HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND HON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT APPEAL Nos. 2269 AND 2365 OF 2005 04-09-2014 BETWEEN The Deputy Inspector General of Police, Central Reserve Police Force, Gandhinagar, Gujarat and another …Appellant s And N. Aravind Reddy …..Respondent HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND HON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT APPEAL Nos. 2269 AND 2365 OF 2005
JUDGMENT: (per the Hon'ble Sri Justice L. Narasimha Reddy)
These two writ appeals arise out of order dated 19-07-2005 passed by the learned single Judge in Writ Petition No. 15028 of 1999.
For the sake of convenience, the parties are referred to as arrayed in the writ petition.
The petitioner was appointed as a Constable in the Central Reserve Police force (CRPF) on 28-10-1991. He was sanctioned leave for a period of two months between 12-02-1996 and 11-04-1996. However, he did not report to duty after expiry of the leave. Notices were issued to him by the concerned authority and he was declared as deserter, vide letter dated 20-04-1996. The petitioner reported on 22-09-1997. He was taken into custody and was subjected to Court Martial, alleging that he was guilty of unauthorised absence for a period of 529 days. Through order dated 31-08-1998, the disciplinary authority removed the petitioner from service. The said order was challenged in the writ petition.
The petitioner pleaded that the respondents did not follow the procedure prescribed under the CRPF Act, 1949 (for short, ‘the Act’) and the rules framed thereunder. His specific contention was that though in the notice, reference was made to Section 11 which relates to imposition of minor punishments, a major punishment of dismissal from service was imposed. The other contentions touching on Rule 31 of the CRPF Rules (for short, ‘the Rules’) framed under the Act were also urged. The learned single Judge allowed the writ petition setting aside the order of removal and directing reinstatement of the petitioner into service without any back wages or attendant benefits. It was directed that the petitioner shall be entitled to the benefit of the service rendered by him prior to the order of removal. While the respondents in the writ petition filed Writ Appeal No. 2269 of 2005 challenging the relief granted by the learned single Judge, the writ petitioner filed Writ Appeal No. 2365 of 2005 not satisfied with the relief granted in the writ petition.
Sri P. Raja Sripada Rao, learned counsel for the petitioner submits that the Act prescribes a detailed procedure to be followed in the context of disciplinary proceedings and a clear distinction is made between the imposition of punishments for heinous offences, less heinous offences and minor heinous offences and Sections 9, 10 and 11 of the Act respectively deal with the same. He contends that the very fact that Section 11 was mentioned in the notice discloses that the disciplinary authority proposed to impose minor punishment, but at the end of the proceedings punishment referable to Section 10(7) was imposed. He contends that Rule 31 of the CRPF Rules deals with the cases of desertion in the absence of a member without leave, and no steps have been taken thereunder. It is argued that the observation of the learned single Judge that no defect has crept into the disciplinary proceedings is opposed to law and the order of removal ought to have been set aside and the relief of reinstatement ought to have been granted in its entirety.
Sri S.S. Varma, learned counsel for the respondents, on the other hand, submits that except that the offences of different degrees are mentioned in Sections 9, 10 and 11 of the Act, there does not exist any difference as to the procedure to be followed for imposition of punishments, irrespective of the degree, Rule 27 prescribes detailed procedure to be followed in the disciplinary matters, and the same has been meticulously followed in the instant case.
It is not in dispute that the petitioner remained absent without leave, for a period of 529 days. Whatever may be the possibility to take the lenient view in other services, depending upon the reasons for such absence, the discipline that is required to be maintained in the paramilitary forces like CRPF does not permit such an approach. In case there existed any domestic problem for the petitioner, he ought to have first joined the duty and thereafter applied for leave. The disinclination on the part of the petitioner to serve the force is evident from the fact that after the expiry of leave period, he addressed a letter with a request to discharge him from service. Even thereafter, he did not pursue the matter and remained absent for about 1 ½ years. The amount of inconvenience caused to the force or the extent of indiscipline it has generated, is not difficult to imagine.
Rule 31 of the Rules prescribes the procedure to be followed, whenever a member of the force is found to have deserted it. First a notification has to be issued proclaiming the concerned member as a deserter. If within the stipulated period he reports, he would be subjected to Court Martial. If on the other hand he does not turn up, he shall be deemed to have abandoned the force and his name will be struck off from the rolls. From then onwards, it becomes competent for the force to fill the vacancy. In the instant case, the procedure under Rule 31 was in fact, initiated. Before the step for declaring that the petitioner has abandoned the force was taken, he reported to duty, and as required under law, he was subjected to Court Martial. Therefore, it cannot be said that there was any violation of Rule 31.
Coming to the procedure that has to be followed in the disciplinary/Court Martial proceedings, the Act has classified the offences or acts of indiscipline that may have been resorted to by the members into three categories; Sections 9, 10 and 11 of the Act respectively. The most heinous crimes are enumerated in section 9, less heinous crimes in Section 10 and the acts for which minor punishment can be imposed in Section 11. Further, there is no distinction as to the procedure to be followed in the disciplinary enquiry. Whether it is for imposition of most moderate or most serious punishments, the same procedure is required to be followed which in turn is prescribed in Rule 27.
Making of reference to Section 11 in one of the notices is sought to be projected as a determination on the part of the respondent to impose minor penalty under Section 11. Incidentally, such reference was in a notice that was issued before commencement of enquiry. Once, the procedure prescribed under Rule 27 was followed and an incident which figures in Section 10 was established against the petitioner, it is difficult to accept that there was any deviation from the prescribed procedure. As a matter of fact, the learned single judge himself recorded a finding to the effect that the enquiry did not suffer from any infirmity.
We find it rather strange that the learned single Judge even while upholding that the acts of indiscipline alleged against the petitioner were proved, has set aside the order of dismissal and directed reinstatement. We are of the view that even in a case that arises under the Industrial Disputes Act, 1947, such an approach was impermissible on the facts of the case. It is only the prerogative of the Labour Court to exercise power under Section 11-A of the said Act in matters of that nature. When the employee is a member of armed forces or paramilitary forces, and the serious act of indiscipline of desertion of the forces has been proved beyond any pale of doubt, the question of showing any lenience or indulgence does not arise. If such an approach is adopted, the discipline which is the backbone of the paramilitary forces would be at stake.
We therefore allow Writ Appeal No. 2269 of 2005 and set aside the order passed in the writ petition. As a result, the writ petition is dismissed. Writ Appeal No. 2365 of 2005 is also dismissed.
The miscellaneous petitions pending in this appeal shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J CHALLA KODANDA RAM, J 04-09-2014 ks Note:
LR copy to be marked.
B/O ks