SURINDER SABHARWAL Vs. DIRECTOR GENERAL, CRPF

JUDGEMENT

(1.) THE petitioner, who is an Ex -Constable (General Duty) Central Reserve Police Force, has challenged the order dated 12th December, 2006 (Annexure P -2) declaring him to be a deserter and the order dated 19th February, 2008 (Annexure P -17). - -vide which punishment of dismissal from service has been imposed on the petitioner under Section 11(1) of the Central Reserve Police Force Act. 1949 (hereinafter referred to as 'the CRPF Act, 1949') and all consequential proceedings with a further prayer that a writ, order or direction in the nature of mandamus be issued directing the respondents to accept the prayer of the petitioner seeking discharge from service with effect from 1st May, 2006 and make payment of statutory dues which includes gratuity and provident fund in accordance with law with a further prayer for directing the respondents to decide the appeal filed by the petitioner at Annexures P -18 to P -20 forthwith.

(2.) BRIEFLY , the facts as have been pleaded in the case are that the petitioner joined the Central Reserve Police Force on 11th May, 2003 as a Constable (General Duty). The father of the petitioner is a chronic heart patient and is almost blind and in his late seventies. The mother of the petitioner is also in her late seventies. The petitioner got married on 19th September, 2004 and soon after his marriage, his wife was detected with a gynecological problem as she was unable to conceive. She was taking treatment from a doctor and in the year 2006, the petitioner was informed that his wife has been treated successfully. The petitioner availed of leave from 6th January, 2006 to 7th March, 2006 while he was posted with 91 Battalion, CRPF, Halvating, Shiv Sagar, Assam to come back to his native place so that he could reside with his wife and parents. His father fell ill seriously and he got busy with his treatment. The petitioner called his colleague in the base camp and requested him to seek instructions from the Commandant for extension of the leave period but he was informed that extension of leave was not possible. The gynecologist asked the petitioner to extend his stay for some more time, otherwise the entire treatment of his wife would be of no use and he may remain issueless for his entire life. The petitioner tendered his resignation in writing by registered post in April, 2006 but did not retain a copy thereof. Me, however, submitted another resignation letter dated 1st May, 2006 (Annexure P -1) in accordance with Section 6 of the CRPF Act, 1949. By this time, the petitioner had completed 2 years and 11 months of service with the respondents. The Commandant of the Battalion -respondent No. 2, without taking any action on the written resignation submitted by the petitioner, arbitrarily started disciplinary proceedings against the petitioner and ordered enquiry under Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as 'the CRPF Rules, 1955') and also declared him deserter at his back without following due procedure, - -vide order dated 12th December, 2006 (Annexure P -2). The petitioner served a legal notice dated 1st February, 2007 (Annexure P -3) and asked the respondent to accept his resignation. In the meanwhile, on 5th January, 2007, the mother of the petitioner fell from the roof and as a result of the injury sustained by her, she lost control over her lower limbs and was confined to bed. His wife was 3 -4 months pregnant. The petitioner was struck in a quagmire where on one hand, he was declared as a deserter and on the other hand, he had to look after his paralytic mother, pregnant wife and almost blind father. The petitioner was again served with a notice of 15 days to join the enquiry proceedings by the Enquiry Officer, - -vide order dated 11th May, 2007 (Annexure P -6). He refuted all the charges against him - -vide his communication dated 21st May, 2007 (Annexure P -7) and the petitioner further requested that in view of his domestic problems, it would not be possible for him to join the enquiry proceedings in Jammu and Kashmir and the venue of the enquiry may be shifted to Chandigarh, Pinjore or Gurgaon. The petitioner was again directed by the Enquiry Officer to join the departmental proceedings, - -vide order dated 23rd July, 2007 (Annexure P -8), to which the petitioner again replied that the venue of the enquiry may be changed as he cannot remain away from his family for a long period. On 7th September, 2007 (Annexure P -10), the petitioner was informed that in response to the resignation letter dated 1st May, 2006, he was informed, - -vide letter dated 20th July, 2006 that he should report back to the base camp and after deposit of his training expenses, his resignation letter would be accepted but he had not responded to that. He was, - -vide this letter dated 7th September, 2007 (Annexure P -10), intimated that as per the Rules, the resignation of the worker while sitting at his home cannot be accepted. He was further directed to report for duty on or before 15th September, 2007 and deposit the training expenditure whatsoever it is, so that he can get retirement. On receipt of communication dated 7th September, 2007 the petitioner sought some information under the Right to information Act, 2005, - -vide an application dated 29th September, 2007 (Annexure P -11) so that he could deposit training expenses and obtain discharge from the service. In response to the said application, a communication dated 11th March, 2008 (Annexure P -12) was received by him, according to which, the said information could not be granted to him as the Central Reserve Police Force has been given exemption from the Right to Information Act, 2005 as per Section 24(1) of the Act. The respondents started sending warrants of arrest against the petitioner, against which the wife of the petitioner represented to respondents No. 1 and 2 requesting therein that the resignation submitted by the petitioner be directed to be accepted by respondents No. 3 and 4 and she was willing to make payment of the training related expenses. These communications are appended as Annexures P -13 and P -14 respectively. To this communication, the response dated 18th March, 2008 was received that the petitioner if wishes to resign from the Force, then he should, on his own, apply and no action can be taken on the representation of the wife of the petitioner. On 19th March, 2008 (Annexure P -16) he again made a merey position wish a prayer that he may be discharged from service. On 22nd March, 2008, the petitioner was informed that he has been dismissed from service - -vide order dated 19th February, 2008 (Annexure P -17). Thereafter the petitioner gave various representations to the respondents to re -consider their decision and simply discharge the petitioner from service. Copy of these representations dated 27th October, 2008, 3rd February, 2009 and 1st August, 2009 are appended as Annexures IMS to P -20 respectively. The petitioner has, through this writ petition, challenged order dated 12th December, 2006 (Annexure P -2) and order dated 19th February, 2008 (Annexure P -17).

(3.) HIS further contention is that Rule 31 of the CRPF Rules, 1955 deals with desertion and absence without leave. According to the said Rule, the said proceedings could have only been initiated after the punishing authority makes up its mind to hold an enquiry against the member of the Force under Sections 9 and 10 of the CRPF Act, 1949. Thus, the order dated 12th December, 2006 (Annexure P -2) cannot be sustained as for the first time on 1st May, 2007, the petitioner received the order of the officer/punishing authority that it intends to hold an enquiry against the petitioner under Rule 27 of the CRPF Rules, 1955. He submits that the petitioner could not have been dismissed from service as Section 12 of the CRPF Act, 1949 provides for dismissal only in case of passing of sentence under the Act and it is a matter of record that no sentence has been passed against the petitioner. As a matter of fact, the petitioner was charge -sheeted under Section 11(1) of the CRPF Act, 1949, which only provides for imposition of minor pensalties but strangely enough, the petitioner was dismissed from service under Section 11 of the CRPF Act. 1949 which does not provide for major penalties.