IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.914 of 2008 DHIRENDRA KUMAR MISHRA, son of Sri Srikrishna Mishra, resident of village Jogia East, P.S. Brahampur, District Buxar, presently residing at Bokaro Steel City, Sector- 2BI-003G Road, P.S. Bokaro Steel City, District Bokaro … Appellant/Petitioner. Versus 1. THE UNION OF INDIA, through its Director General C.R.P.F., New Delhi 2. Director General and Inspector General, Central Reserve Police Force, Group Centre, New Delhi 3. Inspector General (Police), Central Reserve Police Force, Group Centre, New Delhi 4. Deputy Inspector General of Police, Central Reserve Police Force, Bailey Road, Patna 5. Commandant, 21 Bn Central Reserve Police Force, Tinsukiya, Assam … Respondents/Respondents ----------- For the Appellant : Mr. Rajeev Kumar Singh, Adv. For the U.O.I. : Mr. Rakesh Kumar Singh ---------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (17.3.2010) As per Mihir Kumar Jha,J. Heard Mr. Rajeev Kumar Singh, learned counsel for the appellant and Mr. Rakesh Kumar Singh, learned counsel appearing on behalf of the respondents. 2. In this intra-Court appeal the appellant- writ petitioner has assailed the order dated 25.7.2008 in C.W.J.C.No. 14192/2005 whereby and whereunder his writ petition as against his order of dismissal from 2 service dated 28.9.1995 dismissing him from service of the Central Reserve Police Force (hereinafter referred to as „the CRPF‟) and its affirmatory appellate order dated 12.5.2005 read with another appellate order dated 30.5.2005 has been dismissed on the ground of delay and laches. 3. Mr. Singh, learned counsel for the appellant- writ petitioner, however, while assailing the impugned orders of the authorities of the CRPF maintaining his order of dismissal, has submitted that the learned Single Judge had committed an error in holding that the writ petition was suffering from vice of delay and laches. In this context he has submitted that true it is that the appellant- writ petitioner was dismissed from the CRPF by an order dated 28.9.1995 but when his appeal against such order of dismissal was entertained in terms of the order of Allahabad High Court dated 10.3.2005 in Civil Misc.Writ Petitoin No. 55145/2003 and the same was rejected by the order dated 12.5.2005 read with another order dated 30.5.2005, the resultant writ petition filed on 18.11.2005 could not have been held to be suffering from any delay and laches. 3 4. In the opinion of this Court the submission of the learned counsel for the appellant- writ petitioner is fit to be rejected, inasmuch as it is not in doubt that the original order of dismissal of the appellant- writ petitioner was passed on 28.9.1995 and an appeal against the said order in terms of Rule 28 of the Central Reserve Police Force Rules, 1955 itself provided that an appeal not filed within 30 days of the date of original order shall be barred by limitation. Rule 28(e) in this context reads as follows: “ 28(e) An appeal which is not filed within 30 days of the date of the original order, exclusive of the time taken to obtain a copy of the order or record, shall be barred by limitation: Provided the appellate authority may entertain time barred appeal if deemed fit; 5. It is, thus, clear that the appeal filed by the appellant- writ petitioner on 31.3.2005 was barred by limitation and was rightly rejected in terms of the aforementioned Rule 29 of the Rules wherein the appellate authority had also recorded that either in terms of Rule 28 of C.R.P.F.Rules, 1955 read with Rule 25 of the CCS (CCA) Rules such appeal should have been preferred within a period of 45 days from the date on 4 which a copy of dismissal order was delivered to the appellant- writ petitioner and that having been not done, his appeal almost after ten years and that too without showing any sufficient cause for such a enormous delay was fit to be rejected as being a time barred appeal. 6. We have perused the averments made in the writ application and from the same it is clear that the appellant has not even brought his memo of appeal dated 31.3.2005 on record from which we could have found as to whether any explanation was given by him for explaining the delay of almost ten years in filing of the appeal. Consequently we would find no merit in the submission of the learned counsel for the appellant- writ petitioner that the appeal of the appellant- writ petitioner was not barred by limitation in terms of Rule 28 of the C.R.P.F.Rules. 7. We, however, must take note of the submission of Mr. Singh that in view of the order of Allahabad High Court dated 10.3.2005 the limitation of 30 days in filing of the appeal had automatically got condoned and since the appellant- writ petitioner had filed his appeal within 21 days of the order of Allahabad 5 High Court, the order of the appellate authority dated 12.5.2005 dismissing the appeal on the ground of limitation was unsustainable. In this regard we would find that the appellant after leaving the order of his dismissal untouched and unassailed for a period over eight years had filed a writ petition in Allahabad High Court by claiming himself to be the resident of Urdu Bazar, in the town and district of Gorakhpur whereby and whereunder he had assailed his order of dismissal dated 28th September, 1995. Such writ petition, however, was dismissed on the ground of alternative remedy by Allahabad High Court in its order dated 10.3.2005 by recording as follows: “ Heard counsel for the parties. Against the order of dismissal the petitioner has a statutory remedy of filing of an appeal. The writ petition is dismissed on the ground of alternative remedy. In the event, the petitioner files an appeal within six weeks the same shall be entertained by the appellate authority.” 