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CASE NO.: Appeal (civil)  4950 of 1999

PETITIONER: Union of India & Ors.                                    

RESPONDENT: Ghulam Mohd. Bhat                                                

DATE OF JUDGMENT: 20/10/2005

BENCH: ARIJIT PASAYAT & Dr. AR. LAKSHMANAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.                  Challenge in this appeal is by the Union of India and  its functionaries to the judgment rendered by a learned  Single Judge of the Jammu and Kashmir High Court holding that  the order of removal from service passed by the departmental  authorities in terms of Section 11(1) Central Reserve Police  Force Act, 1949 (in short the ’Act’) read with Rule 27 of the  Central Reserve Police Rules, 1955 (in short the ’Rules’) is  without jurisdiction.

       The background facts need to be noted in brief:

       The respondent as a Constable in Central Reserve Police  Force (in short ’CRPF’) joined the duty at Srinagar after  being detailed for duty from Assam along with a group of  fresh trainees. He applied for leave on 18th January, 1992  which was sanctioned.  He reported for duty long after the  sanctioned leave period was over on 8th December, 1992.   Departmental proceedings were initiated for misconduct on  account of overstay beyond sanctioned leave for 315 days  without prior permission or sanction from the competent  authority.  On 21.6.1993 on the basis of the report of the  inquiry officer, the competent authority passed order of  removal from service. The same was challenged by the  respondent by filing a writ petition in the Jammu and Kashmir  High Court. By impugned order dated 5.8.1997 a learned Single  Judge held that since the respondent was proceeded against in  terms of Section 10(m) of the Act read with Rule 27 of the  Rules, the order of removal is without jurisdiction. It was  observed that Section 10(m) only provided for minor  punishment and did not provide for the punishment of removal  from service.  Accordingly the order of removal was quashed  but, however, liberty was given to proceed in accordance with  the provisions of the Act and the Rules.

       Learned Additional Solicitor General appearing for the  appellants submitted that the view taken by the High Court is  clearly indefensible.  It was submitted that Section 11 did  not provide for only minor punishment.  It provided that the  enumerated punishments were in lieu of or in addition to  order of suspension or dismissal as the case may be.  Rule 27  clearly permitted the order of removal from service and no  interference by the High Court was called for.  There is no  appearance on behalf of the respondent in spite of service.  

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       The scope and ambit of Section 11 and Rule 27 has been  called for determination in this appeal.  A few provisions  having relevance need to be noted.  Undisputedly, overstay  without sanctioned leave is dealt with in Section 10(m) of  the Act.  It relates to lessor offences.  Section 11(1) and  Rule 27 read as follows:-

"Section 11 -  Minor Punishment:  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,  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)      reduced in rank; b)      fine of any amount not exceeding one month’s  pay and allowances; c)      confinement to quarter, 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, fatique or  other duty; and e)      removal from any office of distinction or  special emolument in the Force.

                       (Underlined for emphasis)

Rule 27: Procedure for the Award of Punishment  \026 (a) The punishment shown as items 1 to 11 in  column 2 of the table below may be inflicted or  non-gazetted officers and men of the various  ranks shown in each of the headings of columns  3 to 6, by the authorities named below such  headings under the conditions mentioned in  column 7.

   Sl.. No Punishment Subedar  (Inspector) Sub-  Inspector Others  except  Const. &  enrolled  followers  Const. &  enrolled  followers Remarks 1 2 3 4 5 6 7

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1 Dismissal or removal from the Force DIGP DIGP Comdt. Comdt. To be  inflicted  after formal  departmental  enquiry. 2 Reduction to a lower time-scale of pay,  grade, post or service DIGP DIGP Comdt. Comdt. To be  inflicted  after formal  departmental  enquiry. 3 Reduction to a lower stage in the time- scale of pay for a specified period. DIGP DIGP Comdt. Comdt. -do- 4 Compulsory retirement DIGP DIGP Comdt. Comdt. -do- 5 Fine to pay amount not exceeding one  month’s pay and allowances. DIGP DIGP Comdt. Comdt. -do- 6 Confinement in the Quarter Guard  exceeding seven days but not more  than twenty eight days with or without  punishment drill or extra guard fatigue  or other duty.   - - - Comdt. -do- 7 Stoppage of increment. DIGP DIGP Comdt. Comdt. -do- 8

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Removal from any office of  distinction of special emolument in  the Force.  DIGP DIGP Comdt. Comdt. May be  inflicted  without a  formal  departmental  enquiry. 9 Censure Comdt. Comdt. Asst.  Comdt. Or  Coy  Comdr. A Comdt.  Or Coy  Comdr.  

