- (1.) R. B. Misra, J. Heard Sri Shailendra, learned Counsel for the petitioner and Sri S. S. Sharma, learned Standing Counsel for the State. In this writ petition the prayer has been made to quash the order dated 21-5-1998 and again order dated 28-11-1998 and the enquiry report enclosed as (Annexure Nos. 9, 11 and 6) respectively. It appears that the petitioner was initially appointed as constable in Provincial Arms Constabulary in 15 Batallian P. A. C. , Agra on 1-1-1986. The petitioner was alleged to have stolen identity card, driving licence and diary of one drawer Amar Singh. Within one day inquiry was completed and petitioner dismissed from service. The petitioner preferred an appeal against the dismissal order which was allowed by D. I. G. P. A. C. , Agra dated 30-6-1996 (Annexure-1 ). Fresh charge-sheet was issued on 27-12- 1996 against the petitioner in reference to incident of 22-1-1996 and in reference to the allegations prior to 22-1-1996 in which enquiry was already been pending and one Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh, was the enquiry and the statement of Mitra Prakash Tiwari and Ravindra Yadav both constables and Amar Singh whose diary etc. were alleged to have been stolen were recorded. It appears that in all the statements were some contradiction and there is no direct evidence where it could be said that the petitioner has stolen the alleged items. The Enquiry Officer Sri Kunwar Pal Singh was submitted the report on 23-4-1998 (Annexure-6 ). In reference to the show-cause notice the petitioner was allowed 8 days time to give a response. The petitioner on 16-5-1998 wrote a letter seeking some more time on the ground his son is not well letter request is enclosed as (Annexure-8 ). Petitioner was not granted time an ex-parte decision dated 21-5-1998 was taken which is the impugned order of the present writ petition. The petitioner preferred an appeal before the Dy. Inspector General of Police who after considering the same dismissed on 22-7-1998 (Annexure-10) and appeal preferred against the above order 21-5-1998 before the D. I. G. Police which was dismissed on 28-11-1998 which is also an impugned order in the writ petition.
(2.) THE counter and rejoinder-affidavit have been exchanged. The points/issued raised by the petitioner for consideration before this Court is : (a) As per Rule 13 of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, provides that in case the enquiry officer has done a preliminary enquiry in a case, he shall not conduct the subsequent or main enquiry under the aforesaid rule. In the present case, the preliminary enquiry was done by Kunwar Pal Singh, Assistant Commandant, 45 Bn PAC, Aligarh. The fact can be confirmed by letter Annexures No. 1, 2 and 3 annexed to the supplementary affidavit. All these letters were issued by Kunwar Pal Singh who was the enquiry officer in the preliminary enquiry which concluded and the petitioner's services were dismissed on 23-1-1996. Fresh enquiry was initiated by the charge-sheet dated 27-12-1996 in which the Enquiry Officer submitted the report on 23-4-1998, (Annexure-6 ). The name of the Enquiry Officer mentioned in the concluding page 6, the Enquiry Officer was Kunwar Pal Singh, Assistant Commandant. Therefore, it is clear that the Enquiry Officer in the preliminary enquiry as well as in the main enquiry was the same Kunwar Pal Singh, therefore, the enquiry is vitiated in view of the provision of Rule 13 of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeals Rules, 1991 ). (b) The main enquiry is also vitiated on the ground that the provisions of Regulations 486 (1), (5) and (6) of the Police Regulations were completely violated by the authority concerned including the appointing authority as they failed to observe the process contemplated in the said Regulation. They also violated the Government Order dated 29-1-1992, Annexure-12 which also reiterates the stand taken by the petitioner. The allegation against the petitioner is that he is guilty of theft. In such circumstances, it is an offence cognisable under the Indian Penal Code, therefore, the authorities are bound to follow the provisions of Regulation 486 and First Information Report is required to be lodged against the petitioner. No such step was taken by the authority competent, therefore, entire enquiry and the order impugned against the petitioner deserves to be set aside. It is further necessary to mention here that this question was rejected by the appellate authority where they say that since the charge was petty, no First Information Report was lodged and the provisions of Regulation 486 (1), (5) and (6) were not required to be followed. This finding is recorded in para 4 of the appellate authority order, (Annexure No. 11 ). The finding recorded in para 4 by the appellate authority confirms that the act was not of such a nature so that even any First Information Report should be registered. If the fact is admitted