89 CWP No1227 of2008 1 p IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGAR DATE OF DECISION Ol e6e2011 Balwant Singh eeePetitioner VERSUS Union ofIndia and others Respondents 0 0 CORAM 0 HONBLE MRJUSTICE PERMOD KOHLI I PRESENT MSS Khaira Advocate for the Z MsGeeta SinghwalAdvocate for r Permod Kohli Je Z r Z The has been removedfrom service under Section 11 9 ofthe CRPF Act 1949 read with Rule 27 ofCRPF Rules 1955vide order m dated 1032006 64nnexure Pel 9 pursuantto enquiryconducted against 7 Z him His appealpreferred against theorderof removalbefore the Inspector ll General of Police CRPF authorityalso stands dismissed vide order dated 178 006 Annexure 129 Both these orders are under in this writ petition mmee Brieflystated the resume of the facts leadingto the filing of this petitionare that the petitioner was serving 111 164 Batallion CRPF PinjoreIt is allegedthat he received a messageon telephone from his wife that his daughter was seriouslyill The the Deputy Suresh Kumar 2014.03.01 11: 16 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 90 E CWP Noe1227of2008 2 1 to granthim leave to enablehim to rendermedicaltreatment to his who was in a critical condition The was however granted one dayStationleavefor 1262003 The His remainedill for considerabletimeand he was upset The ultimately for resuming dutyon 5 12 2005 It is statedthat the continuedto send for extension of leave but the did not considerhis 1 for extension He was served with the chargeleet and a C enquiry was initiated The claims to have 0 0 medical certificates beforethe EnquiryOfflcer but the medicalevidence I C5 hasnot been consideredIt is Airtherallegedthat the EnquiryOfficer has I notgivenany ofhearing to the nor he consideredthe Z medicalcertiflcatesrelating to the illness ofhis 2 r The in theirreplyjustifiedthe passingof the I orderson the groundthat thepetitioner happens to be habitual offender He is in the habit absentfrom dutyHe the sanctioned Z leave on 14 occasions duringhis service career and was awarded C at least four times It is further statedthat the was 7 Z granted one daystation leave but he failedto reportfor dutyand remained absentfrom 1362005 till 5 122005 Despiterepeated directions to repon back to his duties he failed to reportIt is also pleadedthat a fair enquiry was conductedagainstthe He was afforded full emV including supplyofthe copy ofthe enquiryreport The has failed to produce any evidencenor produced any other witnessin his supportIt is further stated that keepingin view the past record of his overstaythe competentauthority has imposed thepenalty of removal from Suresh Kumar 2014.03.01 11: 16 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 91 G JCWPNoe1227of2008 3 1 service I haveheardlearnedcounselfor theparties The contention thathe submittedvarious for extensionof leave has been admitted bythe in the orderof the authorityThere is anothersignicantaspectin this maerthat while removingthe from service the authoritieshave also taken into considerationthepastconduct of the of remaining absent 1 duty14 times and sufferingfour From the L from by the and authoritiesit appearsthat orders 0 C40 there was no againstthe his past conduct I 9 However while awarding his pastconducthas been taken into It seems to have heavilyweighed with the authoritieswhile Z imposing have not the fact that the daughter was ill ratherin the orderof the authorityit 0 hasbeen mentionedthat two telegrams dated 1562005 lnd 168005 I t3 statingdaughter very seriousextend30 daysleave were received in the Z Battalion It isalso admittedin thereplythatthe was D admittedin the governmenthospitalIt is however statedthat theHospital a Z where the was admittedis an hour bus joumeyfrom 11 his and thus he could have his seniors and for extensionofthe leave Thereare two important aspectswhich need to be consideredin this case One illnessofthe daughter ofthe for a considerabletime It e has an impactupon mind of the father when his daughter was admittedin governmenthospitalfor a considerableperiod past conduct of the petitioner has been taken into consideration Suresh Kumar 2014.03.01 11: 16 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 1 92 1 m 4 1 CWP Noe1227of2008 4 for without such pastconductinto a chargeor at least puttingthe petitioner to notice ln respectof his past conduct Suchan has causedgreat to the The petitionersent at least two which are admittedby the but therequestofthe was never rejecteThis might have madethe to believethathis requestfor extension of Ieave miht have been acceptedOn these two factors the petitionerdefinitely 1 doesnot deserve a harsh like removal from service The C iJl 0 commensurate withthe gravity ofthe misconduct and in 0 suchcircumstance it amounts to violation of Article 14 of the I C5 Constitutionof India The have actedin a most arbitrary I mannerbynot considering the illnessofthe daughter in a fair Z manner and by takinginto considerationthe pastconduct even without 1 putting the petitioner to notice As a matter of fact the has been condemnedunheard Honble Supreme Court in the case of BhagatRam t0 VseState ofHimachal Pradesh reported as AIR 1983 SC 454 hasheld as Z under QO 6C It is equallytrue that the penaltyimposedmust be vm commensuratewith the gravityof the misconductand Z that any penalty to the gravityof the misconductwould be violative of Article 14 of the Constitution A similarview was by Honble Supreme Court 111 case ofRanjitThakur Vs Union ofIndia 1984I SCC 611 and by this eeee Court in CWP Nol7751 of2008 iecided on 24920099 Learned counsel for the petitioner has also to argue that the imposedis a major whereas Section 11 of the CRPF Act deals with only minor lt is true that captionof Section 11 shows that it deals with minor However from Suresh Kumar 2014.03.01 11: 16 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 93 4VJCWP No1227 of2008 5 cvl ofthis Section it appearsthat authoritiescan impose a dismissal or any other in lieu of or in additionto or dismissal This Sectionhas been by Honble Court in the case ofUnion ofIndia vse Gulam Mohd Bhat 2005 AIR SC 42891whereinfollowingobservationshavebeen made The use of words in lieu of or in addition to or dismissal in sulsectioll9 of Section 11 of CRPF Act before Clauses to e shows that the authorities mentionedtherein are to award of m dismissalor to themember of Force who is found tr guiltyand in addition to or 111lieu thereon the mentionedin clause al to 6e9may also be awarded 19 0 0 I Thus this contentionof the 1S not sustainble in law C5 I However keeping ln view the fact that the considerationof pastconduct otherthan the 6hargehas weighedwith the authorities for imposingthe Z and the seems to be harsher 111view of the illnessof the daughter of the the I orders are herebyset aside The matteris remittedback to the Z competentauthority with a directionto reonsider the award c and impose lesser other than the removal from service if so 7 desired afler affording an ofbeingheardto the Z Il e1 PERMOD KOHLII e JUDGE Ol 2011 MFK 1Df4W Le NOTE Whether to be reportedor notYES I e Suresh Kumar 2014.03.01 11: 16 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document