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2009 Supreme(Gau) 615
IN THE HIGH COURT OF GAUHATI
Amitava Roy, J.
T. Thomas – Appellants
Vs.
Union of India and other – Respondent
Writ Petition (C) No. 5451 of 2006
Decided On: 27.08.2009
For Appellant/Petitioner/Plaintiff:D.C. Mahanta and K.K. Das, Advocates
For Respondents/Defendant:N. Baruah, Advocate
The court emphasized the need for proportionate disciplinary action and invoked relevant pension rules to ensure the Petitioner's entitlement to pensionary benefits despite the dismissal.
Headnote:
CRPF Act - Disciplinary Action - Section 11(1) of CRPF Act, 1949 - Rule 27 of the CRPF Rules, 1949 - Rule 41 of the CCS (Pension) Rules, 1972
Fact of the Case:
The Petitioner, a driver with the Central Reserved Police Force, was dismissed from service on charges of misconduct. The Petitioner challenged the dismissal, claiming lack of opportunity to defend himself and non-observance of prescribed procedures.
Finding of the Court:
The Court found that the charges were proved in a duly conducted departmental proceeding and that the penalty of dismissal was shockingly disproportionate. The Court noted the disciplinary authority's allowance of compassionate allowance and gratuity, indicating the Petitioner's otherwise blemish-free service profile.
Issues: Validity of disciplinary proceeding, proportionality of penalty, entitlement to pensionary benefits
Ratio Decidendi: The Court held that while the Petitioner's conduct warranted disciplinary action, the penalty of dismissal was disproportionate. The Court invoked Rule 41 of the CCS (Pension) Rules, 1972 to support its decision to substitute the penalty with compulsory retirement, considering the Petitioner's service history and the passage of time.
Final Decision: The petition was allowed, and the penalty of dismissal was substituted with compulsory retirement, ensuring the Petitioner's entitlement to pensionary benefits.
Amitava Roy, J.
1. The subject matter of challenge is the disciplinary action taken by the Respondents against the Petitioner resulting in his dismissal from service on the charge of misconduct.
2. I have heard Mr. D.C. Mahanta, Senior Advocate assisted by Mr. K.K. Das, Advocate for the Petitioner and Mr. N. Baruah, learned Central Government Standing Counsel for the Respondents.
3. The pleaded case of the Petitioner in short is that, while was serving as a Driver with the Central Reserved Police Force (hereafter for short referred to as Force) and posted at Guwahati, he was served with the memorandum of charges dated 30.7.1999 leveling the following imputations:
Article-I
No. 810698439 HC/Dvr. T. Thomas of HQ/60 Bn CRPF while performing as HC/Dvr in HQ/60 Bn CRPF during 26.4.99 as a member of the force under Section 11(1) of CRPF Act, 1949 in that No. 810698439 HC/Dvr T. Thomas deliberately made an attempt to cheat his superiors by fraudulent act for his personal gain to get the leave sectioned. Thus he violated CRPF Act which is prejudicial to good order and discipline of the force.
Article-II
No. 810698439 HC/Dvr. T. Thomas of HQ/60 Bn CRPF while performing in HQ/60 Bn CRPF at Phulaguri, Nagaon as a member of the force under Section11(1) of CRPF Act, 1949 in that he deserted from his camp and line of HQ/60 Bn. CRPF Phulaguri, Nagaon on 24.6.99 at 2100 hrs. without any permission and information to the competent authority who could have sanction leave or permission to him to leave the camp and lines of HQ/60 Bn CRPF Phulaguri Nagaon, which is prejudicial to good order and discipline of the forced on his part.
He was also placed under suspension by the 2 I/C Commandant 60 Bn, CRPF (CCD) by order dated 12.11.1999. It was thereafter that by order dated 15.1.2000 passed by the Commandant 60 BN CRPF he was dismissed from service on the ground of misconduct treating all the charges brought against him to be proved. Being aggrieved, the Petitioner availed other statutory remedies by way of appeal and revision, but to no avail. According to him, he was not afforded any opportunity of defending himself against the charges in the disciplinary proceeding and that therefore, the impugned action is per se invalid. The procedure prescribed by Rule 27 of the CRPF Rules, 1949 (hereinafter referred to as the Rules) not having been observed, the Petitioner has asserted that the order of dismissal is non est in law.
4. The Respondents in their affidavit, while detailing the facts in support of the charges, have contended that the same were proved in a duly conducted departmental proceeding as contemplated under Rule 27 of the Rules. They have maintained that the proceeding was completed in consonance with the principles of natural justice as well as the procedural safeguards contained in the above provision of the Rules. The charges leveled against the Petitioner being serious constituting a grave misconduct, the answering Respondents have also endorsed the order of penalty.
5. In his affidavit-in-reply, the Petitioner has reiterated and reaffirmed the averments made in the writ petition.
6. Mr. Mahanta in course of his arguments has limited his assailment only on the question of penalty. According to the learned Senior Counsel, having regard to the charges brought and professed to be proved, the order of dismissal is shockingly disproportionate thereto and therefore, this Court in the exercise of its writ jurisdiction ought to interfere therewith in the interest of justice. Mr. Mahanta has urged that as the impugned action relates to the year 1999, considering the fact that meanwhile a decade has elapsed and that the Petitioner is a man of slender means and presently without any source of livelihood, the order of dismissal if maintained, would deny him his pensionary benefits to his great detriment and prejudice. To reinforce his arguments, Mr. Mahanta has drawn the attention of this Court to the operative portion of the order of penalty to cont
