THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO WRIT PETITION No.23665 of 2001 Date:03.12.2010 Between: Shiv Kumar Tiwari ..... Petitioner AND Union of India, and others .....Respondents Counsel for the Petitioner: Sri N. Mukunda Reddy Counsel for Respondents: -- The Court made the following: ORDER: This writ petition is filed challenging the proceedings dated 06.07.2000 on the file of the first respondent as confirmed by the second and third respondents respectively by proceedings dated 26.09.2000 and 13.06.2001 and quash the same as arbitrary, illegal and without jurisdiction and contrary to law. The petitioner herein was appointed as a Constable in C/109 BN, CRPF in the year 1991 and was attached to Mizoram Camp. Though he has been performing the duties to the utmost satisfaction of the office, he received the proceedings of removing from service on untenable grounds. The petitioner received message from his native place stating that his father died and he was granted leave in June, 1999. Subsequently he received information that his wife seriously fell ill and therefore, he reported for duty on 12.10.1999. He again applied for leave on 18.10.1999 and reported for duty on 11.02.2000. Articles of charge was given to the following effect: “The said No.91970546 CT/GD Shivkumar Tiwari while functioning as CT/GD in C/109 Br, CRPF has committed an act of misconduct in his capacity as a member of the Force under Sec.11() of CRPF Act, 1949, in that he deserted from the camp on 18.10.1999 at about 0840 hrs on his own and thus absented and continues to absent from the unit unauthorisedly.” A detailed explanation was given for considering the leave applications, and respondent No.1 was appointed as an enquiry officer, who without any proper enquiry, imposed the punishment of dismissal with effect from 06.07.2000. Thereafter, an appeal was filed with the second respondent and review appeal was also filed with the third respondent and they have been rejected by orders dated 26.09.2000 and 13.06.2001 respectively. The imposition of punishment is against the principles of natural justice and therefore, the same is untenable. The respondents filed a counter-affidavit contending as under: “It is submitted that the petitioner was appointed as Constable on 8.7.1991 and he was working at “C” Company of 109 Battalion. He had proceeded on 60 days Earned Leave with effect from 15.6.1999 to 13.8.99 and he was supposed to report for duty on 14.8.99. But the petitioner was over stayed 59 days the sanctioned leave. The petitioner was reported for duty on 12.10.1999, remaining absent for 119 days due to leave and overstayed from the leave. The Petitioner was again fled away from the camp on 18.10.99 and remained absent un-authorisedly further for 117 days. When the petitioner neither reported back even after 60 days of absence nor any intimation was received from him, a Court of Inquiry was ordered and the petitioner was declared as “Deserter” from the force with effect from 18.10.99 FN. Subsequently a departmental enquiry was ordered against the petitioner vide memo No.PVIII-1/200- 109-EC-II dated 24.1.2000. It is submitted that the petitioner was reported for duty on 11.2.2000. Mr. S.P. Singh, Deputy Commandant was appointed as Enquiry Officer. The Enquiry Officer conducted enquiry in a fair and judicious manner and instructions on the subject. The Enquiry Officer submitted his report. Based on the report submitted by the Enquiry Officer, the petitioner had pleaded guilty to the charges levelled against him. Further based on the statements of the prosecution witnesses and examination of the prosecution exhibits, the Enquiry Officer had held the charge proved irrefutably. It is submitted that the disciplinary authority had gone through the entire departmental proceedings thoroughly and found that the petitioner had proceeded on 60 days Earned leave with effect from 15.6.99 to 13.8.99 and over stayed by 59 days without any valid permission or sanction from any authority. Further within a week of his reporting he had deserted from the lines on 18.10.99 and remained absent further for 117 days. During the enquiry, he was given ample opportunity to defend his case. In response this petitioner had submitted an application dated 22.6.2000 stating that he had applied for 15 days casual leave due to illness of his wife, which was refused and this prompted him to flee the camp. It was established that he had never applied for leave. Before passing final orders the disciplinary authority had also scrutinized his over all service record and found that during the past 6 years he had over stayed leave on four occasions that is during the year 1994, 1995, 1997 and 1999. It was also on record that during the course of his suspension and enquiry for his acts of indiscipline, he was dealt in the orderly room and awarded punishment. Thus after consideration of every aspect and proper application of mind the disciplinary authority had imposed the punishment of dismissal from service with effect from 6.7.2000 (Fore Noon). It was further pleaded that the Commandant has power under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 to impose the punishment of dismissal and that proper opportunity was given and in fact the absence and desertion are admitted by the petitioner and no material was produced by the petitioner and taking into consideration the nature of the misconduct of the petitioner, he was dismissed from service. The point for consideration is whether the order of dismissal is in accordance with law and whether it is sustainable? As can be seen from the contentions of the petitioner, it is clear that a departmental enquiry was held by issuing articles of charge and the explanation of the petitioner was called for. The petitioner did not seriously dispute about the facts alleged in the charge memo about his irregularities and desertion of the duties. The petitioner has claimed that due to the expiry of his father and ill-health of his wife and other circumstances, he could not attend to the duties. As can be seen from the order of the second respondent, the petitioner has pleaded guilty against the charges levelled against him and the contention of the petitioner that under Section 11(1) of the CRPF Act, 1949, major penalty such as dismissal cannot be inflicted, is not accepted since the disciplinary powers under Rule 27 of the CRPF Rules, 1955 were completely exercised. Even the revisional authority, under order dated 13.06.2001, accepted all the findings of the lower authorities and did not agree with the contention of the petitioner that under Section 11(1) of the CRPF Act, 1949, he could not be dismissed. The material on record clearly goes to show that the principles of natural justice have been followed and the petitioner was given an opportunity and in fact in this writ petition also there is no serious attempt to disprove the factual aspects. The learned counsel for the petitioner reiterated the contention that under Section 11(1) of the CRPF Act, 1949, no punishment of dismissal could be imposed. It is useful to quote Section 11 of the CRPF Act, 1949, which reads as under: 11. Minor Punishments: 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 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. He relied on a decision in Giriraj Sharma vs. Union of India[1]. As can be seen from Section 11(1) of the CRPF Act, 1949, referred to above, it is quite clear that minor punishments can be imposed in lieu of or in addition to suspension or dismissal. Therefore, there is nothing under Section 11 of the CRPF Act, 1949 to prohibit the passage of an order of dismissal and evidently in case of minor punishments, the producer adopted is different, whereas in case of major punishment, the procedure is to give a charge memo, conduct an enquiry according to the principles of natural justice and impose punishment. In this case, there is absolutely no infringement of the principles of natural justice and under Rule 27 of the CRPF Rules, 1955, the power is said to have been exercised by imposing the punishment of dismissal. It is to be noted that the petitioner is belonging to a service of discipline and if an employee of the central reserve force is to desert the services and frequently goes on leave without permission or sanction, the very rigour of the service is lost. Therefore, it cannot be stated that the nature of punishment imposed against the petitioner is not warranted keeping in view the nature of employment of the petitioner in this case. Accordingly, the Writ Petition is dismissed. _________________________ N.R.L. NAGESWARA RAO, J 03rd December, 2010 GHN [1] (1989) 1 UPLBEC 351