MOHD ZAKIR Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) THE petitioner was initially appointed as Member of Bharat Tibet Seema Force by order dated 30th July 1990 and was posted as Senani with 20th Battalion Indo -Tibet Border Police Force, Bareilly, U.P. The petitioner joined the duty on 20th August 1990 in the pay scale of Rs. 800 -1200. The petitioner had applied for leave from 4th February to 20th March, 1992 for 45 days. The petitioner had to extend his leave for medical treatment and he sent telegram on 21.3.1992 for extension of leave for one month. The application for one month leave was sent by the petitioner on 6th April 1992 through registered A.D. Post on the ground that the petitioner was receiving natural treatment at Dargah Shareef Ratlam. The petitioner reported for duty on 6th October, 1992 and he continued to work till the impugned order was passed. On 18th November, 1992 the Company Commandant sent a complaint to the Chief Judicial Magistrate and Commandant 20th Battalion Tibet Border Police Force Bareilly, U.P. to try the petitioner judicially. In the above complaint the petitioner was charged for unauthorised absence with effect from 21st March, 1992 to 5th April 1992 without sufficient cause. A case No. 3 of 1992 was registered against the petitioner under Section 10(m) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as 'the Act') and the petitioner was served with a notice on 20th November, 1992 to attend the court on 30th November, 1992. The petitioner appeared before the Judicial Magistrate, 1st Class on 30th November, 1992 and he represented his case including the evidence and submitted the documents to establish his innocence. The petitioner also submitted the leave certificate and the copy of the telegram etc. and the proof of his stay at Ratlam for treatment.

(2.) THE petitioner was punished by order dated 4th December, 1992 for the offence under Section 10(m) of the Act and the petitioner was confined to remain in the Court room, till the proceedings were over for the day. On the basis of the order dated 4th December, 1992, the Commandant 20th Battalion Indo -Tibet Border Force, passed an order dated 5.12.1992 in exercise of powers under Section 12 of the Act, dismissing the petitioner from service with effect from 4th December, 1992 with forfeiture of all pay and allowances and any other money due to him as well as any medals and decorations received by the petitioner. The petitioner was further disqualified for re -entering in Government service and his absence from duty was treated from 21st March, 1992 to 5th Oct. 1992 as an extra -ordinary leave.

(3.) AGGRIEVED by the orders dated 4th December, 1992 and the order dated 6th March, 1993 the petitioner approached this Court under Article 226 of the Constitution on the ground that the petitioner has not under -gone imprisonment by way of punishment under the provisions of Section 10(m) of the Act. He was only confined to the Court till the proceedings were over for the day and this would not amount to imprisonment in the lock -up or in the Jail. The authority committed error of law in automatically awarding punishment under Section 12 by dismissing the petitioner from service. The petitioner further alleged that the authority while awarding the punishment of dismissal from service under Section 12(1) did not consider the gravity of the charge or the nature of punishment awarded to the petitioner under Section 10(m) of the Act and without applying his mind and giving objective considerations and without mentioning any reason in the order automatically passed the impugned order awarding the punishment of dismissal from service.