Jharkhand High Court: Sanjay Kumar Dwivedi, J., heard the instant petition challenging the dismissal of the petitioner, a CRPF constable on the ground of overstaying from leave. The Bench stated,

“The Court is conscious of the fact that the petitioner is working in a disciplined force and that must be maintained. This is not a case of absentism without any information.

The petitioner a permanent resident of Jammu and Kashmir, was working as constable in CRPF. He submitted leave application for 10 days leave and the same was approved by the government. The petitioner was required to join on 19-09-2002.

On 12-09-2002, the petitioner received a letter from militant organization calling him not to go back till some enquiry regarding his involvement.  The petitioner because of threat to his family members by militant organization was forced to stay at home and could not resume the duty before 19-09-2002.  The letter received by the petitioner from the militant organization was sent to the Commandant through telegram informing his inability to resume duty.

The petitioner was charged with offence of overstaying from leave under Section 10(m) of Central Reserve Police Force Act, 1949.  On 16-07-2003, the petitioner was held guilty by Chief Judicial Magistrate and was sentenced to undergo imprisonment till rising of the Court. Pursuant to which, the Commandant, in exercise of power under Section 12(i) of the Act dismissed the petitioner from service on the ground that he had been convicted of offence of overstaying from leave.  Aggrieved with the same, the petitioner approached High Court in writ jurisdiction.

Counsel for the petitioner,  S.K. Sharma relied on the judgment of Supreme Court in Union of India v. Ram Saran,  (2003) 12 SCC 578, wherein, the Court while dealing with the similar facts had expressed that fine of two months’ pay which the respondent was drawing at the time when the proceedings were initiated would meet the ends of justice. The Supreme Court, while dwelling on matter of sentence stated,

“For a person in a disciplined service like CRPF, any act of indiscipline deserves adequate and stringent punishment under the Act. In terms of Section 10(m) an employee who absents himself without leave or without sufficient cause overstays leave granted to him can be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months’ pay or with both. The offence has been treated as one of “less heinous offences”.  

Thus, The Bench observed that Rule 27 of Central Reserve Police Force Rules, 1953 had clearly stipulated that dismissal or removal from the force was required to be passed after a formal departmental enquiry which had not been done in the case in hand.  Moreover, Section 10(m) of the Act had stipulated that overstaying from leave was under less heinous offence.

Considering all the facts, the Court stated even assuming that order was sufficient to dismiss the petitioner, it was incumbent upon the authority concerned to follow Rule 27 which was focused on a formal departmental enquiry for dismissal or removal from the force. The Bench expressed,

“The punishment order is shocking the conscience of the Court. The punishment of dismissal from service is disproportionate to the misconduct which is of overstaying of leave.”

Hence, the matter was remitted back to the Commandant to reconsider the case of the petitioner afresh in the light of the discussion made hereinabove and pass the order afresh. Accordingly, the impugned order of dismissal was set aside. [Irshad Ahmad Tantary v. Union of India, 2021 SCC OnLine Jhar 193, decided on 27-01-2021]

Kamini Sharma, Editorial Assistant has put this story together

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