D.I.G. (P), C.R.P.F. And Another Vs Narayan Chandra Mohapatra

M.S. Sahoo, J

1. The Intra Court Appeal has been filed by the appellants : the Deputy Inspector General, Central Reserve Police Force (CRPF), Allahabad and the Commandant, 93 Battalion (Bn for short) Central Reserve Police Force, Lamphelpat, Imphal, Manipur challenging the judgment and order dated 19.02.2021 passed by the learned Single Judge allowing the writ petition : W.P.(C) No. 8777 of 2007 filed by Respondent-Narayan Chandra Mohapatra, whereby part of the order treating the period from 11.04.1999 to 07.11.2006 as “dies non” has been set aside and arrears of salary has been granted for the said period.

Facts in Brief

2.1 The respondent entered into service as constable (G.D.) in Central Reserve Police Force which is governed by CRPF Act, 1949 and the Rules made thereunder. On an allegation of misconduct during his tenure at 93 Bn, CRPF, Lamphelpat, Imphal, in the State of Manipur, he was placed under suspension vide order dated 10.11.1998 of Commandant 93 Bn in contemplation of a disciplinary proceeding against the respondent and was served with office  memorandum  dated  30.12.1998  indicating  the charges framed against him and the said imputation of charges is quoted herein :

“No 891310626 Const N.C.Mohapatra while serving A/93

Bn, CRPF committed an offence of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act 1949 in that he cocked his rifle and aimed on his superior officer of 93 Bn, on 9/11/98 at 19.30 hours while officer was visiting sentry posts and Morcha of A/93 Bn, CRPF during stand to. Thus he tried to attempt to shoot by aiming his rifle on his superior officer who was on bonafide Govt. duty without any provocation.”

2.2  The 2nd in Command of 93 Bn. CRPF was the Inquiry Officer, who conducted the inquiry in accordance with the Central Civil Service (Conduct, Control & Appeal) Rules, 1965 read with Rule 27 of the CRPF Rules, 1955.  The Inquiry Officer held the respondent guilty by Enquiry Report dated 30.03.1999. The Disciplinary Authority by its order dated 11.04.1999 imposed punishment of dismissal from service with effect from 11.04.1999. The respondent challenged the order of dismissal by filing Appeal dated 23.04.1999 before the departmental authority which was dismissed by the appellate Authority by order dated 10.06.1999.

Earlier writ before this Court :

2.3 The respondent challenged the order of the appellate authority as well as that of the Disciplinary Authority by filing writ petition : OJC No. 8032 of 1999 before this Court. The writ petition was allowed by order dated 12.07.2006. This Court remanded the matter to the appellate authority for consideration afresh.

Proceeding before Appellate Authority after remand :

2.4 Pursuant to the order dated 12.07.2006 passed by this Court, appellate authority reheard the appeal and by order dated 19.10.2006 substituted the order of dismissal by the stoppage of increment for three years, directed the petitioner to be reinstated in service with immediate effect, to be posted in 123 Bn CRPF. The appellate authority further directed that the period from the date of dismissal (11.04.1999) till date of reinstatement (10.11.2006) to be treated dies non.

The relevant extract of the order dated 19.10.2006 passed by the appellate authority, DIG of Police, CRPF, Allahabad is reproduced herein :

“(a) The order of dismissal from service in respect of No.891310626 EX-CT N.C. Mahapatra (appellant) of 93 Bn. CRPF ordered vide Commandant 93 Bn CRPF vide his office order No.P.VIII-12/98-93-EC-II dated 11/4/99 and this office order No. R.XIII-10/99-EC-I dated 10/6/99 are set aside and he is re-instate into service with immediate effect. On re-instatement he is posted to 123 Bn. CRPF.

(b) No 891310626 CT N.C.Mahapatra (appellant) is hereby awarded the punishment of stoppage of increment for a period of three years.

