THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI Writ Petition (C) No.6356/2011 BISWARUP MUKHERJEE SON OF SRI GOPAL MUKHERJEE, VILL + P.O. KALIGANJ, DIST. NADIA, STATE-WEST BENGAL, PIN- 741150. -Versus- PETITIONER. 1. THE UNION OF INDIA, REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF OF HOME AFFAIRS, NEW DELHI. 2. THE DIRECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE (CRPF), CGO COMPLEX, LODI ROD, NEW DELHI. 3. THE INSPECTOR GENERAL OF POLICE CENTRAL RESERVE POLICE FORCE (CRPF), JAMMU SECTOR, JAMMU, PIN- 181123. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE (CRPF), JAMMU RANGE, JAMMU, PIN - 781123. 5. THE DEPUTY INSPECTOR GENERAL OF POLICE, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE (CRPF), BANTALAB, JAMMU, PIN - 181123. 6. THE COMMANDANT, 20 BN CRPF, OFFICE OF THE COMMANDNAT-20 BN CRPF, DIPHU, KARBI ANGLONG, ASSAM, PIN- 782460. 7. SRI M. DHINAKARAM, THE COMMANDANT - 20 BN CRPF, OFFICE OF THE COMMANDANT- 20 BN CRPF, DIPHU, KARBI ANGLONG, ASSAM, PIN- 782460.. RESPONDENTS. Advocate for the Petitioner: Advocate the Respondents: Mr. J. Roy, Mr. R. Hazarika, Mr. S. Borthakur, Ms. D. Deka & Ms. S. Kakoti. Mr. K.K. Parasar, CGC. BEFORE HON BLE MR. JUSTICE HRISHIKESH ROY Date of hearing & judgment: 15-06-2017. Writ Petition (C) No.6356/2011 1 of 8
JUDGEMENT AND ORDER (ORAL) Heard Mr. J. Roy, the learned counsel for the petitioner. The respondents are represented by the learned CGC, Mr. K.K. Parasar. 2. The challenge here is to the office order dated 26.7.2011 (Annexure-1), whereby the petitioner who served for 14 years as Constable (GD), in the 20 th Battalion of the CRPF was struck off, w.e.f. 26.7.2011, on the basis of purported resignation, tendered by the constable on the previous date i.e. 25.7.2011. 3.1. The discharge order is challenged firstly on the ground that it was not a case of voluntary resignation but was forced upon the constable by the Commandant, after he was punished with quarter guard and was beaten mercilessly and hung upside with tied arms and legs, in the confinement of the quarter guard. 3.2. The failure of the employer to take into account the operational men power requirement of the CRPF Battalion, deployed in the insurgency prone area, for allowing immediate discharge of the constable, is the next ground, for challenge to the discharge order. 3.3. The learned counsel Mr. J. Roy refers to the provisions of Sections 5 & 6, of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the CRPF Act ) and the Schedule to the Act and also Rule 16 & 17 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the CRPF Rules ), to argue that 3 months notice is mandatory for discharge of the constable, serving on substantive status and since resignation was accepted forthwith, there is breach of the procedure, prescribed by the CRPF Act and the CRPF Rules. 3.4. The petitioner refers to the Guideline formulated by the Director General, CRPF on 17.5.1990, to lay down the procedure for acceptance of resignation and it is argued that mere resignation letter is insufficient to issue the discharge order and the constable must be explained the likely hardship which he will face, on being rendered jobless. Writ Petition (C) No.6356/2011 2 of 8
Furthermore, an undertaking on the counseling given about the consequences of the discharge order, must also be secured before discharge is affected. 4.1. On the other hand, Mr. K.K. Parasar, the learned Central Govt. counsel refers to the resignation letter of the constable and also his undertaking dated 26.7.2011, to project that the petitioner was facing serious family and personal difficulties and was bent upon leaving the organization and therefore the Commandant considered it appropriate to allow the discharge, rather than keeping an unwilling person attached to the Battalion. 4.2. The learned CGC refers to the Decipher Sheet, with the endorsement of the Adjutant and the Commandant of the 20 th CRPF Battalion, to project that the constable was given adequate counseling to withdraw the resignation but since the individual was adamant, the Commandant was left with no choice but to discharge the constable. 4.3. On the issue of three months notice, Mr. Parasar reads Rule 56 (1-A)(b) of the Fundamental Rules, to project that relaxation of the notice period is permitted, subject to certain conditions, laid down in Sub-clause (b) to Rule 56 (1-A) of F.R. 5. Under Rule 16 of the CRPF Rules, discharge on three months notice for quasi permanent constable is permitted but the appointing authority is obliged to permit resignation, only for good and sufficient reason, under Sub-Rule (d) of Rule 16. The discharge of CRPF constable is made subject to the Schedule appended to the CRPF Act, which also mandates a notice period for acceptance of resignation from CRPF personnel. That apart, before resignation is accepted, the authority under the applicable Guideline of 17.5.1990, must explain in detail about the likely hardship, the constable will face after his discharge and an undertaking about the counseling must be retained in the Battalion record. 6. Before proceeding further, it would be appropriate now to extract Rule 17 of the CRPF Rules, the Schedule to the CRPF Act and the Guidelines issued by the Director Writ Petition (C) No.6356/2011 3 of 8