8. The Direction of Allahabad High Court was, therefore, confined to entertaining the appeal which nowhere remotely had envisaged that the appellate authority could not have rejected the appeal on the 6 ground of limitation. Thus, we are not impressed with that part of the submission of the learned counsel for the appellant- writ petitioner wherein the delay of ten years is sought to be explained only by virtue of the aforementioned order of Allahabad High Court. 9. It would, however, appear that soonafter the order dated 12.5.2005 dismissing the appeal of the petitioner on the ground of limitation was passed and communicated the appellate authority had passed another appellate order on 30.5.2005 operative portion whereof reads as follows: “ From the above discussions, it is established that the appellant had committed serious misconduct/ negligence in his capacity as a member of the disciplined force for breaking his journey enroute without seeking permission or leave from competent authority and not informing his competent authority for absenting from duty for such a long period. Therefore, I find that the order of dismissal from service passed by the Commandant 21 Bn. CRPF vide his office order No. PVIII/95-21-EC-II dated 28.9.1995 is an order and needs no interference as the appellant has neither brought out any reasonable point nor submitted any valid justified relevant documents with the appeal against the order of dismissal from service. As such the appeal is rejected being devoid of merit. 10. It has to be noted that the memo portion, 7 the earlier appellate authority dated 12.5.2005 was to be treated as cancelled. 11. The aforementioned appellate order rejecting the appeal of the appellant- writ petitioner on merits, however, was not taken note of the learned Single Judge in the impugned order and that has emboldened the appellant- writ petitioner to contend before us that such order of the appellate authority dated 30.5.2005 was wholly unsustainable, inasmuch as the order of punishment for absence from duty for a period of 129 days was excessively harsh. In this context he has relied on the provisions of section 11 of Central Reserve Police Force Act to contend that for such misconduct of being absent from duty without leave he ought to have been inflicted any one of the four minor punishment under section 11 of the Act in stead of being dismissed from service under section 12 of the Act. He has also referred to the judgment of the Apex Court in the case of State of Madhya Pradesh & ors. vs. Sanjay Kumar Sharma, reported in (2005) 11 SCC 513. 12. In the opinion of this Court the appellant- writ petitioner has in fact tried to treat the issue of his 8 misconduct in a very light manner. From the records it would be clear that the appellant- writ petitioner while on duty on 3.4.1995 at Tinsukiya in 21 Bn. CRPF Station at Tinsukiya in Assam was sent to Wazirabad, New Delhi on 3.4.1995 in connection with some C.B.I. enquiry. After the said enquiry he was supposed to return back to Tinsukiya, Assam on 8.5.1995 but in stead of reporting at Tinsukiya he had absented himself from duty with effect from 8.5.1995 without leave and without any information and subsequently surrendered himself on 14.9.1995 at Tinsukiya. For such offence in terms of section 10(m) of the C.R.P.F.Act the appellant- writ petitioner was put on trial and in course of trial he had pleaded guilty to the extent that he had remained absent from duty with effect from 8.5.1995 without leave. Initially in course of trial he had taken a plea that he had sent a registered letter to the Commandant of 21 Bn. C.R.P.F. on 26.5.1995 intimating therein about illness of his wife and his separation from the family but after examination of the two prosecution witnesses he had admitted that he had not sent any information to anyone about his absence from duty. The appellant- writ 9 petitioner in fact in course of his trial before the court of Commandant, Tinsukiya had also not adduced any evidence in his defence and as such, his absence from duty for long duration of 129 days i.e. between 8.5.1995 to 14.9.1995 without leave and without any information from his side was found to have been proved and he was held guilty for offence punishable under section 10(m) of the C.R.P.F. Act, 1949, wherein he was sentenced to undergo simple imprisonment for a period of 15 days. The said order of conviction and sentence of the appellant- writ petitioner dated 25.9.1995 became final and binding and led to his dismissal in terms of section 12 of the Act which reads as follows: “ 12. Place of imprisonment and liability to dismissal on imprisonment.- (1) Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him as well as of any medals and decorations received by him. (2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the Force, he may, if the Court or the Commandant so directs, be confined in the quarter-quard or such other place as the Court or the Commandant may consider suitable. 13. It would, thus, be seen that an order of 10 sentence and imprisonment by itself can automatically entail the consequence of dismissal from service of the C.R.P.F. as also make him liable forfeiture of pay and any other money due to him. Once this aspect becomes clear that the offence under section 10(m) of the Act had lead to conviction and sentence for 15 days imprisonment, the order of dismissal dated 28.5.1995 cannot be held to be illegal. 14. The submission that such punishment was excessive and the appellant- writ petitioner ought to have been inflicted a minor punishment in terms of the provisions made in section 11 of the Act is also misconceived. In order to appreciate this part of the submission of the learned counsel for the petitioner the provisions of Section 11 needs to be quoted hereinbelow: 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 11 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. (2) Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specially authorized in this behalf by the commandant. (3) The assistant commandant, a company officer or a subordinate officer, not being below the rank of subedar or inspector, commanding a separate detachment or an outpost, or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishment for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a criminal court, that is to say.