and taken as such, there was no case in any manner granting the punishment of dismissal against the petitioner. (c) The order of dismissal passed on 21-5-1998 was ex-parte as show-cause notice was issued on 6-5- 1998. Deliberately 8 days time was granted. When the petitioner moved the application for 8 days more time on account of his and his son's illness, time was not allowed and within 5 days the petitioner was dismissed from service, therefore, the order impugned of dismissal was passed ex-parte and in utter violation of the principles of natural justice. The issue of no opportunity to the petitioner was also raised in the appeal and the appellate authority dealt with the issue in para 3 of the decision (Annexure No. 11) in which they admitted the moving of the application by the petitioner for 8 days more time but the finding recorded was that the petitioner had not filed any medical certificate alongwith the application, therefore, he was not allowed further time. In view of the fact that the petitioner was not in a position to attend the proceeding, he moved the application. Medical certificate as required to be submitted after completion of the leave period on medical ground and not prior to that. In such circumstances, it is a clear case of admission of the authorities that they deliberately passed the order for no reason without permitted further time to the petitioner. (d) It is further necessary to mention here that while reading (Annexure-1) this can be found that while allowing he appeal of the petitioner the appellate authority recorded the finding that this is a clear case of misuse of legal process. The finding was recorded at internal page 4 in the following manner : "is PRAKARAN KO MAIN SENANAYAK 45 WAHINI PAC ALIGARH DWARA DAND WA APPEAL NIYAMWALI, 1991 KE NIYAM 8 (2) KHA KA DURPAYOG HI MANTA HOON. " English Translation is as under : I find this case is a misuse of Rule 8 (2) Kha of Punishment and Appeal Rules, 1991 by the Commandant 45 Bn PAC, Aligarh. (e) Another issue is that the authority were acting throughout with mala fide and the oblique motive. This fact can be confirmed by the reason that the date of incident relating to theft was 22-1-1996 and within one day the enquire enquiry was completed and the petitioner was dismissed from service on 23- 1-1996 and when the petitioner filed the appeal, the authorities became prejudiced being the police establishment, where they cannot expect raising of head by a Constable. Once the appeal was allowed in favour of the petitioner, the authorities became prejudiced and the same Enquiry Officer Kunwar Pal Singh who did the enquiry from 1995 to 1996 in other allegations, was taken together in the fresh charge-sheet and was enquired by the same Enquiry Officer, deliberately without providing any opportunity as such the petitioner was punished and dismissed from service without dealing with the issue raised by the petitioner. (f) Another issue is that the entire allegations which allegedly found provided against the petitioner, are on the basis of the three statements of Mitra Prakash Tiwari, Ravindra Yadav and Amar Singh, (Annexure No. 3 ). These statements are inter se contrary. According to the statements of Mitra Prakash Tiwari, he found the stolen things on road from which the petitioner returned after the natural call few minutes back while the statement of Ravindra Yadav who was accompanying Mitra Prakash Tiwari was contrary. According to his statement, he has seen the petitioner throwing identity card, driving licence and diary in the night i. e. , about 8 p. m. from the considerable distance. So far the third statement of Amar Singh is concerned, he was not present there, therefore, he only recorded statement that he got the information that stolen material was found from the possession of the petitioner. In such circumstances, all the three statements are contrary and, in any circumstance, cannot be relied, upon for awarding the punishment of dismissal. (g) The punishment is harsh and disproportionate to the charges made against the petitioner. The allegation against the petitioner as admitted by the appellate authority is of petty nature and not of even such a nature that a First Information Report could be registered on its basis. In such circumstances, the petitioner cannot be punished from dismissal of service, case relied; AIR 1994 SC 215, (para 2), 1991 (2) SCC 213, (paras 4 and 5) punishment must commensurate with gravity of misconduct. (h) Remedy of revision/alternate remedy before the Tribunal in the case where counter-affidavit and rejoinder-affidavit filed, the question of alternative remedy cannot be permitted to be raised. Case referred; 2001 (1) UPLBEC 109. In the cases where legal issue is involved it will not serve any purpose to send the matter to the Tribunal as the matter will come back to the High Court. Since counter-affidavit and rejoinder-affidavit have been exchange,this can be decided