General, CRPF on 17.5.1990, to appreciate whether the discharge of the constable was in accordance with the applicable norms: (A) CRPF Rules, 1955 Rule 17: Discharge: - Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months service or after the completion of the full period of service for which he is engaged, be entitled to calim his discharge from the Force by applying to his appointing authority through proper channel. (B) CRPF Act, 1949 Section 6: Resignation and withdrawal from the Force.-No member of the Force shall be at liberty to- (a) resign his appointment during the term of his engagement, except before the expiration of the first three months of his service; or (b) withdraw himself from all or any of the duties of his appointment, without the previous permission in writing of the Commandant or Assistant Commandant or any other officer authorized by the Commandant to grant such permission. (C) CRPF Act, 1949 THE SCHEDULE Recruiting Roll (See Section 5) After you have served in the Fore for such period as the Central Government may prescribe, you mayat anytime when not on active duty, apply for discharge, through the officer to whom you may be subordinate, to the Commandant, and you will be granted your discharge after two months from the date of your application, unless your discharge would cause the vacancies in the Force to exceed one-tenth of the sanctioned strength in which case you shall be bound to remain until this objection is waived or removed. But, when on active duty, you shall have no claim to a discharge and you shall be bound to remain to do your duty until the necessity for retaining you in the Force ceases when you may make your application in the above-mentioned manner: Provided that, if you wish to withdraw from the Fore, you may submit your resignation at any time before the expiration of the first three months of your service, but, not afterwards until he completion of the period prescribed as aforesaid; the Commandant may either accept your resignation forthwith or at the end of three months from the date of its receipt: Provided, also that the Commandant may, if he thinks fit, allow you to resign at any time on your giving three months' notice of your wish to do so.. (D) CRPF Guidelines on Discharge Directorate General, CRPF, CCO Complex, Lodhi Road, New Delhi Dated 17 th May, 1990 Sub: Acceptance & withdrawn of Resignation:.. 2. In this context, the instructions regarding the procedure to be followed in accepting the resignation and withdrawal of resignation, as contained in DRT s O.M. No.28034/25/87Estt.(A) Writ Petition (C) No.6356/2011 4 of 8
dated 11.2.88 (published in CRPF Gazette for the month of may, 1988) should be clearly understood and explained to the men. 3. It is imperative that the authority competent to accept the resignation should therefore, personally explain the growing unemployment problems and consequences of discharge to the persons seeking discharge from service, while it is not in the interest of government to retrain an unwilling Govt. servant in service, a care has to be taken that no one is allowed to proceed on discharge/vol. Retirement without any compelling reasons. As a model employer, the administration must conduct itself with high probity and condour with its employees and should always be careful enough to reasoned to their problems. 4. The authority competent to accept the resignation should therefore, ensure personally that the person seeking discharge vol. Retirement has genuine and compelling reasons. To ensure it the authority concerned should obtain an undertaking from the individuals to the effect that he has been explained in detail about the likely haraships, which, he may face in this uncertain and difficult economic age after his discharge/vol. Retirement. Such An undertaking should be kept on record.. 7. The petitioner contends that it was not a voluntary resignation and even if it is assumed otherwise, acceptance of resignation was improper without offering counseling to the constable, on the consequences of the resignation. When the provisions of the CRPF Act and Rules and the Guideline, issued by the Director General, CRPF are examined, they indicate that application for resignation from a member of the force, must be dealt with sincerity and both the interest of the individual and also the larger interest of the Force and the society should, be borne in mind. 8. The Schedule of the CRPF Act, requires that the resignation letter are not be accepted mechanically only because a personnel has applied for voluntary discharge. The prescribed period of notice is mandatory and therefore it is provided in the Schedule that discharge should not be automatic or be granted forthwith, until a conclusion is reached that it is no more necessary for retention of the personnel who has resigned. It is also made mandatory to provide counseling for a constable who resigned, to make him understand the serious consequences of being rendered jobless, which will entail grave hardship for the employee and his family. 9. The above provisions make it abundantly clear that resignation letter are not to be accepted on mere asking but the consequences of the vacancy in the Force will have to be deliberated upon by the accepting authority, before discharge can be ordered on resignation. Writ Petition (C) No.6356/2011 5 of 8
10. The Guideline issued on 17.5.1990, by the Director General, CRPF also requires the employer to examine the consequences of the resignation from the perspective of the personnel, as the peril of unemployment and hardship for the discharged constable is required to be explained to him, with certain solemnity. In fact, high probity and candor of a model employer is expected of the accepting authority, under the Guideline and in order to ensure that the required counseling was done and all consequences were explained, a specific undertaking is required to be obtained from the resigning constable and that should be kept in the records. 