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LAL BAHADUR CONSTABLE versus UNION OF INDIA & OTHERS I

High Court of Judicature at Allahabad

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Lal Bahadur Constable v. Union Of India & Others I - WRIT - A No. 14741 of 1995 [2006] RD-AH 9510 (15 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

           Reserved

Civil Misc. Writ Petition No.14741 of 1995

Lal Bahadur Vs. Union of India and others

******

Hon'ble V.C. Misra, J.

Shri V.K. Tiwari learned counsel for the petitioner and Shri S.K. Rai learned counsel for the respondents-Union of India, are present. Counter and rejoinder affidavits have been exchanged. The writ petition is being decided in terms of the Rules of Court, 1952.

This writ petition has been filed challenging the impugned dismissal order dated 3.6.1994 (annexure-2 to the writ petition) passed by respondent no.3, and the impugned appellate order dated 2.1.1995 (annexure-5 to the writ petition) passed by respondent no.2 upholding the order of dismissal passed by respondent no.3 on the ground of deserting his party at Gorakhpur railway station while on duty on 6.1.1994 as party commander and for leaving official dak, and weapons etc. insecure.

The following two charges had been framed against the petitioner :-

(i) That the said No.830729962 Ct. Lal Bahadur of D/23 Bn. CRPF while functioning as constable on 6.1.1994 committed disobedience of orders/neglect of duty/other misconduct in his capacity as member of the force U/s 11 (1) of CRPF Act, 1949 in that he deserted from his party at Gorakhpur Railway station on 6.1.1994 neglecting his duties as party commander of self party thus committed an act of misconduct/neglect of duty punishable U/s 11 (1) of CRPF Act, 1949.

(ii) That the said No. 830729962 Ct. Lal Bahadur while functioning as a constable on 6.1.1994 committed disobedience of orders and neglect of duty as a member of the force U/s 11 (1) of CRPF Act, 1949 in that he left his personal arm (rifle) and the Govt. dak entrusted to his charge in the train ignoring security of his arm and the Govt. dak, thus committed an act of disobedience of order and neglect of duty punishable U/s 11 (1) of CRPF Act, 1949.  

The facts of the case in brief are that the petitioner was recruited and enrolled as a constable in the Central Reserve Police Force on 11.10.1983. On 6.1.1994 the petitioner who was posted in D/23 Bn. Central Reserve Police Force at Bongai Gaon was dispatched along with seven other constables with arms and ammunitions and government dak meant for Bn. Head Quarters, Sangrur by Awadh Assam Express. For the purpose of safety and security of personnel and arms/ammunitions and government dak etc. the petitioner-party commander distributed sentry duties amongst themselves in the train. That on 6.1.1994 at about 8.30 p.m., the train reached at Gorakhpur railway station. The petitioner detrained himself for the purpose of drinking water (as stated by him) and meanwhile the train left the station before he could again board the train. It is alleged by the respondents that while the petitioner was on sentry duty he had got down the train without informing the other members of the team who were fast asleep and the petitioner had left his personnel, arms and ammunitions and the government dak unattended. The other party members came to know of the absence of their party commander only in the morning on 7.1.1994. The entire personnel and belongings of the petitioner were kept by the other members of the party and all the seven of them reported at the Bn. Head Quarters on 8.1.1994 in the morning except the petitioner. The petitioner somehow manage to reach Sangrur Bn. Head Quarters and reported on 9.1.1994 at about 7.50 hours after 24 hours.

A preliminary inquiry was conducted to assess the gravity of the aforesaid action committed by the petitioner. As per report of the inquiry officer a prima-facie case was made out and the petitioner was placed under suspension and a departmental inquiry was initiated against him. It is alleged by the respondents that during the course of the inquiry as per the procedure laid down the memorandum/records were read out to the petitioner in presence of the witness. He refused to accept and even sign the copy of the same. All these facts have been endorsed by the inquiry officer in the proceedings at various stages in presence of the neutral witnesses. The department on being satisfied with the report of the inquiry officer and the proceedings, offered a copy of the inquiry report to the petitioner to enable him to submit his defence which he also refused to accept. The disciplinary authority thereafter passed an order of his dismissal from service under Section 11 (1) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the Act and the Rules respectively) as he was found guilty of negligence on duty, remissness in discharge of his duty etc. in his capacity as member of the Force.