(c) The intervening period i.e. from the date of his dismissal from service till his reporting to 123 Bn CRPF, on re-instatement into service shall be treated as dies non and he will not be entitled for any pay and allowances for the intervening period keeping in view the principle of “NO WORK NO PAY”. However dies non period is hereby condoned for the purpose of pension and pensionary benefits under Rule-27 of CCS Pension Rules, 1972.

(d) Formal re-instatement order will be issued by the Commandant 123 Bn CRPF on reporting by No.891310626 EX-CT N.C.Mahapatra (petitioner) in 123 Bn CRPF, under intimation to all concerned.”

2.5 The writ petition W.P.(C) N. 8777 of 2007 out of which the present Writ Appeal arises was filed by the present respondent, challenging the order dated 19.10.2006 passed by the appellate authority-appellant No.1, the D.I.G., CRPF, Allahabad setting aside the order of punishment of dismissal from service passed by the disciplinary authority and substituting it with a punishment of stoppage of increments for a period of three years and treating the period of non-engagement from date of order of termination 11.04.1999 till the date of re-engagement : 19.10.2006 as “dies non”.

Treating the period of non-engagement as dies non has resulted in the respondent not getting salary and other emoluments for the said period.

Challenge to the order passed by the Appellate authority on reconsideration :

3. The learned Single Judge interfering with the order dated 19.10.2006 passed by the appellate authority treating the period from 11.04.1999 to 07.11.2006 as dies non, has held as follows :

“6. The present writ petition is in the second round of litigation. The impugned order of the Appellate Authority has been decided in the second round of appeal exercise. It is at this stage considering the submission of Sri Tripathy so far as it relates to the impugned order, for the specific prescription of punishment prescribed under Rule 27 of the Central Reserves Police Force Act, 1955, this Court on perusal of Rule 27 of the Act finds the following are the punishment as prescribed therein, which are quoted herein as below:

7. Reading the punishment prescribed under Rule 27 of the CRPF Act, this Court nowhere finds there is prescription of such punishment particularly at Clause-c of the Appellate Authority order, vide Annexure-6. For there being no prescription of such punishment, this Court observes the punishment under Clause-c is not sustainable in the eye of law.

8. Coming back to the challenge of the Department counsel on entertianability of the writ petition, this Court finds the dismissal order was challenged by filing the writ petition in the year 1999, the first round of litigation was over in the year 2006 and in the second attempt the Appellate Authority passed the impugned order in the year 2000, resulting filing of the present writ petition in the year 2007 and in the meantime even pending of the writ petition, there is already loss of 14 years again. For the incident involving prior to 1999 and loss of so much time, raising the question of maintainability at the final hearing of the writ petition cannot be permitted. It is in this view of the matter, this Court interferes in the order of the Appellate Authority, more particularly at Clause-c of Annexure-6 and sets aside the same.

9. For this Court interfering in the Appellate order partially and declare the punishment vide Para-c as bad, the petitioner will be treated to be continued all through with treatment of period of suspension as such and consequential service benefits shall be granted in favour of the petitioner within a period of two months. However, the observation of the Appellate Authority at Paras-(a), (b) and (d) stands confirmed.

Writ petition thus succeeds. No costs.”

Analysis :

4. Having heard learned Central Government Counsel for the appellant at length and having gone through the records available in the present proceeding, viz., W.A. No.601 of 2021 as well as records of W.P.(C) No.8777 of 2007 disposed of on 19.02.2021 which have been kept for reference, we are not inclined to interfere with the order passed by learned Single Judge and we direct dismissal of the writ appeal for the facts and reasons recorded herein.

In our considered opinion the punishments provided under Rule 27 of the CRPF Act does provide “stoppage of increment” for three years but further deprivation of wages by treating certain period as dies non is not contemplated in the relevant service rules as has been done in the case at hand. The order passed by the learned Single Judge is just and proper and does not require any interference in exercise of the jurisdiction of an intra-court appeal there being no error apparent on the face of the record.

5. We feel it apt to further supplement the reasoning given by the learned Single Judge as would be indicated hereinafter.