11. The above discussion makes it clear that the norms of discharge are meant to address not only the interest of the constable but also to protect the organizational interest and also the larger interest of society. Commenting on this aspect, this Court in Gyani Singh vs. Union of India, reported in (2013) 3 GLR 201, said the followings:-. It may not be far fetched to assume that the aforesaid guidelines/ instructions/circular/letter was issued not only in the interest of the individual but also in the larger interest of the society. It may, perhaps, be seen from this aspect also that when a person trained in arms, after leaving the service gets confronted with the spectre of unemployment and other hardships, may prove to be a serious danger to the society. Therefore, insistence on adhering to the instruction as laid down in 17.5.1990 cannot be lightly brushed aside as it serves as a preventive measure against any possible harm to the individual as well as to the larger interest of the society. [21] Therefore, any application for discharge has to be dealt with by the authorities concerned, from two perspectives; one from the perspective of the individual and another from the perspective of the Force and the society at large... 12. The above observation in Gyani Singh (Supra) cannot be treated lightly as they bring in the element of public interest in the premature discharge of a trained member of the armed force and the possible exploitation of the trained man, for anti-national activities, if he is pushed to the brink by his jobless circumstances. When we assess the rival contention of the counsel from this perspective, and then examine the facts here, a disturbing scenario emerges. The so called resignation was signed on 25.7.2011, just after the constable was placed in quarter guard confinement. The resignation letter was Writ Petition (C) No.6356/2011 6 of 8
written in Hindi but it was signed in English by the petitioner. He speaks of being coerced into appending his signature after the letter was written by someone else. The required notice of 3 months was disregarded and the discharge was ordered forthwith. Therefore, the mandatory counseling was very unlikely. Moreover, nothing is produced by the respondents to indicate that the accepting authority examined the organizational needs or showed any concern for the potential damage to the society. Therefore, in my perception, a forced resignation was a distinct possibility, in the present case. 13. But even if we assume that resignation was voluntary, the accepting authority was duty bound to abide by the notice period, mandated by the Schedule of the CRPF Act and also apply his mind on the necessity for retention of the constable, in the larger interest of the organization. But since the discharge order was issued forthwith on 26.7.2011, it has to be held that norms were disregarded by the hasty action of the accepting authority. 14. Another aspect raised by the CGC is now to be considered. The Decipher Sheet, with the endorsement of the Adjutant and the Commandant of the 20 th Battalion, annexed to the additional affidavit of 14.3.2017, is a secret document, which is not in public domain. Therefore, in the absence of any signature of the petitioner in the official document makes me believe that it was a created document and was nothing more then a perfunctory exercise, intended to show conformity with the requirement of the D.G. s Guideline dated 17.5.1990. 15. The credibility of the Decipher Sheet, gets extinguished firstly by the fact that it was not a document in public domain. Moreover, involvement of the petitioner with the deliberation before the Commandant, cannot be assumed in the absence of his signature in the Decipher Sheet. The genuineness of what was written in the secret document becomes doubtful also because, the undertaking of the petitioner given on 26.7.2011 (Annexure-B), does not have any reference to the purported counseling, afforded to the constable, by the Commandant. If in reality, the C.O. had counseled the Writ Petition (C) No.6356/2011 7 of 8
constable, the same should have been reflected in the undertaking. But despite the specific requirement of the CRPF Guidelines, counseling was not afforded and it appears to be a case of hasty discharge, without following the prescribed norms of the CRPF Act and the Rules and also the Guidelines of the organization. 16. The case papers made available to the Court suggest that counseling was not afforded to the petitioner, before his discharge nor it is reflected that the authorities had applied their mind on the organizational need for retention of the constable in the operation area. The infringement of the Guideline for dealing with the resignation and discharge of personnel in the CRPF organization, is clearly discernible in the case. 17. In so far as FR 56(1-A)(b), referred to by the learned CGC, the notice period for acceptance of resignation does not get reduced under this provision since the discharge and resignation in the CRPF are to be considered under specific statutory provision and the D.G. s Guidelines. Moreover, the FR 56(1-A) provision relates to retirement under Chapter IX of the Fundamental Rules. 18. As a result of the above conclusion, the impugned discharge order dated 26.7.2011 (Annexure-1), is held to be unsustainable in law and the same is accordingly quashed. The respondents are directed to reinstate the petitioner in service, within eight weeks, from the date of receipt of this order but the authorities are allowed to verify the medical fitness, upon reinstatement. The period from the date of discharge, till reinstatement will be notionally treated to be on duty, for the purpose of other service benefits. But backwages should not be paid for the interregnum since no service was received, during this period. It is ordered accordingly. 19. With the above direction, this case stands allowed, in the manner as indicated. No cost. Barman JUDGE Writ Petition (C) No.6356/2011 8 of 8