Surender Kumar vs Union Of India And Others

Jagmohan Bansal, J

The petitioner through instant peetition under Article 226 of the Constitution of India is seeking setting asiide of order dated 28.12.2023 (Annexure P-19) whereby he has been dismissed from service.

The petitioner joined Central Reserve Police Force (for short ‘CRPF’) as Constable on 29.11.2010. He soolemnized marriage with Babita daughter of Shimbhu Dayal on 24.01.20033 and from this wedlock two children were born. A matrimonial dispute, on account of alleged illicit relation of petitioner with another lady, erupteed between the couple. His wife approached Court as well as CRPF authorities. The matter came up before Sub-Divisional Judicial Magistrate, Mahhendergarh with respect to maintenance under Protection of Women fromm Domestic Violence Act, 2005 (for short ‘DVV Act’). The petitioner was directed to pay maintenance of ₹10,000/- per month to his wife and children.

On account of complaints by peetitioner’s wife, the respondent-department initiated disciplinary proceedings against him. He was served charge sheet dated 24.10.2017. In the charge sheet, it was alleged that petitioner had disobeyed orders of higher auuthorities and he is not paying maintenance to his wife and children, thuus, he has committed offence punishable under Section 10(n) as well as Seection 11(1) of Central Reserve Police Force Act, 1949 (for short ‘CRPF Actt’) read with Rule 27 of Central Reserve Policee Force Rules, 1955 (for short ‘CRPF Rules’). The respondent conducted inquiry and Commandant vide ordder dated 07.04.2018 (Annexure P-3) dismissedd him from service. The petitioner unsuccessfully preferred an appeal as welll as revision before higher authorities. The petitioner preferred\ CWP No.16362 of 2021 before this Court seekking setting aside of punishment orders. This Court vide order dated 06.12.20223 disposed of said petition with a direction to respondent to re-consider quantuum of punishment. The relevant extracts of order dated 06.12.2023 are reproduced as below:-

“3. Learned counsel for the respondents concedes that petitioner was removed fromm service on the sole ground that wife of the petitioner was reppeatedly lodging complaints to the effect that petitioner is staying with another lady and misbehaving with her. He fuurther concedes that there was no dereliction in duty except hiis indiscipline which was inferred on the basis of her extra mariital relations.

The respondent had taken action against the petitioner as he was not taking care of his wife and children. He was not paying them cost of maintennance. The removal of service has deprived the petitioner from salary as well as other benefits. The said action is not serving cause of the family of the petitioner rather it is going to make things worse. The respondent has deputed itss one official to verify whether petitioner has resolved his disputes with his wife and whether he is staying with his wife annd children. This shows that intent and purport of impugned ordder was to compel the petitioner to mend his behavior qua his wife and children. The petitioner has entered into compromise with his wife and both are staying together. The purpose of respondents stands achieved and further continuation of remmoval of petitioner from service would not be in the interest of petitioner as well as his family members.

In view of above factts and circumstances, the present petition stands disposed of with a direction to the respondents to re-consider case of the petitioner and pass a fresh order within four weeks from today.”

The respondent, in compliance of direction of this Court, has passed order dated 28.12.2023 (Annexure P-19) whereby it has upheld punishment of dismissal from service.

Mr. Mukesh Yadav, Advocate submits that punishment of dismissal from service is disproportionate to the alleged offence. There is no allegation of dereliction of duty which is evideent from the fact that respondent had invoked Section 10(n) and 11(1) of CRPF Act. There was a family dispute and it has been resolved. The prime allegation against the petitioner was that he was not maintaining his wife andd children and despite orders of Commandant, he was not paying maintenance. The petitioner, in terms of orders passed by SDJM, Mahendergarh, wass paying maintenance, thus, he was maintainiing his family and in any caase, matter has been amicably resolved. His wife has no grievance against himm.

The petitioner and his wife are present in Court. Mr. Mukesh Yadav, Advoccate on instructions from the petitioner submits that respondent may deduct and thereafter pay 50% of his salarry to his wife.

