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Whether a Member of Force Committing a Heinous Offence be given the Penalty of Dismissal?

Union of India and Ors. v. Const Sunil Kumar, 19th January 2023

This appeal arises due to dissatisfaction with the impugned judgment dated 01.09.2017 passed by the High Court of Judicature for Rajasthan Bench at Jaipur. The authority has directed the appellant to reinstate him in service with national benefits without any back wages. The Union of India has preferred the present appeal.

 

Facts:

The respondent was serving in Central Reserve Police Force. A departmental enquiry was initiated against him and was served with a chargesheet alleging the charges for gross misconduct, disobedience of orders, consuming country liquor while on duty and threatening Senior officers with dire consequences and committing an act which is pre-judicial to good orders and discipline of the force. In exercise of power, the disciplinary authority passed an order dismissing the respondent from service and it was confirmed by the Appellate Authority. The writ petition filed before the High Court challenging the dismissal was dismissed by the Single Judge on 07.01.2005. The respondent preferred a Special Appeal Writ before the Division Bench of the High Court. The impugned judgment has set aside the order of penalty of dismissal by observing that the respondent was not on active duty and the offences committed can be said to be less heinous which does not warrant the extreme penalty and the respondent was reinstated in service. The order passed is the subject matter of the present appeal.

 

Appellant’s Contention:

The learned ASG, Ms. Madhavi Diwan has submitted that in the facts of the case, the Division Bench of the High Court has committed an error in setting aside the order of penalty of dismissal and reinstating the respondent in service. It is submitted that the penalty of dismissal from service inflicted upon the respondent was after the departmental enquiry and after holding the charges and misconduct
proved against the respondent. It is contended that while under the influence of intoxication, he misbehaved with a senior, thus, committed an act of insubordination. The order of penalty of dismissal which was passed after following the due procedure as required under Rule 27 of the CRPF Rules, 1955 cannot be said to be disproportionate to the charges. The appellant relied upon the case Union of India v. Ram Kumar that consideration of heinous offence would not have any bearing on the imposition of penalty of dismissal under Section 11 after holding disciplinary proceedings. On relying upon Commandant, 22nd Battalion, CRPF v. Surinder Kumar, it is held by the court that even in a case when a CRPF personnel is awarded imprisonment under Section 10(n) for an offence which though less
heinous he can be dismissed from service after holding enquiry if his conduct is prejudicial to good order. It is submitted that punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution of India. The appellant has prayed to allow the present appeal.

Respondent’s Contention:

The present appeal is opposed by Shri Abhishek Gupta, learned counsel appearing on behalf of the respondent. It is submitted that the misconduct was committed by the respondent while he was not on active duty. So, as per Section 10 of the CRPF Act, 1949, a member of the force who is in a state of intoxication when not on duty is deemed to have committed a less heinous offence. It is submitted that
the Division Bench of the High Court is absolutely justified in interfering with the order of penalty imposed by the authority. It is further submitted that the respondent had worked for 11 years. Therefore, it is prayed to take a lenient view looking to his past 11 years of service.

 

Observation:

After hearing the counsel on the behalf of the parties, it is noted that the disciplinary authority imposed the penalty of dismissal after holding the departmental enquiry and after following the due procedure as required under Rule 27 of the CRPF rules, 1955 and after having held the charges and misconduct proved. The respondent has misbehaved with superior and gave threats to colleagues. Misbehaving and insubordination can be said to be very serious and cannot be tolerated in a disciplined force. The Division Bench of the High Court is not justified in observing penalty of dismissal can be said to be disproportionate. In Union of India v. R.K. Sharma, it was held that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate.

 

Judgment:

As the order of penalty cannot be said to be disproportionate, there is no question of remanding the matter back to the disciplinary authority. The present appeal is allowed, setting aside the judgment of the Division Bench and quashing the order to reinstate the respondent.

Writer’s Name: Harishri S
Year: II
Course: BBA, LL.B (Hons.)
College: SASTRA Deemed-to-be University

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