The petitioner has alleged that the departmental inquiry proceedings were in grave violation of all legal norms. The petitioner was neither given copies of the statement nor of those documents on which reliance was placed while ordering departmental inquiry nor the inquiry report was supplied to him so that he could give an effective reply in defence.

The petitioner being aggrieved, preferred an appeal before the respondent no.2 against the said dismissal order on the ground that the Commandant had no jurisdiction to award the punishment of dismissal from service regarding charges covered under Section 9 of the Act, 1949 in the garb of Section 11 (i) of the Act as the punishment of dismissal and removal so awarded could only be made under Section 9 of the Act and the punishment was disproportionate to the alleged misconduct. The appeal was dismissed vide order dated 2.1.1995

Being aggrieved, the petitioner filed the present writ petition on the ground that the punishment of dismissal and removal from service could not be awarded by respondent no.3 in the proceedings initiated under Section 11 (i) of the Act, 1949 and the punishment so awarded was disproportionate to the alleged misconduct which was inflicted upon him as the departmental proceedings had been affected in gross violation of principles of natural justice and which stood vitiated for non compliance of the Rules 27 (1) and (3) of the Rules, 1955.

Learned counsel for the petitioner has in support of his case relied upon the decisions in the cases of -

- Ranjit Thakur Vs. Union of India and others reported in AIR 1987 S.C. 2386;

- U.P. State Road Transport Corporation and others Vs. Mahesh Kumar Mishra and others reported in AIR 2000 S.C. 1151, and

- Bhagat Ram Vs. State of Himachal Pradesh and others, reported in (1983) 2 SCC 442.

He has also submitted that the order of dismissal even if justified in the circumstances, the High Court should interfere on quantum of punishment and placed reliance on the decision given in the case of Union of India Vs. R.K. Sharma reported in AIR 2001 S.C.3053.

Shri S.K. Rai learned counsel for the respondents raised a preliminary objection to the maintainability of the writ petition on the ground of jurisdiction before this High Court, since, no cause of action whether wholly or in part arose within the jurisdiction of this Court and mere residence of the petitioner would not confer any jurisdiction. It has been submitted that the cause of action arose at Assam, since the disciplinary proceedings against the petitioner were initiated and finally culminated there. The petitioner had also challenged the dismissal order by way of appeal at Assam. That the petitioner has failed to avail the statutory remedy under Rule 29 of the Rules, 1955 by way of revision against the impugned appellate order, and that the dismissal order was rightly passed on the charge of negligence of duty, which amounted to misconduct under Section 11 (1) of the Act.

Learned counsel for the respondents has placed reliance upon the decisions on the point of jurisdiction, in the cases of -

- Saroj Mahanta, (Mrs.) Lt. Colonel Vs. Union of India and others reported in ESC (All.) page 1419;

- Rajendra Kumar Mishra Vs. Union of India and others reported in ESC [(All.) (Full Bench)] page 2313 and

- Shri J.C. Thind Vs. Union of India and others, decided by Allahabad High Court on 20.9.2005 in Writ Petition No.61529 of 2005.

He has also relied upon the decision of the Full Bench of this Court in the case of Madan Tiwari Vs. The Deputy Inspector General of Police, (Group Center) Central Reserve Police Force, Rampur, U.P. and another, reported in {1999 (2) ESC 1510 (All.)}, in support of his submission that passing of dismissal order against the petitioner was not illegal in terms of Section 11 of the Act, even if the delinquent was not prosecuted for an offence under Sections 9 and 10 of the Act. He has further relied upon the decision of the Division Bench in the case of Shyam Singh Vs. Deputy Inspector General of Police, reported in AIR 1965, Rajasthan, page-140.

Heard learned counsel for the parties at length and perused the record.

The relevant provisions concerning the present case are Sections 9 (i) and 11 (1) of the Act, 1949, and are quoted below:-  

9. More heinous offence.-

Every member of the Force who-...........

