Constable No. 9087100 Robin Chandra Bhuyan Vs the Union of India and Ors.

The present application, filed under Article 226 of the Constitution of India, assails an order dated 31.12.2004, by which the petitioner was removed from service.

¶33

The fact in a nutshell is that while the petitioner was employed as a constable driver under the CRPF was on earned leave for a period of 60 days w.e.f. 20.11.1995 to 18.01.1996. As he had not resumed his duty thereafter, a charge-sheet dated 06.04.1996 was issued to the petitioner proposing an enquiry in respect of two charges.

¶34

The essence of the first charge brought against the petitioner is that on expiry of earned leave on 18.01.1996, the petitioner overstayed without any leave or permission from the competent authority and till the date of the charge-sheet, i.e. 06.04.1996, he had not resumed duty. The second charge against the petitioner is that, upon the expiry of his leave, he had not resumed his duties and had retained the Government kits allotted to him, as well as his Identity Card, which constitutes misconduct.

¶35

Along with the charge memo, a list of documents on the basis of which the charges were sought to be proved, as well as a list of the witnesses proposed to be examined, were enclosed.

¶36

The petitioner filed a reply, stating that he could not resume duty upon the expiry of his leave due to pressing domestic problems. As his domestic problems persisted, the petitioner offered to resign from service. The petitioner in the aforementioned letter also agreed to deposit the

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Government kits allotted to him, as well as his identity card, in due course.

¶39

The matter could have rested there, given the resignation proposal. Be that as it may, the disciplinary authority appointed an enquiry officer to enquire into the charges levelled against the petitioner.

¶40

Though it was the stand of the employer that the enquiry officer issued several notices informing the petitioner of the dates of the proposed enquiry and requiring his presence in the enquiry, the petitioner contended that none of the aforesaid notices were served on him. He did not know the dates of the enquiry.

¶41

The enquiry proceedings were thereafter held ex parte, and at the conclusion thereof, the enquiry officer, by reports dated 21.06.1996 and 23.09.1996, held that both charges against the petitioner had been established. A copy of the report of enquiry along with the show cause notice proposing the penalty of removal from service was stated to be issued to the petitioner on 21.11.1996, and though the petitioner received the said documents, he did not respond, whereafter by final order dated 10.12.1996, the penalty of removal from service was imposed on the petitioner.

¶42

After several attempts to have the order of removal from service recalled and rectified, the petitioner approached this court by filing WP(C) 3511/1999, assailing the final order dated 10.12.1996, which imposed a penalty of removal from service. In the meantime, in a court of enquiry instituted under Rule 31 of the CRPF Rules by order dated 26.03.1996, the petitioner has been declared a deserter with effect from 19.01.1996.

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This court, under its judgment and order (oral) dated 13.11.2003, passed in WP(C) 3511/1999, held:

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(i) The essence of the charges levelled against the petitioner is one relating to his unauthorised absence.

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(ii) The contention of the writ petitioner that he was prevented from joining the service by good and sufficient reasons, which were beyond control and evidence that the petitioner could have brought in his defence, and therefore, the validity of the ex parte enquiry held against the petitioner is the crucial aspect of the case.

¶47

(iii) Though notices were sent by registered post to the writ petitioner and claimed to be duly served, there is no material to show that notices of enquiry were served on the petitioner and that, despite such service, the petitioner did not participate in the enquiry.

¶48

(iv) The argument of the Union of India that, as notices have been sent by registered post, a presumption should be drawn regarding proper service is not tenable in the absence of any enabling provision in the Rules similar to those contained in Order V Rule XIX of the Code of Civil Procedure. Such a conclusion was drawn based on the decision of the Hon’ble Apex Court in the case of Union of India & Ors. vs Dinanath Shantaram Karikar and Ors. reported in AIR 1998 SC 2722 in which it was held that in a disciplinary proceeding, the documents sent by registered post can be treated to have been served only when it is established that it was served to the addressee.

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(v) The ex parte enquiry held against the petitioner does not confirm the principle of natural justice, and the petitioner was not given any opportunity to contest the proceeding initiated against him.

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(vi) The denial of fair opportunity to the petitioner would go to the root of the matter and vitiate the proceeding as a whole, including the report of enquiry and the final order dated 10.12.1996 passed on that basis.

