IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13-12-2013 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR and The Honourable Mr.Justice R. MAHADEVAN Writ Appeal No.376 of 2011 M.P.No.1 of 2011 1. The Commandant, 19th Bn, Central Reserve Police Force, Churachandpur, Manipur. 2. The Additional Deputy Inspector General of Police, Central Reserve Police Force, Group Centre, Avadi, Chennai 600 065. 3. The Deputy Inspector General of Police, Central Reserve Police Force, Avadi, Chennai 600 065. 4. The Inspector General of Police, Central Reserve Police Force, Southern Sector, Banjara Hills, Hyderabad. 5. The Director General of Police, Central Reserve Police Force, CGO Complex, Lodhi Road, New Delhi. ... Appellants Vs. P. Yasin ... Respondent Writ Appeal preferred under Clause 15 of the Letters Patent Act against the order of the learned Single Judge dated 26.6.2009 in W.P.No.704 of 2000. For Appellants : Mr.M.Devendran Senior Panel Counsel for Central Government For Respondent : Mr.A.S.Mujibur Rahman J U D G M E N T
N. PAUL VASANTHAKUMAR, J.
This writ appeal is preferred by the appellants (CRPF), challenging the order of the learned single Judge made in W.P.No.704 of 2000 dated 26.6.2009, allowing the writ petition filed by the respondent herein, by setting aside the order of removal from service, and ordering reinstatement of the respondent with continuity of service, but without backwages.
2. The said writ petition was filed by the respondent herein challenging the order of the Deputy Inspector General of Police, CRPF, Avadi, Chennai, removing him by order dated 30.6.1999, which was confirmed in appeal by the Commandant, 19th Batallion, CRPF, Churachandpur, Manipur, by order dated 19.11.1999 and prayed to restore the respondent in CRPF service with all monetary benefits.
3. The brief facts necessary for disposal of this writ appeal are as follows:
(a) Respondent was selected and appointed as a Constable in CRPF on 3.9.1994 and after completion of ten months of training, he was posted in 19th Batallion, CRPF, Kashmir on 24.7.1995.
(b) The 19th Batallion of CRPF was moved to Secundarabad, and now presently operating from Manipur. However, the Batallion is attached to Group Centre, CRPF, Avadi, Chennai, and the Additional Inspector General of Police, CRPF, Group Centre, Avadi, Chennai, and the Deputy Inspector General of Police, CRPF, Avadi, Chennai are the superior officers, having control over the 19th Batallion at Group Centre, Avadi, Chennai.
(c) The respondent applied for 60 days earned leave from 8.12.1998 to 6.2.1999 and after expiry of leave period, he reported for duty at Secundarabad on 8.2.1999 and on that day, he was placed under suspension. A charge memo was issued to the respondent on 2.3.1999 containing two articles of charges.
(d) The first charge was that while functioning in the Unit, he committed an offence of misconduct in the capacity of a Member of the Force, under section 11(1) of the CRPF Act, 1949, viz., being a legally married person, he developed illegal relationship with a local girl at the duty place and eloped with her, which is prejudicial to good order and discipline of the Force. The second charge is that he committed grave offence of misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949, by eloping with the local girl viz., 'X', daughter of 'Y' from 18.12.1998 to 20.12.1998 while on earned leave, which has resulted in lodging a complaint (by the father of the girl) with the Commandant in which it is stated that the respondent eloped with the said girl on 18.12.1998 at 10.30 hours with wrong motive and acted in a manner unbecoming of a Government Servant, who is already legally married to one 'R' and having a child, and the said act is prejudicial to the good order and discipline of the Force.
(e) The said charges were framed after preliminary enquiry. A regular enquiry was also conducted and the Enquiry Officer gave a finding that the charges were proved. Thereafter, by order dated 30.6.1999 the respondent was removed from service by the Disciplinary Authority with effect from 30.6.1999. The said order was challenged in W.P.No.14160 of 1999 before this Court which was dismissed on 20.8.1999 with liberty to file departmental appeal.
(f) The respondent preferred a departmental appeal which was also dismissed on 19.11.1999 by the Appellate Authority. The said orders were challenged before the learned single Judge by filing W.P.No.704 of 2000 contending that the charges having been framed on the basis of the complaint made by the father of the girl, he was not examined as a witness; that no eye witness was examined to prove the charges; that there is no evidence to show that respondent's marriage had taken place with the said girl for invoking Rule 15 of the CRPF Rules, 1955; and that, the punishment awarded is disproportionate to the charge framed, even assuming that the charges are proved and having regard to the unblemished service of the respondent in the Force.