(i) quits his guard, piquet, party or patrol without being regularly relieved or without leave; or ........................

shall be punishable with transportation for life for a term of not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months' pay or with fine to the extent in addition to such sentence of transportation or imprisonment.

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 rank;

(b) fine of any amount 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 the Force.

In Rule 27 (c) the procedure for the award of punishment has been laid down. Rule 28 provides the forum of appeal against the order passed by the disciplinary authority and Rule 29 further provides the forum of revision against the order passed in the appeal under Rule 28.

A preliminary objection raised by the respondents regarding maintainability of the present writ petition on the ground that this High Court has no jurisdiction to entertain the writ petition as no cause of action whether wholly or in part arose within the jurisdiction of this Court and mere residence of the petitioner could not confirm jurisdiction of this Court is unsustainable. The cause of action undoubtedly arose at Gorakhpur where the petitioner got down the train and it is this place where he has been charged of neglecting his duty or remissness in the discharge of his duty in his capacity as a member of the Force. Subsequent cause of action no doubt also arose at Assam where the disciplinary proceedings against the petitioner were initiated and finally culminated. Gorakhpur falls within the jurisdiction of this High Court. This High Court has full jurisdiction to take cognizance of the case and the writ petition is very well maintainable. Vide 15th Constitutional Amendment Act, 1963, clause (1-A) was added to Article 226 (1), which was renumbered as clause (2) by 42nd Constitutional Amendment Act, 1976. Thus after the 15th Amendment, jurisdiction of the writ Court was extended also to those cases wherein the cause of action even if partly has arisen within their territorial jurisdiction. The Hon'ble Apex Court has affirmed the principles that the place where whole or part of the cause of action arises gives jurisdiction to the Court within whose territory such place is situate. The second point has been validly raised by the learned counsel for the respondents that the dismissal order was rightly passed on the charge of negligence of duty which amounts to misconduct under Section 11 (1) of the Act and that passing of the dismissal order against the petitioner was not illegal in terms of Section 11 of the Act, even if the delinquent (petitioner) was not prosecuted for an offence under Sections 9 and 10 of the Act. It has already been so held by the Full Bench of this Court in the case of Madan Tiwari (supra) and the case of Shyam Singh (supra). The Hon'ble Supreme Court has in the case of Union of India and others Vs. Ghulam Mohammad Bhat reported in J.T. 2005 (9) S.C. page 212, in para-7 of this Judgment also held that, "It is therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not persecuted for an offence under Section 9 or Section 10."

Third point raised by the respondents is that the petitioner has failed to avail the statutory remedy under Rule 29 of the Rules by way of revision against the impugned appellate order. I find that the provision of challenging the impugned appellate order by way of revision does not come in the way of initiating the proceedings in writ jurisdiction under Article 226 of the Constitution of India.

After giving a considerable thought to the facts of the case and the law I am of the view that since the petitioner who is a member of the force has been found to have indulged in an act of indiscipline, he had to be dealt with sternly to maintain the good order and discipline in the force. The proved charges of neglect of duty or remissness in the discharge of his duty, which amounts to misconduct in his capacity as a member of the force by leaving his weapons and dak etc. is of a very serious nature. The petitioner has not been able to disclose any mitigating circumstances as to how the penalty imposed by way of dismissal of his service from the force for the said act could be characterized as disproportionate and shocking to the proved charges. Thus, the impugned order of dismissal dated 3.6.1994 (annexure-2 to the writ petition) passed by respondent no.3 and the impugned appellate order dated 2.1.1995 (annexure-5 to the writ petition) passed by respondent no.2 upholding the order of dismissal cannot be faulted. I find that both the authorities, respondents 3 and 2, after thorough examination and critical scrutiny of the documents and material on record and the relevant evidence have arrived at a well-reasoned order. The petitioner has also not been able to demonstrate before this Court that the findings of fact recorded in the impugned orders suffer from any illegality or error apparent on the face of the record. Since, the said findings of fact on the basis of which the impugned orders have been passed are based on relevant material on record they are not open to challenge before this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. No order as to costs.  

May 15, 2006

Hasnain


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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