- (a) confinement for not more than seven days in the quarter-guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance; (b) punishment drill, or extra guard, fatigue or other duty, for not more than thirty days with or without confinement to quarters, lines or camp; 12 (c) censure or severe censure; Provided that this punishment may be awarded to a subordinate officer only by the Commandant. (4) A jemadar or sub-inspector who is temporarily in command of a detachment or any outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause (b) of sub-section (3) for not more than fifteen days.” 15. From the reading of the aforementioned provision of section 11 it would be clear that the provision under section 12 is quite separate and distinct as one from section 11. Section 11 in fact deals with a situation where a member of the Force being guilty of disobedience, neglect of duty or remissness in the discharge of any duty or guilty of any other misconduct in his capacity as a member of Force can be inflicted one of any four of minor penalties but that would not mean that a person who has been convicted and sentenced to imprisonment in stead of being dismissed from service can be inflicted only minor penalty. Section 11 from the scheme of the Act seems to be an additional provision where a member of Force can also be subjected to punishment for misconduct but it cannot be said that the 13 punishment of removal or dismissal from the Force cannot only be passed under section 12 of the Act and in fact it can be done so even under section 11 of the Act. This aspect of the matter as with regard to scope and operation of sections 11 and 12 of the Act has been gone into in the case of Deen Dayal Yadav vs. the Deputy Inspector General of Police, C.R.P.F. , reported in 1974 Labour Industrial Cases 929, wherein it has been held that: “ Expression use in section 11 in lieu of or in addition to, suspension or dismissal, for inflicting any of the four minor punishment cannot be made mutually exclusive in terms of section 12 of the Act.” 16. In other words from the scheme of the Act it becomes very clear that a person sentenced under the Act to a term of imprisonment in prescribed prison becomes liable for being dismissed from Force as also forfeiture of his pay, allowances and any other amount payable/ due to him. 17. While this Court would be loath to go into the question of quantum of punishment, inasmuch as the misconduct and offence committed by the appellant- writ petitioner cannot be held to be a mere absence from 14 duty. Here in this case the appellant while on duty was sent with an official assignment from Tinsukiya to Wazirabad in relation to CBI enquiry and having completed his assignment he was supposed to come back and rejoin his duty at Tinsukiya. The appellant- writ petitioner was a member of the Force and he could not have run away without reporting back at Tinsukiya and his misconduct straightway absconding from Wazirabad for a period over 129 days was unbecoming a soldier and/or a member of the Force. For such misconduct neither his conviction and sentence for a term of 15 days simple imprisonment nor his dismissal can be said to be shocking to the conscience of this Court so as to delve into the quantum of punishment. 18. A Writ Court exercising power under Article 226 of the Constitution of India has to be very careful as with regard to interfering with an order of punishment on the question of quantum of punishment as was held by the Apex Court in the case of B.C.Chaturvedi vs. the Union of India & ors., reported in (1995) 6 SCC 749. 19. The reliance placed by the learned 15 counsel for the appellant- writ petitioner on an order of the Apex Court in the case of Sanjay Kumar Sharma (supra) is also wholly misplaced, inasmuch as that was a case relating to an employee of the State of Madhya Pradesh and his services were terminated for unauthorized absence and the Tribunal as also the High Court had held that “no proper enquiry was conducted against the employee in that case and as such, he was entitled to be reinstated in service.” 20. In the opinion of this Court first of all there was no similar provision as contained in Sections 11 and 12 of the Act and secondly, the employee, Sanjay Kumar Sharma was not a member of the Force. That apart it cannot be said with essence of certainty that unauthorized absence from duty in all services would have the same ramification of misconduct. A clerk being unauthorizedly absent from duty cannot be equated to unauthorized absence of a member of Force in view of not only service conditions but also varying requirements and standard of discipline to be enforced in different services. Thus, the case of Sanjay Kumar Sharma (supra) will have no application in the facts of 16 the present case. 21. We, therefore, find no reason to interfere with the order of punishment and its affirmance by the appellate authority passed against the appellant- writ petitioner on 28.9.1995 and 30.5.2005 and therefore, we would approve the ultimate conclusion arrived by the learned Single Judge that the writ petition was devoid of any merit both for the reasons recorded in the impugned order dismissing the writ application as also for the additional reasons while testing the impugned order of dismissal of service and its affirmance by the appellate authority. 22. In the result, this appeal has no merit and the same is, accordingly, dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 17th March, 2010 A.F.R./Surendra.