The Commandant, 22
Battalion, CRPF Srinagar, C/o 56/APO & Ors. Vs. Surinder Kumar
J U D G M E N T
A. K. PATNAIK, J.
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
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 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.
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 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.
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
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 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.
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 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
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:
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 6 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 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.
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 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.
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 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.
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 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.
accordingly, allow this appeal and set aside the impugned order of the Division
Bench of the High Court. No costs.
(A. K. Patnaik)