UNION OF INDIA & ORS. Vs. DILER SINGH
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1133 of 2016, Judgment Date: Jun 30, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1133 OF 2016
(Arising out of S.L.P.(C) 21027 OF 2013)
Union of India & Ors. ... Appellants
Versus
Diler Singh ... Respondent
J U D G M E N T
Dipak Misra, J.
The respondent, a constable in Central Reserve Police Force (CRPF),
was enrolled as such on 1.4.1990. He was posted in the 23 Battalion where
he served continuously approximately for fourteen years. Subsequently, he
was transferred to 61 Battalion where he served for two years. During the
second posting a charge-sheet was served on him alleging that on 22.06.2001
about 11.30 hrs. he left the campus without permission of the competent
authority and went to the bazaar and consumed liquor and quarrelled with
some civilians. On being informed, S.I. Sheoji Ram, HC Mahabir Singh and
Captain Fiyaz Ahmed brought him from bazaar to the campus. On the advice
of the competent authority, a medical examination was conducted on the
respondent and as per the medical report given by the assistant surgeon,
District Hospital, Medak at Sangareddy, it was found that the respondent
had consumed liquor.
2. On the basis of the aforesaid report, a departmental enquiry was
ordered by Commandant 61-Bn. vide Memo No. P-VIII-8/01-61-EC-II dated
6.7.2001 and the respondent was also placed under suspension with effect
from 6.7.2001. The enquiry officer conducted an enquiry and on the base of
the material and testimony of the witnesses came to hold that the charges
had been proved.
3. The disciplinary authority concurred with the findings recorded by
the enquiry officer and came to hold that the charges levelled against the
respondent had been proved beyond doubt. Recording concurrence with the
findings returned by the enquiry officer, the disciplinary authority opined
that the respondent was not fit to continue any more in the Force and
accordingly in exercise of power conferred under Section 11(1) of the
Central Reserve Police Force Act, 1949 (for brevity, ‘the Act’) read with
Rule 27-A(1) of the Central Reserve Police Force Rules, 1955 (in short ‘the
Rules’) ordered the respondent to be removed from the service. It was
further stipulated in the order that except the pay and allowances given to
the respondent during suspension period from 7.7.2001 to 12.9.2001, he
would not be entitled to any pay or allowances and the period of suspension
shall be treated as such. That apart, it was directed that medals and
awards, if any, that had been received by the delinquent employee during
service period shall be forfeited under the provision of Section 12(1) of
the Act.
4. The respondent initiated a civil action by filing Civil Suit
No.253/2002/05 in the Court of Civil Judge (Senior Division), Narnaul
seeking a declaration that the orders passed against him by the authorities
were illegal. The appellants contested the suit by putting forth a stand
that due enquiry was held by the authorities and the charges levelled
against the respondent were duly proved and there was no procedural error
in the enquiry.
5. Learned Civil Judge framed the following issues:
“1. Whether the impugned order No. P-III-8/2001-61 Stha II dated 12
September, 2001 are wrong, illegal, against facts, arbitrary malafide,
against principles of natural justice, null and void and ineffective
against the rights of plaintiff?
2. Whether the plaintiff has no cause of action to file the suit?
3. Whether the civil Court has no jurisdiction to try and entertain the
present suit?
4. Whether the suit is not maintainable in the present form?”
6. While dealing with the issue number 1, the trial Court took note of
the fact that the charges were issued against the delinquent officer under
Section 11(1) of the Act, relied on the decision rendered in Ram Singh Rai
v. Union of India[1] and Rattan Singh v. Union of India & Others[2] and
came to hold that the disciplinary authority was not entitled in law to
convert the charge under Section 11(1), a minor penalty to a major penalty
and accordingly opined that the impugned order of dismissal was illegal,
null and void. The trial Court further held that it had jurisdiction to
try the suit and eventually decreed the suit with costs. It directed for
reinstatement of the respondent plaintiff in service with effect from
12.09.2001 along with arrears of pay and allowances and other consequential
benefits.
