The Petitioner has filed the instant Writ Petition for Certiorarified Mandamus to call for the records relating to the order passed by the 3rd respondent dated 31.03.2009 in his order No.P.VIII-2/2008-EC-I and quash the same and to direct the respondents to take the petitioner into the strength of CRPF as ASI(T) with all monetary benefits.
2.The case of the petitioner is that he was appointed as Assistant Sub- Inspector (Technician) in Central Reserve Police Force on 07.04.2008 at 2nd Signal Battalian, Hyderabad. He underwent basic Military Training CTC-III, Central Reserve Police Force, Nanded, Maharastra. Being so, on receipt of an urgent telephone call on 19.04.2008 from his father, that the petitioner?s mother was seriously ill and was under major health problem, the petitioner herein applied for a leave for 10 days. However, the application was rejected without considering the pathetic situation of the petitioner herein. Therefore the petitioner was forced to leave the camp to visit his mother at dead-bed at his native place. In the mean while two notices stood issued by the 4th respondent herein. The petitioner after recovery of his mother?s health reported duty on 27.05.2008 before the 4th respondent. Whereupon a charge memo was issued under section 11 (1) of the C.R.P.F. Act 1949, that the petitioner has committed a serious misconduct of desertion from the training, without obtaining prior permission from the competent authority. Wherein a charge level that the petitioner herein has remained unauthorizedly absent for a period of 35 days without permission. The petitioner herein pleaded not guilty of the charge and therefore there was an enquiry conducted an administratively. However without proper appreciation of the very fact the petitioner has duly sought for permission/leave before the competent authority, a biased enquiry report was submitted, as if the petitioner has absented himself. Furthermore the genuine cause of the petitioner was not at all looked into by the 4th respondent herein. However, based on the said biased enquiry report dated 21.01.2009 the petitioner herein was awarded with punishment of removal from service vide the impugned order herein. Therefore the impugned order of removal from service is under challenge in this writ petition.
3.I heard Mr.M.Md.Ibrahim Ali, learned counsel appearing for the petitioner and Mr.J.Jayakumar, learned Central Government Standing Counsel appearing for the respondents and perused all the relevant records.
4.The learned counsel appearing for the petitioner contented that the impugned order has to been passed without appreciation of the very fact that the petitioner has bonafidely and genuinely applied for leave, so as to visit and take care of his mother struggling at death-bed. In fact the respondents herein ought not have rejected the petitioner?s application by taking into account of the gravity of the situation that the petitioner?s mother was at struggle for her life.
5.It was further contented that the impugned order is liable to be set aside, since it is passed absolutely disproportionate to that of the charge leveled. Whereas the charge leveled was a minor one that the petitioner was absent was 35 days without permission but the punishment was absolutely major and disproportionate that the petitioner was ordered removal from service.
6.The respondents filed counter and contented that the petitioner has committed a serious misconduct of absenting himself from the camp without prior permission of his superior. The said absence of the petitioner is a serious misconduct in his capacity as member of the force under Section 11(1) of CRPF Act. Section 11(1) of CRPF Act is as follows:
?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,-
7.Despite of the instructions to the petitioner to submit a proof of his mother illness, he has not submitted any proof. Only on taking into account of the said fact of petitioner?s failure to submit proof of his mother?s illness, the petitioner?s application for leave was rightly rejected by the respondent herein. Whereupon charges were framed and a due enquiry was conducted and the charges been proved, the petitioner was rightly removed from service vide the impugned order herein. Furthermore the writ petition is not maintainable, since there is an appeal remedy available under Rule 28 and 29 of CRPF Rules, 1955 has not been exhausted by the petitioner herein.
8.At this juncture it would be pertinent to refer to a decision of the Hon?ble Division Bench of this Court in W.A.No.1472 of 2008 dated 09.08.2010 wherein this Court held that the punishment of dismissal from service is disproportional for having been on leave without permission for about six months.
