P. Srinivasalu v. The Additional Director General (CRPF) and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **WP(C).No.33804 OF 2014(A)** ## **PETITIONER:** **P. SRINIVASALU, AGED 44 YEARS, (ASI M.NO.951860138), S/O PALADI YADAGIRI, ASSISTANT SUB-INSPECTOR (MINISTERIAL), CENTRAL RESERVE POLICE FORCE, GROUP CENTER, PALLIPURAM, THIRUVANANTHAPURAM. NOW RESIDING AT ROOM NO.7, SOS LINE, GROUP CENTER, PALLIPURAM, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.B.HARISH KUMAR** ## **RESPONDENTS:** |**1**|**THE ADDITIONAL DIRECTOR GENERAL (CRPF),**| |---|---| ||**ADG SOUTH ZONE HQ, KASHAVAGIRI POST, HYDERABAD,**| ||**ANDRA PRADESH-500005.**| |**2**|**THE INSPECTOR GENERAL OF POLICE,**| ||**SOUTHERN SECTOR, CENTRAL RESERVE POLICE FORCE,**| ||**ROAD NO.10 C, JUBILI HILLS POST, HYDERABAD-33.**| |**3**|**THE DEPUTY INSPECTOR GENERAL OF POLICE,**| ||**GROUP CENTER, CENTRAL RESERVE POLICE FORCE,**| ||**PALLIPURAM, THIRUVANANTHAPURAM-695316.**| ||**BY ADV. SMT.O.M.SHALINA, CGC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.33804 OF 2014(A)** **2** ## **JUDGMENT** The petitioner who is an Assistant Sub Inspector (Ministerial) in the Central Reserve Police Force (CRPF) filed this writ petition challenging Exts.P7 order declaring him as a deserter and Ext.P12 order by which a punishment of stoppage of one increment for three years with cumulative effect was awarded to him and the period of his absence was regularised as half pay leave. 2. The case of the petitioner is that while he was working at Vishakhapatnam at 198 BN, he was transferred to Group centre, Pallipuram under the 3[rd] respondent, as per Ext P1 order issued on 23.08.2012; as he was relieved on 24.08.2012 and no joining time was given, he had to travel from Visakhapatnam to Vijayawada in standing mode in train along with his family, in heavy rush; due to severe back pain on account of that, he was admitted in a Government Hospital at Hyderabad and he therefore submitted Ext P2 application for leave for 30 days from 25.08.2012 to 25.09.2012, along with medical certificate. He thereafter submitted Ext P3 application for extension of leave upto 14.10.2012 again along with medical certificate; that application was rejected and on 3.10.2012, he was asked to report at the Head Quarters at Hyderabad, threatening **WP(C).No.33804 OF 2014(A)** **3** disciplinary action; he again submitted Ext P4 application for leave upto 24.12.2012 on medical grounds; By Ext P5 order dated 20.10.2012 he was again directed to report for medical opinion at CH, CRPF, Hyderabad failing which he will not eligible for pay for the entire period of absence. It is stated that he thereafter submitted Ext P6 application for extension of leave upto 03.02.2013. Respondents thereupon conducted a court of enquiry and passed Ext P7 order on 23.01.2013 declaring the petitioner as Deserter under Rule 31 of the CRPF Rules,1955. Though petitioner submitted further application for leave, he rejoined duty on 23.04.2013 after submitting Ext P8 representation requesting for cancellation of Ext.P7 order. 3. Another complaint of the petitioner is against Ext P12 order by which his one increment was barred for 3 years with cumulative effect and treating the period of his absence as leave without pay. The said order was passed after an enquiry was conducted pursuant to memo of charges issued to petitioner on 12.03.2013 to which he submitted his Ext P9 written statement. He had also submitted his explanation against Ext P10 enquiry report. The allegations against him were mainly disobedience to the orders of superiors; without reporting for duty at Pallipuram based on the order **WP(C).No.33804 OF 2014(A)** **4** of transfer, he proceed to his home town; did not report for medical opinion, etc. He was found guilty in the enquiry. The writ petition was filed stating that when Ext P13 appeal filed against Ext P12 order was pending before the 2nd respondent, proceedings for recovery from his pay were already started. 