(g) The said writ petition was opposed by the appellants herein by filing counter affidavit stating that while the respondent was on leave from 9.12.1998 to 6.2.1999 with permission to avail leave on 8.12.1998 and 7.2.1999 being Sundays, the respondent has committed the offence on 8.12.1998 while he was on leave and on the basis of the complaint given by the father of the girl with whom the respondent had an affair, he was placed under suspension. A police complaint was also made against the respondent at Chilkagude Police Station and the respondent himself admitted during the course of the enquiry that he went with the girl and both of them stayed in the house of respondent's friend at Jhadcherala Mandal from 18.12.1998 to 20.12.1998 and the said conduct of the respondent, who is a married man and having one child, has brought bad name to the CRPF, disciplined Force in the eyes of the public, and therefore he was removed from service by the Disciplinary Authority, which was confirmed by the Appellate Authority. The appellants justified the order of removal from service passed against the respondent.
4. The learned single Judge by order dated 26.6.2009 set aside the order of removal from service on the ground that the respondent was not given opportunity to cross-examine the witnesses in respect of charges and therefore the principles of natural justice was violated, and on that ground the entire proceedings including the punishment imposed are to be set aside. The statement obtained from the girl and father of the girl was relied on by the Disciplinary Authority, though the said statements were recorded behind back of the respondent. The learned single Judge thought fit not to remand the matter considering the long passage of time as the incident had happened in December, 1999, and ordered reinstatement with continuity of service, but without backwages.
5. The said order of the learned single Judge dated 26.6.2009 is challenged by the CRPF in this appeal on the ground that the respondent had admitted the fact that he went with the local girl and stayed with her in the house of respondent's friend at Jadcherala Mandal from 18.12.1998 to 20.12.1998, the indulgence of the respondent in unlawful act, who being a married person and having a child, is not a good behaviour, which also resulted in lodging complaint by the father of the girl before the local Police, which tarnished the image of the CRPF, which is a disciplined Force. The crux of the contention in the writ appeal is that the respondent having admitted his conduct in staying with the local girl in his friend's house for two days, respondent has violated the conduct rules and even if the marriage of the respondent with the said girl has not been proved, developing illegal relationship with the local girl and staying with her for two days spoiled the good image of the CRPF, which requires serious consideration and the Disciplinary Authority having regard to the admission made by the respondent, passed the order of removal from service, which was confirmed in appeal, which the learned single Judge interfered merely on technicalities of not examining the witnesses in the presence of the respondent. To ascertain whether the petitioner has admitted the relationship with the local girl and stayed with the said girl for two days, the deposition copies were also directed to be produced before this Court and the same were produced.
6. The learned counsel for the respondent reiterated the arguments raised before the learned single Judge, particularly with regard to the framing of charges that the respondent eloped with the girl while availing earned leave and stayed with her for two days and the said girl being a major and she having stated that she was not kidnapped and she went on her own, the delinquency has not been made out and therefore the learned single Judge was justified in interfering with the order of punishment.
7. The points arise for consideration in this writ appeal is as to whether there is any violation of principles of natural justice while conducting enquiry on the facts of this case, and whether the consequential order of removal from service can be interfered on that ground.
8. It is an admitted fact that the respondent is a married man having a child, who has entered the service of CRPF in the year 1994 and was attached to 19th Batallion, having a Group Centre at Avadi, Chennai. The respondent was granted 60 days EL from 8.12.1998 to 6.2.1999. The respondent developed a relationship with the local girl and stayed with her in the house of his friend at Jadcherala Mandal, without the knowledge of girl's father, which resulted in giving a police complaint against the respondent, are not in dispute.