The findings have been given by the appellate authority-D.I.G. of Police, CRPF, Allahabad in his order dated 19.10.2006 (Annexure-2 to the present appeal), that the respondent herein “in his capacity has performed his duty as per existing procedure’ but “committed the mistake by coming out of the Morcha with his service weapon and after leaving the same pointed towards the inspecting officer and other approaching him is a serious lapse on his part also endanger his life by leaving his Morcha.”

(emphasis supplied)

5.1. To have a proper perspective of the incident which has led to the allegation of delequency, the relevant portion of the order passed by appellate authority (at paragraph-6 of his order) is quoted herein :

“6. ... ... a) On 9/11/98, No.891310626 Ex-Const N.C. Mohapatra (Appellant) of 93 Bn CRPF was on sentry Guard duty at Morcha No.8 from 1800 hours to 2030 hours. The action on the part of the appellant as sentry on duty while posted in the operational area, to an extent not as per laid down procedure. According to him he on being finding it difficult to recognize the person approaching towards his morcha due to darkness, challenged and asked them for password etc. to establish their identity. Shri Mohan Singh D/C visiting officer who was in front of the party was unable to answer any of the queries. Then the appellant came out of the morcha, loaded his weapon and pointed towards the visiting officer approaching him when CHM HC/GD Gulab Singh disclosed his identity at that point of time the appellant unloaded his rifle and apologized the officer for his above action. The procedure followed by the appellant while on sentry duty challenging the persons whom he did not recognize was not entirely in order. The lapses on the part of Inspecting Officer while checking the stand-to were not taken into consideration and the charge was proved against the appellant. Accordingly on the basis of report of Enquiry Officer, disciplinary authority i.e. Commandant 93 Bn CRPF awarded the punishment of dismissal from service to No.891310626 Ex-Const. N.C. Mahapatra (Appellant) simply because he had loaded and aimed the rifle at the visiting officer. However,No.891310626 Ex-Const. N.C. Mohapatra (Appellant) pleaded guilty during the departmental enquiry and also in the personal hearing for his this action.

b) Though the appellant in his capacity has performed his duty as per the existing procedure but committed a mistake by coming out of the morcha with his service weapon and after loading the same pointed towards the inspecting officer & other approaching him is not only a serious lapse on his part but also endangered his life by leaving his Morcha. Had there been some insurgents they would have killed him instantly which fortunately was not the case. Also in other condition he out of fear would have pressed the trigger of the rifle and killed the officer and men approaching towards his morcha. As per procedure he would have remained in the morcha till full identity of the strangers were established. As such his fault not following the correct procedure by coming out of morcha and loading and aiming the rifle at the visiting officer and men is a serious omission, though it appeared to be not intentional. More over as per the version of appellant, he was under the fear due to the fact that a few months back an incident of militant attack had taken place at the Unit location and it being darkness on that particular day, there was every chance of his pressing the trigger under such circumstances which could have led to a lot of cansalities. As such is his fault is not following the correct procedure by coming out of the morcha and loading and aiming the weapon towards the alleged strangers was serious lapse on his part.

c) As per statement of Shri Mohan Singh DC, 93 Bn, CRPF who visited “A” coy 93 Bn, CRPF was accompanied by O.C. A/93 Bn.CHM and Platoon Commander on 9/11/98 at 1900 hrs for checking the stand-to. While they were approaching towards Morcha No.8 they failed to reveal the password on being challenged by No.891310626 Ex-CT N.C. Mahapatra of 93 Bn, CRPF, who was on sentry Guard duty on 9/11/98 at Morcha No.8 from 1800 hrs to 2030 hrs. Had they told the pass word or disclosed their identity such situation could have been avoided by CT/GD N.C. Mahapatra. The checking party is also equally as fault for not knowing of password of the day which is very crucial to avoid such situations.”

