IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 17751 of 2008 Date of Decision: 24.9.2009. Ex. Constable/GD Pramod Kumar --Petitioner Versus Union of India and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Anil Ghangas, Advocate for the petitioner. Mr. Rajender Mathur, Advocate for the respondents. *** PERMOD KOHLI.J (ORAL) The petitioner has been dismissed from service vide order dated 30.3.2007 on the basis of regular inquiry conducted against him in respect to two charges under Section 11(1) of CRPF Act, 1949. His appeal before the DIG, CRPF, Gurgaon also resulted in dismissal vide order dated 4.6.2007 (Annexure P-3) and a revision against the same before the I.G. Of Police, Northern Sector, CRPF also came to be dismissed vide order dated 12.5.2008. The petitioner has challenged the aforesaid orders in the present petition. Brief facts giving rise to the present petition are as under: The petitioner was enrolled in the force on 12.5.1998 as General Duty Constable. In the year 2006 he was posted in the 12th Batalion at National Highway No. 53 Lamphelpat in Manipur. It is alleged that on 4.12.2006 he received a telephonic message through wireless of the Company Commander A/124 from the Control Room of Headquarter/124 from his home that his mother had expired. He was called by the Company Commander and asked to contact his home telephonically. It is stated that there was no telephone at the place of his posting and on the next day, he CWP. No. 17751 of 2008 -2- was allowed to go to C-Company at Sehjang in a force vehicle to contact his home on telephone, however, he could not contact his home. Petitioner's request to permit him to go to civil area of Kotland was declined due to disturbed conditions. It is further stated that on 8.12.2006 the Commandant visited the company and the petitioner was produced before him by the Company Commander and informed that the mother of the petitioner had expired and he has applied for 20 days leave. Since the petitioner had already availed 60 days earned leave and 15 days casual leave, the Commandant orally sanctioned 10 days leave of the kind due to the petitioner. It is further case of the petitioner that due to militancy in the area the petitioner was not allowed to travel by the civil vehicle and asked to wait for a convoy, which again took two days and thus on the advice of his colleagues that since his mother had already expired and it will not be of any use to visit home and he should avail his 60 days earned leave w.e.f. 1.1.2007. Realising the genuineness of the suggestion the petitioner decided not to avail the leave in the month of December and to wait for the earned leave in the month of January. It is also stated that the petitioner was staying with one Suresh Kumar in the tent, who after consuming liquor taunted the petitioner that he has spread a false information regarding the death of his mother to avail the leave and the petitioner lost his mental balance and while handling the rifle, one shot was fired from his rifle, which hit the earth. The matter having come to the notice of the respondent no.5, petitioner was placed under suspension vide order dated 13.12.2006 and a regular inquiry was ordered against him. Following charges were framed against the petitioner: CWP. No. 17751 of 2008 -3- “ Charge – One. That Constable/GD Pramod Kumar No. 981340453 A/124 Battalion, being posted in the CRPF and being member of the force under the CRPF Act, 1949 has committed an act of negligence in duty/AVCHAR and indiscipline in which on 8/12/06, he presented himself before the competent authority and submitted that his mother has expired and he wants to go on leave. Despite his being availed 60 days earned leave, 15 days casual leave of this year (2006) and after sanctioning 10 days L.K.D. By the undersigned he has not availed said leave. Later on, it was found that actually his mother has not expired and by falsely explaining his problem, he disobeyed the orders of competent authority which is an offence under Section 11(1) CRPF Act-1949 and is violation of good discipline. Charge-Two That Constable/GD Pramod Kumar No. 981340453 A/124 Battalion, being posted in the CRPF and being member of the force under the CRPF Act, 1949 has committed an act of negligence in duty/AVCHAR and indiscipline in which on 12/12/06, at about 2115 hrs., he fired a round in his tent by misusing his Govt. Arm Butt No. S/17 Body No. 8942 AK-47 Rifle given for discharge of duty, which is an offence under Section 11(1) CRPF Act-1949 and is violation of good discipline.” The Inquiry Officer submitted his report and held that the charges against the petitioner are proved. Accepting the report, the petitioner has been dismissed vide the impugned order dated 30.3.2007 (Annexure P-2) and thereafter, an appeal and a revision against the aforesaid order stands dismissed as noticed herein above. The petitioner has challenged all these orders primarily on two counts. (1) The punishment of CWP. No. 17751 of 2008 -4- dismissal does not fall within the purview of Section 11 of the CRPF Act. (2) That the punishment imposed upon the petitioner is harsh and disproportionate. I have heard learned counsel for the parties. As far the first question is concerned, this issue came up for consideration before me while in the High Court of Jammu & Kashmir in 2006(3) SLR 250, wherein following observations were made:- “ 10. A thorough reading of Section 11(1) of the CRPF Act, 1949 clearly indicates that the punishments prescribed under Clauses 'a to e' of this section are in addition to the punishment of dismissal. 