SHETHNA, J. - (1.) HEARD the learned counsel for the parties.
(2.) IN this special appeal only submission raised by learned counsel Shri Lohra for the appellant-original petitioner was that the order of dismissal from service passed by the disciplinary authority and confirmed in appeal by the appellate authority was not commensurate to the misconduct committed and found to be proved against the appellant. He submitted that the appellant petitioner be reinstated in service without back wages by passing the order of stoppage of three grade increments without cumulative effect instead of order of dismissal from service. This was vehemently objected by Mr. Mathur on the ground that misconduct committed by the appellant was of serious nature where no other view was possible. He submitted that this Court in its writ jurisdiction cannot interfere with punishment as held by the Hon'ble Supreme Court in its number of judgments. Before dealing with the aforesaid contention raised by learned counsel for the appellant regarding quantum of punishment, we would like to narrate few important and relevant facts, which are as under:- The appellant petitioner Shri Narain Singh is coming from a very backward area of village Dholia, Tehsil Ladnu, District Nagaur of State of Rajasthan. Initially, at the young age of 22 he was appointed as Driver in B. S. F. in April, 1990. Unfortunately, he met with an accident for which he was punished with 28 days quarter guard and recovery of Rs. 2405/- in the year 1992. He, therefore, requested the authority to allow him to change his cadre from Driver to Constable in 1992 itself, which was accepted by the authority and accordingly he was working as Constable since 1992. On 4. 2. 1997 he was charge sheeted for two charges, (i) disobeying the lawful command given by the superior officer and (ii) assaulting his superior officer. The first charge was that on 3. 2. 1997 at 5. 30 p. m. he was ordered by Head Constable Kashmir Singh to go for `santri' duty which he did not do so, thus, he disobeyed the lawful command given by his superior officer. Second charge was that on 3. 2. 1997 at 9. 15 p. m. he gave fist blow on the mouth of Head Constable Kashmir Singh. As a result of which one insizer tooth came out from the mouth of Head Constable Kashmir Singh. As per the order passed by the Division Bench of this Court in special appeal while issuing notice to the other side, learned counsel Shri Mathur has placed the file containing original papers of the enquiry before us. From the file, it is clear that charge sheet for the aforesaid charges was framed against the appellant on 2. 3. 1997 to which he stated that "i am a poor man. I have committed a mistake. I may be pardoned. " It is also clear from the file that on 4. 4. 1997 the disciplinary authority decided to dismiss him from service as the charges were found to be proved on his pleading guilty. In appeal, the appellate authority, without considering the entire material on record and facts of the case, dismissed the appeal, therefore, the orders passed by the disciplinary authority as well as appellate authority were challenged by the appellant petitioner before this Court by way of writ petition No. 669/98, which was straightway dismissed in limine by the learned Single Judge on 3. 9. 98. Hence, this special appeal.
(3.) HAVING carefully gone through the file, we find that there is material at page 27 of the file which shows that once he was punished within last 12 months and since his enrolment thrice, but at the time of passing of the order he was not undergoing any sentence. He was 30 years 11 months and 19 days at the time of passing of the order and completed 6 years 11 months and 19 days in service, means almost 7 years in service. It is true that the charges levelled against the appellant and found to be proved on his pleading guilty are really of serious nature and such a person cannot be allowed to go scot free without any punishment. More particularly, when he was punished in all thrice in his entire service of about seven years. However, we are of the considered opinion that while passing the extreme penalty of dismissal from service the authorities were also required to keep in mind other factors, namely; (i) the person is coming from which place, (ii) his family back ground and (iii) his service record of seven years, etc. As stated earlier, the appellant petitioner is coming from a very backward area of village Dholia. He is a poor person. He has to maintain his large family, and his past service record shows that during these seven years of service he has won atleast two cash awards for his gallantry service. His general character has been opined satisfactory. From the facts narrated in the petition, it appears that the appellant was unnecessarily provoked by Head Constable Kashmir Singh and that is why the appellant petitioner committed this misconduct. For which he realised his mistake and pleaded guilty. When a poor person pleads guilty to the misconduct committed by him then in our considered opinion the extreme penalty from service was un-called for, on peculiar facts and circumstances of the case, which we have narrated earlier. ;