IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16.7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 20442 of 1998 P.G.Saravanan .. Petitioner Vs. 1. Director General Central Reserve Police Force, C.G.O.Complex Lodhi Road, New Delhi 2. Deputy Inspector General Central Reserve Police Force Avadi, Chennai-65 3. The Commandant 118 Bn., Central Reserve Police Force Sector -39 Chandigarh .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus, to call for the records relating to the order passed by the third respondent in his No.P.VIII.17/97-118-EC-II dated 23.9.1998 quash the same and to direct the respondents to take the petitioner into the strength of CRPF with all monetary benefits. For Petitioner : Mr. M.Md.Ibrahim Ali For Respondents : Mr. M.Devadoss , ACGSC ORDER Heard the arguments of Mr. Md. Ibrahim Ali, learned counsel for the petitioner and Mr. M. Devadoss, learned Additional Central Government Standing Counsel appearing for the respondents and perused the records. 2. The petitioner seeks to challenge the order dated 23.9.1998 wherein and by which he was dismissed from service, but, however, warrant of arrest was cancelled and the entire tenure of his service was forfeited in terms of Section 12 of the CRPF Act, 1949. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner was engaged as a Constable in the CRPF w.e.f. 11.11.1991. He was given training in Bihar in the 108th Battalion for ten months and thereafter, he was posted at various places including Bihar, Jammu & Kashmir and Chandigarh. The petitioner applied for Earned Leave from 05.5.1997 to 03.7.1997 for his health improvement. The petitioner was granted leave as requested by him and when he was about to join duty on 04.7.1997, according to him, he became sick and he had to take treatment. Thereafter, he sent a letter dated 31.7.1997 tendering his resignation. 4. By an order dated 30.12.1997, a charge memorandum was framed against him holding him as a deserter. It is also stated that inspite the communication to report to duty, he had disobeyed the same and did not inform his whereabouts. In terms of Section 11 of the CRPF Act, the petitioner was proceeded for the grievous act of deserting from the force. The petitioner sent a letter dated 24.01.1998 seeking for copies of the documents mentioned in Annexure III to the memorandum but, in turn, he was informed by a letter dated 04.02.1998 that he will be provided only after he reports for duty. Thereafter, the order dated 23.9.1998 was passed against the petitioner dismissing him from service w.e.f. the said date. Even though an appeal can be filed against the said order passed by the third respondent, the petitioner has chosen to file the present writ petition. 5. A counter affidavit dated 30.11.1999 has been filed by the Additional Director General of Police (GC), CRPF, Avadi refuting the stand taken by the petitioner. 6. Pending the writ petition, this Court refused to grant any interim order. 7. Mr. Md. Ibrahim Ali, learned counsel appearing for the petitioner contended that neglect of duty will come under Section 11(1) of the CRPF Act for which he can be imposed with several punishments. But, however, Section 10(M) of the Act deals with less heinous offence which includes absence without leave. Since Section 11(1) deals with minor punishment, the petitioner should be imposed minor punishment and not dismissal. He was also not given copies of the documents sought for along with the annexure. Therefore, the enquiry is vitiated. According to the petitioner, since he has committed less heinous offence, he should not be punished in terms of Sections 10(1) and 10(M) of the Act. 8. This is a complete misreading of the Act. The distinction between the heinous crime and less heinous crime is only for the purpose of imposing penalties by the CRPF. But with reference to the disciplinary powers, there is no distinction as minor penalty and major penalty. Therefore, this argument https://hcservices.ecourts.gov.in/hcservices/ cannot be accepted on the ground of violation of principles of natural justice. It must be stated that when the petitioner sought for copies found in Annexure III, he was asked to attend the enquiry and conclude the same which he did not do. On the other hand, he had tendered a resignation letter, which is not permissible in law. Therefore, the petitioner cannot complain about the violation of principles of natural justice. 9. In this context, it is relevant to refer to the judgment of the Supreme Court in Union of India and others v. Datta Linga Toshadwad [2005 (13) SCC 709] wherein in respect of the very same post and in relation to the absentees, it held in paragraphs 6 to 8 as follows:- Para 6: "One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e. on 2-11-1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered. Para 7: Reliance was placed on a judgment of this Court in Union of India v. Giriraj Sharma, which was also a case of a constable employed in CRPF. In that case the respondent had been punished by an order of dismissal for overstaying on leave by 12 days. The High Court took the view that for such misconduct the punishment of dismissal from service was not justified and was also harsh. This Court, while agreeing with the High Court, dismissed the appeal by holding that in the facts of the case, instead of a major penalty, a minor penalty would have been sufficient. https://hcservices.ecourts.gov.in/hcservices/ Para 8: The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged." 10. It is also relevant to refer to the judgment of the Supreme Court in Board of Directors, HPTC v. K.C.Rahi [2008 AIR SCW 1923] and the following passages found in paragraphs 7 and 8 may be usefully reproduced:- Para 7: "The principles of natural justice cannot be put in a straight jacket formula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance of the principle of natural justice, one must establish that he has been prejudiced thereby for non- compliance of principle of natural justice. Para 8: In the instant case, we have been taken through various documents and also from representation dated 19.10.1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not https://hcservices.ecourts.gov.in/hcservices/ to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-compliance of principle of natural justice. In the representation submitted by him on 19.10.1993 the subject itself reads "DEPARTMENTAL ENQUIRIES". It is stated at the Bar that the respondent is a Law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is of no excuse much less by a person who is a Law graduate himself." 11. In view of the above, the writ petition is devoid of merits. Accordingly, it is dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri To 1. Director General Central Reserve Police Force, C.G.O.Complex Lodhi Road, New Delhi 2. Deputy Inspector General Central Reserve Police Force Avadi, Chennai-65 3. The Commandant 118 Bn., Central Reserve Police Force, Sector -39 Chandigarh + 1 CC To Mr.M.Md.Ibrahim Ali, Advocate SR NO.37915 + 1 CC To Mr.M.Devadass ,Advocate SR NO.37876 Delivery Order in W.P. No. 20442 of 1998 KG {CO} TP/11.8.08 https://hcservices.ecourts.gov.in/hcservices/