Commandant & Ors vs Surinder Kumar

CRPF Srinagar, C/o 56/APO & Ors. ... Appellants

Versus

Surinder Kumar ... Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal against the order dated 12.02.2004 of

the Division Bench of the Jammu and Kashmir High Court in

L.P.A. No.600-A 1999 (for short `the impugned order').

2. The facts very briefly are that the respondent was

working as a Constable in the Central Reserve Police Force (for

short `the CRPF'). A complaint was lodged against the

respondent. It was alleged in the complaint that he was

detailed with vehicle no.25 to carry patrolling party on

Chandel Palel Road but he left the vehicle unattended and

absented himself without permission of his superior officer

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and reported on his own after 20 minutes. It was also alleged

in the complaint that while he was on duty, he consumed

illicit alcohol and in an inebriated state of mind misbehaved

with his superior officer H.N. Singh, snatched his AK-47 rifle

and pointed the barrel of the rifle to him and on the

intervention of Lachhi Ram, Assistant Commandant, the

barrel of the rifle was pointed upward and an untoward

incident was avoided. A copy of the complaint was served on

the respondent and a disciplinary enquiry was conducted and

the Assistant Commandant-cum-Magistrate First Class in his

order dated 10.06.1993 found the respondent guilty of charges

and convicted him and sentenced him to imprisonment till the

rising of the Court. By a separate order dated 10.06.1993, the

Commandant also dismissed the respondent from service.

3. Aggrieved, the respondent challenged the order dated

10.06.1993 passed by the Assistant Commandant-cum-

Magistrate First Class as well as the order of dismissal dated

10.06.1993 passed by the Commandant in Writ Petition

No.555 of 1994 before the High Court. The Learned Single

Judge dismissed the writ petition on 09.11.1998. The

respondent challenged the order of the learned Single Judge in

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L.P.A. No. 600-A 1999 and by the impugned order, the

Division Bench held that the punishment of dismissal of the

respondent was disproportionate in as much as his conviction

was till the rising of the court for having committed a less

heinous offence. By the impugned order, the Division Bench

of the High Court directed the appellants to reconsider the

nature and quantum of punishment awarded to the

respondent and accordingly grant him consequential benefits.

4. Mr. Ashok Bhan, learned counsel for the appellants,

submitted that the respondent was punished with

imprisonment for one day by the judgment dated 10.06.1993

of the Assistant Commandant-cum-Magistrate First Class for

having committed a less heinous offence under Section 10(n)

of the Central Reserve Police Force Act, 1949 (for short `the

Act'). He submitted that Section 12(1) of the Act provides that

every person sentenced under the Act to imprisonment may be

dismissed from the CRPF and in exercise of this power the

Commandant 22 Battalion, CRPF, dismissed the respondent

from service by order dated 10.06.1993. He submitted that

the findings in the judgment of the Assistant Commandant-

cum-Magistrate in the order under Section 10(n) of the Act

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would show that the respondent was guilty of grave charges of

indiscipline and therefore the Division Bench of the High

Court was not right in coming to the conclusion in the

impugned order that the punishment of dismissal from service

was disproportionate.

5. Mr. J.P. Dhanda, learned counsel appearing for the

respondent, on the other hand, submitted that Section 10 of

the Act is titled `Less heinous offences' and it is under

Section 10(n) that the respondent has been punished for

imprisonment till the rising of the court. He argued that for a

less heinous offence and for an imprisonment till rising of the

Court, the respondent could not have been dismissed from

service. He submitted that in Union of India vs. Parma Nanda

(AIR 1989 SC 1185), this Court has held that even in cases

where an enquiry is dispensed with under the proviso (b) to

Article 311(2) of the Constitution if the penalty impugned is

apparently unreasonable or uncalled for, having regard to the

nature of the criminal charge, the Administrative Tribunal may

step in to render substantial justice and may remit the matter

to the competent authority for reconsideration or itself

substitute one of the penalties. He submitted that the High

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Court has relied upon the decision in Union of India vs. Parma

Nanda (supra) and has set aside the order of dismissal without

going into the merits of the findings of the Assistant

Commandant-cum Magistrate on the charges against the

respondent.

