IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF MAY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos.21209, 22008 and 26866 of 2008 WRIT PETITION No.21209 of 2008 Between: M.Antony HC/RO(F.No.771310202) No.110 Battalion,Nizamabad presently B-28 Type-2, Special Group Central Reserve Police Force Chandrayanagutta, Hyderabad ..... PETITIONER AND The Commandant No.2 Signal Battalion Group Center Campus,CRPF Hyderabad .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ,order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondent in his proceedings No.P.VIII.I/2008-EC-II Dt 27-09-2008 is highly unwarranted motivated arbitrary illegal,amounts to contempt of Court of this Honourable Court untenable and unsustainable pass Counsel for the Petitioner:MR.C.RAMACHANDRA RAJU Counsel for the Respondents.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) **** WRIT PETITION NO : 22008 of 2008 Between: M.Antony HC/RO(F.No.771310202) No.110 Battalion,Nizamabad presently B-28 Type-2, Special Group Central Reserve Police Force Chandrayanagutta, Hyderabad ..... PETITIONER AND The Commandant No.2 Signal Battalion Group Center Campus,CRPF Hyderabad .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ,order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondent in his proceedings No.P.VIII.I/2008-EC-II Dt 27-09-2008 is highly unwarranted motivated arbitrary illegal,amounts to contempt of Court of this Honourable Court untenable and unsustainable pass Counsel for the Petitioner:MR.C.RAMACHANDRA RAJU Counsel for the Respondent.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) *** WRIT PETITION NO : 26866 of 2008 Between: M. Anthony S/o. Krishnan Force No. 771310202 Head Constable (Radio Operator) aged 52 yrs R/o. 2nd Signal Battalion of CRPF Chandratyangutta, Keshogiri Post, Hyderabad. ..... PETITIONER AND 1 The Government of India Rep. by its Secretary, Ministry of Home Affairs, South Block, New Delhi. 2 The Director General of Police Central Reserve Police Force, CGO Complex Lodi Road, New Delhi. 3 The Dy. Director (Communication)CRPF Directorate General, CGO Complex Lodhi Road, New Delhi. 4 The Commandant 2nd Signal Batallion, CRPF Chandrayangutta, Keshogiri Post Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly one in the nature of writ of Mandamus declaring the impugned Proceedings dt.30-9-2008 issued by the 4th Respondent rejecting Notice dt. 23-9-2008 served under Rule 48 of CCS (Pension) Rules 1972 to Permit the petition to proceed on Retirment on completion of 30 years qualifying service as arbitrary discriminatory malafide and contrary to the existing Government of India Instructions issued from time to tie and consequently set aside the same and pass Counsel for the Petitioner:MR.C.RAMACHANDRA RAJU Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : COMMON ORDER: 1. M.Antony is the petitioner in all the three writ petitions. The background facts in a nutshell leading to filing of these three writ petitions are: The petitioner is working as Head Constable in CRPF. He was categorized as SHAPE III on 26.11.2004 during AME 2004. As per Para 7.3 of Standing Order-1/2003 he has to undergo review medical examination at the end of two years from the date of his categorization as SHAPE III. Since he avoided medical examination by absenting himself, departmental proceedings have been initiated against him under three counts by framing articles of charge dated 18.3.2008, which read as under: ARTICLE I : That, the No.771310202 HC/RO M.Antony of this unit while functioning as such, has committed an act of disobedience of orders/misconduct in his capacity as a member of the force under Section 11(1) of CRPF Act 1949 in that despite repeated written and verbal directions to undergo review medical examination from 30.8.2007 before review medical board convened at CH, CRPF, Hyderabad for review of his health condition/categorization which is due as per SO-1/2003, he deliberately avoided the process of medical examination by not adhering the directions given by medical board members as well as this unit. Subsequently, he lied by stating that his review medical examination already conducted by the board. Same on confirmation from medical board, it has been established that he has not completed his review medical examination. Thus, by deliberately avoiding the review medical examination and further misleading this office he has committed an act, which is prejudicial to the good order and discipline of the Force. ARTICLE II: That during the aforesaid period and while functioning in the aforesaid office, the said No.7713/0202 HC/RO M.Antony was guilty of disobedience of orders/misconduct in the capacity