Bhupen Chandra Boro vs Union of India (UOI) and Others

D.N. Chouwdhury, J.—This is an appeal against the judgment and order dated 15.11.96 of the learned Single Judge passed in Civil Rule 318/93 whereby the learned Single Judge dismissed the writ petition holding that the instant case is squarely covered by the decision of the Supreme Court reported in State of U.P. and others Vs. Ashok Kumar Singh and anothers, and the charges are more or less same as was levelled against the delinquent in the said decision. It was further held by the learned Single Judge that all the charges in Articles of charges 1, 2 and 3 have been fully proved beyond any doubt.

The Appellant/writ Petitioner filed Civil Rule No. 318 of 1993 for quashing the memorandum of charges dated 13.12.91 and order of dismissal dated 16.7.92 on the ground that the order of dismissal is illegal, arbitrary and discriminatory and violative of the principles of natural justice. It is also urged that the impugned order is passed in contravention of the provisions contained in Sections 10 and 11 of the CRPF Act, 1949.

In order to appreciate the issues, it would be appropriate to refer to certain facts. The Appellant/writ Petitioner while he was working as Constable, CRPF B/44 Bn, he proceeded for home by taking two months'' leave in the month of January, 1991 which was duly granted by the authority. The Appellant/writ Petitioner boarded the train from Jaipur to Delhi by Pink City train on 31.12.90 and while the train stopped at Alwar station, he got down at the platform for drinking water saying his co-passenger to keep an watch over is baggage. When he returned back to the compartment, he did not find the co-passenger and his suit case. As the train had already moved, he told the Guard on duty about the incident. They searched for the suit-case but the same could not be recovered. The train when reached Delhi in the morning of 1.1.91, the Appellant/writ Petitioner lodged an FIR with the GR Police at the Station. The Appellant/writ Petitioner lost all his belongings and money which was kept in the suitcase. At Delhi, the Appellant/writ Petitioner took shelter at the place of a gentleman who agreed to provide some work for the time being. As the Petitioner was helpless and hoping for getting some clue as to the whereabouts of his luggage, he decided to take some odd job for arranging his fare. In the meantime the leave granted to the Appellant was to expire and accordingly, he wrote a letter to the authority for his posting after reaching home on leave. In the meantime, he came to know that the 44 Bn, CRPF moved to Assam. As the leave was going to expire, the Appellant sent the leave application at Jaipur at the Battalion address through his friend at Jaipur by expressing the compelling circumstances to stay at Delhi and he prayed for extension of leave to solve the family matters. As the Appellant could not join duty within two months and he overstayed sixty seven days, the authority decided to initiate departmental enquiry. Accordingly, the Appellant/writ Petitioner was served with the statement of Imputation of Misconduct or Misbehaviour and the following Articles of charge were framed against the Petitioner/Appellant

"Article-1 No. 821152502 Constable B.C. Boro B/44 absented from leave w.e.f. 1.3.91 to 6.5.91 without obtaining prior sanction of leave from the competent authority. He was sent on 60 days E/L w.e.f. 31.12.90 to 28.2.91 and was due to report back on 1.3.91 but he reported back only on 6.5.91 Thus he has committed an act of misconduct in his capacity as a member of the Force u/s 11(1) of CRPF Act 1949 by overstaying leave by 67 days.

Article-II

That the said No. 821152502 Const. B.C. Boro of B/44 CRPF has deliberately overstayed the sanctioned leave from 1.3.91 to 6.5.91 despite clear instruction from OC-B/44 to report for duty immediately, vide letter No. L.II-1/91-B/44 dated 11.3.91. Instead of reporting for duty the said consul. B.C. Boro, asked for leave extension by giving false reasons. Thus, he has committed an act of disobedience of orders in his capacity as a member of the force u/s 11(1) of CRPF Act, 1949.

Article-III

That the said No. 821152502 Const. B.C. Boro has applied for 30 days leave extension vide his application dated 25.2.91 with the reason that he has a quarrel with his brothers and he has separated from his home. He did not have any house and or to build a house for himself. However, fact remained that he did not went to his home at all and stayed back at Delhi/Jaipur as per his own statement. Thus he has committed an act of misconduct in his capacity as a member of the force u/s 11(1) of the CRPF Act, 1949.

Article-IV

That the said No. 821152502 Constable B.C. Boro, was involved in Satta/Gambling business in Jaipur as an evident from the answer to question No. 2 of PW-3 and his own answer to the question No. 5 of the RE. Proceedings. The version of B.C. Boro that he chosen to stay back at Delhi to earn some money through paint work has got no supporting evidence. Thus he committed an act of misconduct in his capacity as a member of the Force u/s 11(1) of CPRF Act, 1949 which is prejudicial to the good order and discipline of the Force.

An enquiry was held under Rule 27 of the CRPF Rules against the Appellant. The Respondent accordingly served the Articles of Charge as well as Statement of Imputation of Disobedience/Misconduct. All the charges were read out to the Appellant. After completion of enquiry, the authority found that the Appellant committed misconduct in his capacity as a member of the Force which was prejudicial to the discipline of the Force and accordingly, order of dismissal was passed.

