Challenge in this writ petition is to the order passed by the fourth respondent dated 28.10.2001 in his office order No.D.V.1/2001-109-EC-I with a prayer to quash the same and to direct the respondents to take the petitioner into the strength of Central Reserve Police Force as constable with all monetary benefits.
2. The factual matrix of the case is hereunder:
The petitioner joined in the Central Reserve Police Force on 02.04.1991 and served in different places namely, Avadi, Chennai; 109th Battalion, New Delhi, Punjab etc.; 19th Battalion, Hydrabad; Group Centre, Avadi and 109th Battalion, Mizoram. While the petitioner was working at Mizoram, due to ill-health of his wife, he submitted an application to go over to his native place. But the request of the petitioner was refused and therefore, the petitioner has been constrained to submit a letter of resignation on 23.06.2001. Thereafter the petitioner has withdrawn his letter of resignation dated 23.06.2001 stating that urgent domestic problems were sorted out as per the advice of the Commandant. But inspite of such withdrawal of resignation letter, the fourth respondent passed the impugned order dated 28.10.2001 relieving the petitioner with effect from 15.11.2001 as per Rule 17 of Central Reserve Police Force Rules, 1955 claiming to be on the basis of resignation tendered by the petitioner. The petitioner has not given any further letter of discharge/resignation voluntarily and the order was passed contrary to Rule 17 of Central Reserve Police Force Rules. Being aggrieved against the said order, the petitioner preferred an appeal to the Director General, the third respondent herein in the month of January 2002, though there is no appeal provided under the Act. But till date the third respondent has not passed any order and as such, the petitioner has been constrained to approach this Court.
3. Mr.MD.Ibrahim Ali, the learned counsel appearing for the petitioner put forward the following contentions:
(i) The impugned order passed by the fourth respondent is contrary to Rule 17 and 17-A of the Central Reserve Police Force Rules, 1955, as the impugned order does not contain anything to show regarding the refund of three months pay or charges incurred for training, whichever is higher to the Government. Therefore, the impugned order does not amount to an order of discharge.
(ii) In the impugned order, though a vague reference was made about the submission of resignation tendered by the petitioner, date of resignation letter was not mentioned.
(iii) There is no mention about any undertaking given by the petitioner in the impugned order, though the alleged undertaking was now relied by the respondents.
(iv) The alleged resignation letter now relied by the respondents is dated 26.09.2000, as it is mentioned as 26.09.2k, and whereas the impugned order was passed on 28.10.2001 and even prior to the alleged resignation letter, as per Ex.'C', the petitioner has withdrawn his resignation application dated 23.06.2001 and as such, the claim of the respondents to the effect that the impugned order has been passed on the basis of the resignation letter alleged to have been submitted by the petitioner, is unacceptable and unsustainable in law.
(v) The alleged undertaking said to have been given by the petitioner is unreliable, as the said undertaking does not contain the date on which the petitioner put signature and further, the said undertaking is in a printed form and as such the respondents obtained the signature of the petitioner in blank printed form and the particulars were filled up later and there is also no reference about the said undertaking in the impugned order.
4. Per contra, Mr.K.K.Senthilvelan, learned Assistant Solicitor General appearing for the respondents contended that there is no illegality or infirmity in the impugned order passed by the fourth respondent. The learned Assistant Solicitor General would submit that the impugned order was passed as early as in the year 2001 and whereas, the writ petition was filed in the year 2006 and there is absolutely no explanation for such delay in approaching this Court. It is further contended that though it is stated that the petitioner has preferred an appeal, there is no appeal provision at all under the Act or under the Rules, for challenging the impugned order passed against the petitioner and as such the said explanation cannot be accepted. The learned Assistant Solicitor General would further contend that the impugned order discloses that the said order was passed on the basis of resignation letter tendered by the petitioner and as such there is no illegality in the impugned order. It is further contended that though the date of the resignation letter is not mentioned in the impugned order, it is only an irregularity and not an illegality and due to oversight, the date of resignation letter has not been mentioned in the impugned order and on that ground itself, the impugned order is not liable to be set aside.
