As per case facts, the Petitioner, a CRPF Constable, on paternity leave, fell from a tree sustaining spinal and head injuries, leading to overstaying his leave. His dismissal from service ...
CWP-24001-2014(O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
201 CWP-24001-2014(O&M)
Date of Decision: 07.08.2025
Vinod Kumar
... Petitioner
VERSUS
Union of India & ors.
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
****
Present: Mr. R.S. Panghal, Advocate for the petitioner.
Ms. Anita Balyan, Sr. Panel Counsel for the respondents.
****
VINOD S. BHARDWAJ, J. (ORAL)
1. Challenging the order dated 31.08.2012 and the subsequent
dismissal of the appeal as well as the revision vide orders dated 14.12.2012 and
06.06.2013 respectively along with response dated 10.06.2014 to the legal
notice sent by the petitioner, the instant writ petition has been filed.
2. The undisputed facts that emerge from the perusal of the writ
petition are that the petitioner was enrolled as a Constable in the Central
Reserve Police Force (hereinafter referred to as ‘CRPF’) on 24.11.2003. The
petitioner proceeded on paternity leave for a period of 15 days from 17.11.2011
to 01.12.2011. Unfortunately, on the fateful day, i.e. 01.12.2011, he fell from a
tree and received spinal as well as head injuries, for which he also underwent
treatment in the Neuro Department of the PGIMS Rohtak but despite the
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factum of the petitioner not being well and being under treatment having been
brought to the notice of the respondent-authorities by the brother of the
petitioner, the respondents inflicted the punishment of dismissal from service
and the subsequent appeal as well as revision against the same were also
dismissed.
3. Learned Counsel for the petitioner contends that the disciplinary
authority had imposed the punishment of dismissal invoking Section 11(1) of
the CRPF Act, 1949 (for short the ‘1949 Act’) read with Rule 29 of the CRPF
Rules, 1955 (for short the ‘1955 Rules’) on the ground of proven charge of
unauthorized absence under Section 10(m) of the Act, 1949. He submits that
the said order of dismissal of the petitioner and the subsequent dismissal of the
appeal and revision are bad, illegal and liable to be set aside.
4. The first and foremost argument advanced is that Section 10 of the
1949 Act deals with less heinous offences. The punishment for the said
offences is prescribed under Section 11 and the punishment of removal from
service/dismissal cannot be imposed for a less heinous offence. He places
reliance on the judgment of this Court passed in Ram Singh Rai Vs. Union of
India, 2003(1) SCT 523 , (CWP No.6845 of 1993, decided on 13.09.2002) . The
relevant extract thereof is as under:-
“(12) Rule 27 of the C.R.P.F. Rule 1955 provides the procedure
for awarding of punishment.
Rule 27 of the C.R.P.F. Rules, 1955, reads as under :—
CHAPTER VI
Discipline
27. Procedure for the Award of Punishment.— (a) The
punishments shown as items 1 to 11 in column 2 of the table below
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may be inflicted on non-gazetted officers and men of the various
ranks shown in each of the headings of columns 3 to 6, by the
authorities named below such heading under the conditions
mentioned in column 7 :-
XX XX XX XX XX
XX XX XX XX XX
(b) When non-Gazetted officers or men of the various ranks
are to be punished for any offence, a departmental enquiry,
if necessary under clause (a), shall be held by the
Commandant or other superior officer under the orders of
the Commandant, provided that when the charge is against
an officer of the rank of Subedar (Inspector) or Sub-
Inspector the enquiry shall be held by an authority to be
designated for the purpose by the Deputy Inspector General.
Where the officer conducting the enquiry in the case of a
Subedar (Inspector) or a Sub-Inspector considers that a
punishment [under items (1) to (5) and (7)] of the Table is
called for, he shall complete the departmental proceedings
and forward the departmental proceedings and forward the
same to the Deputy Inspector General for orders.
(c) The procedure for conducting a departmental enquiry
shall be as follows :
(1) The substance of the accusation shall be reduced to the
form of a written charge, which should be as precise as
possible. The charge shall be read out to the accused and a
copy of it given to him at least 48 hrs. before the
commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be
asked to enter a plea of “Guilty” or “Not Guilty” after
which evidence necessary to establish the charge shall be let
in. The evidence shall be material to the charge and may
either be oral or documentary, if oral;
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(i) it shall be direct;
(ii) it shall be recorded by the Officer conducting the
enquiry himself in the presence of the accused ;
(iii) the accused shall be allowed to cross examine the
witnesses.
