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Judgment
Vinod K.Sharma, J.—This order shall be disposed of W.P.(MD)Nos. 3292 and 3312 of 2006, as the common question of law and facts are involved. For the sake of brevity, the facts are being taken from W.P.(MD) No. 3292 of 2006.
The Petitioners, in both the writ petitions, were appointed as "Constable/GD Group ''C", in Central Reserve Police Force (CRPF). It was stipulated, in the letter of appointment, that the services of the Petitioners will be governed by the Central Reserve Police Force Act, 1949 and the Central Reserve Police Force Rules, 1955.
The Petitioners were sent for training to Allahabad, on 27.09.2004. It was, on 31.10.2004 that the Petitioners were caught out-side the Unit in a drunken condition, and handed over to the Unit. For the misconduct of the Petitioners, they were sentenced to imprisonment of 10 days quarter guard, and after undergoing punishment, they were allowed to resume the training, on 10th November 2004.
The case of the Petitioners is that, thereafter, without any reason of order, they were not allowed to continue with the training, and asked to go to home. Thereafter, the Petitioners were informed that their services were terminated, vide order, dated 9th February 2005. The order of termination, of the Petitioners, read as under:
Subject: REG TERMINATION FROM SERVICES
Please refer to your application dated 2/2005 and information notice, dated 31.01.2005 respectively.
Recruits namely, V. Justine Shanthiyahoo, G. Raja Kumar, S.M. Prabhu and S. Suresh, who were undergoing the basis training in this unit were caught red-handed under influence of liquor and found guilty of leaving the camp/line without the prior intimation or permission or Competent Authority, by the DIGP, CRPF, Allahabad on 31.10.2004 and handed over to this unit. Subsequently, a court of Inquiry was held and the Rts, were terminated from their services w.e.f.28.12.2004 after finding them guilty of misconduct.
(KENAL SINGH 21/C
COMMANDANT-169-BN,CRPF(ADD)
The Petitioners preferred appeals, against the order of termination. The appeals were dismissed, vide the impugned order, dated, Nil, May 2005.
The order passed by the appellate authority, reads as under:
No.041695119 EX-Rt/CT G.Raja Kumar was enlisted as Const.(GD) on 13/9/04 in the Group Centre CRPF, Avadi, Chennai and further allotted to 169 BN CRPF. Individual while undergoing basis training at 169 BN his services were terminated by the Commandant 169 BN CRPF, Allahabad under Rule 5(1) OF CCS(TS) Rule-1965 vide his order No.D-II-1/04/169-EC-II, dated 27/12.04.
Aggrieved with the order of the disciplinary authority i.e. Commandant 169 Bn, CRPF, Allahabad Ex-RT/GD G.Raja Kumar has preferred an appeal dated 22/2/05 to the Dte, Genl. CRPF, New Delhi, in the light of provisions contained in Rule 5(2) (a) of CCS(T/S) Rule 1965. The copy of appeal has been forwarded to the undersigned vide DIGP, CRPF, Allahabad, letter No.R.XIII-4/05-EC-I, dated 14/4/05 for taking further action.
On careful examination of the appeal with actual facts to the cause along with the comments given by the DIGP, CRPF, Allahabad (UP) and Commandant 169 BN, I have come to the conclusion that the appellant has not brought out convincing and mitigating facts in the appeal which may warrant any interference in the order passed by the disciplinary authority. On the other hand, I find that the order of Commandant 169 BN is based on oral evidence as well as the report of the doctor. Both these evidences have not been questioned or found at fault by the appellant. Therefore, the appeal dated 22/2/05 submitted by No.041695119 Ex-RT/CT G.Raja Kumar of 169 BN is hereby rejected being devoid of merit.
sd/- xxxxxxx
(Karamvir singh) IPS
INSPECTOR GENERAL of POLICE"
The impugned order was conveyed to the Petitioners within the jurisdiction of this Court. The Learned Counsel for the Petitioners placed reliance on the Hon''ble Division Bench judgment of this Court, in the case of Ex. Rect (MP)A. Madurai Veeran No. 7779447 K v. Union of India, rep. by its Secretary to Government, Ministry of Defence, New Delhi and Ors. 2006 (1) CTC 732, in support of the contention that this Court has jurisdiction to entertain and try the present writ petitions.
The impugned orders have been challenged by the Petitioners on the ground that the orders, though punitive in nature, were passed without holding any departmental enquiry, and the court of enquiry mentioned in the impugned order if any was held at the back of the Petitioners.