7. Being aggrieved, the aforesaid judgment and decree was called in
question by the department in Civil Appeal No.11 of 2009 before the
Additional District Judge, Narnaul who by judgment dated 27.03.2010
reversed the judgment of the trial Court and held that the trial Court had
no jurisdiction to try the suit, and further the judgment and decree passed
by it were not sustainable in view of the decision in Union of India &
others v. Ghulam Mohd. Bhat[3].
8. The respondent assailed the defensibility of the judgment of the
first appellate Court in Regular Second Appeal No.4578/2010. Learned
single Judge noted the grounds of challenge, referred to the decision in
Ram Singh Rai (supra) and reproduced a passage from the decision in Deputy
Inspector General of Police, CRPF and another v. Akhilesh Kumar[4] and came
to hold that the controversy is covered by the judgment of the Calcutta
High Court rendered in Akhilesh Kumar (supra) and accordingly opined that
the allegations levelled against the respondent plaintiff were not of
serious nature which would have attracted penalty of dismissal from the
services. The aforesaid perception led to acceptance of the appeal and
dislodgment of the judgment and decree of the first appellate Court and
restoration that of the trial Court.
9. We have heard Mr. Maninder Singh, learned Additional Solicitor
General for Union of India and Mr. J.S. Naik, learned counsel for the
respondent.
10. To appreciate the controversy, it is relevant to refer to the
relevant provisions of the Act. Section 2(c) defines “the Force” to mean
the Central Reserve Police Force. Section 2(d) defines “member of the
Force” to mean a person who has been appointed to Force by the Commandant,
whether before or after the commencement of the Act and in Section
1,3,6,7,16,17,18 and 19, includes also a person appointed to the Force by
the Central Government, whether before or after such commencement. Section
7 specifies in general duties of members of the Force. Section 8 provides
for superintendence, control and administration of the Force. Section 9
stipulates about more heinous offences. It provides that a member who
commits heinous offences shall be punishable with transportation for life
for a term of not less than seven years or with imprisonment for a term
which may extend to fourteen years or with fine which may be extended to
three months’ pay or with fine to that extent in addition to such sentence
of transportation or imprisonment. Section 10 provides for less heinous
offences. It states that a member of the Force who commits such offence
shall be punishable within imprisonment for a term which may extend to one
year, or with fine which may extend to three months’ pay, or with both.
Thus, the aforesaid provision defines the offences and provides punishment
for the same.
11. In the case at hand, we are concerned with the concept of minor
punishments as postulated under Section 11 of the Act. Section 11 of the
Act reads as follows:-
“11. Minor punishments. – (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, or remissness in
the discharge of any duty or of other misconduct in his capacity as a
member of the Force, that is to say, -
reduction in rank;
fine of any amount not exceeding one month’s pay and allowances;
(c) confinement to quarters, 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, fatigue or other duty, and
(e) removal from any office of distinction or special emolument in the
Force.
(2) Any punishment specified in clause (c) or clause (d) of sub-section (1)
may be awarded by any gazetted officer when in command of any detachment of
the Force away from headquarters, provided he is specially authorised in
this behalf by the Commandant.
(3) The assistant commandant, a company officer or a subordinate officer,
not being below the rank of subedar or inspector, commanding a separate
detachment or an output or in temporary command at the headquarters of the
Force, may, without, a moral trial, award to any member of the Force who is
for the time being subject to his authority any one or more of the
following punishments for the commission of any petty offence against
discipline which is not otherwise provided for in this Act, or which is not
a sufficiently serious nature to require prosecution before a Criminal
Court, that is to say, -
(a) confinement for not more than seven days in the quarter-guard or such
other place as may be considered suitable, with forfeiture of all pay and
allowances during its continuance;
(b) punishment drill, or extra-guard, fatigue or other duty, for not more
than thirty days, with or without confinement to quarters, lines or camp;
(c) censure or severe censure: provided that this punishment may be awarded
to a subordinate officer only by the Commandant.
(4) A jamadar or sub-inspector who is temporarily in command of a
detachment or an outpost may, in like manner and for the commission of any
like offence, award to any member of the Force for the time being subject
to his authority any of the punishments specified in clause (b) or sub-
section (3) for not more than fifteen days.”