11. With great respect to the views expressed in judgments passed in SWP No. 1626/06, SWP No. 847/2002 and the judgment of the Gauhati High Court passed in Civil Rule No. 610/1994, I am unable to persuade myself to fall in line with the interpretation of Section 11(1) of the CRPF Act, 1949, sought to be placed in these cases. The Hon'ble Division Bench of this Court has not given its view and left the field open. In my humble view, Section 11 though is under caption of minor punishments, but it does include within its the purview of punishment of dismissal. From the scheme of the Act, it appears that the Act deals with three kinds of offences and punishments. Section 9 of the aforesaid Act deals with more heinous offences, Section 10 deals with less heinous offences Section 11 deals with minor offences. There is no other section which deals with the punishment of dismissal from service. Therefore, the argument of learned counsel for petitioner that Section 11 does not include within its scope the punishment of dismissal, cannot be accepted.” CWP. No. 17751 of 2008 -5- Hon'ble Supreme Court in case of Ram Sran Vs. I.G. Of Police, CRPF and others reported as 2006(2) SCC 541 has also held as under:- “ So far as the proposition of law is concerned, as contended by learned counsel for the appellant, there cannot be any dispute. There is no impediment for the Disciplinary Authority in awarding punishment of dismissal under Section 11(1) of the Act and the Rules framed thereunder when the charges levelled against the petitioner were found proved in the inquiry and the Disciplinary authority endorsed the view of the Inquiry Officer that the petitioner was not a fit person to be retained in service.” In view of the dictum of above judgement there is no substance in the first contention of petitioner. In so far the second plea of the petitioner is concerned, there is no allegation that the inquiry was biased or has not been conducted in accordance with the prescribed procedure. All the charges are admitted to be proved. Though, the petitioner has tried to argue that there is no legal evidence. Learned counsel for the petitioner has not been able to show any infirmity in the evidence. This Court cannot sit as a Court of Appeal over the inquiry/disciplinary proceedings. The only question which can be considered is whether the punishment of dismissal is harsh and disproportionate on the basis of the charges framed against the petitioner. One of the contentions of the respondents is that the petitioner has falsely claimed that his mother has died. However, it has come on record that a telephonic message was received by the Company Commander regarding the death of the mother of the petitioner. There is no evidence that the petitioner has managed this message. The other contention is that the petitioner has disobeyed the lawful orders and did not proceed on leave CWP. No. 17751 of 2008 -6- despite the formal orders. In my humble opinion, where a person does not avail the leave, it cannot be said to be defiance of lawful orders. The other charge against the petitioner is that he fired a shot from his rifle. There is no evidence on record that it was aimed to kill anybody. The shot was in the earth. Nobody has been injured. Petitioner was perhaps under the influence of liquor as has come in evidence. It has also come on record that when the petitioner was summoned by the competent authority, he tendered his apology and assured his good conduct in future. It cannot be lost sight that the petitioner was posted in a troubled and nexalite infested area, where the stress of duty is natural. Under the aforesaid given circumstances, I am of the opinion that the punishment imposed upon the petitioner seems to be harsh and disproportionate to the alleged offences. Hon'ble Supreme Court in case of Bhagat Ram Vs. State of Himachal Pradesh reported as AIR 1983 SC 454 has held as under:- “ It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.” The aforesaid judgement was followed in case of Ranjit Thakur Vs. Union of India, 1987 (4) SCC 611, wherein following observations have been made: “ In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” CWP. No. 17751 of 2008 -7- Similar view was expressed by the Hon'ble Supreme Court in case of Union of India Vs. Giriraj Sharma, 1994 (Sup 3) SCC 755, wherein following observations have been made:- “ The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for overstaying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not intention to wilfully flout the order, but circumstances forced him to do so. In that view of the matter the learned counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty, if they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission.” In view of the above factual and legal position, I am of the view that the punishment of dismissal from service imposed upon the petitioner is harsh and disproportionate. I, accordingly, set aside the impugned orders of dismissal dated 4.6.2007 (Annexure P-3) and the subsequent order dated 12.5.2008 (Annexure P-4) passed by the Appellate Authority and remand the case to the disciplinary authority to impose one of the minor punishment, contemplated under Section 11 of the CRPF Act. The petitioner shall stand reinstated forthwith to face the punishment as may be imposed by the authorities. However, the petitioner shall not be entitled to any financial benefit during the interegnum, though, his continuity of service will not be interrupted on account of dismissal from service. (PERMOD KOHLI) JUDGE 24.9.2009 lucky