5.2. In the above observations of the appellate authority, the finding of fact is that the respondent was on the sentry Guard duty at Morcha No.8 from 1800 hours to 2030 hours on 09.11.1998 when it was  raining.  There  was  darkness  affecting  the visibility making it difficult to recognize the persons approaching him. The appellant challenged those persons and asked them (as per procedure) for password etc to establish their identity, the officer in front of the visiting party was unable to answer to any of the queries of the respondent. Thereafter,

faced with such a situation, respondent came out of “Morcha”, loaded  his  weapon,  pointed  towards visiting officer approaching him. At that point of time one of the members of the visiting party, namely Head Constable Gulab Singh (P.W.4) disclosed his identity, the respondent unloaded his rifle, immediately apologized and went back to Morcha No.8. The appellate authority, very fairly, has observed as follows :

“Though the appellant in his capacity has performed his duty as per existing procedure but committed a mistake by coming out of the morcha with his service weapon and after loading the same pointed towards the inspecting officer & other approaching him is not only a serious lapse on his part but also endangered his life by leaving his Morcha.”

5.3. The observations of the appellate authority at paragraph-61 as quoted above also indicate that the respondent acted well within his limits, in response to a situation when he was on sentry Guard duty on 09.11.1998 at Morcha No.8 from 1800 hours to 2030 hours on a dark rainy night, when the persons approaching did not disclose their identity. It has also been observed by the appellate authority that such situation would have been avoided had the visiting party disclosed their identity and told the password. In fact the respondent unloaded his rifle, apologized and went back to Morcha No.8 immediately after he was told the identity by one of the visiting persons, i.e., Gulab Singh.

6. On perusal of the imputation of the misconduct as quoted above, from Memorandum dated 30.10.1998, it would be seen that the respondent was not informed regarding his alleged behavior of “coming out of Morcha” to be a “misconduct” as observed by the Enquiring Authority/appellate authority. The disciplinary authority did not have the occasion to examine such conduct as such allegation did not form part of the enquiry conducted by the Inquiring Officer.

7. The entire episode of alleged misconduct can be considered from another angle, as would be discussed herein. The inquiring as well as appellate authority have narrated the sequence of events : that in an insurgency prone area where earlier incident of attack had happened on security personnel, the respondent was doing Guard Sentry Duty from 1800 hours to 2030 hours. There was no intimation to him of the inspection of Dy. Commandant at about 19.30 hours. The respondent followed the procedure by asking for the password as well as the identity of the visiting persons. The visiting persons failed to disclose their identity nor could it tell the password. Faced with such a situation, the respondent reacted; cocked his rifle and aimed at the persons visiting who happened to be his superior officers till Mr.Gulab Singh saved the situation by disclosing his identity and the respondent immediately unloaded the rifle, went back to Morcha N.8 and begged apology.

8. In the opinion of this Court, the question to be answered is whether a human being of ordinary prudence, how much trained he may be, could have reacted differently to the situations described by the inquiring and appellate authorities, thereby terming the response/behaviour of the respondent to an emergent situation to be misconduct.

In our humble considered opinion, the answer has to be ‘no’. In the framing of charges and in the imputation of misconduct, the authorities have not delved into such aspect thereby terming the behaviour of the respondent to be misconduct, just by putting the entire assessment of the situation in a straight jacket rendering the assessment very subjective.

8.1 Further, the framing of charge and the enquiry has failed to take note of the series of serious failure on part of the inspecting party not informing the sentry post regarding their visit in the darkness of a rainy night much after sunset, the visitors not disclosing their identity and password as required, when asked by the respondent, coupled with past attack on the unit, resultantly the whole chain ultimately triggering the behaviour attributed to the respondent.

It becomes too much of a subjective opinion on the part of the enquiring authority being the Dy. Commandant and the Appellate authority being a Deputy Inspector General to examine the response of a sentry after the situation was clearly precipitated by “equally faulty beheaviour” (as observed by the appellate authority) of the visiting officers much higher in hierarchy compared to the sentry-respondent.