The impugned orders are also challenged on the ground that the impugned orders have been passed, in exercise of power vested under Rule 5(1) of temporary Government service Rules, whereas the services of the Petitioners were governed by the Central Reserve Police Force Act, 1949 and the Central Reserve Police Force Rules, 1955.
The reference in support was made to Rule 16 of the Central Reserve Police Force Rules 1955, which reads as under:
Period of Service-(a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month''s notice by the appointing authority. At the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not declared quasi-permanent under the said rules shall be continued as temporary Government employees unless they claim discharge as per schedule, to the Act. Those who are temporary shall be liable to discharge on one month''s notice and those who are quasi-permanent shall be liable to discharge on three month''s notice in accordance with the said rules, as amended from time to time.
(b) Should the Central Government decide at any time to disband the Force or any part of it either before termination of the period for which a member of the Force is enrolled or at any time thereafter, he shall be liable to discharge, without compensation from the date of disbandment.
(c) No member of the Force shall withdraw from the duties of his office without the express permission of the Commandant or an accredited gazetted officer.
(d) The appointing authority may, during the period of initial appointment of a member of the Force appointed under [section 4 and 5 ] of the Act, permithim, forgood and sufficientreason, toresign fromthe Force with effect from such date as may be specified in the order accepting his resignation;
Provided that on the acceptance of his resignation any such member of the Force shall be required to refund to the Government all the cost of training imparted to him in the Force or a sum equal to three months'' pay and allowances, received by him prior to the date of his resignation whichever is less.''
Explanation -(1) For the purpose of this sub-clause "during the period of initial appointment" shall mean the period before a member of the Force is declared quasi-permanent
(2) The appointing authority may refuse to permit a member of the Force to resign if any emergency has been declared in the country either due to internal disturbances or external aggression.
(e) The appointing authority may give substantive status to such members of the Force as are found suitable in all respect.
The contention of the Learned Counsel for the Petitioners, therefore, is that the order of termination is not in consonance with Rules 16, as no notice was issued prior passing of the order of termination.
It is also the contention of the Learned Counsel for the Petitioners that the impugned orders are stigmatic having been passed by way of punishment, therefore, cannot be sustained in law, for want of enquiry. The impugned orders are also hit by rule of double jeopardy.
The writ petitions are opposed by the learned Additional Solicitor General, by placing reliance on the judgment of the Hon''ble Supreme Court, in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, , wherein the Honourable Supreme Court was pleased to lay down, that the order of termination stating that the work and conduct has not been found to be satisfactory cannot be held to be stigmatic, and that the competent authority can pass an order of termination simplictor, during the period of probation or immediately thereafter.
It is also the contention of the learned Additional Solicitor General that the impugned orders have been passed during the period of training, in exercise of the power conferred under the Rules, therefore, no fault can be found with the impugned orders.
On consideration, I find force in the contention of the Learned Counsel for the Petitioners.
The impugned orders are prima facie contrary to Rule 16 of the Central Reserve Police Force Rules, 1959, as admittedly, no notice was issued. Even otherwise, the impugned orders cannot be sustained, as these are not simplictor order of discharge, but punitive in nature, as specific allegations are leveled against the Petitioners in the impugned order. It is well settled law, that an order, which is stigmatic in nature cannot be passed without following due process of law, and giving opportunity to defend to the employee concerned.
The orders of the appellate authority are on the face of it, arbitrary and shows non-application of mind, as it proceeded on presumption, that the orders were passed under Rule 5(1) of the Temporary Government Employees Rules, whereas the Petitioners are governed by the statutory Rules i.e., The Central Reserve Police Force Rules, 1959 as mentioned in the letter of appointment of the petitioners.
The impugned orders also suffer from the vice of double jeopardy, as the petitioners were punished for the alleged misconduct, by sentencing them to 10 days quarter guard, and they could not be terminated from services by way of punishment for the same offence. Though, it was open to the competent authority to have assessed the over all conduct of the Petitioners during the training to consider whether the Petitioners could be returned or not, but the impugned orders, on the face of it are contrary to the statutory rules, and also against the constitutional mandate, that no order of punishment can be passed, without holding enquiry and giving an opportunity to the persons to show cause. The impugned orders, therefore, cannot be sustained in law.
Consequently, the writ petitions are allowed, the impugned orders are set aside. The Petitioners shall also be entitled to all consequential benefits.
Connected Miscellaneous Petitions are closed. No costs.