Jagannath Naik v. Inspector General of Police and Ors.

16. The submissions advanced by counsel representing both sides were heard at length and the material placed on record as well as decisions cited have been perused by this Court.

17. Petitioner has placed reliance upon Supreme Court’s decision in Union of India and Others Vs. K.V.Jankaraman (Supra). In the said case, the Supreme Court primarily dealt with the issue of ‘sealed cover procedure’ in the case of grant of promotion of an employee against whom disciplinary/criminal proceedings were pending. On the aspect of No Work No Pay, the Supreme Court observed that though the normal rule is that ‘No Work No Pay‟ but it is not applicable in cases where the employee is willing to work but is kept away by the authorities. The Supreme Court also observed that “when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be 11:53 deprived of any benefits including the salary of the promotional post”. We find that the facts of the said case are different than the one in hand. In the said case, the issue was ‘promotion’ of an employee amidst pendency of departmental/criminal proceedings, whereas the present case pertains to ‘dismissal from service’ due to pendency of departmental/criminal proceedings. Also, the petitioner in the present case has not been given complete clean chit but has been held guilty of leaving his duty without permission of the competent authorities.

18. Next reliance was placed by petitioner upon decision in Jagdamba Prasad Shukla (Supra). In the said case, the appellant, a Sub Inspector, who was imposed punishment of ‘removal from service’, had challenged non payment of subsistence allowance and denial of reasonable opportunity to hear in the departmental enquiry. The Supreme Court observed that “the payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right.” Since the appellant therein had pleaded that due to medical problems, he could not appear in the inquiry proceedings and could not engage counsel for want of funds on account of non-payment of subsistence allowance, it was held that it was breach of principles of natural justice. In the present case, though the petitioner has raised grievance that proper opportunity to put forth his case was not given to him, however, we find that his representations have time to time been considered. After the departmental inquiry, he was handed over copy of Inquiry Report and his appeal and revision were duly considered by the competent authorities. Pursuant to directions of this Court vide order dated 05.12.2016 in W.P.(C) 11:53 5361/2016, the case of petitioner was reconsidered and he was reinstated in service with lesser punishment. Vide letter dated 22.02.2005, the petitioner in the present case has been directed to be given subsistence allowance by the respondent as admissible in law. Hence, the facts of the said case are different from the present case. Even his services for the period of 19.2.2005 to 20.9.2005 were regularized and he has been treated on duty and paid all consequential benefits. The petitioner herein, therefore, cannot dispute that he has not been given subsistence allowance or his requests have not been considered by the department.

19. Also reliance was placed upon another decision of Supreme Court in Vijay Singh (Supra) but the facts of the said cases are different and are not applicable to the present case.

20. Upon perusal of material placed before this Court and the decisions cited, we find that subsequent upon petitioner’s acquittal in criminal case No. 38 of 2005, under Section 47A of the Excise Act, vide order dated 29.07.2009 by the First Class Judicial Magistrate and consequent upon directions of High Court of Jharkhand vide order dated 05.12.2016 in Writ Petition No. 5361 of 2016, the competent authority of respondent set aside the order of ‘dismissal from service’. Though petitioner was directed to be reinstated in service but punishment of stoppage of three increments with cumulative effect was imposed upon him vide order dated 08.02.2017 and the period from 31.01.2006 to 17.02.2017 has been declared as dies non.

