AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. A. Sahad, learned counsel appearing for the petitioner and Mr. B. Sharma, learned Central Government Counsel appearing for the respondents.
2] By filing the present petition under Article 226 of the Constitution of India, the petitioner assails the impugned order dated 04.03.2015, whereby he was removed from service with immediate effect from the post of Constable (GD), CRPF. The petitioner also seeks interference with the consequential appellate order dated 13.05.2015 and revisional order dated 13.11.2015.
3] The brief facts of the case, as emerging from the records, are that the petitioner, while serving as a Constable (GD) in the CRPF, was initially posted at Bhimaram Police Line, Warangal, Andhra Pradesh. Thereafter, upon completion of his basic training at ATC, CRPF, Avadi, he reported at the 58th Battalion, CRPF on 19.11.2012 and was posted at B/58 Battalion with effect from 30.11.2012.
4] While functioning in the said Company, the petitioner was dispatched to the Unit Headquarters on 07.05.2014 for an audience with the Commandant/Adjutant, 58th Battalion, CRPF in connection with non-submission of nomination forms in the name of his wife, which was stated to be mandatory after marriage. Although the petitioner reported at the Unit Headquarters on 07.05.2014, he was found absent from the evening roll call at about 6:30 p.m. on 13.05.2014. Upon his absence being noticed and as he could not be traced despite search, the authorities suspected that he had deserted the camp without authority. An FIR was accordingly lodged before the jurisdictional police station and a formal complaint was also lodged before the jurisdictional Judicial Magistrate seeking issuance of a warrant of arrest for apprehending the petitioner. The learned Magistrate thereafter took cognizance and issued a warrant of arrest.
5] After remaining unauthorisedly absent for a prolonged period, the petitioner reported back to the Unit Headquarters on 21.07.2014, having remained absent for 68 days from 14.05.2014 to 20.07.2014. In the meantime, a Memorandum of Charge dated 09.09.2014, along with the statement of Articles of Charge and the supporting materials, was issued to him. A departmental enquiry was thereafter conducted. Upon conclusion of the enquiry, both the charges framed against the petitioner were held to have been proved. The disciplinary authority, after considering the enquiry report and the petitioner’s response thereto, passed the impugned order dated 04.03.2015 imposing the punishment of removal from service with immediate effect.
6] Aggrieved thereby, the petitioner preferred an appeal on 16.03.2015 before the Inspector General of Police, CRPF. The said appeal was rejected by order dated 13.05.2015. The petitioner thereafter preferred a revision petition on 11.06.2015 before the revisional authority, which too came to be rejected by order dated 13.11.2015. Hence, the present writ petition.
7] Mr. A. Sahad, learned counsel appearing for the petitioner, in his usual fairness, submits that the petitioner does not allege any procedural irregularity in the departmental enquiry. It is fairly conceded that the petitioner was provided adequate opportunity to participate in and defend himself during the enquiry proceedings. His sole contention is that, notwithstanding the proof of the charges, the punishment of removal from service is shockingly disproportionate to the gravity of the misconduct and, therefore, warrants interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
8] Per contra, Mr. B. Sharma, learned Central Government Counsel appearing for the respondents, submits that desertion by a member of a disciplined force is a grave misconduct and is treated with particular seriousness under the statutory scheme governing the CRPF. He submits that the petitioner remained unauthorisedly absent for 68 days and, significantly, even during the pendency of the disciplinary proceedings, committed further instances of desertion/unauthorised absence. He therefore submits that the punishment imposed cannot, by any stretch, be regarded as shockingly disproportionate so as to warrant interference by this Court.
9] I have given my thoughtful consideration to the submissions advanced by the learned counsel for the parties and have also perused the materials available on record.
10] The Memorandum of Charge dated 09.09.2014 framed the following two Articles of Charge against the petitioner:
“ ARTICLE-1 That the said No.115134998 Constable (GID) Sheikh Ruhul Amin of B/58 Bn. CRPF while functioning as Constable(GD) in B/58 Bn with effect from 30/11/2012 has committed a gross misconduct in his capacity as a member of the Force Under Section 11(1) of CRPF Act. 1949, in that he deserted from Unit Hqr on 13/5/2014 AN and remained unauthorisedly absent from duty for 68 days w.e.f. 14/5/2014 to 20/7/2014 at his own at the early stage of his service career without prior permission or sanction of leave by the competent authority, which is prejudicial to good order and discipline of the Force.
ARTICLE-II That during the aforesaid period and while functioning in the said office, No.115134998 Constable (GD) Sheikh Ruhul Amin of B/58 Bn has committed disobedience of lawful orders of the competent authority in his capacity as a member of the Force Under Section 11(1) of CRPF Act. 1949, in that he failed to comply with the orders of Adjutant/58 BN issued vide his letter No.D.V.1/14-Adju/58 dated 15/05/2014 & Commandant -58 Bn letter No.L.II.2/2014-58-EC-2 dated 26/06/2014 directing him to report for duty immediately, which is against the good order and discipline of the Force.”
