1. This is a writ application under Article 226 of the Constitution of India.
2. It is common ground between the parties that petitioner Shyamsingh was enlisted as a Constable in the Central Reserve Police Force on 3rd March, 1948 at Headquarter Neemuch. In 1958, the headquarter of the 3rd Battalion of the said Police Force was shifted to Ajmer. He made an application on 31st July, 1958 for grant of leave. He was granted leave for 56 days which, was due to expire on 5th October, 1958. Before the expiry of that leave, he sent an application dated 3rd October, 1958 for extension of Ms leave by 20 days. It was received in the office of the Officer Commanding on 6th October, 1958, but it wag refused on 30th October, 1958. Thereafter, he sent in his resignation to the Commandant, 3rd Battalion, Central Reserve Police Force, Ajmer, but it was not accepted and since he failed to join the duty, he was proclaimed as a 'deserter'. Respondent No. 2 passed orders for his arrest. The petitioner having come to know of this, surrendered himself on 21st May, 1959.
Thereafter, he was prosecuted under Section 10(m) of the Central Reserve Police Force Act, 1949, which will hereinafter be referred as the 'Act', before the Assistant Commandant, 3rd Battalion Central Reserve Police Force, Ajmer, who was also Magistrate Second Class. He found him guilty and sentenced him to three months' rigorous imprisonment on 30th May, 1959. The petitioner preferred an appeal which was heard by the Additional Sessions Judge, Ajmer. The appellate Court found that the trial court had committed irregularities in following the procedure laid down by the Code of Criminal Procedure. It was pointed out that the accused was put to a very lengthy cross-examination which was not warranted by law and, therefore, it was held that the whole trial was vitiated. The learned Judge accepted the appeal, set aside the petitioner's conviction and acquitted Mm of the charge.
The Commandant, 3rd Battalion, then commenced departmental proceedings against the petitioner and framed charges against him. After departmental inquiry under Rule 27 of the Central Reserve Police Rules, he was given another show-cause notice about the proposed punishment of dismissal. On 16th January, 1962 he was dismiss-ed from service. The petitioner then filed an appeal which was heard by the Deputy Inspector General of Police and it was dismissed on 26th May, 1962. It is against these orders that he has approached this Court by way of this writ application.
3. Learned counsel for the petitioner has challenged the order of his dismissal, which has been upheld in appeal, on several grounds and it would be proper to deal with them in seriatim.
4. It is contended, in the first instance, that his client was acquitted by the Court of Additional Sessions Judge and a departmental enquiry could not, therefore, be Instituted against him legally on the basis of the same facts. Regarding this objection, it would suffice to say that from the perusal of the judgment of the Additional Session Judge, it appears that he did not acquit the accused on the merits of the case, but because he came to the conclusion that his criminal trial trial was vitiated on account of serious irregularities committed toy the trial court. Under the circumstances, there was no bar against the departmental enquiry which was instituted under the 'Act'.
5. It is next contended that his client could toe dismissed only under Section 12 of the Act if he were convicted of an offence and sentenced to imprisonment under the Act and that the punishment of dismissal could not be awarded under Section 11 of the Act. It is pointed out by him that Section 11 deals only with minor punishments detailed in Clauses (a) to (e) of Sub-section (1) and that these clauses do not prescribe the punishment of dismissal.
6. In order to deal with this argument, it would be proper to reproduce Sections 11(1) and 12 of the Act which run as follows: --
'Section 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 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.'
'Section 12. Place of imprisonment and liability to dismissal on imprisonment-
(1) Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals, and decorations received by him.
(2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the Force, he may, if the Court or the Commandant so directs,' be confined in the quarter-guard or such other place as the Court or the Commandant may consider suitable.'
The perusal of Section 12 shows that It enables the authorities concerned to dismiss the convict if he is sentenced under the Act to imprisonment. It further renders him liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him. it is thus clear that the punishment of dismissal under this Section may be given to a delinquent in addition to the sentence of imprisonment awarded to him under the law. If the authorities mean to proceed under this section, it will not be necessary to observe the formalities of a regular disciplinary inquiry and action may be taken up after a person's conviction and punishment of imprisonment under the Act. It does not lay down that a person would not be liable to dismissal if he is not convicted and sentenced under the Act.
