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Friday, August 28, 2015

The petitioner, a Constable in the Central Reserve Police Force (CRPF), was subjected to disciplinary proceedings in connection with an accident which occurred while he was driving a vehicle on 28.10.1992. He was imposed with the punishment of removal from service under order dated 10.08.1993. Aggrieved thereby, he preferred an appeal to the Deputy Inspector General of Police, CRPF. The appellate authority allowed the appeal by order dated 10.12.1993, directing reinstatement of the petitioner in service but ordering that he should be placed under suspension after such reinstatement till completion of a fresh departmental enquiry for misconduct. =To begin with, the Special Director General, Southern Sector, CRPF, Hyderabad, had no jurisdiction to exercise power under Rule 29(d) of the Rules of 1955 in the year 1997, and therefore, his action in issuing a show-cause notice and thereafter enhancing the punishment imposed upon the petitioner was without legal sanction. Further, even if the said exercise of power is assumed to be valid for any reason, the same was not within a reasonable time and such belated exercise of suo motu power cannot be sustained on facts and in law.The writ petition is therefore allowed setting aside the order dated 29.10.1997 passed by the Special Director General, Southern Sector, CRPF, Hyderabad, and the order dated 14.05.1998 of the Director General of Police, CRPF, New Delhi, confirming the same in appeal. The petitioner shall be reinstated in service but as he remained out of uniformed service for all these years, he would be entitled to continuity of service only with notional attendant benefits. He shall not be entitled to any monetary benefits for the period that he remained out of service. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. There shall be no order as to costs.

THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.4173 OF 2005    
       
17-08-2015


Balbir Singh .. Petitioner.. Petitioner

The Director General of Police, Central Reserve    Police Force, C.G.O.
Complex, Lodhi Road,  New Delhi and others .. Respondents



Counsel for petitioner  : Sri M. Jeevan Reddy
                                               
Counsel for respondents:  Sri Raghavender, learned counsel
                           representing Sri B. Narayana Reddy,
                           learned Assistant Solicitor General
                           for India
               
<Gist:

>Head Note:    

? CASES REFERRED:    

1. W.P.NO.26172 OF 2001 dated 08.11.2012  
2. AIR 1969 SC 1297
3. (1997) 6 SCC 71
4. (2007) 11 SCC 363
5. (2009) 9 SCC 352
6. 1996(3) ALT 887


THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.4173 OF 2005    

O R D E R
      The petitioner, a Constable in the Central Reserve Police Force
(CRPF), was subjected to disciplinary proceedings in connection with
an accident which occurred while he was driving a vehicle on
28.10.1992.  He was imposed with the punishment of removal from
service under order dated 10.08.1993.  Aggrieved thereby, he
preferred an appeal to the Deputy Inspector General of Police, CRPF.
The appellate authority allowed the appeal by order dated
10.12.1993, directing reinstatement of the petitioner in service but
ordering that he should be placed under suspension after such
reinstatement till completion of a fresh departmental enquiry for
misconduct.
      Thereupon, a fresh departmental enquiry was instituted and
pursuant thereto, final order dated 21.11.1994 was passed by the
Commandant, 83 Battalion, CRPF, imposing upon the petitioner the
punishment of stoppage of an annual increment for a period of one
year with cumulative effect.  The disciplinary authority further
directed that the cost of repair charges of the affected vehicle
amounting to Rs.487/- should be recovered from his pay and
allowances.  His suspension period was also directed to be
regularized.  The petitioner accepted this punishment without demur
and it was duly implemented.
      While so, the Special Director General, Southern Sector, CRPF,
issued show-cause notice dated 24.04.1997 invoking Rule 29(d) of
the Central Reserve Police Force Rules, 1955 (for brevity, the Rules of
1955) proposing to enhance the punishment imposed upon the
petitioner to removal from service.  The petitioner submitted his reply
thereto pointing out that the proposed exercise of power under the
said Rule was with a delay of more than two and half years and the
fact that he had already undergone the punishment imposed under
the order dated 21.11.1994.  By order dated 29.10.1997, the Special
Director General, Southern Sector, CRPF, declared that after careful
consideration of the whole case, the punishment imposed upon the
petitioner was enhanced to removal from service.  Aggrieved thereby,
the petitioner preferred an appeal to the Director General of Police,
CRPF.  The appeal was rejected by order dated 14.05.1998.
      The petitioner thereupon approached the High Court of
Himachal Pradesh at Simla by way of Civil Writ Petition No.746 of
1998 challenging his removal from service.  The writ petition was
dismissed by the Himachal Pradesh High Court by order dated
12.11.2003 on the ground that it had no territorial jurisdiction as the
departmental enquiry against the petitioner was held at Hyderabad.
The petitioner therefore approached this Court by way of this writ
petition assailing the order dated 29.10.1997 passed by the Special
Director General, Southern Sector, CRPF, and the order dated
14.05.1998 of the Director General, CRPF, confirming the same.
      Heard Sri M. Jeevan Reddy, learned counsel for the petitioner,
and Sri Raghavender, learned counsel representing the learned
Assistant Solicitor General for India, for the respondents.
      Sri Raghavender, learned counsel, would contend that the
delay on the part of the petitioner in approaching this Court would
disentitle him from seeking relief.  The facts on record reflect that
after passing of the order dated 14.05.1998 by the Director General,
CRPF, the petitioner lost no time in approaching the Himachal
Pradesh High Court by way of Civil Writ Petition No.746 of 1998.
However, the said writ petition was dismissed on the ground of
territorial jurisdiction in August, 2003, and the petitioner approached
this Court thereafter in February, 2005.  The delay on his part, if at
all, would be between these two dates.  No doubt, the petitioner did
not put forth any reason to explain his failure in approaching this
Court immediately after dismissal of his writ petition by the Himachal
Pradesh High Court,  but this Court is of the opinion that the delay
on his part, which would perhaps be about a year, is not sufficient to
disentitle him from claiming relief.  Given the fact that the Special
Director General, Southern Sector, CRPF, chose to exercise suo motu
power after a lapse of nearly three years, it is not open to the
respondents to make much of this one year delay on the part of the
petitioner in approaching this Court.  The so called delay on the part
of the petitioner is therefore not fatal to his case.
      In so far as the merits of the case are concerned, two issues fall
for consideration:
(1)     Whether the Special Director General, Southern
Sector, CRPF, had jurisdiction to exercise powers
under Rule 29(d) of the Rules of 1955?
and;
(2)     if so, whether such powers were exercised within a
reasonable time?