by the High Court itself. JT 1995 (1) SC 471; 1993 (1) UPLBEC 281. The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, Rule 4 reads as below : Punishment - (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely : (a) Major Penalties : (i) Dismissal from service. (ii) Removal from service. (iii) Reduction in rank including reduction to a lower-scale or to a lower 1 stage in a time scale. (b) Minor Penalties : (i) Withholding of promotion. (ii) Fine not exceeding one month's pay. (iii) Withholding of increment, including stoppage at an efficiency bar. (iv) Censure. (2) In addition to the punishments mentioned in sub-rule (1) Head Constables and Constables may also be inflicted with the following punishment : (i) Confinement to quarters (this term includes confinement to quarter guard for a term not exceeding fifteen days extra guard or other duty ). (ii) Punishment Drill not exceeding fifteen days. (iii) Extra guard duty not exceeding seven days. (iv) Deprivation of good conduct pay. (3) In addition to the punishments mentioned in sub-rule (1) and (2) Constable may also be punished with fatique duty, which shall be restricted to the following tasks : (i) Tent pitching; (ii) Drain digging; (iii) Cutting grass, cleaning jungle and picking stones from parade grounds; (iv) Repairing huts and butts and similar work in the lines; (v) Cleaning Arms. Rule 13 of U. P. Police Officer of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 which provides as below: Officer not competent to conduct disciplinary proceedings.-A Gazetted Officer of the Police Force who is either a prosecution witness in the case or has earlier conducted a preliminary enquiry in that case shall not conduct inquiry in that case under these rules. In the said Gazetted Officer is the Superintendent of Police himself, the Deputy Inspector-General concerned shall be moved to transfer the case to some other district or unit as the case may be. In 2002 (2) LBESR 548 (All); (2002)2 UPLBEC 1871, Mirza Barket Ali v. Inspector General of Police, Allahabad and others. The Police Constable was dismissed for absent in duty of 109 days on the ground of illness. The Inquiry Officer recommended for minor punishment however, S. P. disagreed and imposed punishment of dismissal. High Court the punishment is too harsh and severe/disproportionate allegations and directed for awarding lessor punishment. Punishment to be imposed-discretion of the disciplinary authority. (A) The punishment to be imposed by the disciplinary authority is the discretion of the authority concerned and unless such penalty grossly disproportionate there can be no occasion for the Court or Tribunal to interfere with the punishment. However, penalty should be commensurate with the magnitude of the misconduct committed. If a lessor penalty can be imposed without jeopardising the interest of the administration, then the disciplinary authority/punishing authority, should not impose the maxmimum penalty of dismissal from service. When the rules require that the disciplinary authority will determine the penalty after applying its mind to the enquiry report, then this shows that he has to pass a reasoned order. However, taking an overall and cumulative view the disciplinary authority may impose maximum penalty but after considering all aspects of the case. H. P. Thakore v. State of Gujarat, (1979)1 LLJ 339 (Guj ). When an authority proceeds to impose a penalty, the only question which is ordinarily to be kept in mind is to impose adequate penalty; then punishment shall be neither too lenient nor to harsh. Ansarali Rakshak v. Union of India, 1984 Lab IC (NOC) 73 (Bomb ). Punishment not to be disproportionate to the gravity of the charge established. (B) Ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway, employee on being charged with negligence in not reporting to the Railway Hospital for treatment was removed from service. The Supreme Court has thought it fit to interfere with the punishment of removal from service and modify it to withholding of two increments Alexander Pal Singh v. Divisional Operating Superintendent, (1987)2 ATC 922 (SC ). But when the Police Constable working as Gunman of Deputy Commissioner of Police while on duty was wandering near the bus stand with service revolver in a heavily drunken condition and when he was brought to Hospital he began abusing the doctor on duty, the imposition of penalty of dismissal of service cannot be held to be disproportionate because the constable was guilty of gravest misconduct. State of Punjab v. Ex. Constable Ram Singh, (1992)4 SCC 54 : 1992 SCC (L and S) 793 : (1992)21 ATC 435. (C) When the charge of misconduct against the Civil Judge in disposing of the Land Acquisition Reference Cases have been proved partially and for fixing higher valuation of land than was legitimate in L. A. Reference was not proved for which he can be given benefit of doubt, the Supreme Court has modified the penalty, of