Partly allowed

Hc/Ro MD Hussain v. Directior General of Police and Anr.

Chhattisgarh HC15 Jun 2021WPS/5209/2008

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh set aside the order imposing a major penalty of stoppage of two annual increments with cumulative effect for seven days of unauthorized absence. The court reduced the punishment to stoppage of one increment for one year without cumulative effect, considering the disproportion of the penalty and the delay in proceedings, while rejecting the argument that accounting fo

What did the court decide?

Revisional order set aside; penalty reduced from stoppage of two annual increments with cumulative effect to stoppage of one increment for one year without cumulative effect.

Hc/Ro MD Hussain Vs Directior General… — Pension and Retirement Benefits | Chhattisgarh HC (2021)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No.5209 of 2008

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HC/RO Md Hussain, aged about 36 years, S/o Sri Md Safi, 5, Sig BN, CRPF, Hallo Mazara, Chandigarh (U.T.)

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---- Petitioner

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Versus

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Director General of Police, Central Reserve Police Force, Directorate, CRPF Office, Lodhi Road, New Delhi 110003

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Additional Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Bharni, Tahsil Takhatpur, District Bilaspur (C.G.)

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---- Respondents

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---------------------------------------------------------------------------------------For Petitioner: Mr. K.A. Ansari, Senior Advocate with Mrs. Meera Ansari, Advocate. For Respondents: Mr. Rajkumar Gupta, Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order On Board

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15/06/2021

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The petitioner at the relevant point of time was working as Constable in the Central Reserve Police Force (CRPF). Departmental enquiry was instituted against him under Rule 27 of the Central Reserve Police Force Rules, 1955 (for short, ‘the CRPF Rules’) in which he was charge-sheeted alleging firstly, that during the subsistence of first marriage, he has entered into second married without prior permission of the Department and secondly, that he remained absent without leave from 1-12-2006 to 8-12-2006, and thirdly, that at the instance of second wife, charge for offence under Section 498A of the IPC was levelled against him which is an act of misconduct. The disciplinary authority after full-fledged enquiry, by order dated 2-8-2007, dismissed the petitioner from service against which he preferred

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appeal and the appellate authority by its order dated 30-10-2007, partly allowed the appeal and held that charge No.1 with regard to entering into second marriage during the subsistence of first marriage has not been proved and further held in respect to 3^rd charge that since the petitioner has already been acquitted of the charge under Section 498A of the IPC, therefore, this charge is also not proved, but, the charge of remaining absent from duty from 1-12-2006 to 8-12-2006 was found proved and the appellate authority converted the dismissal of service to penalty of withholding two annual increments with cumulative effect feeling aggrieved against which revision has been preferred under Rule 29 of the CRPF Rules which has been dismissed by order dated 29-4-2008.

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Mr. K.A. Ansari, learned Senior Advocate appearing for the petitioner, would submit that the appellate authority has clearly found that two charges against the petitioner i.e. entering into second marriage during the subsistence of first marriage and offence under Section 498A of the IPC reported against the petitioner, are not proved; and only found that the charge of remaining unauthorizedly absent from duty for seven days i.e. from 1-12-2006 to 8-12-2006, is proved, and further, the appellate authority has also regularized the petitioner by declaring his absence as dies non, yet, inflicted the penalty of major punishment of stoppage of two annual increments with cumulative effect, and that fact has not been considered by the revisional authority and the impugned order has been passed which is liable to be set aside.

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On the other hand, Mr. Rajkumar Gupta, learned counsel

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appearing for the respondents, would oppose the writ petition and support the impugned order and submit that the revisional authority is justified in dismissing the revision petition.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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True it is that the petitioner’s dismissal from service inflicted by the disciplinary authority finding three charges to be proved was set aside by the appellate authority and the appellate authority not only set aside the order of dismissal of the petitioner from service holding that charges No.1 & 3 are not proved and only the charge that the petitioner remained absent for a period of seven days from 1-12-2006 to 8-12-2006, has been found proved. It is also true that the said period of unauthorised absence of the petitioner from duty has been declared as dies non by the appellate authority in para 7 of the order and further held that he will not be entitled for any further pay and allowances during the suspension period, however, thereafter, also inflicted the penalty of stoppage of two annual increments with cumulative effect which is major penalty.

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The question to be considered by the revisional authority was, whether for bare absence of seven days from 1-12-2006 to 7-122006, infliction of majority penalty that is stoppage of two increments with cumulative effect, that is major penalty, is justified? However, it would be appropriate to extract para 7 of the appellate order dated 30-10-2007 which is as under: -

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7- eSus iwjh tkap dk;Zokgh vihy ls lEcfU/kr lHkh dkxtkrksa vkfn

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dk lw{e xgu fujh{k.k fd;kA xgu fujh{k.k djus ds ckn eS bl