12. At a subsequent stage, we shall advert to the interpretation placed
by this Court on the aforementioned provision. Prior to that, it is
necessary to state in detail the misconduct or misbehaviour in support of
charges framed against the respondent. The same is as under:
“Article – 1
That, on transfer of Force No.901342841 Constable Diler Singh, from 23
Battalion C.R.P.F. to 61 Battalion C.R.P.F., he reported on 28.09.2000 and
was posted in C/61. Presently, Force No. 901342841 Constable Diler Singh
is posted at Platoon No.7, Police Station Jinnaram, C.R.P.F. Narsapur,
Medhak, Andhra Pradesh, which is a Naxalwadi Area. Therefore, keeping in
view the sensitivity of the area, it was necessary for each personnel to
take permission for leaving the camp. Despite applicability
(implementation) of these orders, Force No.901342841 Constable Diler Singh,
on 22.06.2001 at about 1330 hours, went outside the Camp without permission
of any competent officer, which is against the discipline of force and good
orders.
Article – 2
That, Force No. 901342841 Constable Diler Singh, on 22.06.2001 at about
1330 hours left out from platoon No.7, Police Station Jinna Ram, C/61,
C.R.P.F. Narsapur, Medhak, Andhra Pradesh, which is Naxalwadi Area, without
permission of any competent officer and after going to the market, he
consumed very much liquor (wine) and quarrelled there with many civilians.
On receiving information about this at Platoon, witness No.2,5 and
Constable Nawaj Ahmad brought him from the market under influence of liquor
at about 1500 hours. At about 1800 hours, witness No.4 with one Section
handed over it to C.H.M. in Company Headquarters. Thereafter at about 2030
hours, he was taken to .... Singa Reddy’s Civil Hospital, where his medical
examination was got conducted. According to the medical certificate, he
had consumed liquor(wine). Therefore, the act on his part is against the
worthy orders and discipline of the Force.”
13. The enquiry officer, as is vivid from the enquiry report, found that
all the witnesses had supported the fact that on 22.06.2001 the respondent
had gone out of the camp and in the market he had consumed liquor and
quarrelled with the local persons, and accordingly has proceeded to hold as
under:-
“Thus, it is also proved that on 22.06.2001, constable Diler Singh came out
of his platoon post without obtaining permission from any one and consumed
liquor, thereafter, he quarrelled with the local persons in the market and
besides above, he by using indecent language hurled abuses to the personnel
present in the camp and on reaching at company headquarters Narsapur
against CRPF personnel and officers, which is totally against the conduct
and behaviour of a civilized and good constable.”
14. In this backdrop, the judgments of the Courts below and that of the
High Court are to be scrutinised. The trial Court by placing reliance on
the decisions in Ram Singh Rai (supra) and Rattan Singh (supra) has opined
that the punishment of dismissal could not have been imposed on the
delinquent employee under Section 11(1) of the Act. The first appellate
Court while holding that the trial Court has no territorial jurisdiction
also reversed the finding which was rendered in the context of Section
11(1) of the Act. In this context, learned appellate Judge relied on the
decision in Ghulam Mohd. Bhat (supra). The High Court, as is evident, has
not referred to the decision in Ghulam Mohd. Bhat (supra) but has adverted
to a different aspect which is in the relam of proportionality.
15. It is submitted by Mr. Maninder Singh, learned Additional Solicitor
General for the appellants that the High Court has not framed any
substantial question of law under Section 100 of the Code of Civil
Procedure which is absolutely mandatory. It has further been submitted
that the High Court should have applied the ratio laid down by this Court
in Ghulam Mohd. Bhat (supra) which defines the operational spectrum of
Section 11(1) of the Act and also not followed the decision in Akhilesh
Kumar (supra) to dislodge the judgment of the appellate Court.
16. Learned counsel for the respondent, per contra, would support the
judgment passed by the High Court on the foundation that this High Court
has ascribed adequate reasons to come to the conclusion and, in any case,
the punishment of dismissal in the facts and circumstances is too harsh and
shocks the conscience.