(3) When documents are relied upon in support of the
charge, they shall be put in evidence as exhibits and the
accused shall, before he is called upon to make his defence,
be allowed to inspect such exhibits.
(4) The accused shall then be examined and his statement
recorded by the officer conducting the enquiry. If the
accused has pleaded guilty and does not challenge the
evidence on record, the proceedings shall be closed for
orders. If he pleads “Not guilty”, he shall be required to file
a written statement, and a list of such witnesses as he may
wish to cite in his defence within such period, which shall in
any case be not less than a fortnight, as the officer
conducting enquiry may deem reasonable in the
circumstances of the case. If he declines to file a written
statement, he shall again be examined by the officer
conducting the enquiry on the expiry of the period allowed.
(5) If the accused refuses to cite any witnesses or to produce
any evidence in his defence, the proceedings shall be closed
for orders. If he produces any evidence the officer
conducting the enquiry shall proceed to record the evidence.
If the officer conducting the enquiry considers that the
evidence of any witness or any document which the accused
wants to produce in his defence is not material to the issues
involved in the case, he may refuse to call such witness or to
allow such documents to be produced in evidence, but in all
such cases he must briefly record his reasons for
considering the evidence inadmissible. When all relevant
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evidence has been brought on record, the proceedings shall
be closed for orders.
(6) If the Commandant has himself held the enquiry, he shall
record his findings and pass orders where he has power to
do so. If the enquiry has been held by any officer other than
the Commandant, the officer conducting the enquiry shall
forward his report together with the proceedings, to the
Commandant, who shall record his findings and pass
orders, where he has power to do so.
[(7) [***]
(cc) Notwithstanding anything contained in this rule :
(i) where any penalty is imposed on a member of the Force
on the ground of conduct which has led to his conviction on
a criminal charge; or
(ii) where the authority competent to impose the penalty is
satisfied for reasons to be recorded by it in writing that it is
not reasonably practicable to hold an enquiry in the manner
provided in these rules; or
(iii) where the Director-General is satisfied that in the
interest of security of the State, it is not expedient to hold
any enquiry in the manner provided in these rules, the
authority competent to impose the penalty may consider the
circumstances of the case and make such orders thereon as
it deems fit.
(ccc) when a member of the Force has been tried and
acquitted by a Criminal Court, he shall not be punished
departmentally under this rule on the same charge or on a
similar charge upon the evidence cited in the criminal case,
whether actually led or not, except with the prior sanction of
the Inspector General.
(d) (1) Where two or more members of the Force, including
those on deputation to the Force are concerned in any case,
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the Inspector General [or any other authority competent to
impose the penalty of dismissal from service on all such
members of the Force] may make an order directing that
disciplinary action against all of them may be taken in a
common proceeding.
Note. - Where in such a proceeding, the misconduct of a
deputationist is to be dealt with, the consent of the
disciplinary authority competent to impose the penalty of
dismissal shall be obtained for the taking of such a
disciplinary action.
(2) Such order shall specify-
(i) the authority which may function as the disciplinary for
such a common proceeding;
(ii) the penalties specified in the table of sub-rule (a) above
which such disciplinary authority shall be competent to
impose;
(iii) whether such disciplinary authority shall hold the
Departmental enquiry himself or may designate any other
enquiry officer for that purpose; and
(iv) that the enquiry shall be held in accordance with the
provisions of sub-rule (a) and sub-rule (c).
The perusal of the above table in Rule 27(a) of C.R.P.F. Rules
1955, shows the various punishments which are to be inflicted after
departmental enquiry and punishments which may be inflicted
without departmental enquiry. Dismissal or removal from the force
as indicated at Serial No. 1 of the table in Rule 27(a) is to be
inflicted after formal departmental enquiry. However, the minor
punishments as indicated in the said table and mentioned in
Section 11 of the C.R.P.F. Act 1949, may be inflicted without a
formal departmental enquiry. In the case in hand, as already
noticed above, the petitioner was as per the statement of
imputations of mis-conduct in support of the articles of charge
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informed that he committed an offence of disobedience of orders,
neglect of duty and remissness under Section 11(1) of the C.R.P.F.