as a member of the force under section 11(1) of CRPF Act, 1949, in that he was found absent for whole day on 27.12.2007 and 28.12.2007 without any permission of the competent authority and just appeared in the evening roll call on both days. Having the absent, an orderly room was ordered by Second in Command who was officiating as Commandant on 28.12.2007 through CHM/SI(A). Whereas, he refused to appear in orderly room in arrogant way which is violation of good orders and discipline of the Force. ARTICLE III: That during the aforesaid period and while functioning in the aforesaid office the said NO.771310202 HC/RO M.ANTONY was guilty of misconduct/misbehaviour in the capacity of member of the force under section 11(1) of CRPF Act, 1949, in that on 9.2.2008 he threatened OC A/2 Signal Bn to commit suicide or kill anyone, which is prejudicial to good order and discipline of the force.” The department transferred him to Vth Signal Battalion, Chandigarh. Since he failed to move to the transferred place, disciplinary proceedings came to be initiated against him and the department placed him under suspension pending enquiry under proceedings dated 8.7.2008. While so, he submitted application seeking voluntary retirement. The department rejected his application seeking voluntary retirement under proceedings dated 30.9.2008. Therefore, he filed three writ petitions viz., W.P.No.21209 of 2008 questioning the order of suspension and the disciplinary proceedings; W.P.No.22008 of 2008 for quashing the show cause notice dated 30.9.2008 and W.P.No.26866 of 2008 assailing the action of the Commandant-2nd Signal Batallion, CRPF in rejecting the application seeking voluntary retirement. 2. Rule nisi came to be issued in W.P.No.21209 of 2008 on 25.9.2008. An interim order came to be granted on the even date suspending the proceedings dated 8.7.29008 vide WPMP.No.27732 of 2008. Rule nisi came to be issued on 30.9.2008 in W.P.No.22008 of 2008 and an interim order came to be granted on the even date suspending the operation of the proceedings dated 27.9.2008. Rule nisi came to be issued in W.P.No.26866 of 2008 on 10.12.2008. There is no interim order in W.P.NO.26866 of 2008. 3. The respondents entered appearance and filed vacate stay petitions. The sum and substance of the counter affidavits is : Two departmental enquiries came to be initiated. One for his disobedience of the orders of his transferring which amounts to misconduct under S.11(1) of CRPF Act, 1949 and the other for disobedience of the orders where under he has been directed to undergo for medical examination and also for his unauthorized absence and threatening the Commanding Officer A/2 Signal Battalion on 9.2.2008. It is the further plea of the department that the petitioner has been placed under suspension w.e.f. 8.7.2008 for disobeying the lawful orders. The department denied the allegations made by the petitioner that he was not given proper opportunity in the departmental enquiry. Paras 7 and 8 of the counter affidavit filed in W.P.No.21209 of 2008 needs to be noted, which read as under: “ 7. In reply to para 7 of the Writ Affidavit it is submitted that the contention of the petitioner in this para is baseless. More than 2000 personnel are working under the command of respondent at various places. So it is the duty of respondent to ensure proper discipline of the force. Every force person is expected to abide with CRPF Act and rules and discipline. The petitioner is habitual in disobeying the orders and argumentative with his superiors. His record is not upto the mark, and is often indulging in such indisciplined activities and do not obey the orders of competent authority. Respondent being the disciplinary authority have the powers to investigate/enquire into any of the indiscipline act done by the unit personnel working under him. When the petitioner did not obey the orders of the respondent, despite repeated directions and warnings, then the respondent had no other option left except issuing show cause notice. 8. In reply to para 9 of the writ affidavit it is submitted that the contentions of the petitioner in this para are not correct. Once the W.P.No.8614 of 2006 is dismissed on 8.7.2008 and the same has been reviewed by the Hon’ble Court and disposed of finally, the respondent is at liberty to take action as per the court order. Nothing prevented the petitioner to prefer writ appeal against the order of this court. The respondents cannot remain without taking any action in the event of the dismissal of the W.P.No.8614 of 2006.” 