11] Pursuant to the issuance of the Memorandum of Charge, a departmental enquiry was ordered under Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the “CRPF Act”) read with Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the “CRPF Rules”).
12] The enquiry proceedings, as reflected from the records, demonstrate that the petitioner was supplied with the Memorandum of Charge along with the statement of imputations, list of documents and list of witnesses. The petitioner appeared before the Enquiry Officer and, after the charges were explained to him, expressed his willingness to have the enquiry conducted in Hindi. He was also afforded an opportunity to engage a Defence Assistant, which he declined.
13] On 05.11.2014, the petitioner appeared before the Enquiry Officer and pleaded guilty to both Articles of Charge. Notwithstanding the plea of guilt, the Enquiry Officer proceeded to examine the prosecution evidence. Eight prosecution witnesses were examined and the petitioner was afforded an opportunity to cross-examine them. Copies of the statements and documents were supplied to him during the course of the proceedings. The petitioner also did not adduce any independent evidence in his defence.
14] It further appears from the enquiry proceedings that, during the pendency of the disciplinary enquiry, the petitioner again deserted from the Unit Headquarters on 13.09.2014 and remained absent for another 43 days, ultimately reporting back on 26.10.2014. The authorities again initiated proceedings in relation to such absence and a warrant of arrest was also issued for his apprehension. The petitioner sought to explain his conduct by referring, inter alia, to personal and family circumstances and certain proceedings instituted by his wife. The Enquiry Officer considered the materials produced by him but did not find them sufficient to justify his repeated absence from duty.
15] Thereafter, the petitioner was again granted leave but failed to report back on the due date and remained unauthorisedly absent for a further period of 17 days from 05.12.2014 to 21.12.2014. Upon his return, he was again afforded an opportunity to place his defence before the Enquiry Officer. The Enquiry Officer considered the written statement and documents produced by him but found no sufficient justification for the further period of unauthorised absence.
16] Upon completion of the enquiry, the Enquiry Officer submitted his report dated 13.01.2015 holding both Articles of Charge to have been fully proved. The enquiry report was thereafter furnished to the petitioner, who submitted his response. The disciplinary authority, after considering the enquiry report as well as the petitioner’s response, found that the charges relating to desertion, prolonged unauthorised absence and disobedience of lawful orders stood established. Accordingly, exercising the power available under Rule 27 of the CRPF Rules, the disciplinary authority imposed the major penalty of removal from service with immediate effect by order dated 04.03.2015.
17] The appellate and revisional authorities thereafter independently considered the matter and declined to interfere with the punishment imposed by the disciplinary authority.
18] It is, therefore, evident that the petitioner does not challenge the validity of the departmental enquiry on the ground of violation of principles of natural justice or any procedural irregularity. Indeed, the learned counsel appearing for the petitioner has fairly conceded that the petitioner was afforded adequate opportunity to defend himself. The challenge before this Court is confined essentially to the proportionality of the punishment.
19] The scope of judicial review in such matters is well settled. The High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, does not sit as an appellate authority over the findings recorded by the disciplinary authority or over the quantum of punishment imposed. Unless the punishment is found to be so disproportionate to the proved misconduct that it shocks the conscience of the Court, interference merely because another punishment may also have been possible is not warranted.
20] In Union of India v. Ghulam Mohd. Bhat, reported in (2005) 13 SCC 288, the Apex Court considered the scope of Section 11 of the CRPF Act and Rule 27 of the CRPF Rules. The Apex Court held that Section 11 empowers the competent authority to award dismissal or suspension and that removal is also permissible under the Rules framed under the Act. The Apex Court further noticed that Section 10 of the Act treats absence without leave or without sufficient cause, or overstaying leave without sufficient cause, as a less heinous offence and, while considering the conduct of a member of a disciplined force, observed that acts of indiscipline are required to be dealt with sternly.
21] In the said decision, the Apex Court also referred to its earlier decision in State of U.P. v. Ashok Kumar Singh, reported in (1996) 1 SCC 302, wherein, in the context of a police constable, it was observed that an act of indiscipline by a member of a disciplined force needs to be dealt with sternly. The Apex Court further referred to Mithilesh Singh v. Union of India, reported in (2003) 3 SCC 309, wherein dismissal from service in a case of prolonged unauthorised absence was not interfered with.