21. The petitioner has raised the grievance that though vide order dated 08.02.2017 the competent authority has directed that the period from 11:53 19.2.2005 to 20.9.2005, during which he was in judicial custody for allegedly committing offence under the Excise Act, be treated as his being on duty and he is paid all consequential benefits, however, respondent No.1 has treated the period from 31.1.2006 to 17.2.2017 as dies non, i.e. period he has remained away from duty due to his ‘dismissal from service’ vide order dated 30.01.2006, which has led to his service break. Also, major punishment of withheld of three increments with cumulative effect has been imposed. The aforesaid order dated 08.02.2017 reads as under:- ―OFFICE OF THE INSPECTOR GENERAL OF POLICE Rapid Action Force, R.K. Puram, New Delhi – 66 No.J.II.L/Notice-2016-RAF-LEGAL Dated, the 8th February, 2017 ORDER WHEREAS, No. 913272682 Ex, CT/GD Jagannath Nail was enlisted in CRPF on 10.04.1991 at 127 Bn and reported to 106 BN RAF on 29.12.2002 on his transfer from 72 Bn. While he was posted in 106 Bn RAF at Jamshedpur, he committed an offence U/S II (I) of CRPF Act, 1949 wherein he was found absent from the fall-in at 1430 HRs and also the evening Roll Call on 19.02.2005 without prior permission of his seniors or competent authority. Besides, he was also involved in a criminal offence in which he was caught red handed by "Excise Deptt" Police, Jamshedpur on same day i.e. on 19.02.2005 at 2040 HRs with 19 cartons 11:53 of illicit foreign liquor costing about Rs, 56,000/- at the High-way of Ranchi Jamshedpur near Kali Mandir, Jamshedpur, of Accordingly, he was taken on judicial custody on 19.02.2005 and a Criminal Case U/S 27 of Excise Act was Lodged by the concerned civil police.

2. AND WHEREAS, a Departmental Enquiry was conducted against NO. 913272682 Ex CT/GD Jagannath Naik of 106 Bn, RAF, CRPF vide Commandant 106 Bn RAF, CRPF Memorandum No.

P.VIII- 03/05-106-EC-II dated 29.04.2005 on the following Article of Charge:- XXX XXX NOW THEREFORE, in compliance of Court Order dated 05.12.2016 pronounced by the Hon'ble High Court of Jharkhand at Ranchi and directions issued by the DIG (Law) Dte, vide signal dated 02.01.2017, the undersigned examined the representation of No. 913272682 Ex CT/GD Jagannath Naik of 106 Bn RAF In depth and under the authority of Rule 29 (a) of CRPF Rules 1955, pass the following orders: i) WHEREAS No. 913272682 Ex CT/GD Jagannath Naik of 106 Bn RAF was dismissed from service with effect from 30.01.2006 (AN) on the ground of two charges [1] Absent from the fall-in at 1430 HRs and also the evening Roll Call on 19/02/2005 without prior permission on his seniors or competent authority. [2] 11:53 His involvement in carrying 19 cases of liquor amounting to Rs. 56,000/- and subsequently arrested by Excise Department on 19.02.2005 at 2040 hrs, at Kali Mandir on Ranchi Jamshedpur Road under Section 47(1) of Excise Act, led to his conviction on criminal charges. ii)

AND WHEREAS the said conviction i.e. charge No. 2 has been set aside by the Hon'ble Court of Judicial Magistrate, 1st Class, Jamshedpur (Jharkhand) and NO. 106 Bn RAF has been acquitted of the charge No. 2 i.e. His involvement in carrying 19 cases of liquor amounting to Rs. 56,000/-, on the basis of benefit of reasonable doubt. iii) Though No. 913272682 Ex CT/GD Jagannath Naik of 106 Bn RAF has been acquitted from the criminal case on the basis of benefit of reasonable doubt but charge No. 1 i.e. absent from the fall-in at 1430 HRs and also the evening Roll call on 19/02/2005 without prior permission of his seniors or competent authority still stand and also has been proved beyond doubt during Departmental Enquiry and also accepted by him in his representation dated 21.06.2016. He left the camp without prior permission, resulting to his arrest by "Excise Deptt" Police, Jamshedpur in criminal case. Thus he committed the act of misconduct and misbehaviour being a member of the Force because of which the Image of the Force got tarnished. Hence by such act of the petitioner, the discipline and orderliness has been affected adversely and the dignity/image of the Force has been 11:53 gravely hurt. iv) No. 913272682 Ex CT/GD Jagannath Naik of 106 Bn RAF submitted in his representation dated 21.02.2016 that punishment saddled upon him may be reconsidered and any other lighter punishment may be prescribed. Hence considering his long service and sufferings, the undersigned hereby sets aside the order of dismissal from service issued by the Commandant-106 Bn CRPF vide Order No. P-VII-3/06-106-EC-II dated 31/01/2006 on compassionate grounds and the punishment of stoppage of 3 increments with cumulative effect is imposed on NO. 106 Bn RAF. He is to be reinstated into service from the date of his reporting in 106 Bn RAF. v) Period under Police/Judicial custody/ Suspension period from 19.02.2005 to 20.09.2005 (Total 214 days) is hereby regularized as a period spent on duty for all purposes and he would be entitled full pay and allowances as the petitioner has been acquitted from criminal case U/S 27 of Excise Act by the Hon'ble Court of Judicial Magistrate, 1st Class, Jamshedpur (Jharkhand). vi) Intervening period after the date of his dismissal from service i.e. 31/06/2006 to the preceding date of his reinstatement into Govt. Service is hereby regularized as "Dies Non". However, this will neither count as service nor construed as break in service and he will not be entitled to any financial benefits on principal of "No Work No Pay". 11:53