4. The department also detailed the writ petitions filed by the petitioner in para 9 of the counter affidavit in W.P.No.21209 of 2008. In a way the department pleaded that the petitioner is always indulging in indiscipline activities and engaging in arguments with superiors and does not obey lawful orders of the competent authorities and behaving according to his whims and fancies. 5. In the counter affidavit filed in W.P.No.26866 of 2008 it is stated that the petitioner was under suspension when he submitted application dated 23.9.2008 seeking voluntary retirement. Under Rule 43 of CRPF Rules, 1955 r/w Rule 48 (1) and GOIs decision No.(1)(iii) under Rule 48A of CCS (Pension) Rules, it is mandatory to withhold permission of voluntary retirement of the person who is under suspension or against whom disciplinary proceedings are pending. Accordingly, the request of the petitioner for voluntary retirement w.e.f. 31.12.2008 was not accepted. He was informed that his case would be considered after finalisation of the departmental enquiry initiated against him vide letter No.P.VIII.3/2008- EC-II, dated 30-10-2008. As per the provisions contained in Rule 43 of CRPF Rules, 1955, a Government servant after completion of 20 years of qualifying service can proceed on retirement voluntarily by giving a notice of three months except when any disciplinary proceedings are pending or contemplated against the member of the force. 6. Heard learned counsel appearing for the petitioner and learned Central Government Standing Counsel appearing for the respondents. 7. Learned counsel appearing for the petitioner submits that the petitioner was not placed under suspension when the departmental proceedings came to be initiated against him and in the midway of the proceedings, the department proceeded to place the petitioner under suspension and there being no fresh material the order keeping the petitioner under suspension cannot be justified. He would also contend that the petitioner has completed qualifying service and issued notice seeking voluntary retirement and since the department has not responded within three months, it is deemed that the retirement of the petitioner shall become effective from 23.12.2008. Much emphasis has been laid on Rule 43 of the Central Reserve Police Force Rules, 1955, which reads as hereunder: “43.Superannuation (a) Retirement of a member of the Force shall take effect from the afternoon of the last day of the month in which such member attains the age of 55 years. In case, the date of birth of a member of the Force falls on the first day of a month, his retirement shall take effect from the afternoon of the last day of the month preceding the month in which the member of Force attains the age of 55 years. (b) Any member of the Force who has attained the age of 55 years shall not be retained in service of the Force save in very exceptional circumstances and subject to the condition that he is physically fit, provided in all such exceptional cases the period of extension shall not exceed the maximum limit of five years: PROVIDED FURTHER in all such cases prior approval of the Government in the case of superior officers, of the Inspector-General in the case of Subordinate as well as the Under Officers and of the Deputy Inspector General in the case of other Members of the Force except enrolled followers in whose case approval of the Commandant shall be obtained. [c] Notwithstanding anything contained in this rule— (i) The appointing authority shall, if it is of opinion that it is in the public interest to do so, have absolute right to retire any member of the Force who has attained the age of 50 years or put in 25 years of qualifying service, by giving him notice of not less than three months in writing or three months pay and allowance in lieu of such notice, (ii) Any member of the force, may, by giving notice of not less than three months in writing to the appointing authority, retire from service after he has attained the age of 50 years or put in 25 years of qualifying service, (d) (i) any member of the Force who has put in not less than 20 years of qualifying service may, by giving notice of not less than three months in writing to the appointing authority, retire from service voluntarily and unless the exigencies of service require otherwise, he shall be permitted to retire. (ii) the benefit of retiring person shall be admissible to members of the Force retiring under clause (i); [(iii) a notice of less than three months may also be accepted by the appointing authority in appropriate cases on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months;] (iv) a notice of voluntary retirement may be withdrawn with the approval of the appointing authority, provided the request for such withdrawal is made before the