9.The Hon'ble Division Bench held as follows:
?9.It is not in dispute that the respondent overstayed for a period of 60 days, but however submitted a medical certificate from the Government Hospital which was not accepted by the appellants herein. Since the respondent is working in the disciplinary force, his explanation for the alleged misconduct, of course, could not be accepted. However, we find the impugned punishment of dismissal is shockingly disproportionate to the misconduct admitted by the respondent herein. Under the facts and circumstances of the case, we are of the considered opinion that the punishment of imposing a fine of one month's salary and allowances would be a sufficient punishment to be imposed in the instant case. Therefore, we are obliged to confirm the order of the learned single Judge setting aside the order of the dismissal as excessive and shockingly disproportionate and however in the place of order of dismissal, we are of the considered opinion that imposing a fine of one month's salary would be sufficient to meet the ends of justice. The order of the learned single Judge is modified to the extent above and the writ appeal is allowed partly as indicated above. Consequently, CMP No.13173 of 1999 is dismissed.?
10.Furthermore it is seen that the Hon?ble Division Bench of this Court in W.A.No.1458 of 1999, dated 17.08.1999, while dealing with removal of service, the petitioner therein also a CRPF personnel who was dismissed from service on the charge of overstay of his causal leave and absented for 60 days, has held that the punishment of removal from service is grossly disproportionate of the charge/allegation against the petitioner therein.
11.The Hon'ble Division Bench held as follows:
?...In our opinion, the punishment was disproportionate to the charges and as such interest of justice would be met, in case the matter is remitted to the appellate authority for imposing punishment proportionate to the charges levelled against the appellant.
12.Accordingly the order dated 20.05.2000 is set aside only in so far as confirming the punishment of dismissal from service is concerned and the matter is remitted to the first respondent for imposing the correct punishment taking note of the charges. Such exercise shall be completed within a period of three months from the date of receipt of a copy of this order.?
12.In W.A.No.1472 of 2008, the Hon'ble Division Bench of this Court vide order dated 09.08.2010 has also reiterated the above said principle of proportionality between the charges and the punishment to be imposed in that regard.
13.Further more this Court in view of the recent decision of this Court in W.P.No.7628 of 2011 holding that the punishment of removal from service is disproportionate to the proven charge of absenting himself without permission / leave sanction.
14.The instant case on hand also involves similar set of facts and circumstances that the petitioner CRPF personnel for being absent without permission / sanction was also being passed with an order of removal of service, similar to that of the above referred cases. Therefore this Court relying upon aforesaid decisions of this court has no hesitation to hold that the punishment of removal of the service of the petitioner herein is grossly disproportionate and the same is highly arbitrary. Furthermore in the interest of justice and taking into account of the petitioner?s cumbersome situation that his mother was at the struggle for life at her dead-bed, this Court is of the opinion that the respondent certainly should have considered the petitioner?s leave application positively on humanitarian grounds.
15.In the result:
a) this writ petition is allowed by setting aside the order No.P.VIII-2/2008- EC-I passed by the 3rd respondent dated 31.03.2009.
b) the respondents are hereby directed to take the petitioner into the strength of CRPF as ASI(T) with all monetary benefits from 31.03.2009
c) the respondents are hereby directed to complete the said exercise within a period of eight weeks from the date of receipt of a copy of this order. No cost.
To
1.Union of India, Represented by the Secretary, Ministry of Home Affairs, North Block, New Delhi ? 110 114.
2.The Director General of Police, Central Reserve Police Force, Block No.10, C.G.O. Complex, Lodhi Road, New Delhi ? 110 011.
3.The Deputy Inspector General, (Signal Range) Central Reserve Police Force, Sector-3 Salt Lakes, Kolkotta-700 091.
4.The Principal, CTC-III, Central Reserve Police Force, Muthked, Nanded, Maharashtra.
5.Deputy Commandant, CTC-III, Central Reserve Police Force, Muthked, Nanded, Maharashtra.
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