10 Confinement to Quarter Guard for nor  more than seven days with or without  punishment or extra guard fatigue or  other duty.   - - - Comdt.

11 Confinement to Quarters lines, camp,  punishment drill, fatigue duties etc. for  a term not exceeding one month.   - - - Com dt.

........................."            A bare perusal of Section 11 shows that it deals with  minor punishment as compared to the major punishments  prescribed in the preceding section.  It lays down that the  Commandant or any other authority or officer, as may be  prescribed, may, subject to any rules made under the Act,  award any one or more of the punishments to any member of  the force who is found guilty of disobedience, neglect of  duty, or remissness in the discharge of his duty or of other  misconduct in his capacity as a member of the force.   According to the High Court the only punishments which can  be awarded under this Section are reduction in rank, fine,  confinement to quarters and removal from any office of  distinction or special emolument in the force. In our  opinion, the interpretation is not correct, because the  section says that these punishments may be awarded in lieu  of, or in addition to, suspension or dismissal.  

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       The use of words ’in lieu of, or in addition to,  suspension or dismissal’, appearing in sub-section (1) of  Section 11 before clauses (a) to (e) shows that the  authorities mentioned therein are empowered to award  punishment of dismissal or suspension to the member of force  who is found guilty and in addition to, or in lieu thereof,  the punishment mentioned in clause (a) to (e) may also be  awarded.   

       It may be noted that Section 9 of the Act mentions  serious or heinous offences and also prescribes penalty  which may be awarded for them.  Section 10 deals with less  heinous offences and clause (m) thereof shows that absence  of a member of the force without leave or without sufficient  cause or overstay without sufficient cause, is also  mentioned as less heinous offence and for that also a  sentence of imprisonment is provided. 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 prosecuted for an offence  under Section 9 or Section 10.                                           It is fairly well settled position in law that  removal is a form of dismissal. This Court in Dr. Dattatraya  Mahadev Nadkarni (since deceased by his L.Rs.) v. Municipal  Corporation of Greater Bombay (AIR 1992 SC 786) explained  that removal and dismissal from service stand on the same  footing and both bring about termination of service though  every termination of service does not amount to removal or  dismissal.  The only difference between the two is that in  the case of dismissal the employee is disqualified from  future employment while in the case of removal he is not  debarred from getting future employment. Therefore,  dismissal has more serious consequences in comparison to  removal.  In any event, Section 11(1) refers to Rules made  under the Act under which action can be taken. Rule 27 is  part of Rules made under the Act.  Rule 27 clearly permits  removal by the competent authority.  In the instant case the  Commandant who had passed the order of removal was the  competent authority to pass the order.

       This Court had occasion to deal with the cases of  overstay by persons belonging to disciplined forces.  In  State of U.P. v. Ashok Kumar Singh (1996 (1) SCC 302) the  employee was a police constable and it was held that an act  of indiscipline by such a person needs to be dealt with  sternly. It is for the employee concerned to show how that  penalty was disproportionate to the proved charges. No  mitigating circumstance has been placed by the appellant to  show as to how the punishment could be characterized as  disproportionate and/or shocking. (See Mithilesh Singh v.  Union of India and Ors. (2003 (3) SCC 309). It has been  categorically held that in a given case the order of  dismissal from service cannot be faulted. In the instant  case the period is more than 300 days and that too without  any justifiable reason.  That being so the order of removal  from service suffers from no infirmity.  The High Court was  not justified in interfering with the same.  The order of  the High Court is set aside. The appeal is allowed but under  the circumstances there shall be no order as to costs.                                                                                                     

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