Out of all the four charges, the Appellant admitted charge No. 1 and partly admitted charge No. 4. Article No. II as well as Article No. I which brought the imputation that the Appellant deliberately overstayed the sanctioned period of leave from 1.3.91 to 6.5.91 despite clear instruction from OC-B/44 to report for duty immediately vide letter dated 11.3.91. In the enquiry, the Appellant/writ Petitioner admitted about overstaying the leave by 67 days for the reasons stated therein. The Appellant pleaded that he went for home in the month of January, 1991 for two months'' leave and when he was travelling by train from Jaipur to Delhi, all his belongings were lost. The Appellant brought the matter to the notice of the Railway Guard, but they could not find out belongings. After reaching Delhi, he lodged an FIR at the GR Police Station. After losing his belongings, he got down at Delhi and took shelter at the place of some person; in return, the Petitioner was to render some service to him. The Appellant also explained as to the reasons which compelled him for overstaying. There was no evidence in support of the charges except admission on the part of the Appellant that he overstayed about 67 (sixty seven) days. We have perused the original records, but we did not find any evidence against the Appellant. So far as the other charges are concerned, the Enquiry Officer himself in his findings indicated that it was a case of no evidence. Apart from testimony of witnesses recorded, he examined also some other witnesses. From them also, he could not get any materials in support of the other charges. In these circumstances, other charges remained unproved except the charge of overstaying the period of his leave.

Chapter 5 of the Central Reserve Police Force Act, 1949 deals with offences and punishments. Section 9 provides for more heinous offences and Section 10 provides for (Sic) heinous offences. Every member of the Force who absented himself without leave or without sufficient cause other than leave granted to him. Thus Legislature itself made distinction between offences and punishments. Absenting without leave or without sufficient cause overstaying the leave granted is less heinous offence under the Act, 1949. For this misdemeanour, the service of the Petitioner/Appellant was terminated.

Mr. B. Chakraborty, learned Counsel for the Appellant, submits that the order of punishment by way of dismissal in the facts and circumstances, is required to be interfered with by this Hon''ble Court as the same is arbitrary and discriminatory. Mr. Chakraborty, {he learned Counsel for the Petitioner/Appellant, in support of this contention relied on a decision of this Court of Elangbam Nimai Singh v. State of Manipur and Ors. reported in 1998(2) GET 315 wherein one of us (FT J.N. Sarma, J) held that order of termination imposed on the ground of overstay in the circumstances, held as arbitrary and discriminatory and, therefore, violative of Article 14.

Mr. K.K. Mahanta, learned Sr. CGSC, however, referred to a decision of the Supreme Court reported in State of U.P. and others Vs. Ashok Kumar Singh and anothers, . Mr. Mahanta, the learned Counsel submitted that punishment of removal from service cannot be held to be improper when the delinquent is a member of a disciplined Force which insisted for the maintenance of strict discipline in service. In the facts and circumstances of the above case, when the Enquiry Officer found that the delinquent officer abstained from duty on several occasions totalling 251 days during the year 1981-82 while posted at Police Station and from 28.2.84 onwards, the Supreme Court considering all the aspects of the matter, on the facts of the case, found that no case was made out for interference with the punishment. In the above case, the Supreme Court found the Respondent in the said case absented himself from duty without leave on several occasions. The present case stands on a different footing.

Here in this case, the Department only cited the solitary instance pertaining to the absence of the Appellant/Petitioner for 67 days. No other instances are brought out here. The case of the Appellant was not that of habitual absentee. In a similar situation, the Supreme Court did not disturb the finding of the High Court for quashing the order of dismissal and direction for reinstatement in service with monetary benefits. That was a case reported in Union of India and others Vs. Giriraj Sharma, In the aforesaid case, the person involved was also a CRPF personnel and that also was a case of overstaying.

Mr. B Chakraborty, learned Counsel for the Appellant, further submitted that the circumstances and explanations as given by the Appellant pertaining to the absence, were not controverted by the department He further submitted that the Appellant/Petitioner served the Department for last eleven years with utmost sincerity and without any blemish and the punishment inflicted on the Appellant is disproportionate to the gravity of the offence and it is too harsh. The Petitioner did not wilfully overstay, but the circumstances only compelled him for his absence.

We have given our anxious thoughts to the matter and we are of the view mat justice will be met if the order of dismissal is quashed and in place of dismissal, a minor punishment is imposed upon the Appellant Accordingly, the judgment and order of the learned Single Judge dated 15.11.96 passed in Civil Rule No. 318/93, is set aside and quashed.

In the result the writ appeal is allowed. The order of dismissal of the Appellant/writ Petitioner dated 16.7.92, issued by the Commandant, 44 Bn CRPF, Dhaligaon, is set aside and quashed and the Respondents are directed to reinstate the Petitioner/Appellant in service within a period of two months from the date of receipt of this order. The Appellant will not be entitled to any back-wages. It will be open for the Respondents, if they/it so desire(s) to award the Appellant/writ Petitioner with a minor punishment as provided u/s 11(1) of the Act, 1949. The writ petition is allowed accordingly.

There shall however, be no order as to costs.