¶52

(vii) The court accordingly set aside the order dated 10.12.1996 directing reinstatement of the petitioner in service and deemed the petitioner to be in service all along; the court refused to grant back wages at that stage.

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(viii) Finally, it was observed that notwithstanding the direction passed, if the disciplinary authority is of the view that the enquiry held against the petitioner in respect of the charges should be held afresh, the respondent authorities will be at liberty to do so subject to the condition that any such de novo proceeding, if initiated against the petitioner will be brought to its logical conclusion at the earliest and without any delay.

¶54

Accordingly, by an order dated 12.03.2004, the Commandant 13^th Bn.SSB, Piprakothi decided to have a further enquiry under the provisions of CCS (CCA) Rules 1965 against the petitioner based on the allegation that led to the imposition of a penalty of removal from service. Under the said order, the petitioner was treated as being under suspension, effective from 10.12.1998, and was to remain under suspension until further order. The

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period of absence from removal from service up to reinstatement w.e.f. 11.12.1996 to 29.02.2004 will be regularised separately on completion of the proceedings.

¶57

Subsequently, a Memorandum dated 18.03.2004 was served upon the petitioner proposing to hold an enquiry under Rule 27 of the CRPF Rules, 1955. The articles of the two charges remain the same as it was levelled in the first enquiry.

¶58

An enquiry officer was appointed on 16.03.2004 under Rule 27 of the CRPF Rules, 1955. Thereafter, on 30.10.2004, the petitioner was furnished with 2nd show cause notice based on the Enquiry Report submitted by the Enquiry Officer. Agreeing with the findings of the enquiry officer that the articles of charges were proved, the petitioner was proposed to be removed from service. The petitioner filed a reply on 08.11.2004. Subsequently, the final order dated 31.12.2004 was passed. The suspension period and the leave of stay period were directed to be regularised separately. The petitioner pursued the matter thereafter, issued legal notice etc. and preferred an appeal under Rule 23 of the CCS (CCA) Rule, 1965; however, the appeal was kept pending thereafter. The petitioner issued a reminder on 07.02.2011, and when nothing was forthcoming, the present writ petition was filed.

¶59

Mr. Bora, learned counsel for the petitioner, argues that the language of the charges levelled clearly demonstrates that it was issued under Section 11(1) of the CRPF Act, 1949, inasmuch as absenting a member of the force without leave or over staying without sufficient cause beyond leave granted is relatable to Section 10 (m) of the CRPF Act, 1949. Therefore, when the

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charges are under Section 11(1) of the CRPF Act, 1949, the punishment should be one that is incorporated under it.

¶62

According to him, the petitioner demonstrated sufficient grounds/ cause for his overstaying, and the order dated 23.06.1996, by which the petitioner was declared a deserter, is illegal and without any basis. According to him, the punishment meted out to the petitioner is highly excessive and disproportionate to the actual offence, which is “a less heinous offence” as per Section 10 (m) of the CRPF Act, 1949. The learned counsel places reliance on the judgment of the Hon’ble Supreme Court in Shri Bhagawan Lal Arya vs. Commissioner of Police, Delhi and Ors ., reported in (2004) 4 SCC 560 .

¶63

The learned counsel for the petitioner further contends that there is no “animus deserendi” on the part of the petitioner to desert his unit; therefore, the proper provision of law was never applied in his case. According to him, since the petitioner was never in prison nor charged under Section 9 for desertion, the penalty of removal could not have been imposed upon him. In support, he places reliance on the decision of a Coordinate Bench in Kukheswar Saikia vs. Union of India & Anr. , reported in (2002) 3 GLT 336 . According to him, the CRPF Rules, 1955, are not exhaustive, and recourse must be made to the CCS (CCA) Rules, 1965, when there is ambiguity and doubt. The respondent themselves stated that the enquiry would be conducted as per the CCS (CCA) Rules, 1965. Therefore, all meaning and purport, the proceeding was initiated under CCS (CCA) Rules, 1965.

¶64

Mr. Bora also contends that the Enquiry Officer was appointed on the

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same date as the issuance of the charge memo; no opportunity was ever granted to the petitioner to submit his defence before the appointment of the Enquiry Officer as per Rule 27 of the CRPF Rules, 1955. Therefore, there was a violation of the principle of natural justice. According to him, no opportunity to file a written statement of defence under Rule 14(4) of the CCS (CCA) Rules, 1965 was also granted. Thus, there was a violation of the principle of natural justice.