17. First, we shall deal with the submission with regard to framing of
substantial question(s) of law. On a perusal of the judgment of the High
Court, it is evident that it has not framed any substantial question of
law. The Court in Santosh Hazari v. Purushottam Tiwari[5], has held that
the High Court cannot proceed to hear a second appeal without formulating
the substantial question of law involved in the appeal and if it does so it
acts illegally and in abnegation or abdication of the duty cast on Court.
The existence of substantial question of law is the sine qua non for the
exercise of the jurisdiction under the amended Section 100 of the Code.
The said principle has been reiterated in many a decision including the one
in the Govindaraju v. Mariamman[6] which has been placed reliance upon by
Mr. Maninder Singh. In the said case it has been laid down, the
substantial question of law has to be framed for such a formulation is the
sine qua non for exercise of power under Section 100 of the Code of Civil
Procedure
18. It is necessary to state here that the High Court while admitting the
second appeal should have framed the substantial question(s) of law which
would have been adverted to at the time of final hearing. That is the
command of the provision and has been clearly stated by this Court in
number of occasions. We may unhesitatingly state that we do not remotely
get a sprinkle of bliss by ingeminating or repeating the same. It has been
done following the rigoristic concept of ‘duty for duty sake’ with the
great expectation that this would be the last one.
19. The core issue that emerges for consideration is whether under
Section 11(1) of the Act, punishment of dismissal can be imposed. The
controversy is no more res integra. In Ghulam Mohd. Bhat (supra) while
interpreting Section 11 of the Act, it has been held thus:-
“5. 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 Fore 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.
6. The use of the 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 the Force who is
found guilty and in addition to, or in lieu thereof, the punishment
mentioned in clauses (a) to (e) may also be awarded.”
And again:-
“7. … 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.”
20. We respectfully agree with the said view and opine that under the
scheme of the Act, in exercise of power under Section 11(1) of the Act
punishment of dismissal can be imposed. As is seen from the impugned
order, the High Court, to reverse the conclusion of the first appellate
Court, has extensively quoted from the decision of the Calcutta High Court
rendered in Akhilesh Kumar (supra). Be it stated that the charges levelled
against the delinquent officer therein was the same. The Division Bench of
the Calcutta High Court, analysing the Act, especially Section 10(m) and
various clauses of the CRPF Manual, came to hold thus:-
“It is an admitted position from the factual matrix of the departmental
proceedings that the writ petitioner/delinquent was posted in a camp. As
per rule of such positing in a camp/lines the concerned personnel is not
free to move as per his choice even during the period when he is not on
actual duty. The discipline of a camp is completely different in
comparison with the posting of an individual in an office and or in other
places outside of the camp. It is true, by rotation of 8 hours duty is
allotted to the respective personnel who are attached to the camp and
staying in the camp but that does not mean that when he will not be in
active duty, he would be allowed to go outside of the camp without prior
permission. From the relevant provision of Clauses 7.2 and 6.23 as already
quoted it appears that absence without leave or permission from the camp
would invite initiation of judicial trial of the delinquent if there is a
serious and grave situation or otherwise a departmental enquiry. Hence,
finding of the learned trial judge that as the delinquent/writ petitioner
was not on active duty, the aforesaid clauses got no effect, is not
appealing us for its applicability to quash the order of dismissal.
However, from the aforesaid provision of maintaining discipline while a
personnel is posted in a camp which requires a prior permission to leave
the camp even for a short period from the Company Commander, we are of the
view that the charge under Article no.1 was proved. Now, on the question
of quantum of punishment, namely, dismissal from service as imposed on such
charge, we are of the view that as under clause 6.23 there is a provision
for initiation of the departmental enquiry and as per decision only a minor
punishment could be imposed and as Section 10(m) of CRPF Act provides the
minor punishment issue in that field, we are of the view that dismissal
being a major punishment should not have been passed by the Disciplinary
Authority.
8. Considering all the issues, we are quashing the order of dismissal as
well as the order of confirmation of such by the Appellate Authority and
remanding the matter back to the Disciplinary Authority under the service
regulation of the delinquent to decide the quantum of punishment as would
be commensurating with the charge of misconduct as admitted, which invites
only minor punishment.”