      The petitioner specifically raised a contention in para 12(g) of
his writ affidavit that the Special Director General, Southern Sector,
CRPF, did not have the authority to exercise power under Rule 29(d)
of the Rules of 1955.  The counter-affidavit filed by the Additional
Deputy Inspector General of Police, CRPF, Hyderabad, however did
not advert to this ground specifically and skirted the issue in para 15
as follows:
      In reply to Ground (g) in Para-12 of the Affidavit, it is
submitted that contents (sic contention) of Petitioner in this
Para is not acceptable.  As already quoted in the preceding
paras, the post of Inspector General of Police, Southern Sector,
CRPF, Hyderabad was upgraded to that of Special Director
General and he was vested with all the powers of the IGP.
       
       
        Though reference was made to upgradation of the post of
Inspector General of Police, Southern Sector, CRPF, to that of Special
Director General, no material has been placed before this Court in
that regard or to justify the exercise of power by the Special Director
General, Southern Sector, CRPF, in the instant case. The first issue
would therefore turn on whether Rule 29(d) of the Rules of 1955 as it
stood in April, 1997, authorized the Special Director General,
Southern Sector, CRPF, to exercise power thereunder. This Rule
reads as under:
      29(d)  [The Director General  [or  [Special Director-
General or the Additional Director-General heading the Zone]]
or the Inspector-General] or the Deputy Inspector General may
call for the records of award of any punishment and confirm,
enhance, modify or annul the same, or make or direct further
investigation to be made before passing such orders:

      It is clear from a bare reading of the above Rule that the words
Special Director General were inserted therein only with effect from
21.02.2012.  Prior to the insertion of these words, the power
exercisable under Rule 29(d) of the Rules of 1955 was only by the
Director General or the Additional Director General or the Inspector
General or the Deputy Inspector General.  Thus, at the point of time
the show-cause notice was issued in April, 1997 by the Special
Director General, Southern Sector, CRPF, he was not vested with
power under Rule 29(d) of the Rules of 1955.  Though the counter-
affidavit states that the post of Inspector General of Police, Southern
Sector, CRPF, was upgraded to that of Special Director General, the
specific insertion of the words Special Director General in the Rule
only in the year 2012 manifests that the rule-making authority
deemed it necessary to include the said officer separately only at that
stage and there can be no implied vesting of such power in a Special
Director General before the said date. The alleged upgradation of the
post of Inspector General to that of Special Director General is
therefore of no avail.  Had it been so, it would not have been
necessary to amend the Rule in 2012 and include the words Special
Director General.
      In the light of the aforestated amendment and given the fact
that the respondents have no answer to this ground of attack by the
petitioner, this Court necessarily has to hold that at the time the
Special Director General, Southern Sector, CRPF, exercised power
under this Rule and issued a show-cause notice to the petitioner in
April, 1997 and thereafter enhanced the punishment imposed on him
in October, 1997, he had no power to do so.  The writ petition
therefore deserves to be allowed on this ground but as arguments
were also advanced on the second issue with regard to delay, this
Court deems it appropriate to deal with the same.
        The admitted facts reflect that the petitioner suffered the
punishment imposed upon him by the Commandant, 83 Battalion,  
CRPF, under order dated 21.11.1994 and the said punishment was
duly implemented.  The show-cause notice seeking to suo motu
enhance the said punishment was issued nearly two and half years
thereafter and acting thereupon, the punishment was enhanced
nearly three years later.  The question that arises is whether such
exercise can be said to be within a reasonable time.
      This Court had occasion to consider an identical issue in
V.JAYARAM V/s. FOOD CORPORATION OF INDIA .  A copy of the        
order passed by this Court in the said case is placed on record.  That
was also a case where the punishment was enhanced by exercise of
suo motu power more than four years later.  Such exercise was under
Regulation 74 of the Food Corporation of India (Staff) Regulations,
1971.  Dealing with the issue, this Court stated as under:
      It is no doubt true that the regulation states to the effect
that the Board may at any time, either on its own motion or
otherwise, review any order made under the regulations.  The
power in this regard, having been delegated to the Zonal
Manager under Regulation 74(4), had to be exercised within a
reasonable time notwithstanding the fact that no embargo was
stipulated in the regulation as to any temporal restrictions.
Trite to state, even if no limitation is prescribed for exercise of a
power vested in an authority, such power can be exercised only
within a reasonable time depending on the facts of the case.
(State of Gurajat V. Patil Raghav Natha , Mohd. Amin V.
Fatma Bai Ibrahim , State of Punjab V. Bhatinda Dist.
Coop. Milk Producers Union Ltd.,  and Santoshkumar
Shivgonda Patil V. Balasaheb Tukaram Shevale ).  Though
these cases pertained to exercise of revisional power, the ratio
laid down therein is equally applicable to exercise of review
power.  In the present case, the punishment order dated
03.04.1996 had been acted upon and there is no explanation
for the 4 years delay in exercise of suo motu review power.  The
matter stood settled by then, as the petitioner abided by the
order dated 03.04.1996 and did not even choose to challenge it.
The exercise of suo motu review powers by the Zonal Manager
(South), FCI, Chennai, therefore suffers incurably on the
ground of unreasonable delay.

      In the present case, enhancement of the punishment imposed
upon the petitioner was nearly three years after passing of the initial
order imposing a lesser punishment.  The petitioner had not only
accepted the lesser punishment without protest but, in the
meanwhile, the authorities had also implemented the same.
Generally, an employee would be lawfully entitled to assume that a
punishment imposed upon him and duly implemented by the  
authorities has attained finality.  Exercise of suo motu power to
enhance such punishment must therefore be within a reasonable
time so as not to impinge upon the aforestated right of the employee.
      Sri Raghavender, learned counsel, relied on BIJAY KUMAR
SHARMA V/s. THE INSPECTOR GENERAL OF POLICE, C.R.P.F.,          
SOUTHERN SECTOR, HYDERABAD .  However, perusal of the said      
decision reflects that the punishment imposed in that case was on
09.05.1989 and enhancement thereof was sought to be effected by
issuing a show-cause notice on 05.07.1990.  In such circumstances,
this Court held that exercise of suo motu power to enhance the
punishment was within a reasonable time.  The case on hand is
altogether different on facts as the petitioner had suffered the
punishment of removal from service in the first instance in August,
1993, which order was set aside in appeal and upon remand and a
fresh disciplinary enquiry, he was visited with a lesser punishment
under order dated 21.11.1994.  Enhancement of the said
punishment nearly three years thereafter can hardly be said to be
within a reasonable time!
      On the above analysis, this Court holds that the petitioner
must succeed on both grounds.  To begin with, the Special Director
General, Southern Sector, CRPF, Hyderabad, had no jurisdiction to
exercise power under Rule 29(d) of the Rules of 1955 in the year
1997, and therefore, his action in issuing a show-cause notice and
thereafter enhancing the punishment imposed upon the petitioner
was without legal sanction.  Further, even if the said exercise of
power is assumed to be valid for any reason, the same was not within
a reasonable time and such belated exercise of suo motu power
cannot be sustained on facts and in law.
        The writ petition is therefore allowed setting aside the order
dated 29.10.1997 passed by the Special Director General, Southern
Sector, CRPF, Hyderabad, and the order dated 14.05.1998 of the
Director General of Police, CRPF, New Delhi, confirming the same in
appeal. The petitioner shall be reinstated in service but as he
remained out of uniformed service for all these years, he would be
entitled to continuity of service only with notional attendant benefits.
He shall not be entitled to any monetary benefits for the period that
he remained out of service. Pending miscellaneous petitions, if any,
shall stand closed in the light of this final order. There shall be no
order as to costs.


______________________  
 SANJAY KUMAR, J  
17th AUGUST, 2015  

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