- (1.) R. B. Misra, J. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri L. K. Dwivedi, learned Counsel for the petitioner, and Sri N. P. Shukla, learned Counsel for Union of India and other respondents. Since, in this case counter-affidavit and rejoinder-affidavit have already been exchanged and pleadings are complete, therefore, with the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second proviso to Rule-2 of Chapter-XXIl of the Allahabad High Court Rules, 1952.
(2.) IN this petition prayer has been made to quash the order dated 17-10-1997 (Annexure-9 to the writ petition) rejecting the representation of the petitioner and order dated 26-8-1997 (Annexure-8 to the writ petition) rejecting appeal of the petitioner and also the order dated 7-7-1997 (Annexure-7 to the writ petition) passed by the respondent No. 3, whereby the petitioner was removed from service. Undisputed facts revealed from the pleadings of the parties are that the petitioner was recruited as a Constable in Central Reserve Police Force in July, 1991 and was given No. 910920584 as a Constable and after completion of his basic training he reported in 20 Bn. Central Reserve Police Force on 8-2-1993. On 14-12-1996 the petitioner was detailed to proceed on a movement for collection of ammunition alongwith four other personnel under the command of Sub-Inspection Kripa Shanker Mishra. The collection/escort party reached CWS, Rampur on 18-12-1996 about 1100 hours and the petitioner absented from Rampur on 22-12-1996 about 2300 hours. After collecting ammunitions the said collection party left Rampur on 23-12-1996 at 1630 house, however, the petitioner reported at TC Jammu on 26-12-1996 at his own, such act of petitioner was treated an act of neglect of duty under Section 11 (1) of Central Reserve Police Force Act, 1949 (in short called 'act' hereinafter) prejudicial to the good order of the Force. On reaching Battalion Headquarters, the petitioner was placed under suspension by Commandant with effect from 3-1-1997 by Office Order No. P VIII-1/ 97-20 EC-II, dated 3- 1-1997 and subsequently for conducting a departmental inquiry the petitioner was served with the memo of charges vide Memo No. P. VIII-1/97-20-EC-II, dated 11-1-1997. Consequently, in the departmental inquiry conducted as per the procedure prescribed under the 'act' and Rules by the Inquiry Officer and the delinquent after providing ample time to defend his case, the inquiry report was submitted and keeping in view all pros and cons of the case the petitioner was removed from service w. e. f. 9-7-1997 (AN) vide Office order P. VIII. 2/97-20-EC-II, dated 7-7-1997. Aggrieved with the said order an appeal preferred to the Deputy Inspector General of Police, CRPF Srinagar (now Jammu) was rejected on 26-8-1997. According to the petitioner, in the utter necessity when he heard that the wife of the petitioner had fallen ill seriously and no person responsible was to take care of her, he proceeded to his native place after taking oral permission of the Commandant Sri K. N. Mishra and suo-moto the petitioner again joined the destination at Jammu on 26-12-1996 and neither endeavoured to flout the specific direction of the Commandant nor acted any way, which could amount desertion as provided under Rule-31 of the 'act'. According to the petitioner in compelling circumstances the documentary support could not be produced in reference to the oral permission obtained from Commandant to visit home. According to the petitioner the punishment as awarded in reference to Section 11 (1) of the 'act' was not required to be given to the petitioner, as the petitioner has not deliberately attempted to flout or has done anything, which may amount heinous offence, and as such the punishment of removal awarded by the respondents for absence of only three days is disproportionate to the charges, which may shock the conscience of the Court in the facts and circumstances of the case.
(3.) ON the other hand learned Counsel for the respondents has indicated that the petitioner being a member of the disciplined force cannot be allowed to be absent without prior permission of the Commandant, more so, without any documentary proof or evidence his stand cannot be relied upon. According to Sri N. P. Shukla, learned Counsel for the respondents, the punishment awarded in reference to Section 11 (1) of the 'act' could be given in addition to the dismissal of the petitioner and in the facts and circumstances when there is no procedural latches in the inquiry, the punishment awarded against the petitioner is justified. In [2002 (2) LBESR 548 (All) : (2002) 2 U. P. L. B. E. C. 1871)], Mirza Barket Ali v. Inspector General of Police, Allahabad & Ors. 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 found the punishment is too harsh and severe/disproportionate allegations and directed for awarding lessor punishment. It is necessary to analyse as follows in respect of discretion of the disciplinary authority while imposing the punishment, as- (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 jeopardizing the interest of the administration, then the disciplinary authority/ punishing authority, should not impose the maximum 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) I L. L. J. 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. I. C. (NOC) 73 (Bom)]. (B) Ordinarily the Court or tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule is an 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 in such conditions was held not to be disproportionate as the constable was guilty of gravest misconduct. State of Punjab v. Ex. Constable Ram Singh, (1992) 4 SCC 54. (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. In another case when the employee had 29 years of unblemished record and Public Service Commission on consultation had not agreed to the proposal of dismissal, however 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 was converted to compulsory retirement so that the widow could get the appropriate financial benefit. Kartar Singh Grewal v. State of Punjab, AIR 1991 SC 1067; (1991) 2 SCC 635. The Supreme Court could exercise power of judicial review or 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, as could be seen from the decision of the Supreme Court in Bank of India v. Samarendra Kishore Endow, 1994 (2) SCC 537, where it was held that if the punishment is 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 in Samarendra Kishore Endow's case (supra) 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 reaches 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" (D) The three Judges Bench judgment of the Supreme Court in B. C. Chaturvedi v. Union of India, 1996 (1) LBESR 424 (SC) : (1995) 6 SCC 749, 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, however 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 may shorten the same itself, in exceptional and rare cases, imposing appropriate punishment with recording 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. In that case, the Government employee whose disciplinary enquiry was continued even after retirement and a penalty of curtailing 50% pension and gratuity was imposed over him, however when he moved to the Central Administrative Tribunal, which held that gratuity not being part of pension cannot be curtailed and modified and the deduction of pension was indicated for a limited period. In appeal 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 that 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. (G) A member of the Central Reserve Police for overstaying the leave for twelve years for which he had sufficient reason and had no intention to willfully disobey the order was, however, 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 reinstating him with all consequential benefit and the Supreme Court in appeal has held that the punishment of dismissal was harsh and indicated for the reinstatement of writ petitioner in service giving liberty to the Government to impose any minor penalty for the misconduct in question. [union of India v. Giriraj Sharma, AIR 1994 SC 215; 1994 Supp (3) SCC 755; (1994) I L. L. J. 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. 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 records were unblemished and at the relevant time he was sharing a room with two colleagues. So, the Supreme Court substituted the penalty to compulsory retirement. Mehanga Singh v. I. G. of Police, 1996 (1) LBESR 214 (SC) : (1995) 5 SCC 682. (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]. 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 (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. (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 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.;