21. The aforesaid analysis reveals that the Division Bench has clearly
held that the delinquent employee, being a member of the Force, could not
have left the camp without prior permission. It has also opined when a
personnel is posted in a camp, he is not free to move as per his choice
even during the period when he is not on duty. However, as is manifest,
the Division Bench has opined that the imposition of dismissal as a
punishment, which is a major one, could not have been imposed by the
disciplinary authority. The said opinion has been expressed without
referring to the position of law that has been clearly laid down in the
case of Ghulam Mohd. Bhat (supra). Thus, the basic premise is erroneous.
In the impugned order, the writ court has, after reproducing the passage
from Akhilesh Kumar (supra), opined that the controversy is covered by the
judgment rendered by the High Court of Calcutta. It is extremely
significant to note that the learned Single Judge has not even made an
effort to appreciate the decision in Ghulam Mohd. Bhat (supra) though the
same was relied upon by the learned first appellate Judge. Thrust of
reasoning of the first appellate court was that a major punishment of
dismissal could be imposed in law. It is quite unfortunate that the High
Court has dislodged the finding without any analysis but reproducing a
passage from the Calcutta High Court which had not referred to the ratio
laid down by a two-Judge Bench of this Court in Ghulam Mohd. Bhat’s case.
Thus, the conclusion arrived at by the High Court is wholly unsustainable.
22. The learned counsel for the respondent has submitted that even if the
charges have been proven, the punishment of dismissal in the obtaining
factual matrix is absolutely harsh and shocking to the conscience. It is
his submission that the punishment is disproportionate. The respondent
was a part of the disciplined force. He has left the campus without prior
permission, proceeded to the market, consumed liquor and quarrelled with
the civilians. It has been established that he had consumed liquor at the
market place, and it has been also proven that he has picked up quarrel
with the civilians. It is not expected of a member of the disciplined
force to behave in this manner. The submission, as has been noted earlier,
is that the punishment is absolutely disproportionate. The test of
proportionality has been explained by this Court in Om Kumar and others v.
Union of India[7], Union of India and another v. G. Ganayutham[8] and
Union of India v. Dwarka Prasad Tiwari[9]. In Dwarka Prasad Tiwari
(supra), it has been held that unless the punishment imposed by the
disciplinary authority or the appellate authority shocks the conscience of
the court/tribunal, there is no scope for interference. When a member of
the disciplined force deviates to such an extent from the discipline and
behaves in an untoward manner which is not conceived of, it is difficult to
hold that the punishment of dismissal as has been imposed is
disproportionate and shocking to the judicial conscience.
23. We are inclined to think so as a member of the disciplined force, the
respondent was expected to follow the rules, have control over his mind and
passion, guard his instincts and feelings and not allow his feelings to fly
in fancy. It is not a mild deviation which human nature would grant some
kind of lenience. It is a conduct in public which has compelled the
authority to think and, rightly so, that the behaviour is totally
indisciplined. The respondent, if we allow ourselves to say so, has given
indecent burial to self-control, diligence and strength of will-power. A
disciplined man is expected, to quote a few lines from Mathew Arnold:-
“We cannot kindle when we will
The fire which in the heart resides,
The spirit bloweth and is still,
In mystery our soul abides:
But tasks in hours of insight will’d
Can be through hours of gloom fulfill’d.
Though the context is slightly different, yet we have felt, it is worth
reproducing.
24. Consequently, the appeal is allowed, the judgment and decree passed
by the High Court is set aside and that of the first appellate court is
restored and the suit instituted by the respondent/plaintiff stands
dismissed. In the facts and circumstances of the case, there shall be no
order as to costs.
.............................J.
[Dipak Misra]
..........................., J.
[N.V. Ramana]
New Delhi;
June 30, 2016
-----------------------
[1] 2003 (1) SCT 523
[2] 2003 (1) SCT 59
[3] (2005) 13 SCC 228
[4] 2007 (6) SLR 438
[5] (2001) 3 SCC 179
[6] (2005) 2 SCC 500
[7] (2001) 2 SCC 386
[8] (1997) 7 SCC 463
[9] (2006) 10 SCC 388
-----------------------
20
For the Latest Updates
Join Now