled false allegations against his seniors and forwarded to higher authorities by-passing all the prescribed channels. 18.Continuing further, it is the submission of the Learned Counsel for the Respondents that in Central Reserve Police Force, where discipline is the main motto, these types of activities and misbehaving/disobeying the orders of seniors may open the gates for other employees and disturb the discipline of India's largest force. 19.That apart, it is the contention of the Learned Counsel for the Respondents that the Petitioner was removed from service on disciplinary grounds and also not within the prescribed maximum age limit of 23 years as he is now 41 years of age and as such, he does not satisfy the eligibility criteria for re-employment in CRPF. 20.At this stage, it is not out of place for this Court to point out that in the counter filed by the Respondents, it is, among other things, averred that the Petitioner misbehaved with and disobeyed the lawful order of his senior officers of F/Coy, 28 Bn, CRPF which was deployed in J & K during the year 1995-1996 for election duties. He proceeded on 30 days leave from 04.08.1995 to 03.09.1995. He reported at F/28 Bn on 20.09.1995 after over staying leave for 11 days under the pretext of undergoing medical treatment. He was called by the Officer Commanding to his chamber, as per the provision contained in Chapter-VI para 6.16.1 of Group Centre and Battalion Officers Manual, to ascertain the reasons for his overstaying leave, on 22.09.1995. While producing medical documents in support of his case of overstaying leave, he misbehaved with the CHM in the presence of the Company Commander. Hence, he was awarded the punishment of two hours pack drill for one day on 22.09.1995. He refused to undergo the punishment of two hours pack drill. Again, he was produced in the Orderly Room of the Coy Commander for disobeying the lawful orders of his seniors, which is a primary requirement in a disciplined force like C.R.P.F. and for this act of indiscipline, he was given the punishment of six days confinement to Quarter Guard on 22.09.1995 as per Section 13(D) of the Central Reserve Police Force Act, 1949. Further, all pay and allowances were ordered to be forfeited by the Company Commander as per Section 11(3) of Central Reserve Police Force Act, 1949. Accordingly, the pay and allowances and Detachment Allowance were recovered. 21.Moreover, the Petitioner again disobeyed the orders of Company Commander to undergo six days confinement to Quarter Guard and accordingly, he was awarded the punishment of two hours pack drill of 10 days concurrently which he continued to disobey, as a result, a Departmental Enquiry was ordered. In short, he disobeyed the orders of his seniors three times and levelled false allegations against his seniors and forwarded to authorities by-passing all the prescribed channels. In Central Reserve Police Force, discipline is https://hcservices.ecourts.gov.in/hcservices/ the main aim and activities of misbehaving/disobeying the orders of his seniors will certainly open the flood gates for other employees and disturb the discipline of India's largest Para Military Force. Therefore, the order of removal from service of the Petitioner was issued by the Disciplinary Authority, in the larger interest of the Force, after taking note of all aspects of the case. As such, the punishment awarded was legal and commensurate with the proved guilt. 22.In the counter filed by the Respondents, it is further stated that as per para 4 of the affidavit filed by the Petitioner in the Writ Petition, he was awarded punishment of two hours pack drill for one day viz., 22.09.1995. He was refused to undergo the punishment of two hours pack drill. Therefore, he was again produced in the Orderly Room of the Coy Commander of F/28 Bn for disobeying the lawful orders of his seniors. He was awarded the punishment of six days confinement to Quarter Guard on 22.09.1995 as per Section 13(D) of the Central Reserve Police Force Act, 1949. All pay and allowances were ordered to be forfeited as per Section 11 which was ordered by his Coy. Commander under Section 11(3) of the Central Reserve Police Force Act, 1949. Upon completion of enquiry, the report was submitted by the Enquiry Officer and a fresh Article of Charge was issued and a de novo enquiry was ordered to be conducted specifying the reasons for fresh enquiry in the order itself, as per the provisions of Government of India, decision No.9 of Rule-15 of CCS[CCA] which is as follows: "It is clarified that once the proceedings initiated under Rule-14 or Rule-16 of CCS (CCA) Rules, 1965 are dropped, the disciplinary authority would be debarred from initiating fresh proceedings against the delinquent officer unless the reasons for cancellation of the original charge sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without pre-judice to further action which may be considered in the circumstances of the case. It is therefore, import fresh charge sheet, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action and indicating the intention of issuing a subsequent charge sheet appropriate to the nature of charge the same was based on as the Disciplinary authority i.e. Commandant 28 Bn, however found that there was a contradiction in the punishment awarded in orderly room register from the one recorded in Article-I of charge. He also noticed that the enquiry officer had failed to discuss the charge under Article-I and Article-II elaborately to arrive at conclusion basing on the relevant https://hcservices.ecourts.gov.in/hcservices/ documentary evidence as well as statement of witness examined. Hence, he recorded the finding that after having gone through the evidence on record, he fell that it will not be proper to issue any order on the enquiry report and to avoid further representation and procedural irregularities he cancelled the office order NO.P- VII-11/96-28-EC-2 dated 22/2/1996 and ordered enquiry to be conducted De-novo." 23.A fresh Departmental Enquiry was ordered as per Order No.P- VIII-4/97-EC-II dated 07.02.1997 and a copy of Memorandum under Article of Charges were served on the Petitioner to submit his written objection or defence if any, within 15 days. Instead of submitting his reply, the Petitioner approached this Court to quash the Memorandum of Article of Charges served on him. This Court passed an order by directing him to submit his Written Statement of defence, since it is not possible for this Court to entertain the present Writ Petition at that stage. But, he had not submitted any objection and pleaded not guilty on the charges framed against him. Therefore, the enquiry was conducted as per Rules. 