4. Contention of the petitioner is that the orders Ext P7 and P12 were issued without conducting any proper enquiry. 5. The respondents have filed counter affidavit stating that the petitioner was transferred to Pallipuram as per order dated 04.08.2012 with direction to relieve him within 20 days and he was relieved from 198 Bn on 24.08.2012 with direction to report for duty at Pallipuram. As he continued to submit application for leave on medical grounds, he was directed to report for medical opinion/treatment at Composite Hospital, Hyderabad, which was very near to his home; as he never cared to appear for medical opinion despite repeated directions in Ext R1(c), (f), etc, the request of petitioner for leave on the basis of the medical certificates produced by him cannot be accepted; his pay and allowances were withheld from October 2012 as he remained absent unauthorisedly; Ext.P7 proceedings were issued only thereafter declaring him as deserter, in accordance with the provisions contained **WP(C).No.33804 OF 2014(A)** **5** in Rule 31 of CRPF Rules, 1955 and after conducting a Court of Enquiry; as he thereafter reported for duty on 23.04.2013, the order of desertion got cancelled. Thereafter departmental proceedings were initiated against petitioner on account of his disobedience towards lawful orders of superiors and unauthorised absence; Ext P12 order imposing penalty of stoppage of one increment for three years with cumulative effect was issued after a fullfledged enquiry in accordance with rules, affording sufficient opportunity to petitioner to defend; the appeal Ext P13 was already rejected as per Ext R1(j) order and the same was communicated to him, even before writ petition was filed. It is stated that he remained unauthorisedly absent for a period of 239 days. 6. Having heard the contentions on both sides it is seen that the order of desertion was passed on account of the unauthorised absence of petitioner from 25.08.2012. The contention of the petitioner that his applications for leave on medical grounds were rejected or that the medical certificates he produced were not accepted arbitrarily, cannot be accepted when he did not choose to report in the hospital for medical review even after repeated directions of the respondents. Just because he continued to submit applications for **WP(C).No.33804 OF 2014(A)** **6** leave one after another or that he produced medical certificates along with his applications, he would not get exonerated from the indiscipline shown by him by way of his unauthorised absence as well as disobedience to the orders of superiors. The proceedings declaring him as Deserter cannot be said to be illegal in such circumstances. Petitioner, who was relieved on 25.08.2012, joined duty only on 23.04.2013. Departmental action was taken only thereafter. It is seen that departmental enquiry was conducted giving him sufficient opportunity to defend. The punishment is awarded when the charges were found proved. 7. In the counter affidavit the respondents stated that petitioner produced 4 medical certificates from 4 government hospitals- advising rest for (1) back pain and viral fever (2) typhoid and body pain (3) rest and (4) back pain. It is stated that as the OPD number in each of the certificates were different that would mean that he went as a fresh patient each time without previous medical records; in the OPD slip dated 04.02.2013 of District Hospital it was stated that petitioner was having back pain only for 2 days, whereas his case is that he could not join duty on 24.08.2012 