9. The only contention of the respondent is that the girl being a major, with her consent only he stayed with her for two days. At this juncture, it is relevant to refer the statement given by the respondent in this regard, which reads as follows:
"I, constable No.941131144 .............. posted in B/19 BN, CRPF since July, 1995 and attached with HQ-Coy w.e.f. April, 1998 for performing G.D.Duties, I was submitted an application for 60 days E/L for the purpose of my house repairing, which was damaged during the cyclone. As per my request I have been sanctioned 60 days E/L by the Competent authority and proceeded on leave w.e.f. 8.12.98 (AN). I reached my native place Vengalayapalam, Guntur (Distt) on 10.12.98. I left from my home on 17.12.98 and reached Hyderabad on the same day to visit my relatives and father-in-law, staying at Hyderabad. During my stay at Hyderabad my girl friend named Miss.............., who is a student of final year B.Com., in ............ College, roam around the city on 18.12.98(FN) to 18.12.98 (AN) and left to Jadcherala Mandal and stayed in my friend's house upto 20.12.98 (FN). On 20.12.98 Miss .............. and myself left for Secundarabad and reached Secundarabad (AN) on the same day. I have received an information through one of the best friend of Miss. ............., who is residing at Secundarabad has stated that some written complaint have been lodged by Mr................ (father of the girl) in P.S.Chelakalaguda against me and Miss. ........... Myself and Miss ................ reported in the P.S.Chelakalaguda on 20.12.98 (AN). The SHO obtained a written statement from Miss. ............ and asked so many questions in connection with the eloping. On 20.12.98 at about 15.30 hrs, we came out from the Police Station, parents of Miss ............. reached the spot and took her to their home. I also left to my village Vengalayapalam at about 16.30 hrs."
For the specific question raised with regard to the statement of the respondent's stay with the girl for two days, the respondent has given an answer stating as follows:
"Sir, accidentally we met in bus stand Imbliban and we went out as desired by her."
The girl also gave a statement stating that she went with the constable (respondent) and did not marry him.
10. A police complaint was lodged by the girl's father in the Chelakalaguda Police station and FIR was registered against the respondent on 19.11.1998 at 12.00 hours stating that his daughter was eloped by the respondent. However, the said FIR was closed subsequently on the statement given by the girl, who is also a major.
11. An enquiry was conducted in which the charges framed against the respondent were found proved. Based on the enquiry findings, the Disciplinary Authority passed an order removing the respondent from service by order dated 30.6.1999, against which the respondent filed an appeal, which was also dismissed by considering the evidence on record, charges framed, findings of the Enquiry Officer, and the gravity of misconduct.
12. Rule 3(1) of the Central Civil Services (Conduct) Rules, 1964 reads as follows:
"3. General (1) Every Government servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
13. It is not in dispute that the respondent is a member of CRPF, who admitted the allegation of staying with a local girl for two days in his friend's house. The respondent is a married person and having a child. The action of the respondent resulted in filing a criminal complaint against him before the Police, by the father of the girl. Thus, the respondent has violated Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. Section 11(1) of the CRPF Act, 1949, empowers the Disciplinary Authority to impose punishment and in exercise of that power the order of removal from service was passed. Section 11(1) even though deals with minor punishments, under that section, punishment of dismissal can also be passed. Section 11(1) 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,-
(a) reduction in rank;
(b) fine of any amount and 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."
14.(a) The question of interpretation of Section 11(1) of the CRPF Act, 1949 came up for consideration before the Division Bench of Allahabad High Court in the case of Deputy Inspector General of Police, CRPF (Rampur, UP) and another v. Munna Singh Yadav (Special Appeal No.201 of 1993) and by order dated 6.10.2001, the Division Bench held that if the conduct of the CRPF person is proved to be unbecoming of the Government servant, dismissal order can be passed under Section 11(1) of the Act.
(b) The above said Division Bench judgment was rendered by following the earlier Division Bench decision of the Allahabad High Court reported in Giriraj Sharma v. Union of India, (1989) 1 UPLBRC 351, wherein it is held thus:
"So far as the question as to whether the punishment of dismissal can be passed under Section 11(1) of the Act is concerned, it may be mentioned here that the punishment provided under Section 11(1) is in lieu or in addition to suspension or dismissal. Thus, the power of passing order of dismissal is there with the authorities. The decision of this Court in the case of Giriraj Sharma (supra) has ignored the words "in lieu or in addition to suspension or dismissal" occurring in Section 11(1) of the Act."
(c) The Delhi High Court also in Ram Bihari Shukla v. Union of India (CW.No.3920/1999 dated 6.12.2001) decided similar case on the same lines following the Division Bench decision of the Rajasthan High Court reported in AIR 1965 Rajasthan 140 (Shyam Singh v. DIG of Police).