Act 1949. This is also the position in the impugned office order
dated 18.1.1990 (Annexure P-3). However, the petitioner has been
removed from service despite the fact that he was issued notice for
minor punishment only under Section 11(1) of the C.R.P.F. Act,
1949. The perusal of Section 11 of the C.R.P.F. Act, 1949, shows
that it deals with minor punishments as compared to the heinous
offences as provided under Sections 9 and 10 of the C.R.P.F. Act.
Section 11 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 in lieu of one or more of the 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.”
5. It is submitted by the Learned Counsel that for imposing a major
punishment, the respondents are required to conduct a departmental inquiry as
stipulated under Rule 27 of the 1955 Rules. It is submitted that in the table
appended to Rule 27, it is specifically mentioned that so far as the punishment
of dismissal or removal from the Force is concerned, the same can be inflicted
only after a formal inquiry has been conducted. It is vehemently argued that an
ex parte departmental inquiry was conducted by the respondents, whereas the
CRPF Rules do not empower the departmental inquiry to proceed ex parte.
6. It is also argued that as per Section 9, which deals with heinous
offences, a punishment for dismissal can only be imposed in the eventuality of
desertion once such an act is done by an employee while on active duty as
defined under Section 2(a) of the CRPF Act, 1949. He submits that since the
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petitioner was on leave on 01.12.2011 and he was not on active duty, as
defined, hence, the act of desertion of the petitioner would only be a minor
offence, for which minor punishment can be imposed.
7. He further contends that Section 10(m) states that the absence would be an
offence only when a member of the Force absents himself without leave, or
without sufficient cause, overstays the leave granted to him. It is contended that
the respondents have not objectively considered the reasons cited by the
petitioner for his overstay. It is submitted that the entire defence has been dealt
with and impeached of its credibility by the respondents by simply doubting the
entire documentary evidence and record on the premise that a member of the
Force was unlikely to climb a tree on the day when he was to return. Reference
and attention in support of the above argument is drawn to sub para 2 of para 3
under Charge-II in the order passed by the Appellate authority, which reads
thus:-
“2) The plea of the appellant that he had fallen from the tree
and his health deteriorated for which no medicine effected
him and so he could not become present from duty, in that
regard the appellant has produced the medical documents
issued by Kumar Multiplicity Special Hospital, Rohtak,
dated 1.12.2011. Although it is evident from the above said
certificate that he had fallen from the tree and he has
suffered the injuries but it may be pertinent to note that the
appellant was on leave from 17.11.11 to 01.12.11 so he was
to report at TC Jammu on the date the medical certificate is
given, but he was present at his of that day. at present
Therefore, it is clear that he had made up his mind to
become absent from leave because he fee was to start for
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duty in time then he would have not been at his home.
Therefore, there is no reliability in this fact.”
(emphasis applied)
8. Referring to the above, it is submitted that the reasoning given
does not reflect an objective and independent assessment and rather reflects a
premeditated interpretation. It is stated that the factum of the petitioner having
produced the medical record, including the treatment chart from the Kumar
Multiplicity Special Hospital, Rohtak, of the same day is not disputed, yet, the
said record has been disbelieved in a pedantic manner and without any reason.
The presumption has been drawn against the petitioner even before an
independent and objective assessment of the record. The conclusion, thus,
arrived at is tainted and invalid in law.
9. Responding to the above, learned counsel for the respondents
submits that the petitioner committed the offence of absenting without leave or
with no sufficient cause, for which a Court of inquiry was held in terms of Rule
31 of the 1955 Rules. It is submitted that in terms of the CRPF Rules, if a
person does not return of his own free will or is not apprehended within 60 days
of the commencement of the desertion, absence or overstayal of leave, the
Commandant is mandated to assemble a Court of Inquiry. She submits that
once a person is declared as a deserter under Rule 31, thereafter, the
departmental inquiry is undertaken since desertion is a heinous offence under
Section 9(f). She submits that the Commandant has independent powers to
impose a punishment under Section 11(1) read with Rule 27 of the CRPF Rules,
and that in exercise of the said powers, the impugned order has been passed.
The same being not only as per the procedure prescribed but also in exercise of
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lawful powers, is valid and is not to be interfered with. She contends that for
conducting departmental inquiries, the powers are drawn from CCS Inquiry
Rules, which are adopted and are applicable to the departmental inquiry
proceedings even in the CRPF. Hence, an ex parte inquiry can be conducted.