¶67

It is also his contention that no presenting officer was appointed to present the case. The enquiry officer has acted as both enquiry officer and presenting officer, i.e. both as prosecutor as well as judge in the case, thereby leading to violation of the principles of natural justice.

¶68

Per contra, Ms. B Sarma, learned CGSC, referring to the affidavit-inopposition filed by the Dy. Inspector General contends that the petitioner appeared before the enquiry officer on 22.04.2004, and the articles of charges were explained to the delinquent and asked for other formalities. The final hearing was held on 20.09.2004. It is their further stand that during the course of the enquiry, the petitioner was given full opportunity to defend himself and was also asked to cross-examine the PWs, which the petitioner refused. According to them, he was also asked to produce any other witness or document in his favour if he wished to do so, but he did not produce any defence witnesses or defence exhibits in his defence. While admitting that the disciplinary authority appointed no presenting officer, the same shall not vitiate the proceeding as the petitioner did not raise any objection in this regard. A reasonable opportunity for filing a defence statement during the course of the enquiry was offered to the

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petitioner.

¶71

I have given anxious consideration to the submission advanced by the learned counsel for the parties.

¶72

From the argument of the petitioner, it is seen that the petitioner challenges the orders primarily on the two grounds in essence, the charges are at most amounts to an unauthorized absence, not desertion; when charges were admitted under Section 11(1) of the CRPF Act, 1949 and procedure followed was under Rule 27 of the Central Reserve Police Rules, 1955 . Secondly, while conducting the enquiry, the procedural safeguard was violated as no defence assistance was provided under Rule 27.

¶73

Before proceeding further, let this court consider the statutory framework.

¶74

Section 9 of the Act encompasses “More heinous offences” within its scope, and under Section 9(f), includes desertion.

¶75

Section 10, on the other hand, brings under its fold the “Less heinous offences”. Absence without leave or without sufficient cause, overstaying leave granted, under Section 10 (m), is a “Less heinous offence”.

¶76

Section 11 provides for minor punishment. Section 11 (1) authorises the commandant or any other authority or officer, as may be prescribed, to inflict punishment enumerated under Clause (a) to (e), which are minor punishments.

¶77

In terms of Section 9, punishment for more heinous offences is transportation for life for a term not less than 7 years or with imprisonment

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for a term which may extend to 14 years or with a fine which may extend to pay 3 months pay or with a fine to the extent in addition to such sentence of transportation or imprisonment. For less heinous offences, the prescribed punishment is imprisonment for a term that may extend to one year, or a fine of up to three months' pay, or both.

¶80

Rule 31 deals with the procedure in the event of a Court of Enquiry for inflicting punishment for desertion, as defined under Section 9(f), and also for absence without leave under Section 10(m). It prescribes that such a procedure will be initiated when a member of the force does not return of his own free will or is not apprehended within 16 days of the commencement of the desertion, absence or overstaying of leave.

¶81

On the other hand, Rule 27 under Chapter VI, which deals with discipline, prescribes the procedure for awarding punishment. The table appended in the said Rule prescribes that punishment for dismissal or removal from the force is to be awarded by the commandant after a formal departmental enquiry.

¶82

Further, Section 27 of the Act, 1949 provides the procedure for conducting a departmental enquiry after the issuance of a charge memo, including appointment of an enquiry officer and recording of evidence. It further provides the right of a delinquent member to have the assistance of a defence nominee during an enquiry.

¶83

In the backdrop of the aforesaid legal framework, it is very important to record the charges framed against the petitioner, which are quoted herein below:

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“ARTICLE OF CHARGE-1:-

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That the No.9087100 CT/DVR Robin Chandra Bhuyan "HQ" Coy 13th Bn. SSB, Piprakothi while functioning as Constable / Driver during the period committed misconduct/ remissness in the discharge of his duties in his capacity as a member of the force under Section-11(1) of CRPF Act, 1949 in that he when granted 60 days carned leave w.e.f. 20.11.1995 to 18.01.1996, did not resume duty after expiry of leave, overstayed at his own without any leave or permission from the competent authority and still so absent in spite of serving re-joining notices to resume duty vide this office memo No. GCT/EST/PF/RCB/96/1350-52 dated 27.01.1996, No. GCT/Est/PF/RCB/96/2093-95 dated 12.02.1996 with copy to Goan Bura, Napubthoria, No. GCT/EST/PP/RCB/96/3252-53 dated 07.03.1996 and No.GCT/EST/PF/RCB/96/2144 dated 13.02.1996 to S.P Nagaon District (Assam), unbecoming of a member of the force . He also has not responded to the Correspondence/rejoining notice etc. served by the Commandant, Group Centre, SSB, Tezu to resume duty.