22. In a somewhat similar case in the Hon’ble Supreme Court in Sukdarshan Singh Vs. State of Punjab and Others 2022 SCC OnLine SC 255, the appellant therein was appointed a Clerk in State Transport Department in the year 1979; was suspended in the year 1986 for the alleged acts of embezzlement; charge-sheeted in the year 1988 and was removed from service on 13.03.2003; acquitted by the trial court in the year 2006; the High Court sustained his conviction but reduced the sentence to the period already undergone. The appellant preferred an appeal against the order dated 13.03.2003 removing him from service and the competent authority vide order dated 29.01.2009, keeping a sympathetic view, set aside the termination order but the suspension period was considered as dies non and nothing was given for the said period. Against the said order, the appellant therein preferred a civil suit and sought mandatory injunction to release the pay denied to him. The said suit was decreed to the effect that the orders passed by the competent authority were arbitrary, against the rules and though he was entitled to get salary but not for the period he had undergone sentence. In the facts of the said case, the Court observed and held as under:-

23. In Sukdarshan Singh (Supra), the Supreme Court has manifestly observed that if the termination of the employees is found illegal and is reinstated in service, this ipso facto will not entitle the employee to claim salary and other benefits for the entire period he has not worked and it is the competent authority who has to take a call on it.

24. In Ex. CT. (CRPF) Prem Kumar Singh Vs. Union of India and Others 2019 SCC OnLine Del 7563 this Court had dealt with a case 11:53 wherein a Constable GD in CRPF, after orally informing the Inspector in his Batallion, went out of the Group Centre on a bike. His bike developed some snag and while he was getting the motor bike repaired the local police arrived and arrested him for having stolen the said motor bike. An FIR was registered and he was sent to Jail and the competent authority of the CRPF placed him under suspension on the ground that a criminal case was registered against him and was pending investigation. Pursuant to a departmental inquiry, petitioner therein was dismissed from his service. However, the learned trial court acquitted the petitioner due to lack of sufficient and solid evidence. The petitioner sought reinstatement in service, however, his appeal and revision were turned down by the competent authorities. In the facts of the said case, this Court observed and held as under:-

25. By the afore-noted decision in Ex. CT. (CRPF) Prem Kumar Singh (Supra), this Court directed reinstatement of the petitioner therein in somewhat similar circumstances as the case in hand, however, has held that petitioner therein would not be entitled to any arrears of pay for the period during which he was not in service.