She further relies upon the judgment of the Hon’ble Supreme Court in Union of
India & ors. Vs. Ghulam Mohd. Bhat, 2006(3) SCT 178, to argue that the
punishment which can be awarded under Section 11 is not limited only to
reduction in rank, fine, confinement to quarters, etc. She further contends that
Section 11(1) empowers the Commanding officers/officials to alter the
punishment already awarded in lieu of what has already been imposed. By
referring to the aforesaid, it is contended that the Commanding Officer can
impose a major penalty of suspension/dismissal from service as well. Paras 5 to
7 thereof read 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 force 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
CWP-24001-2014(O&M) -11-
that these punishments may be awarded in lieu of, or in
addition to, suspension or dismissal.
6. The use of 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
force who is found guilty and in addition to, or in lieu
thereof, the punishment mentioned in clause (a) to (e) may
also be awarded.
7. It may be noted that Section 9 of the Act mentions
serious or heinous offences and also prescribes penalty
which may be awarded for them. Section 10 deals with less
heinous offences and clause (m) thereof shows that absence
of a member of the force without leave or without sufficient
cause or overstay without sufficient cause, is also mentioned
as less heinous offence and for that also a sentence of
imprisonment is provided. 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.”
10. I have heard learned counsel for the parties and have gone through
the documents appended along with the present petition.
11. Before proceeding further into the matter, it would be necessary to
advert to the statutory provisions that are under consideration of this Court in
the present case. The same are extracted as under: -
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“2. Definitions : In this Act, unless there is anything
repugnant in the subject or context-
(a) “active duty” means the duty to restore and preserve
order in any local area in the event of any disturbance
therein;
“9. More heinous offences.- Every member of the Force
who-
XX XX XX XX XX
XX XX XX XX XX
XX XX XX XX XX
(d) directly or indirectly holds correspondence with, or
assists or relieves any person in arms against the State or
omits to discover immediately to his superior officer any
such correspondence coming to his knowledge; or who,
while on active duty-
(e) disobeys the lawful command of his superior officer; or
(f) deserts the Force; or”
XX XX XX XX XX
XX XX XX XX XX
XX XX XX XX XX
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
extend to three months’ pay or with fine to that extent in
addition to such sentence of transportation or
imprisonment.”
10. Less heinous offences.- Every member of the force
who-
XX XX XX XX XX
XX XX XX XX XX
XX XX XX XX XX
XX XX XX XX XX
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(m) absents himself without leave, or without sufficient
cause over-stays leave granted to him; or
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 :-
(a) reduction in rank;
(b) 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.”
27. Procedure for the award of punishments .—(a) [The
punishments shown as items 1 to 11 in column 2 of the
table] below may be inflicted or non-Gazetted Officers and
men of the various ranks shown in each of the headings of
columns 3 to 6, by the authorities named below such
headings under the conditions mentioned in column 7.
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SI.
No.
Punishment Subedar
(Inspector)
Sub-
Inspector
Others
except
Const. &
enrolled
followers
Consts. &
enrolled
followers
Remarks
1 2 3 4 5 6 7
1.Dismissal or
removal from
the Force
DIGP DIGP Comdt. Comdt. To be
inflicted after
formal
departmental
enquiry
2. Reduction to a
lower time-scale
of pay grade, post
or service
DIGP DIGP Comdt. Comdt.
To be
inflicted after
formal
departmental
enquiry
3.
Reduction to a
lower stage in the
time scale of pay
for a specified
period
DIGP DIGP Comdt. Comdt.
4.Compulsory
retirement
DIGP DIGP Comdt. Comdt.
5.Fine of any
amount not
exceeding one
month’s pay and
allowances
DIGP DIGP Comdt. Comdt.
6.Confinement in
the Quarter Guard
exceeding seven
days but not more
than twenty-eight
days with or
without
punishment drill
or extra guard
fatigue or other
duty
-- -- -- Comdt.
7.Stoppage of
increment
DIGP DIGP Comdt. Comdt.
8.Removal from
any office of
distinction or
DIGP DIGP Comdt. Comdt. May be
inflicted
without a
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special
emolument in the
Force
formal
departmental
enquiry
9.
Censure Comdt. Comdt. A.
Comdt.
Or Coy
Comdr.
A.Comdt.
Or Coy
Comdr.
10.
Confinement to
Quarter Guard for
not more than
seven days with
or without
punishment or
extra-guard
fatigue or other
duty
- - - Comdt.
11.Confinement to
quarters lines,
camp,
punishment drill,
fatigue duties,
etc., for a term
not exceeding one
month.
- - - Comdt.