due to back pain. 8. Having considered the contentions on both sides it is seen **WP(C).No.33804 OF 2014(A)** **7** that proceedings under Rule 31 were issued only after petitioner refused to report for medical review even after repeated directions and he remained absent from duty from 24.08.2012 onwards. Ext P7 proceedings were issued on 23.01.2013, that too in accordance with the provisions contained in Rule 31 of CRPF Rules, when petitioner did not join duty and remained absent without permission. . The petitioner who is a member of a disciplined Force, is not expected to act in disobedience of superiors. Ext P12 proceedings were issued after conducting an enquiry in which petitioner was given opportunity to defend. There is no allegations as to any procedural irregularity. 9. Even though the petitioner has in his writ petition relied on the judgment of the Apex court in _**Bhagwan Lal Arya v. Commr. of Police: (2004) 4 SCC 560,**_ it is seen that it was a case of removal from service of a person for whom leave was initially sanctioned for him by the authorities on medical grounds and the apex court found that a lesser punishment would be sufficient. Similarly, the judgment in _**Krushnakant B. Parmar v. Union of India: (2012) 3 SCC 178**_ **,** it was also a case relating to removal and the employee therein had a contention that he was prevented from attending duty. Therefore both those judgments would not be applicable to the factual circumstances **WP(C).No.33804 OF 2014(A)** **8** of this case. 10. The petitioner has got a further grievance over the reduction of his pay. The punishment awarded in Ext P12 order was stoppage of one increment for 3 years with cumulative effect. His absence for 239 days from 27.08.2012 to 22.04.2013 was regularised as Half Pay leave without leave salary, by the very same order . The respondents has stated that recovery is made @3758 per month from the pay and allowances on the basis of Ext P12 order and no further notice is necessary for the same. 11. Smt. O. M. Shalina, the learned Central Government Counsel, argued that respondents are entitled to deduct his pay and allowances of the petitioner for the period during which he absented himself, under Section 13 of CRPF Act, 1949. Section 13 reads as follows: - _“13. Deductions from pay and allowances.– The following penal deductions may be made from the pay and allowances of a member of the Force by his company officer, that is to say,-_ - _(a) all pay and allowances for every day of absence either on desertion or without leave and for every day of imprisonment awarded by a Criminal Court or of confinement awarded under section 11;_ - _(b) all pay and allowances for every day whilst he is in_ **WP(C).No.33804 OF 2014(A)** **9** _custody on a charge for a offence of which he is afterwards convicted;_ - _(c) all pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him at the hospital to have been caused by an offence committed by him under this Act;_ - _(d) all pay and allowances ordered to be forfeited under section 11; and_ - _(e) such sum as may be ordered by the Commandant or assistant commandant in order to make good any expenses caused by the member of the Force, or any loss of, or damage or destruction done by him to, any arms, ammunition, equipment, clothing, instruments or decorations belonging to the Force or to any buildings or property.”_ Section 13(a) provides for recovery of pay and allowances for every day of absence either on desertion or without leave from the pay and allowances of the member of the Force. 