22] In the present case, the misconduct proved against the petitioner cannot be viewed as a mere or isolated instance of unauthorised absence. The petitioner remained absent from the Unit without permission for a prolonged period of 68 days from 14.05.2014 to 20.07.2014. His absence was treated as desertion and resulted in lodging of an FIR and initiation of proceedings for issuance of a warrant for his apprehension. More importantly, the petitioner’s conduct did not end with his return to the Unit.
23] During the pendency of the disciplinary proceedings themselves, the petitioner again deserted from the Unit on 13.09.2014 and remained absent for another 43 days. Thereafter, despite being granted leave, he again failed to report for duty and remained unauthorisedly absent for a further period of 17 days. Thus, the record discloses repeated and prolonged instances of unauthorised absence and disregard of the lawful directions issued by the competent authorities.
24] The conduct of the petitioner is further aggravated by the fact that the petitioner himself pleaded guilty to both Articles of Charge during the departmental enquiry. Although the Enquiry Officer thereafter proceeded to record the prosecution evidence, the petitioner was afforded opportunity to cross-examine the witnesses and to place his defence on record. He did not lead any independent evidence to dislodge the charges. The subsequent explanation offered by him was considered by the Enquiry Officer but was not found sufficient to justify his conduct.
25] It is also significant that the petitioner was at the early stage of his service career when he committed the misconduct. Ordinarily, length of service and past service record may constitute relevant considerations in determining the appropriate punishment. However, in the present case, the fact that the petitioner was at the early stage of his service career cannot operate as a mitigating circumstance when viewed against the repeated nature of his misconduct and the continued disregard of discipline even after the initiation of departmental proceedings.
26] The nature of the Force to which the petitioner belongs is also a relevant consideration. The CRPF is an armed force of the Union and maintenance of discipline, obedience to lawful orders and availability of personnel for assigned duties are fundamental to its functioning. Absence from duty for prolonged periods without authority, particularly when accompanied by repeated disregard of directions to report back, cannot be equated with an ordinary service infraction.
27] Section 9 of the CRPF Act also demonstrates the seriousness with which the legislature views desertion by a member of the Force. Section 9 places, amongst the more heinous offences, the conduct of a member of the Force who, while on active duty, deserts the Force. Section 9(f) specifically refers to desertion. This statutory recognition of the gravity of desertion is a relevant circumstance while considering the proportionality of punishment in a departmental proceeding concerning such misconduct.
28] In the facts of the present case, the punishment of removal from service is one which is contemplated under the statutory framework. The disciplinary authority, after considering the enquiry report and the petitioner’s representation, concluded that the petitioner had committed grave misconduct in his capacity as a member of the Force and that he was not a fit person to be retained in a disciplined force. The said conclusion has thereafter been affirmed by the appellate and revisional authorities.
29] This Court is conscious that the power of judicial review extends, in an appropriate case, to examining whether the punishment imposed is grossly disproportionate to the misconduct proved. It is only when the punishment shocks the conscience of the Court, the Court in exercise of jurisdiction under Article 226 of the Constitution of India goes into the proportionality of punishment. In short, the threshold for such interference is high. However, the Court cannot substitute its own subjective assessment of punishment for that of the competent disciplinary authority merely because it may have considered a lesser punishment to be appropriate. [Refer: - Union of India and Ors. V. P. Gunasekaran, reported in (2015) 2 SCC 610]
30] In the present case, considering the prolonged initial absence of 68 days, the repeated subsequent desertion/unauthorised absence during the pendency of the disciplinary proceedings, the further unauthorised absence after leave, the disobedience of lawful directions to report for duty, and the petitioner’s plea of guilt to the charges, the punishment of removal from service cannot be characterised as outrageous, irrational or shockingly disproportionate.
31] The cumulative conduct of the petitioner demonstrates not merely an isolated lapse but a repeated failure to adhere to the discipline expected of a member of the CRPF. The disciplinary authority was, therefore, justified in taking the view that retention of the petitioner in the Force was not conducive to the maintenance of discipline. This Court finds no perversity or irrationality in such assessment.
32] It is also relevant that the petitioner has not been able to demonstrate that the disciplinary authority took into consideration any extraneous material, ignored any material defence, or imposed a punishment for a misconduct which was not proved. On the contrary, the records indicate that the petitioner was afforded adequate opportunity, the evidence was considered, his plea and subsequent explanations were taken into account, and the punishment was imposed after following the prescribed procedure.
33] In such circumstances, this Court is of the considered view that the punishment of removal from service does not cross the threshold of disproportionality so as to shock the conscience of the Court. No ground is therefore made out for exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India to substitute the punishment imposed by the disciplinary authority.
34] For the reasons stated hereinabove, no case for interference with the impugned order dated 04.03.2015, or the consequential appellate order dated 13.05.2015 and revisional order dated 13.11.2015, is made out.
35] The writ petition is, accordingly, dismissed. There shall be no order as to costs.