dismissal to compulsory retirement. V. R. P. Katarki v. State of Karnataka, AIR 1991 SC 1241 : 1991 Supp (1) SCC 267 : 1991 SCC (L & S) 1043 : (1991)16 ATC 555 : 1991 Lab IC 1001. In another case when the employee had 29 years of unblemished record and PSC on consultation had not agreed to the proposal of dismissal, but he was dismissed, the Supreme Court, after the death of employee, held that the evidence in support of the charges which led to dismissal was not very strong and in order to grant relief to poor widow, the punishment of dismissal should be converted to compulsory retirement so that the widow will get the appropriate financial benefit. Kartar Singh Grewal v. State of Punjab, AIR 1991 SC 1067 : (1991)2 SCC 635 : 1991 SCC (L & S) 780 : (1991)2 LLN 54 : 1991 Lab IC 1082. However, even though the Supreme Court has power to modify the penalty imposed by the disciplinary authority in exercise of equitable jurisdiction under Article 136 of the Constitution, but the High Court or the Administrative Tribunal has no such jurisdiction to interfere with the punishment imposed by the disciplinary authority. This is the view of the Supreme Court in Samarendra Kishore Endow's case. It is held that the High Court/administrative Tribunal cannot interfere with the punishment if imposed after holding enquiry and if it is considered that the punishment imposed is harsh, the proper course is not to modify the penalty but to remit the matter to the appellate or disciplinary authority. The Supreme Court has observed as follows : "imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of the judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment teachers on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of law Bhagat Ram v. State of H. P. , is no authority, (1983)2 SCC 442 : 1983 SCC (L & S) 454, for the proposition that the High Court or Tribunal has jurisdiction to impose any punishment to meet the ends of justice. The Supreme Court in Bhagat Ram's case exercised the jurisdiction under Article 136 of the Constitution. The High Court or the Tribunal has no such power" Bank of India v. Samarendra Kishore Endow, (1994)2 SCC 537 : 1994 SCC (L & S) 687 : (1994)1 LLJ 872 : 1994 (1) SLR 516 : Samarendra Kishore Endow case is the authoritative pronouncement of the Supreme Court in the matter of jurisdiction of the High Court or the Administrative Tribunal by way of judicial review of the penalty. It does not ordinarily have power to interfere with the penalty if there is no infirmity in the enquiry but if the punishment impose is harsh the proper course for the High Court/tribunal is to refer the matter to the appellate authority or the disciplinary authority for reconsideration of the penalty imposed. But in the instant case when on a proper departmental enquiry the respondent was removed from service on the basis of the charges of falsely claiming reimbursement of travel expenses on his transfer and there was also another charge of release of construction loan of Rs. 1,00,000 in one case to a co-employee without verifying the progress of construction, then the Supreme Court on taking the view that the punishment was harsh directed the appellate authority to consider whether a lesser punishment is not called for in the facts and circumstances of the case. (D) The three Bench judgment of the Supreme Court in B. C. Chaturvedi v. Union of India, 1996 (1) :lbesr 424 (SC) : (1995)6 SCC 749 : 1996 SCC (L & S) 8, has to some extent modified the view expressed in Samarendra Kishore Endow's case by holding that even though the High Court/tribunal, while exercising the power of judicial review cannot normally substitute their own conclusive on penalty and impose some other penalty, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court or the Tribunal it would be appropriate to grant the relief either directing the disciplinary, or the appellate authority to reconsider the penalty or the shorten the litigation, it may itself, in exceptional and rare cases, imposed appropriate punishment with reasons in support thereof. (E) The decision of B. C. Chaturvedi's case has also been reiterated by the Supreme Court in Union of India v. G. Ganayuthan, AIR 1997 SC 3387; (1997)7 SCC 463 : 1997 SCC (L & S) 1806. In that case, the Government employee whose disciplinary enquiry was continued even after retirement was imposed penalty of 50% pension and gratuity and he moved the Central Administrative Tribunal against such order. The Tribunal held that gratuity not being part of pension cannot be curtailed and modified the deduction of pension for a limited period. In appeal by special leave, the Supreme Court has held that the Tribunal had no jurisdiction to interfere with the penalty when there is no contention that the punishment imposed is illegal or vitiated by procedural irregularity and there is no finding that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there is a finding, based on material