expiry of the period of notice. (v) before a member of the Force gives notice of voluntary retirement with reference to this sub-rule, he should satisfy himself by means of a reference to the appropriate administrative authority that he has, in fact completed 20 years of service qualifying for pension; (vi) a notice to retire voluntarily under clause (i) after completion of 20 years of qualifying service shall require acceptance by the appointing authority if the date of retirement on the expiry of the period notice would be earlier than the date on which the member of the Force concerned could have retired under sub-rule (a). Such acceptance may be generally given in all cases except where: (a) any disciplinary proceedings are pending or contemplated against the member of the Force concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from the service would be warranted in the case; or (b) any prosecution is contemplated or may have been launched in a court of law against the member of the Force concerned: PROVIDED that— (i) in cases, referred to in item (a) and item (b) above, approval of the Government in the case of Superior Officers, of the Inspector General in the case of Subordinate and under officers of the Deputy Inspector General in the case of other members of the Force except enrolled followers and of the Commandant in the case of enrolled followers shall be obtained; (ii) in other cases, acceptance by the appointing authority may be presumed and the retirement of the member of the Force concerned may take effect in the terms of the notice, unless the appointing authority passes an order to the contrary before the expiry of the period of notice. [ x x x } (ix)….. [(e)(i)….. (ii)…..” By referring the above Rule, it is contended that since the disciplinary proceedings do not indicate of major penalty, the Department is bound to accept the representation of the petitioner seeking voluntary retirement within three months. He further submits that the communication dated 30.09.2008 is not emanating from the Inspector General and therefore, loses its significance. 8. Learned counsel appearing for the petitioner also would contend that the petitioner was not given fair opportunity in the departmental enquiry and he was not permitted by the Enquiry Officer to cross-examine the witnesses of the Board viz., Gurmeet Singh Rampath and some of the witnesses were examined in his absence and therefore the proceedings before the Enquiry Officer were in utter violation of the principles of natural justice and in which case any findings recorded by the Enquiry Officer were nonest in law. 9. Learned Central Government Standing Counsel submits that the petitioner came to be suspended for his not moving out to the transfer of place and making unfounded allegations against superior officers and that the petitioner filed W.P.No.21209 of 2008 on the misconception that he was placed under suspension in respect of the charge sheet dated 18.3.2008. He would also submit that fair opportunity was given to the petitioner during the enquiry relatable to the charge sheet dated 18.3.2008 and the Enquiry Officer submitted his report on 8.7.2008 and copy of the enquiry report was served on the petitioner granting 15 days time. In the meanwhile the petitioner approached this Court and obtained interim order on 30.9.2008 and thus the petitioner himself is responsible for not concluding the disciplinary proceedings relatable to the charge sheet dated 18.3.2008. A further submission has been made that the representation of the petitioner seeking voluntary retirement kept in abeyance pending finalization of the disciplinary proceedings and it is well within the ambit of Rule 48 of CCS (Pension) Rules. Much emphasis has been laid on the proviso to Rule 48, which reads as under: “ 48. Retirement on completion of 30 years’ qualifying service: (1) At any time after a Government servant has completed thirty years’ qualifying service- (a) he may retire from service, or (b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the government servant shall be entitled to a retiring pension: Provided that – (a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and (b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months’ pay and allowances in lieu of such notice: Provided further that where the Government servant giving notice under clause 9a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule: …………” 10. It is beyond the pale of controversy that the petitioner came to be placed under suspension under proceedings dated 8.7.2008 issued by the Deputy Commandant (Admn) Group Centre, CRPF, Hyderabad under the provisions of sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 r/w Rule 27(A)(3) of CRPF Rules, 1955 in contemplation of disciplinary proceedings. Indeed a show cause notice (office of the Commandant-2nd Signal BN, CRPF, Hyderabad (AP)-500 055 No.P.VIII.1/2008-EC-11) was issued on 27.9.2008 calling for his explanation on two counts; firstly, for his making unfounded allegations against his superior officers and secondly; for not moving out to the transfer of place. 