26. The Supreme Court in Sukdarshan Singh (Supra) has held that it is the competent authority who has to take a call as to whether the period in which the personnel did not appear on duty has to be treated as ‘on duty’ or ‘away from duty’. In the considered opinion of this court, the competent authority while taking this call has to bear over all facts and circumstances of the case. Applying the dictum of Supreme Court in Sukdarshan Singh (Supra) to the facts of the present case and concurring with the decision of this Court rendered in Ex. CT. (CRPF) Prem Kumar Singh (Supra), we find that since petitioner on 19.02.2005 had left his duty to go Ranchi without informing the competent authority, he deserves to be punished for acting irresponsibly. Indisputably, on 19.02.2005 11:53 petitioner left the camp without prior permission of his seniors and so, it has rightly been held that he has committed act of misconduct and misbehaved being the member of the Force and therefore, punishment of stoppage of three increments with cumulative effect has been imposed upon him. In our considered opinion, for his misconduct, the petitioner deserves to be punished and he cannot seek exoneration of the charge of misconduct on the ground that he has been acquitted in the criminal case. What is required to be considered is as to whether the punishment of stoppage of three increments with cumulative effect is just and proper or is harsh in the facts of the present case.

27. On this aspect we find that petitioner had gone to Ranchi due to some family exigency but could not return for evening call due to his arrest in a case under the Excise Act. It is the case of respondents that since petitioner’s whereabouts were not known, a search and look was conducted and on the next day, through news published in national News Papers, respondents got to know about arrest of a CRPF personnel in illicit liquor recovery case. No doubt when petitioner was arrested on 19.02.2005 for allegedly committing offence under the Excise Act, he could not inform the competent authority about his arrest while being in judicial custody. It was the duty of the authority which arrested the CRPF personnel to inform his office (CRPF) on his arrest. For the lapse of competent authority of Excise Department in not informing the respondents about arrest of CRPF personnel i.e. petitioner, he alone cannot be blamed. Very rightly the period from 19.2.2005 i.e. the day petitioner absented himself from call roll in the evening till 20.9.2005, 11:53 during which period petitioner was in judicial custody for allegedly committing offence under the Excise Act, has been directed to be treated as his being on duty and he is paid all consequential benefits. However, petitioner has been inflicted with the punishment of withheld of three increments with cumulative effect for the misconduct which he has committed by leaving the duty without permission from the competent authority.

28. On the aspect of infliction of punishment we find that Section 10

(m) of the CRPF Act, 1949 provides as under:-

29. Further, Section 11 of the Act provides for punishment to be inflicted in cases of „less heinous offences‟, which is as under:-

30. The CRPF Act, 1949 do not prescribe for punishment of stoppage of increments. However, subsequently, CRPF Act, 1955 came into force. Section 27 (a) of Chapter – VI DISCIPLINE, of the CRPF Act, 1955 provides for Procedure for Award of Punishments, whereunder punishment of ‘stoppage of increment’ has been mentioned but the words ‘with cumulative effect’ do not find any place. In our considered opinion, the punishment of ‘stoppage of three increments’ inflicted upon the petitioner is just and proper and as per law. However, ‘with cumulative effect’ is against the prescribed law and so, deserves to be and is, accordingly set aside.

31. Further, pursuant to petitioner’s acquittal in the criminal case by the trial court vide order dated 29.07.2009, taking a compassionate view, petitioner has been reinstated in service but since he did not perform his duties from 31.1.2006 till the date of his reinstatement on 17.2.2017, the respondents vide order dated 08.02.2017 held that the aforesaid period be treated as dies non and have further added that “this will neither count as service nor construed as break in service and he will not be entitled to any financial benefit on the principal of ―No Work No Pay‖.

32. On this aspect we find that for the period from 31.01.2006, that is a 11:53 day after petitioner was ‘dismissed from service’ till 17.02.2017, when he has been reinstated in service, he did not perform his duty and, therefore, he has rightly been denied financial benefits. However, the respondents have implied the condition that the said period shall not be counted as his continuation in service nor as break in service, we find that once petitioner has been reinstated in service vide order dated 17.02.2017 in view of the fact that he has been acquitted of the offences charged with and it is established that he has been kept away from duty due to his ‘dismissal from service’ and he was not ‘willfully’ away from duty, the period from 31.02.2006 till 17.02.2017 has to considered as ‘continuation on duty’ and petitioner shall be entitled to get consequential benefits of fixation of pay, promotion, seniority etc. for the said period.

33. With aforesaid directions, the present petition is accordingly disposed of.

(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)

JUDGE MARCH 15, 2023 r 11:53