that the punishment is an outrageous defiance of logic. (F) When the appointing authority disagree with the findings of the Enquiry Officer in respect of charges 1 and 2 and found those charges also proved even though the disciplinary authority approved the report of Enquiry Officer and recommended a particular penalty, it is held by the Supreme Court when the Regulation 68 (3) (iii) of the Bank Regulation clearly stipulates that the appointing authority is not bound by the recommendation of the disciplinary authority relating to penalty of compulsory retirement being quite valid and legal, it cannot be subjected to judicial review on the ground that the appointing authority while imposing penalty cannot differ with the recommendation of the disciplinary authority. State Bank of Hyderabad v. Rangachary, 1994 Supp (2) SCC 479 : 1994 SCC (L & S) 1022 : (1994) 27 ATC 937. (G) A member of the Central Reserve Police who only because he overstayed the leave for twelve years for which had sufficient reason and had no intention to wilfully disobey the order was dismissed from service, the High Court on the interpretation of Section 11 (1) of the Central Reserve Police Force Act, 1949 quashed the dismissal order and reinstated him with all consequential benefit. The Central Government moved the Supreme Court in appeal by special leave. The Supreme Court in the facts of the case has held the dismissal to be harsh, upheld the order of reinstatement of service but gave liberty to the Government to impose any minor penalty for such misconduct. Union of India v. Giriraj Sharma, AIR 1994 SC 215 : 1994 Supp (3) SCC 755 : (1994)1 LLJ 604. (H) When the Police Constable was dismissed from service for using abusive language, but what the abusive words used were not disclosed in the enquiry, then only because a Police Constable used abusive language there can be no straight jacket formula that in all such cases the Constable should be dismissed from service. So, the Supreme Court has considered the punishment to be harsh and disproportionate to the gravity of the charge and modified the penalty to stoppage of two increments with cumulative effect. Ram Kishan v. Union of India, (1995)6 SCC 157 : 1995 SCC (L & S) 1357 : (1995)31 ATC 475. When subsequent to promotion as Inspector the Police Officer failed to deposit his service revolver and six live centisides, the Supreme Court has held that penalty of dismissal is too harsh when his previous record was unblemished and at the relevant time he was sharing a room with two colleagues. So,the Supreme Court substituted the penalty to compulsory retirement. Mehonga Singh v. I. G. of Police, 1996 (1) LBESR 214 (SC) : (1995)5 SCC 682 : 1995 SCC (L & S) 1320 : (1995)31 ATC 437. (I) On the finding delinquent guilty of demanding and accepting illegal gratification, the order of dismissal has been passed against the delinquent. The same has been challenged on the ground that the penalty is harsh and that there is only one witness to prove the charge and that there was no earlier charge of misconduct against him. The Supreme Court has held that it is for the disciplinary authority to decide about the punishment and merely because there was solitary evidence to prove the charge the finding of the guilt by the Enquiry Officer and disciplinary authority is not illegal. It is also observed that merely because there was no allegation of misconduct against the delinquent employee earlier is inconsequential. Even the recommendation of the Public Service Commission to take a lenient view is not binding on the Government. It was held that the interference with the penalty on the facts of the case is not called for. N. Rajarathinam v. State of T. N. , 1997 (1) LBESR 111 (SC) : (1996)10 SCC 371 : 1997 SCC (L & S) 90. The Police Constable who was dismissed on account of absence without leave from 7th November, 1986 to 1st March,1988 on holding the departmental enquiry filed civil suit challenging such punishment on the ground that the disciplinary rules applicable to him provided that the dismissal could be resorted to if there was a gravest act of misconduct. The trial Court dismissed the suit on the ground that it could not interfere with the order of punishment imposed in a disciplinary proceedings. But the appellate Court remanded the matter for reconsideration of the trial Court on the point of punishment. The Supreme Court has disapproved the order passed by the appellate Court. It is held that it is for the disciplinary authority to pass appropriate punishment and the Civil Court cannot substitute its own view to that of the disciplinary as well as that the appellate authority on the nature of punishment to be imposed upon the delinquent, as he was absent without any leave for over one and half years it ought to not to have interfered with the degree passed by the trial Court dismissing the suit. State of Punjab v. Bakshi Singh, 1997 (2) LBESR 922 (SC) : AIR 1997 SC 