11. It is contended by learned counsel appearing for the petitioner that suspension order came to be passed against the petitioner pending the disciplinary enquiry relatable to the charge sheet dated 18.3.2008 and since the enquiry relatable to the said charge has been in progress, keeping the petitioner under suspension at that stage is wholly unwarranted. 12. The contention of the petitioner appears to be sound on the first blush, but on close scrutiny of the material placed on record I do not detain myself long to reject his contention since the suspension order is not relatable to the charge sheet issued on 18.3.2008, but it is relatable to the subsequent disciplinary proceedings which came to be initiated on two counts, which have been detailed supra. Therefore, I do not see any valid ground to interfere with the order of suspension. The petitioner is at liberty to respond to the show cause notice dated 27.9.2008 since time allowed to the petitioner to respond to the show cause notice is expired, I deem it appropriate to extend the time by four more weeks from today so as to enable the petitioner to respond to the show cause notice dated 27.9.2008. 13. Since the petitioner has been placed under suspension by proceedings dated 8th July, 2008, the action of the respondents in keeping the voluntary retirement application in abeyance is well within the provisions Rule 48 of CCS (Pension) Rules r/w Rule 43 (iv) of Central Reserve Police Force Rules, 1955. Therefore, the action of the respondents in issuing proceedings dated 30.9.2008 keeping the application dated 21.9.2008 in abeyance cannot be faulted. 14. With regard to the enquiry relatable to the charge sheet dated 18.3.2008, it is the contention of the petitioner that the disciplinary authority has not given proper opportunity to represent his case and no sufficient time has been allowed to cross-examine the witnesses. The respondents have stated in the counter affidavit that the petitioner was given sufficient opportunity to cross-examine the witnesses. Para 8 of the counter affidavit in W.P.No.21209 of 2008 reads as under: “ 8. In reply to para 8 of the writ affidavit, it is submitted that as per CRPF Act and Rules and laid down departmental instructions, there is no provision exists in CRPF for appointing Presenting Officer on behalf of the department. Allegations made against 2nd respondent (Shri Ashish Kumar, Dy.Commandant) is baseless. The petitioner is habitual of making allegation against the E.O. As per the enquiry proceedings, it is forthcoming that E.O. has given every opportunity to the petitioner whenever required. During the course of enquiry, the petitioner was directed by the E.O. to appear on 14.7.2008 for recording statement of SI(M) Gurmith Singh. But, the petitioner did not appear and requested over phone to fix same on 15.7.2008. Accordingly, after recording statement of SI(M) Gurmith Singh (PW.13) on 15.7.2008 in the presence of the petitioner, he was given opportunity to cross examine P.W.13, but he sought time. Hence, he was given time on 19.7.2008 for cross examination of P.W.13, but on tht day also he did not turn up. Petitioner again given time on 22.7.2008 for cross examination of P.W.13. On 22.7.2008 petitioner and P.W.13 appeared, but petitioner did not cross examine and again sought time for 2 days. Hence, despite giving 3-4 opportunities to cross examine SI(M) Gurmith Singh, the petitioner could not do so and made allegation baselessly. As regards, cross examination of SI/RO Rampath, the official already proceeded on superannuation from service w.e.f. 30.4.2008. Inspite of giving intimation to the official at his home address thrice, he did not respond, hence, his name has been deleted from the list of witness at Sl.No.7. Out of three DWs, willingness of HC/RO Virudhachalam who was away on Govt. duty was asked through OC- A/2 Signal Bn, Hyderabad, who intimated that Virudhachalam is unwilling to depose statement as DW. Rest of two DWs stated that they do not know and have nothing to say with regard to charges leveled against the petitioner. During recording, of these two DWs, petitioner did not turn up despite giving proper intimation vide letter dated 19.8.2008 to appear on 20.8.2008.”