24.The Disciplinary Authority viz., Commandant 28 Bn, however, found that there was a contradiction in the punishment awarded in Orderly Room Register from one recorded in Article-I of charge. Hence, after going through the evidence on record, he opined that it would not be proper to issue any order on the enquiry report and to avoid further representation and procedural irregularities, he cancelled the Office Order No.P-VII-11/96-28-EC-2 dated 22.2.1996 and ordered an enquiry to be conducted de novo. His representation was received in the office on 11.03.1997. The Deputy Commandant of the Unit was appointed as Enquiry Officer to enquire into the charges framed against the Petitioner as per order No.P-VII-4/97-28-EC-II dated 15.03.1997. 25.On 01.09.1997, the Enquiry Officer commenced his enquiry and drew the proceedings in Hindi. The Petitioner objected to this, by means of his representation dated 01.09.1997. He requested to conduct the proceedings in English as he hails from Tamil Nadu and he does not know to read and write Hindi as it would also enable him to cross examine the prosecution witnesses for his defence. 26.Acting on the representation of the Petitioner, one Assistant Commandant V.V.Ponnappan, who hail from Southern Region, was appointed as an Enquiry Officer by Commandant, 28 Bn, as per office order dated 06.09.1997. The Enquiry Officer completed the enquiry and held that both the charges framed against the Petitioner were proved. The copy of the enquiry report was also furnished to the Petitioner. After considering his reply, the Commandant, 28 Bn imposed a punishment of "Removal from Service with effect from 19.05.1998. https://hcservices.ecourts.gov.in/hcservices/ 27.The Appellate Authority, after perusing the representation coupled with all documents, held that the charge under Article I stood proved only to the extent of disobedience to the orders of punishment for 10 days pack drill for 0.2 hours and further held that in respect of charge as per Article II for directly sending letters to higher office without exhausting the prescribed channel stood fully proved. 28.The plea of the Respondents is that the act of commissions made by the Petitioner could not be ignored inasmuch as he was in the habit of disobedience and the same could not be taken leniently for the reason that it would send a wrong signal to others which would adversely affect the entire Force. 29.The Petitioner filed a Revision Petition before the Inspector General of Police, Southern Sector, being the Reviewing Authority. The Reviewing Authority found that the Enquiry Officer conducted the Departmental Enquiry as per Rules and there was no procedural flaw noticed in the proceedings and accordingly, came to the conclusion that the Petitioner was not in a position to bring forth new facts of material evidence in support of his action and since the offence committed by the Petitioner was grave in nature, upheld the punishment of removal from service of the Petitioner and rejected the Revision Petition dated 14.10.1998 as devoid of merit. 30.At this stage, we deem it appropriate to cite the decision of the Hon'ble Supreme Court in Shri Bhagwan Lal Arya V. Commissioner of Police, Delhi and others [(2004) 4 Supreme Court Cases 560 at page 561], wherein it is observed and held as follows: "Rules 8(a). and 10 of the Delhi Police (Punishment and Appeal) Rules,, 1980 provide that penalty of removal can be imposed only in cases if grave misconduct and continued misconduct indicate incorrigibility and complete unfitness for police service. In the instant case, the appellant Constable had absented himself for 2 months, 7 days and 17 hours on medical grounds. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, be termed as grave misconduct or continued misconduct rendering him unfit for police service. The punishment of dismissal/ removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility oR complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding https://hcservices.ecourts.gov.in/hcservices/ such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government doctors as grave misconduct in terms of the Delhi Police (Punishment and Appeal) Rules, 1980. Non- application of mind by quasi-judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re- medical clearly establishes that they had received the applicant's application with medical certificate. This can never be termed as wilful absence without any information to the competent authority and can never be termed as grave misconduct. After issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. Thus the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Therefore, the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and with the stigma attached to him on account of the impugned punishment, as a result of which, not only he but his entire family totally dependant on him will be forced to starve. These are the https://hcservices.ecourts.gov.in/hcservices/ mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside." 31.In the decision of the Hon'ble Supreme Court in Secretary to Government, Home Department and others V Srivaikundathan [(1998) 9 Supreme Court Cases 553] at page 555, in paragraph 4, it is laid down as follows: "4.The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for