Mr. Anil Chawla, Advocate submmits that petitioner was removed from service on account of non-compliance of direction of Commandant to the effect that he should pay maintenance to hiis wife. He concedes that charge sheet was issued in terms of Sections 10(n) annd 11(1) of CRPF Act read with Rule 27 of CRRPF Rules. He further concedes that as per Office Memorandum dated 01.09.1959 if the matter is pending before Court with respect to maintenance, the department would not take anny action.

I have heard the arguments of learned counsels for both sides and perused the reccord with their able assistance.

The petitioner, as contended by respondent, was served charge sheet and thereafter dismissed alleging commmission of offence punishable under Sections 10(n) as well 11(1) of CRPF Act. The relevant extracts Sections 10 annd 11 are reproduced as below:

“10. LESS HEINOUS OFFENCES- Every member of the force who-

XXXX XXXXX XXXX XXXX

(n) is guilty of any act or omission which, though not specified in thiss Act, is prejudicial to good order and discipline; or

XXXX XXXXXXXXXXXXX shall be punishable with imprisonment for a term which may exteend to one year, or with fine which may extend to three months' pay, or with both.”

“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,—

(a) reduction in rannk;

(b) fine of any ammount not exceeding one month’s pay and allowances;

(c) confinement to quarters, lines or camp for a term not exceeding one month;

(d) confinement in the quarter-guard for not more than twenty eight days, with or without punishment drill or extra guard, fatigue or other duty; and

(e) removal from any office of distinction or special emolument in thhe Force.”

From the perusal of above quoteed sections, it is evident that all the offences prescribed under Section 10 are less heinous and Section 11(1) provides for minor punishment. The minor punishment, in lieu of or in addition to suspension or dismissal, incluudes reduction in rank; fine; confinement too quarters; confinement in the quarter-guard for not more than 28 days and reemoval from any office of distinnction or special emoluments in Force. Rule 277 of CRPF Rules provides for diismissal from service apart from other punishmments. The petitioner was cateegorically issued charge sheet alleging commmission of less heinous offence. Dismissal from service is permissible in terms of Section 11 of CRPF Act read with Rule 27 of CRPF Rules. Existence of power and judiciously exeercise of power are two different facets of punisshment jurisprudence. The authorities are duty bound to consider nature of offence and mitigating circumstancces. The punishment cannot be awarded in a mechanical manner. The petitiooner was primarily guilty of not maintaining his wife. The respondent has placed on record office memorandum dated 01.09.1959 wherein it is provided that in case a member of Force does not maintain his family, the force would not take action if matter is pendiing before the Court.

Inn the case in hand, the matter with respect to maintenance of wife and children was pending in Court at the time of issuance of charge sheet and thereafter passing punishment order. The SDJM, Mahendergarh has granted maintenance of ₹10,000/- in favour of wife and children. Thus, in terms of office memorandum, the respondent was supposed to refrain from issuing any direction with respect to maintenance. There is prescribed procedure for execution of orders of maintenance passed by Court of competent juriisdiction.

The intent of punishment awardeed by respondent was to compel the petitioner to pay maintenance whereas resppondent has dismissed him from service, resultaantly, the entire family is deprivved from livelihood, thus, order of removal from service runs contrary to intentt and purport of punishment.

Inn the wake of above discussion and findings, this Court is of the considered opiinion that that impugned order off punishment is disproportionate to charge agaainst the petitioner. The matter vide order dated 06.12.2023 passed in CWP No.16362 of 2021 was remannded to authorities to reconsider quantum of punishment, however, respondent has reiterated its stand and upheld quantum of punishment. Left with no other option, this Court directs respondent to pass fresh order of punishment which would be other than removal from service.

Mr. Anil Chawla, Advocate, at this stage, submits that to avoid future litigation, it may be made clear that 50% of petitioner’s salary may be paid to his wife.

The petitioner, as noted above, haas already agreed to pay 50% of his salary to hiis wife, thus, no order of this Court is warranted.

Disposed of in above terms. The needful shall be done within 8 weeks from today.