XX XX XXXXXXXXX
c) The procedure for conducting a departmental enquiry
shall be as follows:—
(1) The substance of the accusation shall be reduced to the
form of a written charge, which should be as precise as
possible. The charge shall be read out to the accused and a
copy of it given to him at least 48 hrs. before the
commencement of the enquiry.”
“31. Desertion and absence without leave .—(a) If a
member of the force who becomes liable for trial under
clause (f) of section 9, or clause (m) of section 10 or for
deserting the Force while not on active duty under clause
(p) of section 10 read with clause (f) of section 9, does not
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return of his own free will or is not apprehended within sixty
days of the commencement of the desertion, absence or
overstayal of leave, then the Commandant shall assemble a
Court of Inquiry consisting of atleast one Gazetted Officer
and two other members who shall be either superior or
Subordinate Officers to inquire into the desertion, absence
or overstayal of leave of the offender and such other matters
as may be brought before them.
(b) The Court of Inquiry shall record evidence and its
findings. The Court’s record shall be admissible in evidence
in any subsequent proceedings taken against the absentee.
(c) The Commandant shall then publish in the Force Order
the findings of the Court of Inquiry and the absentee shall be
declared a deserter from the Force from the date of his
illegal absence, but he shall not thereby cease to belong to
the Force. This shall, however be no bar to enlisting another
man in the place of a deserter.”
12. It is evident from the perusal of the above that for inflicting a
major punishment of dismissal or removal from service, a formal departmental
inquiry is required to be conducted. It also remains undisputed that if a person
has overstayed leave without any sufficient cause, he can be declared a deserter
in view of the report submitted by the Court of Inquiry. Rule 31(c) also
establishes that a declaration of a person as a deserter does not by itself severe
the relationship of a member of the Force from the Force. Such a member
continues to belong to the Force till such time any action is taken in law. The
specific case of the respondents is that once the Court of inquiry is accepted and
the Commandant authorizes a publication to the effect that a member is a
deserter in the Force Order, whereupon the member becomes amenable to
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infliction of a major punishment under Section 9(f), which falls within the
definition of more heinous offences.
13. The above argument however is misplaced and fails to convince
this Court. A careful reading of the provisions of Section 9, however, shows
that all the sub-clauses mentioned therein are independent, which would attract
punishment for the commission of heinous offences. While the clauses (a) to
(d) are not qualified, the offences from (e) to (l) are pre-qualified and such
clauses would fall in the ambit of a heinous offence only on the occurrence of
an eventuality, i.e. “while on active duty”. Further ‘active duty’ having been
defined as the ‘duty to restore and preserve order in any local area in the event
of any disturbance therein’, an independent act of absenteeism or overstay as
stipulated under Section 10(m) would not, in view of this Court, fall in the
definition of ‘desertion’ as stipulated under Section 9 (f) read with Section 2 (a)
of the CRPF Act, 1949.
14. With the same having been answered as above, the question which
arises for consideration of this Court is as to whether the absence of the
petitioner, who was already on paternity leave, can be said to constitute
desertion while on active duty. Invariably when the clause is to be interpreted in
accordance with the legislative intent, the exclusion having been specifically
made for any other nature of duty and the same conceded as not being an active
duty, the petitioner being on paternity leave during the period of desertion, the
offence in question cannot be treated as a more heinous offence merely on
account of a finding recorded to the effect that the petitioner was a deserter
under Section 10(m). The same, thus, remains only a less heinous offence.
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15. The issue which thus next comes for consideration of this Court is
as to whether Section 11 authorizes the Commandant to inflict the punishment
of dismissal from service or not. A careful reading of the said clause
specifically shows that the minor punishments can be awarded by the
Commandant in addition to or in lieu of suspension or dismissal. The said
provision does not take away any powers of the Commandant to inflict the
punishment of suspension or dismissal since the power contemplated under
Section 11 contemplates an addition to suspension or dismissal; hence, it is
inherent in the said clause that the Commandant would have the power to inflict
punishment of dismissal under Section 11. However, the final argument, which
comes up for consideration of this Court, is as to whether a major punishment
can be imposed for a less heinous offence or not.