Discussions of the case law :

9. The appellants in their appeal memo under the caption “grounds” have cited the following decisions :

State of Haryana v. O.P.Gupta 1996 SCC (L & S) 633;

Polura Ramakrishnaiah v. UOI (1989) 2 SCR 541;

Union of India v. K.V. Janaki Raman 1991 SCC (4) 109;

Jasbir Singh v. Harayana State Agriculture Marketing Board (987/2009) and

Senior Superintendent of Telegraph (Traffic) Bhopal v. Santosh Kumar Seel and others, 2010 III llJ 600;

to contend that the respondent is not to be granted his wages and the period he remained out of service is to be treated as “dies non”

9.1  On perusal of the judgments rendered by the Hon’ble  Supreme  Court  relied  on  by  the  appellants purportedly in support of their contentions, it is apparent that by and large those decisions are dealing with cases where promotion is granted to a litigating employee from a back date therefore the employee having not worked in the promotional post therefore it is held to get benefit of notional pay fixation.

9.2.  However, in  Union  of  India  v.  Madhusudan Prasad : (2004) 1 SCC 43: A 2004 SC 977, it has been held by the Hon’ble Supreme Court (paragraphs, 4, 5 & 6 of SCC) :

“4. We heard the counsel for the Union of India and it was submitted that the respondent was not entitled to get salary for the period from 7-11-1994 to 15-2-1996 in view of the order passed by the Appellate Authority. It was submitted that Fundamental Rule 54 enables the Government to pass such an order and it was argued that in an appropriate case the authorities can pass an order denying salary to the employee when reinstatement is ordered as a result of appeal or review. Fundamental Rule 54 reads as follows:

“54. (1) When a government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order—

(a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.”

5. It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. The counsel for the appellant has placed reliance on the decision of the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] where this Court held that the question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.

6. The above case was concerning an employee, who was found guilty in an enquiry but the report was not furnished to the employee and the show-cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed that appropriate order should be passed regarding the back wages. In the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not think this is a fit case where Fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed.”

(Emphasis supplied)

Conclusion:

10. The alleged incidence of delinquency is stated to have happened on 09.11.1998, the respondent was successful, in challenging the order passed in appeal confirming order of punishment, as the earlier Division Bench set aside the order passed by the authority in O.J.C. No.8032/1999 decided on 12.07.2006 and after 24 years, in the opinion of this Court, the issue has to be given a quietus, the present appeal otherwise also being devoid of merit.

In view of this Court having arrived at a finding that the alleged misconduct of “coming out of Morcha” did not form a part of the imputation of misconduct which has been quoted in para-2.1 above, the respondent-employee did not have any opportunity to give his response to the said allegation leading to non-compliance of principles of natural justice. The enquiring authority, the disciplinary authority as well as the appellate authority did not have the scope to delve into the said alleged delinquency as it did not form part of the enquiry proceeding. It is another issue that the appellate authority while dealing with certain evidence/materials on record thought that the respondent while performing the duty of a sentry “moved out of Morcha”, but for evaluating and arriving at a conclusion that such an act is a delinquency, the employee’s version should have been on record as mandated by the Central Reserve Police Force Rules, 1955 as well as Central Civil Service (CCA) Rules, 1965. 11. Therefore, in view of the detailed reasons as given by us above and applying the principle laid down by the Hon’ble Apex Court in Madhusudan Prasad (supra), the order of the learned Single Judge, setting aside the order of the appellate authority treating the period of employment of respondent from 11.04.1999 to 07.11.2006 as dies non is held to be just and proper, not to be interfered with in the present appeal.

It is further directed the Respondent-Narayan Chandra Mohapatra shall be paid his actual emoluments for the said period along with benefits like increments and his salary shall be re-fixed. Since the respondent is stated to have retired from service in the month of March, 2017, his pensionary benefits shall be revised and re-fixed accordingly. The arrears of differential salary and pensionary benefits till date, after calculation, shall be paid to the respondent within three months from the date of communication of certified copy of the order, failing which he shall be entitled to be paid interest @ 6 percent on the admissible amounts calculated from the date of accrual till the date of actual realization, apart from officials concerned liable to be hauled up in contempt proceeding. The Govt. would be free to recover the extra burden of interest from the erring sanctioning and disbursing officer concerned.

The Writ Appeal is dismissed. However, there shall be no order as to costs.

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