7. The perusal of Section 11 shows that it deals with minor punishments as compared to the heavier punishment prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribe ed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty, or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to learned counsel for the petitioner, the only punishments which can be awarded under this section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, this interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.
The use of the words 'in lieu of, or in addition to, suspension or dismissal' appearing in Sub-section (1) of Section 11 before Clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishments mentioned in Clauses (a) to (e) may also be awarded.
8. It may be further pointed out that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may he awarded for them. Section 10 deals with less heinous offences and Clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause, or over-stay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry, and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10.
9. The last argument raised by learned counsel for the petitioner is that during the course of the departmental inquiry, respondent No. 2 took into consideration the report of the Superintendent of Police, District Mandsaur, which was submitted by the said officer behind his back and he was not given a chance of examining him or other witnesses, We find that only one witness Shri M.M. Bhargava, Deputy Superintendent of Police, 3rd Battalion, Central Reserve Police Force, was examined and the perusal of the copy of his statement, which has been placed on the record, shows that the inquiry officer gave to the petitioner an opportunity of cross-examining him, but he declined to do so. In the deposition of the said witness there appears a clear note signed by the petitioner himself to the following effect:--
'HC Shyamsingh declined to cross-examine the witness.'
Having forgone his right to cross-examine the witness, it is no longer open to him to make any grievance about it. It appears from the statement of this witness that he had placed documentary evidence before the inquiry officer and it also included one report of the Superintendent of Police, District Mandsaur. It seems that the report was to the effect that the petitioner and his wife were keeping good health and were running a hotel during the period the petitioner was away from his duty. It is, no doubt, true that the petitioner did not get an opportunity to cross-examine the Superintendent of Police, Mandsaur, who had made the report and if the punishment awarded to the petitioner depended on that factor alone, we might have thought of interfering in the matter. The real charge, however, against the petitioner was that he overstayed for a long period even after the expiry of his leave for 56 days on 5th October, 1958 till he was arrested on 21st May, 1959.
The allegation of over-stay without leave was not denied and so it was for the petitioner to satisfy the authorities concerned that there were good reasons on account of which he could not, possibly join his duty. He did not discharge that burden by producing any evidence. He has not been prejudiced for the mere reason that he was not given an opportunity to cross-examine the Superintendent of Police, District Mandsaur. Moreover, learned counsel has not been able to refer to any application whereby the petitioner might have requested the Inquiry officer to call the Superintendent of Police, District Mandsaur, for the purpose of cross-examination.
10. It only remains now to discuss one case which has been cited by the petitioner's learned counsel in support of his argument. It has been argued that in Sur Enamel and Stamping Works Ltd. v. The Workmen, AIR 1963 S C 1914 the order of dismissal was considered to be bad, because the reports against the dismissed person were not made available for cross-examination. It may be pointed out that in the said case, a joint inquiry was held by a Domestic Tribunal against two workmen. The only charge against A was that he had caused damage to company's property by his wilful faults. Nobody was examined at the Inquiry to prove the charge; only the workmen concerned were examined and they were confronted with the reports of the supervisor and other person which were made behind their back.
It is obvious that in the said case every thing depended on the reports of the supervisor and other persons which were made behind the back of those to whom they were concerned and the persons who made the reports were not examined at all. The burden of proving that the damage was caused by the said workmen was on the company. It was in those circumstances that the dismissal was considered to be improper. It was found by the learned Judges in the said case that there was no inquiry worth the name by the Domestic Tribunal. We have already pointed out above that the facts of the present case are quite different. It was not challenged by the petitioner himself that he failed to return to duty on 6th October, 1958 till he was arrested in May 1959. The mere omission of the examination of the Superintendent of Police, District Mandsaur, would not, therefore, be material for purposes of this case, if he were examined, it might have further strengthened the case against the petitioner to the effect that he had no good reasons to be absent but the fact that he was not examined does not weaken the case, because the burden lay on the petitioner to prove that he had to remain absent for reasons beyond his control.
11. There is thus no force in the writ application an it is hereby dismissed with costs.