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Vidya Sagar Mall v. Union Of India & Others - WRIT - A No. 12316 of 2001 [2006] RD-AH 10931 (4 July 2006)


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Civil Misc. Writ Petition No.12316 of 2001

Vidya Sagar Mall Vs. Union of India and others


Hon'ble V.C. Misra, J.

Shri H.M.B. Sinha, Advocate learned counsel for the petitioner and Shri N.P. Shukla, Advocate learned counsel for the respondents are present. Counter and rejoinder affidavits have been exchanged. On the joint request of learned counsel for the parties, this writ petition is being disposed off finally at the admission stage in terms of the Rules of the Court.

The facts of the case in brief are that the petitioner who was holding the post of Lance Naik (Driver) in Central Reserve Police Force posted at Aligarh had been transferred on promotion to 116 Battalion (BN) on being relieved from 36 BN. on 9.5.1998 (A.N.). He was issued movement order together with H.C. Gajendra Singh who was also transferred from the same 36 BN., and the joint movement order was handed over to him being senior to the petitioner. Shri Gajendra Singh reported in the unit on 26.5.1998. The petitioner did not report at 116 BN. within joining time of 10 days, i.e. by 19.5.1998 and overstayed for 77 days without any information and permission from the competent authority. A departmental inquiry was instituted and completed in accordance with law after affording full opportunity of hearing to the petitioner on the following charge :-


That the said No.871291303 L/NK (Dvr) Vidya Sagal Mall of HQ/116 BN. CRPF committed an act of disobedience of order/neglect of duty in his capacity as a Member of the Force u/s 11 (1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules 1955 in that he was relieved on transfer/promotion from 36th BN. CRPF to 116 BN. CRPF w.e.f. 9.5.98 (AN) and reported in 116 BN. on 4.8.98 (AN) after overstaying 77 days (excluding J/T of 10 days) without any information and permission from competent authority which is an act of prejudicial to the good orders and discipline of the Force.

The charge leveled against the petitioner was proved during the course of the departmental inquiry thereafter the Commandant-respondent no.4, 116 BN., Central Reserve Police Force vide its impugned order dated 5.8.1999 (annexure-8 to the writ petition) awarded him punishment of dismissal from service w.e.f. 6.8.1999.

The petitioner being aggrieved preferred an appeal before the higher authority under the provisions of Rule 28 of the Central Reserve Police Force Rules, 1955 framed under the Central Reserve Police Force Act, 1949 before the Deputy Inspector General-respondent no.2. The appellate authority partly allowed the appeal vide its impugned order dated 27.6.2000 (annexure-1 to the writ petition) and the punishment order dated 5.8.1998 passed by the respondent no.4 dismissing the petitioner from service was set aside as it appeared to be a little harsh. However, keeping in view the past services of 12 years of the petitioner and prevailing socio-economic condition in the event of ending the service of a government servant without any financial support through which he should earn the livelihood a lenient view was taken and exercising his appellate authority modified the punishment order by way of compulsory retirement of the petitioner w.e.f. the same date, i.e. 6.8.1999 (FN) with full compensation pension and gratuity admissible under Rule 40 of CCS (Pension) Rules, 1972 condoning his period of unauthorized absence of 77 days from 20.5.1998 to 4.8.1999 already regularized as (DIES NON) vide Commandant 116 BN (ibid) office order dated 5.8.1999. Being aggrieved the petitioner has filed the present writ petition merely on the ground that the petitioner had not intentionally absented himself from duty and did not commit any misconduct admittedly the movement order (Sanchalen Adesh) had been handed over to Gagendra Singh and not to the petitioner who admittedly reported for the unit with delay on 26.5.1998 and when the petitioner reported for joining to one S.I. (MM Biplendra Paul) on 9.5.1998 he refused to accept his joining in the absence of the said movement order. It is also stated that the departmental inquiry was not held in accordance with law and that the final punishment so imposed was too harsh and disproportionate to the gravity of the allegations and at the most the petitioner who had been transferred on promotion could be deprived of higher post but there was no justification to oust the petitioner from service.

In support of his case learned counsel for the petitioner has relied upon the following cases:-

- Subhash Chandra Sharma Vs. Managing Director and another reported in {(2000) 1 UPLBEC 541},

- Shamsher Bahadur Singh Vs. State of U.P. and others reported in {(1993) 1 UPLBEC 488},

- Giriraj Sharma Vs. Union of India and others reported in

{(1989) 1 UPLBEC 351},

- Sahdev Singh Vs. U.P. Public Service Tribunal, Lucknow and others reported in {(2001) 1 reported in 1 UPLBEC 865},

- Ram Kishan Vs. Union of India and others reported in 1995 (71) F.L.R. (Supreme Court) 929, and

- Bhagat Ram Vs. State of Himachal Pradesh and others reported in AIR 1983 Supreme Court 454.

Learned counsel for the respondents has also relied upon the following decisions:-

- Madan Tiwari, Constable No.86118080692 Vs. Deputy Inspector General of Police (Group Centre), Central Reserve Police Force, Rampur, U.P. and another reported in {(1999) 2 UPLBEC 1494 (F.B.) and

- State of U.P. and others Vs. Ashok Kumar Singh and another reported in (1996) 1 Supreme Court Cases 302.

By the Full Bench of this Court the case of Giriraj Sharma (supra) has been declared as per-in-curium and that the law had not been correctly interpreted therein.

I have heard learned counsel for the parties at length and perused the record of the case and the authorities cited by the learned counsel for the parties.

Looking into the above said facts and circumstances of the case, I find nothing wrong in the impugned order passed by the appellate authority by which the appellate authority has set aside the dismissal order passed by the Commandant-respondent no.4 on humanitarian grounds and mitigating circumstances and passed lesser punishment by way of compulsory retirement and providing retiral benefits to the petitioner. I also find that the appellate authority after thorough examination and scrutiny of the material on record and relevant evidence has arrived at a reasoned order on the basis of finding of facts. The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the impugned order suffers from any illegality or error apparent on the face of the record. More so, the said findings of facts arrived at by the respondent no.2 on the basis of which the impugned order has been passed are not open to challenge before this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. In view of this, I find no justification for any interference with the punishment so awarded the writ petition is dismissed. No order as to costs.

July 4, 2006



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