6. We have considered the submissions of the learned

counsel for the parties and we find that the respondent has

been imprisoned by the judgment of the Assistant

Commandant-cum Magistrate under Section 10(n) of the Act

and has been dismissed from service by a separate order of the

Commandant, 22 Battalion, CRPF passed under Section 12(1)

of the Act. Sections 10(n) and 12(1) of the Act are extracted

hereinbelow:

"10. Less heinous offences:- Every member of the

Force who

(n) is guilty of any act or omission

which, though not specified in this Act,

is prejudicial to good order and

discipline; or

shall be punishable with imprisonment for a term

which may extend to one year, or with the fine

which may extend to three months' pay, or with

both.

12. Place of imprisonment and liability to

dismissal on imprisonment.-(1) Every person

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sentenced under this Act to imprisonment may be

dismissed from the Force, and shall further be liable

to forfeiture of pay, allowance and any other moneys

due to him as well as of any medals and decorations

received by him."

It will be clear from Section 10(n) of the Act that a member of

the CRPF who is guilty of any act or omission which is

prejudicial to good order and discipline is punishable with

imprisonment for a term which may extend to one year or with

fine which may extend to three months' pay, or with both.

Section 12(1) of the Act provides that every person sentenced

under this Act to imprisonment may be dismissed from the

CRPF. The word "may" in Section 12(1) of the Act confers a

discretion on the competent authority whether or not to

dismiss a member of the CRPF from service pursuant to a

sentence of imprisonment under the Act and while exercising

the discretion, the competent authority has to consider

various relevant factors including the nature of the offence for

which he has been sentenced to imprisonment.

7. In the present case, the acts of indiscipline of the

respondent which have been established beyond doubt by the

Assistant Commandant-cum-Magistrate are that the

respondent left his party without permission while on duty in

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the operational area for 20 minutes and returned on his own

and he got enraged when H.N. Singh, Assistant Commandant,

decided to take him for medical examination when he found

him to be in a state of intoxication and he snatched the AK-47

rifle of H.N. Singh and pointed the barrel towards him and due

to the intervention of Lachhi Ram, Assistant Commandant, an

untoward incident was avoided. These acts of indiscipline

were obviously prejudicial to the good order and discipline and

when committed by a member of a disciplined force like the

CRPF were serious enough to warrant dismissal from service.

8. The Division Bench of the High Court has taken a view

in the impugned order that as the respondent has been

punished for imprisonment for a less heinous offence and only

till the rising of the court, the punishment of dismissal was

disproportionate. The Division Bench of the High Court failed

to appreciate that for less heinous offences enumerated in

Section 10 of the Act, a person was liable for punishment with

imprisonment and under Section 12(1) of the Act every person

sentenced under the Act to imprisonment was liable to be

dismissed from the CRPF. In other words, the legislative

intent was that once a member of the CRPF was sentenced for

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imprisonment under the Act, he was also liable for dismissal

from service. The Division Bench of the High Court, in our

considered opinion, should have looked into the acts of

indiscipline proved against the respondent for which he has

been sentenced to imprisonment and then decided whether

the dismissal of the respondent from service was

disproportionate to the gravity of acts of indiscipline. As we

have already held, the acts of indiscipline for which the

respondent had been sentenced for imprisonment were serious

and grave for a disciplined force. Therefore, the competent

authority was right in imposing the punishment of dismissal

from service.

9. Moreover, it appears from the impugned order that the

High Court has in exercise of power of judicial review

interfered with the punishment of dismissal on the ground

that it was disproportionate. In Union of India vs. R.K. Sharma

(AIR 2001 SC 3053), this Court has taken the view that the

punishment should not be merely disproportionate but should

be strikingly disproportionate to warrant interference by the

High Court under Article 226 of the Constitution and it was

only in an extreme case, where on the face of it there is

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perversity or irrationality that there can be judicial review

under Articles 226 or 227 or under Article 32 of the

Constitution. Since this is not one of those cases where the

punishment of dismissal was strikingly disproportionate or

where on the face of it there was perversity or irrationality, the

Division Bench of the High Court ought not to have interfered

with the order of dismissal from service.

10. We, accordingly, allow this appeal and set aside the

impugned order of the Division Bench of the High Court. No

costs.

.............................J.

(P. Sathasivam)

.............................J.

(A. K. Patnaik)

New Delhi,

October 20, 2011.