(d) All the above said decisions were followed by the Division Bench of the Andhra Pradesh High Court in the decision reported in 2003 (4) SLR 631 (P.Singaiah v. Union of India) wherein it is held that Section 11(1) of the Act empowers the authorities to impose suspension or dismissal from service in lieu of or in addition to the punishment mentioned under Clauses (a) to (e).
15. We are also of the firm view that even though Section 11(1) of the Act enumerates minor punishment, other punishments such as suspension and dismissal can also be passed having regard to the language of the section. The words 'in lieu of or in addition to' means, the Disciplinary Authority can impose any other punishment instead of imposing punishments mentioned in (a) to (e). In this case, in exercise of that power, the Disciplinary Authority passed the order of removal of the respondent from service, which cannot be termed as unauthorised.
16. Moreover, the respondent also admitted the act of staying with the local girl as per the charge memo. Hence the non-examination of other witnesses in his presence will have no effect.
17. It is well settled in law that if there is unequivocal admission of the guilt by the Delinquent Officer, no further proof is required to establish the charge. The said position is made clear in the judgment of the Supreme Court reported in (2013) 6 SCC 313 (Manoj H.Mishra v. Union of India). In paragraphs 34 and 35 the Hon'ble Supreme Court held that having admitted the charges understandably, and the appellant only pleaded for reduction in punishment before the High Court, challenge to the findings of guilt cannot be gone into in the appellate stage and the appellant cannot be permitted to resile from the admission made before the Enquiry Officer, which was rightly not interfered with and the request to reopen the issue was rightly rejected by the learned single Judge and the Division Bench.
18. Once the charges are proved based on the admission of the delinquent officer, having regard to the gravity of the charges, Disciplinary Authority is entitled to impose appropriate punishment, and unless the punishment imposed is disproportionate, shocking the conscience of the Court, the said punishment cannot be modified. The said position is reiterated in the decision reported in (2013) 10 SCC 106 (Kendriya Vidyalaya Sangthan v. J.Hussain). In paragraph 16 the Hon'ble Supreme Court held that, 'repeatedly this Court has emphasised that the courts should not be guided by misplaced sympathy or continuity ground, as a factor in judicial review while examining the quantum of punishment'. The Supreme Court set aside the order of the High Court and restored the order of the Tribunal, which upheld the order of dismissal.
19. The conduct or character of the candidate to be appointed in Police Service was emphasised by the Hon'ble Supreme Court in the decision reported in (1996) 11 SCC 605 (Delhi Administration v. Sushil Kumar). In the said case, the non-selection of a person to the Police Constable post on the ground of bad antecedence, though he was acquitted in the criminal case, was challenged. The Hon'ble Supreme Court upheld the plea of the department that it was not desirable to appoint such a person in the Police Service. The said view was reiterated in the decision reported in (2008) 1 SCC 660 (R.Radhakrishnan v. DG of Police) wherein discharge of the Police Constable on the ground of not furnishing the information of criminal antecedence, though he was acquitted in the criminal case, was upheld by holding that such withholding of information amounts to moral turpitude. The above said decisions are followed by the Hon'ble Supreme Court in the recent decision reported in (2013) 9 SCC 363 (Devendra Kumar v. State of Uttaranchal).
20. In this case, though the facts are somewhat different, the act of the respondent in staying with a girl for two days, which resulted in giving complaint by the father of the girl to the local Police is definitely an unlawful act, involving moral turpitude. Such being the position, the respondent cannot compel the appellants to retain him in the disciplined Force, CRPF.
21. The conduct of the respondent clearly comes within the meaning of Rule 3(1)(iii) of the CCS(Conduct) Rules, 1964. Hence the Disciplinary Authority was justified in passing the order of removal from service, which was rightly upheld by the Appellate Authority. In such circumstances, the Order of the learned single Judge in setting aside those orders and ordering reinstatement with continuity of service without backwages cannot be sustained.
22. In fine, the order of the learned single Judge is set aside and the writ appeal filed by the appellants is allowed. No costs. Connected miscellaneous petition is closed.
Index : Yes/No. (N.P.V.,J) (R.M.D.,J.) Internet : Yes/No. 13-12-2013 vr N.PAUL VASANTHAKUMAR, J. and R. MAHADEVAN, J. vr Pre-Delivery Judgment in W.A.No.376 of 2011 13-12-2013