¶87

ARTICLE OF CHARGE-II

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That the No.9087100 CT/DVR Robin Chandra Bhuyan, "HQ" Coy 13th Bn SSB Piprakothi (Bihar) while functioning as Constable/Driver during the period committed misconduct in the discharge of his duties in his capacity as a member of the force under section 11 (1) of CRPF Act, 1949 in that he had not deposited Govt. kits and Identity Card bearing No. 31081 dated 16.06.1990 issued from GC, Hqr are still in his possession.” ( emphasis supplied by the court )

¶89

From the aforesaid charge, it is clear that both the charges are under Section 11 (1) of the CRPF Act, 1949.

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¶91

The Memorandum dated 18.03.2004 clearly stipulates that the enquiry was conducted in accordance with Rule 27 of the CRPF Rules, 1955. The relevant portion is quoted herein below:

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“ The undersigned proposes to hold and Inquiry against No. 9087100 Const/ Driver Rabin Ch. Bhuyan “HQR” Copy of this Battalion under Rule 27 of the Central Reserve Police Rules, 1955. The substance of imputation of misconduct/ remissness/ disobedience in his capacity as a member of the force in respect of which the enquiry is proposed to the held is set out in the enclosed statement of articles of charge (Annexure-I). A Statement of imputation of such misconduct/ remissness in his capacity as a member of the force in respect of each articles is enclosed as (Annexure). A list of documents by which and a list of witness by whom the article of charges are proposed to be sustained are also enclosed (Annexure III & IV) respectively.

¶93

This receipt of this memorandum may please be acknowledged.”

¶94

From the petitioner's reply, it is evident that he has not denied overstaying his leave. It is also an admitted position that he explained his overstaying and also proposed to resign. In the considered opinion of this court, in the aforesaid backdrop, the matter could have rested there. A similar view was expressed in the Coordinate Bench in its order dated 13.11.2003 passed in WP(C) 3511/1999. However, the matter proceeded as recorded hereinabove.

¶95

From the show cause, two charges and the memorandum initiating the

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proceeding, leaves no doubt in the mind of the court that the authorities considered the case of the petitioner as a “Less heinous offence” for the petitioner over staying leave granted to him without sufficient cause as included under Section 10 (m) of the Act, and therefore proposed minor punishment under Section 11 (1) and they opted to proceed against him under Rule 27, decision taken therein is subject matter here.

¶98

After perusal of the material, this court is of the opinion that, even if it is assumes that the two charges are established and that the petitioner had admitted in his reply that he over stayed leave, the same in the given fact of the present case projected by the employer, do not constitute heinous offence under Section 9(f)of the CRPF Act, 1949 instead it is less heinous offence under Section 10 (m) of the Act, 1949.

¶99

This court would not hasten to add that when charges were framed under Section 11(1), it must be tested on the parameter of unauthorised absence, without importing the aggravated concept of desertion. Unauthorised absence connotes absence without leave or permission but without an intention to abandon the service permanently. It is essentially a disciplinary lapse and falls within the purview of Section 11 (1). At the same time, desertion is a graver offence under Section 9 requiring proof of not only physical absence (factum of separation) but also the mental element of animus deserendi, i.e. the intention to permanently sever ties with the force.

¶100

The Hon’ble Apex Court in long line of decision has consistently held that mere prolong absence does not ipso-facto amount to desertion; the element of intention must be proved or reasonably inferred from the

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conduct, which is lacking in the present case inasmuch as recorded hereinabove, the employer proceeded with framing charges under Section 11(1) of the Act, 1949 and conducted the enquiry based on which the penalty of removal from service was inflicted, was under the Rule 27 and not Rule 31. Regarding proceedings under Section 31 involving desertion, the same was noted by the Coordinate Bench in its earlier decision dated.13.11.2013, but preferred to remand the matter after setting aside the punishment of removal, which has attained finality.