12. By Ext.P12, it was ordered that the period of 239 days i.e., the absence period from 27.08.2012 to 22.04.2013 stood regularised as Half Pay Leave with no leave salary. It is pointed out that the recovery ordered is as against the salary already paid to the petitioner during his absence, which has been found to be unauthorised. In view **WP(C).No.33804 OF 2014(A)** **10** of the provisions contained in Section 13 of CRPF Act, 1949 and in view of Ext P12 order, there is no illegality in deduction of the salary already paid to the petitioner towards the period of his unauthorised absence, when Ext P7 and P12 orders are upheld. The writ petition is dismissed accordingly. **Sd/P.V.ASHA JUDGE** ## **Ww/SCS** **WP(C).No.33804 OF 2014(A)** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE OFFICE ORDER DATED 23.8.2012 ISSUED BY THE RESPONDENT FORCE.** **EXHIBIT P2 A TRUE COPY OF THE LEAVE APPLICATION DATED 25.8.2012 SUBMITTED BY THE PETITIONER ALONG WITH THE MEDICAL CERTIFICATE.** **EXHIBIT P3 A TRUE COPY OF THE LEAVE APPLICATION ALONG WITH MEDICAL CERTIFICATE DATED 26.9.2012.** **EXHIBIT P4 A TRUE COPY OF THE LEAVE APPLICATION ALONG WITH THE MEDICAL CERTIFICATE DATED 15.10.2012 SUBMITTED BY THE PETITIONER.** **EXHIBIT P5 A TRUE COPY OF THE PROCEEDING ISSUED BY THE 3RD RESPONDENT'S OFFICE.** **EXHIBIT P6 A TRUE COPY OF THE LEAVE APPLICATION ALONG WITH MEDICAL CERTIFICATE DATED 25.12.2012. EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 23.1.13 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 20.3.2013 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT FORCE.** **EXHIBIT P9 A TRUE COPY OF THE REPLY TO THE MEMORANDUM DATED 27.3.2013.** **EXHIBIT P10 A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BEFORE THE 3RD RESPONDENT DATED 11.10.2013. EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION DATED 23.10.2013 SUBMITTED BY THE PETITIONER.** **EXHIBIT P12 A TRUE COPY OF THE OFFICE ORDER DATED 27.11.2013 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P13 A TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER ON 9.12.2013.** **EXHIBIT P14 A TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST 2014.** **WP(C).No.33804 OF 2014(A)** **12** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE CRPF SIGNAL NO.T.IX.2/ 2012-ADM-II-KKS DATED 04.08.2012.** **EXHIBIT R1(B) TRUE COPY OF THE OFFICE ORDER NO.T. IX.3/2012-198-EC-I DATED 23.08.2012 ISSUED FROM OFFICE OF THE COMMANDANT-198 BN, CRPF VISAKHAPATANAM.** **EXHIBIT R1(C) TRUE COPY OF THE REQUEST LETTER FOR SANCTION OF 30 DAYS LEAVE DATED 25.08.2012 SUBMITTED BY THE PETITIONER.** **EXHIBIT R1(D) TRUE COPY OF EXTENSION OF LEAVE LETTER ISSUED FROM THE OFFICE OF THE DY.INSPECTOR GENERAL OF POLICE GC CRPF PALLIPURAM, LETTER NO.T.IX.1/2012-ESTT-III DATED 12.09.2012.** **EXHIBIT R1(E) TRUE COPY OF ABSENT FROM DUTY LETTER ISSUED FROM THE OFFICE OF THE DY.INSPECTOR GENERAL OF POLICE GC CRPF PALLIPURAM, TVM LETTER NO.T.IX.1/2012-ESTT-III DATED 20/10/2012. EXHIBIT R1(F) TRUE COPY OF REPORT FOR DUTY LETTER ISSUED FROM OFFICE OF THE DY.INSPECTOR GENERAL OF POLICE GC CRPF PALLIPURAM, TVM LETTER NO.P.VIII.I/2013-EC-2 DATED 05/01/2013.** **EXHIBIT R1(G) TRUE COPY OF THE OFFICE ORDER NO.I.X.13/ 2012-EC-II DATED 23/01/13 ISSUED FROM THE OFFICE OF THE DIGP, GROUP CENTRE, CRPF, TRIVANDRUM, DATED 23.01.2013.** **EXHIBIT R1(H) TRUE COPY OF MEMORANDUM ISSUED FROM THE OFFICE OF THE DIGP, GROUP CENTRE, CRPF, TRIVANDRUM, DATED 12.03.2013.** **EXHIBIT R1(I) TRUE COPY OF OFFICE ORDER NO.P.VIII.I/2013ESTT-II ISSUED FROM THE OFFICE OF THE DIGP, GROUP CENTRE, CRPF, TRIVANDRUM, DATED 27/11/13.** **WP(C).No.33804 OF 2014(A)** **13** ## **EXHIBIT R1(J)** **EXHIBIT R1(K)** **TRUE COPY OF ORDER NO.R.XIII.10/14-ADMN-7 DATED 24/02/14 ISSUED FROM THE OFFICE OF THE INSPECTOR GENERAL OF POLICE, SOUTHERN SECTOR, CRPF.** **TRUE COPY OF LETTER NO.P.VIII.I/2014-EC-2 DATED 24/05/2014 ISSUED FROM OFFICE OF THE DY.INSPECTOR GENERAL OF POLICE GC CRPF PALLIPURAM, TVM.** //TRUE COPY// PA TO JUDGE