16. A plain reading of Section 11 shows that it not only empowers the
Commandant to impose the punishment of suspension or dismissal but also to
alter it by way of reduction or addition of the punishments as prescribed
thereunder where he considers a member of Force to be guilty of disobedience,
neglect of duty, remissness in the discharge of the duty or of any other
misconduct in his capacity as a member of the Force. While Sections 9 and 10
define the offences and the punishment that may be imposed for the
commission of a more heinous or less heinous offence, Section 11 deals with
orders that may be passed on a civil side in relation to the nature of
employment. Sections 9 and 10 of the 1949 Act do not in any manner impact
the relationship of an employer-employee against the member of the Force and
only entail the consequence of punishment for which the punishment may be
CWP-24001-2014(O&M) -19-
imposed by taking recourse to Chapter 6-A, necessitating the trial proceedings
in exercise of powers of the Magistrate by the Commandants with the aid of
Rule 36, which deals with judicial trials. Thus, once a person is declared as
having committed either a more heinous or a less heinous offence under
Sections 9 and 10 respectively, the trials in relation to the same are required to
be conducted as per Rule 36 and Chapter 6A of the Rules of 1955. The
Commandant would nonetheless be within his powers to take departmental
action which has civil consequences. The judgment of the Hon’ble Supreme
Court in Ghulam Mohd. Bhat (supra) would crystallize the case in favour of
the respondents, wherein it has been interpreted that the Commandant does
have the power to impose the punishment of dismissal or suspension of a
Member of Force, who is found guilty of any offences. The judgment relied
upon by learned counsel for the petitioner in Ram Singh Rai (supra), having
been passed prior to the judgment of the Hon’ble Supreme Court in Ghulam
Mohd. Bhat (supra), thus, cannot be taken into consideration.
17. The question, which next comes up for consideration of this Court,
is as to whether in the process of decision-making, the respondents have taken a
proper count of the evidence that has been brought before the authorities.
Noticing the reasoning that has been given by the respondents while
disregarding the defence on a presumption, I find that the reasons so assigned
by the respondents to discredit the medical certificates and the medical history
produced before the authorities were not proper. It seems that respondent-
authorities pre-decided the issue and thereafter, reasoned to justify the
conclusion. In a fair procedure, a decision is to follow the evidence and its
CWP-24001-2014(O&M) -20-
objective assessment; however, the said process of decision making is severely
lacking in the instant case. It was, thus, incumbent upon the respondents to
ascertain the injuries and as to whether the factum of the injuries sustained by
the petitioner, impacting his mobility and his ability to discharge the functions
or not, was corroborated by medical evidence so as to provide a sufficient cause
or not. A conclusion, on an assumption that the petitioner had made up his
mind to become absent and thus, sustained injuries to himself for justifying his
absenteeism/overstay is not based upon a correct way of appreciation of
evidence. There can be no presumption as to the reasons behind an injury or
the same to be motivated merely because it happened on the day of return
without going into the nature of the injury and its gravity. The respondents have
further observed that the petitioner was taking treatment not only from Kumar
Multiplicity Specialty Hospital, Rohtak, but was also being issued a treatment
certificate by Janta Hospital and Maternity Centre, Bhiwani. It is not unheard
of that a person may approach the hospital or a Multi Specialty Hospital nearer
to his place for minor ailments/follow up after the major checkup and treatment
has been obtained from the hospital where the treatment had initially been
taken. The probabilities drawn by the Commandant do not inspire an objective
consideration of the material in a dispassionate manner and reflect the
assessment thereof with an intent to inflict punishment.
18. Ordinarily, this Court would not interfere with the order of
punishment that has been imposed by the competent authority in case the
conclusions drawn are probable; however, the probability test requires a
satisfaction that the probability has to be within the objective parameters of
CWP-24001-2014(O&M) -21-
ordinary prudence. The punishing authority, by an act which has civil
ramifications, is required to reflect an independent application of mind and
consideration of the evidence and also assign reasons in law as to why the
evidence is not being relied upon. No person would ordinarily sustain an injury
on his spine and head only to absent himself from service when there could be
various other reasons or circumstances for such overstayal. The gravity of
injury is also required to be seen in order to impute motive. Under normal
circumstances, a person would not inflict to himself an injury that could render
him handicapped for the rest of his life and have the potential of severely
damaging the spine as well as the cognitive faculties.
19. In view of the above, the present petition is allowed and the
impugned order is, accordingly, set aside. The matter is remanded to the
respondent-authorities to pass a fresh order, after granting due opportunity to
the petitioner to prove his case.
20. All the pending miscellaneous applications also stand disposed of.
(VINOD S. BHARDWAJ)
AUGUST 07, 2025. JUDGE
monika
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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