5. The learned Assistant Solicitor General would further contend that apart from tendering his resignation, the petitioner also submitted a letter of undertaking as per Ex.'F' dated 28.09.2001 and the same contains signature of the petitioner and there is absolutely no averment in the petition filed by the petitioner that the said undertaking was obtained due to force or coercion. Lastly, the learned Assistant Solicitor General submitted before this Court that as far as Rule 17A of the Central Reserve Police Force Rules, 1955 is concerned, the first respondent issued a clarification letter dated 16.12.1999 to the effect that in the event of member of Central Reserve Police Force, completing 10 years, three months pay or the charges for the training underwent, need not be refunded to the Government. Therefore, it is contended that there is absolutely no ground made out by the petitioner warranting the interference of this Court in the impugned order.
6. I have carefully considered the rival contentions put forward on either side and also perused the impugned order and other materials available on record.
7. The crux of the question involved in this matter is to the effect that whether the impugned order of discharge was passed on the basis of the resignation letter submitted by the petitioner.
8. A perusal of the impugned order discloses that the said order was purported to be passed as per the provision under Rule 17 of the Central Reserve Police Force Rules, 1955 (herein after called as "Rules" for the sake of convenience). Therefore, before proceeding to consider the question involved in this matter, it is relevant to refer the said provision, which reads hereunder:
17.Discharge: Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through the proper channel.
9. As the impugned order of discharge was said to have been passed on the basis of resignation, yet another relevant section to refer to is Rule 17A, which reads hereunder:
17.A RECOVERIES OF RESIGNATION AND DISCHARGE: A member of the Force seeking resignation under rule 16 or discharge under rule 17 from service shall be required to refund to the Government a sum equal to three months pay and allowances received by him or her prior to the resignation or discharge, as the case may be or the cost of training imparted to him or her in the Force whichever is higher:
Provided that in the case of a member of the Force seeking discharge from service under rule 17 within the period of three months from the date of enrolment the sum equal to three months pay and allowances shall be calculated with reference to three months pay and allowances which would have been received but for discharge:
Provided further that a member of the Force tendering resignation or seeking discharge from service for accepting a job under the Central or State Governments or local bodies, after having been refund the sum as provided herein above. (Inserted vide GSR No.450 dated 14.10.95)
10. A reading of the above said two provisions, makes it crystal clear that in order to pass an order of discharge, as per Rule 17-A, it is the mandatory requirement for the member of the Force seeking resignation, to refund to the Government a sum equal to three months pay and allowances received by him prior to resignation or discharge and also the cost of training imparted to him in the Force whichever is higher.
11. A perusal of the impugned order indicates that the said provision under Rule 17-A was not complied with. It is needless to state that 17-A, as already pointed out, is a mandatory provision and in order to discharge a member of the Force, it is incumbent on the part of the authorities concerned to refer about the compliance of 17-A of the Rules. This is the first and foremost infirmity found in the impugned order of discharge, as contended by the learned counsel for the petitioner.
12. It is further seen that though there is a reference about the resignation tendered by the petitioner herein, for the reasons best known to the fourth respondent, the date of resignation was not mentioned in the body of the order or through any footnote or reference made about the date of resignation letter tendered by the petitioner herein. This glaring material omission assumes importance in view of the admitted fact that the petitioner as a matter of fact earlier submitted a resignation letter on 23.06.2001, which was subsequently withdrawn as per Ex.'C'. It is pertinent to note at this juncture, all these documents relied by the learned counsel for the petitioner are only produced by the learned Assistant Solicitor General appearing for the respondents herein by way of producing xerox copies, which are typed and submitted before this Court by way of additional typed set, marking the exhibits. Therefore, the undisputed fact remains that admittedly the petitioner who has given earlier letter of resignation, subsequently withdrawn his resignation application dated 23.06.2001 stating that he has sorted out his urgent domestic problems, as advised by the Commandant.
13. The respondents also made yet another feeble attempt to substantiate their contention that the impugned order of discharge was passed on the resignation tendered by the petitioner, by placing reliance on a letter of undertaking under Ex."F". A perusal of the said undertaking discloses that it is a printed form and the number, rank and the name of the petitioner and the date were written in the blanks. It is to be noted that the signature of the petitioner is found under the column signature. But the date is not mentioned there, except the attesting witnesses noted the date as 28.09.2001. But it is contended by the learned Assistant Solicitor General that it is written in the printed form of undertaking to the effect that on 28.09.2001 at 10.00 hours the Commandant explained to the petitioner about the likely hardship which the petitioner may face in this uncertain and difficult economicage after resignation. It is pertinent to note, admittedly the signature of the petitioner is found in the said undertaking. But it is the case of the petitioner that the said signature was obtained due to compulsion and not voluntary one. This Court is of the considered view, even assuming if not admitting that the said letter of undertaking was given by the petitioner, the same cannot be construed to be a letter of resignation. Added to this infirmity, it is also relevant to note that there is no whisper in the impugned order about the undertaking said to have been given by the petitioner under Ex."F". The petitioner also raised a plea that the impugned order of discharge was passed on the basis of a letter obtained on compulsion.