2696 : (1997)6 SCC 381 : 1997 SCC (L & S) 1510 : (1997)2 LLN : 1091 ; 1997 (4) SLR 590. The Supreme Court has also held that when on the charge of demand and acceptance of illegal gratification by the Inspector of Police, the Inspector has been dismissed from service, then the Police Officer being guilty of grave misconduct resorting to corruption, there is no occasion for interference with the order of punishment imposed by the disciplinary authority. Government of A. P. v. B. Ashok Kumar, 1997 (2) LBESR 563 (All) ; AIR 1997 SC 2447 : (1997)5 SCC 478 : 1997 SCC (L & S) 1215 : 1997 (4) SLR 242 : (1997)2 LLN 600 : 1997 Lab IC 2353. (J) When a bus conductor was charged for taking certain passengers without tickets and on holding departmental enquiry he was found guilty and the disciplinary authority removed the respondent from the post of the conductor, he moved the High Court challenging the order of removal. The High Court while concurring with the finding of the authority that the charges, levelled against the respondent were proved held that the punishment awarded did not commensurate with the gravity of the charge on that basis of the High Court set aside the punishment and directed the reinstatement of the respondent. Being aggrieved an appeal by special leave has been filed by the Corporation before Supreme Court. The Supreme Court has held that it has consistently taken the view that under the judicial review the Court shall not normally interfere with the punishment imposed by the authority and this will be more so when the Court found the charges were proved and interference with the punishment on the facts of the case cannot be sustained. U. P. Road Transport Corporation v. A. K. Parul, 2000 (3) LBESR 631 (SC) : (Cal) LT 1999 (1) SC 77. When the respondent, a Police Constable was dismissed from service on the ground that he illegally extracted money from the auto-rickshaw driver by misusing his official position then the interference by the Administrative Tribunal with the penalty imposed by the departmental, authority is not warranted in this case, because it is only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standard that a Court or Tribunal can interfere with the punishment imposed by the Administrative Authority. As in this case, the Police Constable was guilty of grave misconduct, there was no reason as to why the Tribunal should interfere with the punishment imposed by the disciplinary authority. State of Karnataka v. H. Nagraj, (1998)9 SCC 671.
(3.) IN 2001 (2) LBESR 269 (SC) : 2001 (2) AWC 983, Sahdev Singh v. U. P. Public Service Tribunal, Lucknow and others. This Court Hon'ble M. Katju and Onkareshwar Bhatt, JJ. decided on 19th February, 2001 the Writ Petition No. 1722/99 where the petitioner a confirmed Police Constable hand consumed liquor in the night, was charge-sheeted and after inquiry was dismissed from service. His appeal was rejected and his claim petition before U. P. Public Service Tribunal was also dismissed. IN writ petition this Court has observed that before the Tribunal neither the petitioner has said anything in his defence nor produce any witness but prayed for forgiveness and assured that he will not commit such act again in future. IN these circumstances, this Court had indicated that a lenient view should be taken against the petitioner and for awarding some lesser punishment taking view the sense of Shakespeares Merchant of venice, justice should be tempered with mercy. IN these circumstances the Court has found the punishment of dismissal is too harsh and set aside the order of dismissal and directed the petitioner to be reinstated in service with 25% of the backwages from the date of the dismissal to the date of reinstatement. In (1985)1 Supreme Court Cases 120, Hussaini v. Chief Justice of High Court of Judicature at Allahabad and others. The appellant was working as a Sweeper and was placed under suspension for derogation of duty and was dismissed from service after enquiry. At the time of dismissal he had rendered service over 20 years and was denied retirement benefits such as pension, provident fund and gratuity to which he would have been entitled if he was compulsory retired from service. The Supreme Court has observed that the appellant was a low paid Government servant, therefore, the order of punishment of dismissal might have been converted into compulsory retirement on compassionate ground so that the appellant may get retiral benefits and the Supreme Court observed that the appellant was a low paid safai jamadar. We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. Without in any manner detracting from the view taken by the High Court we are of the opinion that there is some scope for taking a little lenient view in the matter of punishment awarded to the appellant. The lenience if at all would render the post dismissal life of the low paid employee a little tolerable and keep him away from he penury destitution.;