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fu"d"kZ ij igqapk gWw fd] vihydrkZ dks vij iqfyl mi egkfujh{kd] xzqi dsUnz] ds0fj0iq0cy] fcykliqj }kjk foHkkxh; tkap ds i’pkr lsok ls c[kkZLr djus dk tks fu.kZ; fn;k x;k gS og vijk/k dh xEHkhjrk ds vk/kkj ij U;k; laxr ugh gS] D;ksfd blls vihydrkZ ds lkFk&lkFk mlds ifjokj dks Hkh ijks{k :i ls nf.Mr fd;k x;k ftlesa mudk dksbZ nks"k ugh gSA blfy, bls ifjofrZr djus dh vko’;drk gSA vr% lHkh rF;ks dks e/; utj j[krs gq,] eS ds0fj0iq0cy vf/kfu;e ds fu;e 28 esa iznRr 'kfDr;ks dk iz;ksx djrs gq, vij iqfyl mi egkfujh{kd] xzqi dsUnz] ds0fj0iq0cy] fcykliqj ds dk;kZy; vkns’k la[;k ih&vkB&15@2006&LFkkiuk&2 fnukad 2@8@2007 ftlds vUrxZr vihydrkZ dks lsok ls c[kkZLrxh ds fn;s x;s n.M dks la’kksf/kr djrs gq, mls okf"kZd osru of) dks nks o"kZ (lap;h izHkkoh) ds fy, jksdus dk vkns’k nsrk gwW tksfd mldks ns; vkxkeh okf"kZd osru dh of) dh frfFk ls izHkkoh gksxkA lkFk gh cy la[;k 913264011 goynkj@js0vkS0 ekSgEen gqlSu dks 4 csrkj okfguh ds0fj0iq0 cy es fjiksVZ djus djus dh frfFk ls lsok esa okfil ykus dk vkns’k ikfjr djrk g w aA vihydrkZ dh fuyfEcr vof/k fnukad 26@11@2006 ls 16@5@2007 rd dks lHkh mnns’;ks ds fy, mlh izdkj ekuk tk,xk tSlh Fkh (Treated as such) rFkk bl vof/k ds nkSjku vihydrkZ }kjk vkgfjr fd;s x;s osru ,oa vU; HkRrksa ds vfrfjDr vU; dqN Hkh ns; ugha gksxkA dkfeZd dk fuyEcu ds nkSjku eq[;ky; ls xSj gkftj vof/k fnukad 1@12@2006 ls 7@12@2006 rd dqy 7 fnuksa dks vdk;Z fnol esa fu;fer fd;k tkrk gSA cy la[;k 913264011 goynkj@js0vkS0 ekSgEEkn gqlSu lsok ls c[kkZLr djus dh frfFk vFkkZr fnukad 10@08@2007 (vijkgu) ls ysdj lsok esa okfil ysus rd ds chp dh vof/k dks ,y0ds0Mh0 esa fu;fer fd;k tk,sxkA

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The appellate authority had already found in its appellate order that two major charges against the petitioner are not established and only the charge of unauthorised absence of seven days (from 1-12-2006 to 7-12-2006) was found proved and thereafter, converted the penalty of dismissal from service into stoppage of two increments with cumulative effect i.e. again major penalty. In

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my considered opinion, after having held that two major charges are not established and only the charge of unauthorised absence from 1-12-2006 to 8-12-2006 is found proved, the revisional authority is unjustified in dismissing the revision and the appellate authority is also unjustified in inflicting the penalty of two increments with cumulative effect that is major penalty within the meaning of Rule 27 of the Rules of 1955.

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Now, the question is, what would be the appropriate penalty for unauthorised absence from 1-12-2006 to 7-12-2006?

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Further, at this stage, the argument of learned counsel for the petitioner has to be considered. His submission is that since the petitioner has not been given full pay during the suspension period and seven days from 1-12-2006 to 7-12-2006 has been declared as dies non, therefore, further imposition of penalty, if any, would be unsustainable. This argument deserves to be noticed for rejection.

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It is not the case that by declaring the period of absence of the petitioner from 1-12-2006 to 7-12-2006 as dies non, his misconduct has been condoned. The Supreme Court in the matter of State of Punjab v. Dr. P.L. Singla 1 held that where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorised absence and further held that where the punishment awarded for the unauthorised absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorised absence remains

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1 (2008) 8 SCC 469

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unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Finally, it was held by their Lordships that any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. The order dealing with unauthorised absence would not wipe out the punishment already imposed. It is only an order consequential to the imposition of punishment and its effect was to maintain continuity of service of the employee, but deny salary for the period of absence and not to count the period of absence as qualifying service for the purposes of pension. Its effect is certainly not to exonerate the employee from the charge of unauthorised absence nor to wipe out the punishment. As such, in the instant case, merely because the consequential order of declaring the period of unauthorised absence of the petitioner from 1-12-2006 to 7-12-2006 as dies non has been passed, it would not condone the misconduct of the petitioner’s unauthorised absence for seven days, that too in para military force in which the petitioner is serving. Therefore, the argument that by declaring the period of absence as dies non and not giving salary during the suspension period, his misconduct for unauthorised absence is condoned, is hereby rejected.

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This Court ordinarily would have remitted the matter to the disciplinary authority to impose appropriate punishment to the petitioner for his proven misconduct of remaining absent for seven days, as major penalty of stoppage of two increments with cumulative effect would be disproportionate to the misconduct committed by the petitioner which has been found proved, but

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since the penalty was imposed and the appellate order is dated 30-10-2007 and misconduct is of the period from 1-12-2006 to 7- 12-2006 and the matter remained pending before this Court for more than a decade, remitting the matter to the disciplinary authority to impose appropriate punishment to the petitioner would have the effect of arresting the finality of disciplinary proceeding and would further delay the proceeding, in that view, major penalty of stoppage of two increments for two years with cumulative effect (major penalty) is reduced to stoppage of one increment for one year without cumulative effect. In the considered opinion of this Court, aforesaid imposition of penalty would serve the ends of justice. Consequently, the revisional order is hereby set aside by modifying the order of the appellate authority. Resultantly, stoppage of one increment for one year with non-cumulative effect is imposed upon the petitioner.

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The writ petition is partly allowed to the extent indicated hereinabove. No order as to cost(s).

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Sd/(Sanjay K. Agrawal) Judge

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Soma

Hc/Ro MD Hussain v. Directior General of Police and Anr.

Case brief

What is this about?

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Hc/Ro MD Hussain v. Directior General of Police and Anr.

Case brief

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