¶103

Once the Coordinate Bench under its order.13.11.2013 sets aside the removal order for violation of principles of natural justice and directs that the petitioner be reinstated in service; the decision taken under Rule 31 declaring the petitioner to be a deserter cannot independently survive, inasmuch as the foundation of removal becomes invalid. It is essential to record that Rule 31 is an administrative closer of employer employee relation for long and unauthorised absence; however, in the case in hand, the petitioner was reinstated, subsequent to the decision taken under Rule 31 and therefore, the decision taken under Rule 31 in the given facts of the present case, loses its relevance, more particularly, when de-novo proceeding was also initiated.

¶104

In the considered opinion of this court, when the charges were alleged to be under Rule 11(1) of the CRPF Act, 1949, and unauthorised absence, the major penalty of removal from service, in the given facts of the present case, is shockingly disproportionate and impermissible under the said Rules. This court also takes note of the finding of the coordinate bench in its order dated 13.11.2013, passed in WP© 3511/1999, that the essence of charges

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levelled against the petitioner is one relating to his unauthorised absence. Such determination had, in the meantime, attained finality, and the subsequent charges levelled against the petitioner are exactly similar to those which were levelled earlier.

¶107

Thus, the penalty of removal, in the given facts of the present case and for the reason recorded herein, was not only shockingly disproportionate, but also did not attract such a punishment in the backdrop of the facts and provisions of law.

¶108

Now coming to the arguments of the learned Counsel for the petitioner on procedural lapse, there is no doubt in the mind of this Court that, while absence of a presenting officer as mandated under Rule 27 of the CRPF Rules, 1955, in an enquiry proceeding, will require the enquiry officer to be prosecutor and Judge and in such a situation, the enquiry may be vitiated for breach of natural justice, however, in the given fact of the present case, what cannot be over-looked is that admittedly, the delinquent did not raise objection at the first instance and/or at the earlier point of time, which is evident from the record. Beyond that, the records do not disclose any other procedural lapse, as argued, inasmuch as the petitioner admits to having overstayed the leave.

¶109

Having held so, this court cannot remain unmindful of the settled proposition of law that when a court concludes that the punishment imposed by the disciplinary authority is disproportionate to the gravity of misconduct, it does not generally substitute its own assessment of the appropriate penalty; instead, the established judicial approach is to remit the matter to the disciplinary authority for reconsideration. This principle

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stems from the recognition that the authority imposing the punishment is in the best position to evaluate the nature of misconduct and determine an appropriate action within the framework of the service rule and regulation. The judicial restraint in such matters ensures that courts do not usurp the role of administrative authorities by engaging in executive decision-making. ( Ref: 2025 SCC Online SC 439 ).

¶112

Therefore, for the reason recorded hereinabove, without disturbing the finding of the enquiry officer, the impugned penalty is quashed as disproportionate and not being attracted in the given facts of the present case. Accordingly, the disciplinary authority is directed to reinstate the petitioner to service, with the liberty to impose a penalty commensurate with Section 10(m).

¶113

While considering the back wages, this court has given its consideration to the determination made in the earlier writ petition (WP(C) 3511/1999) that such back wages was not given at that stage, however, taking note of the fact that penalty is held to be disproportionate and not being attracted in the given facts and the petitioner is ordered to be reinstated, it is directed that the petitioner shall be paid 10% of back wages with effect from his reinstatement on 01.03.2004 pursuant to this court’s earlier order dated 13.11.2003 passed in WP(C) 3511/1999.

¶114

While parting with the record, it is made clear that the employer shall be at liberty to have due assessment of the fitness of the petitioner to continue him as a member of the force and also shall be at liberty to take decision(s) in this regard, but strictly in accordance with law.

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The File No. 05 (D.E. Correspondence File No. 9087100 ct (Dur) RC

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Bhuyan be sent back to Ms. Sarma.

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JUDGE

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Comparing Assistant

Constable No. 9087100 Robin Chandra Bhuyan v. the Union of India and Ors.

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Constable No. 9087100 Robin Chandra Bhuyan v. the Union of India and Ors.

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