14. The respondents also placed reliance on a letter said to have been given by the petitioner under Ex."E". The said document produced by the petitioner reveals that it contains the date as 26/09/2k i.e., 26.09.2000. But it is claimed by the respondents that the date is to be construed only as 26.09.2001. Thereafter, this Court requested the learned Assistant solicitor General to get the original records and the same are submitted before this Court by producing communication, received from D.I.G.P, Group Centre, Central Reserve Police Force, Avadi Chennai dated 13.11.2009 by the Assistant Solicitor General, which shows that the original documents in this matter have already been weeded out during October 2007 and it is not feasible to ascertain or trace out the above exhibits from the records. The reading of the said communication dated 13.11.2009 reveals that in the typed set, Ex."E" it was erroneously shown as 26/09/01 instead of 26/09/2k. Therefore, it is categorically admitted by the respondents that the said letter of the petitioner is only dated as 26.09.2000 and Ex.C as admitted and produced by the respondents, namely the letter written by the petitioner, discloses that the petitioner has withdrawn his resignation application dated 23.06.2001 and as such the earlier letter of resignation said to have been written by the petitioner dated 26.09.2000 cannot be taken into consideration and the same was superseded by further representation of the petitioner to withdraw his resignation letter dated 23.06.2001. In view of the above stated facts, this Court has no hesitation to hold that the impugned order of discharge was not only passed in contravention of the provision under Rule 17A, but also could not have been passed on the basis of the resignation letter said to have been submitted by the petitioner.
15. The learned Assistant Solicitor General brought to the notice of the Court that the department issued a clarification circular dated 16.12.1999, clarifying the provision of Rule 17-A to the effect that the said provision need not be complied with in the event of a member of a Force completed ten years of service. It is needless to state that such circular cannot have the statutory status. It is also well settled that a circular of clarification of particular provision, cannot override the statutory rule. Therefore, this Court is of the considered view that the respondent cannot place reliance on such circular.
16. The last but not the least submission made by the learned Assistant Solicitor General is to the effect that the writ petition is liable to be dismissed on the ground of delay and laches.
17. It is contended that the impugned order was passed in the year 2001 and whereas, the writ petition was filed in the year 2006. I am unable to countenance such submission. The fact remains as it is clearly and categorically stated by the petitioner even in his affidavit that he has preferred an appeal, being aggrieved against the impugned order, though there is no provision in the Act, the same was pending on the file of the third respondent till the date of filing the writ petition before this Court.
18. The preference of the appeal and the same is pending on the file of the third respondent at the time of the petitioner filing this writ petition is also not disputed in the counter filed by the respondents before this Court.
19. The third respondent ought to have rejected the appeal on the ground that there is no appeal provision or the said appeal could have been very well treated as a petition seeking for certain relief. But neither the appeal was returned as not maintainable nor the third respondent has chosen to pass any orders till date. The petitioner has given reasonable explanation for approaching this Court belatedly and as such, the writ petition cannot be dismissed on the ground of delay and laches.
20. This Court is of the considered view that the petitioner who is having unblemished record of service of more than ten years in the disciplined Force, as it is not the case of the respondents that he has served with any charge memo and suffered any punishment during the course of his service, ought not to have been thrown out from his service unceremoniously.
21. In view of the aforesaid reasons, this writ petition is allowed. No costs. The impugned order dated 28.10.2001 passed by the fourth respondent in order No.D.V.1/2001-109-EC-I is hereby set aside and the respondents are directed to reinstate the petitioner into the strength of Central Reserve Police Force. It is open to the petitioner to prefer representation to the respondents in respect of his back wages and other benefits.
mj To
1.The Additional Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Avadi, Chennai.
2.The Additional Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Yelahanka, Bangalore-560 064.
3.The Director General, Central Reserve Police Force, C.G.O. Complex Lodhi Road, New Delhi.
4.The Commandant, 109Bn, Central Reserve Police Force, Zemabawak, Aizawl, Mizoram.