Deepak Roshan,J. - (1.) Heard through 'C.
(2.) The instant writ application has been preferred by the petitioner praying for quashing the order as contained in Memo No. 92 dated 06.06.2009 issued by the Respondent No.3.
(3.) Mr. J.P.Jha, learned senior counsel for the petitioner referred to an order passed in C.W.J.C. No. 5839 of 1999(R) and submits that the petitioner had earlier moved before this Court challenging the order of punishment dated 27.11.1998 passed by the respondent no. 3 and the said writ application was disposed of by observing that the petitioner had not invoked the statutory revisional remedy provided under the Act and the respondents were directed to consider the same and also to consider the issue of disproportionate punishment. While referring to the aforesaid judgment learned senior counsel submits that a fresh order has been passed by the appellate authority, but he has not considered the grounds taken by the petitioner and no reason has been assigned in the impugned order. He further contended that there was a specific direction by this Court to consider the issue of proportionality of punishment; however, not even a single line has been uttered by the appellate authority. He further submits that the charge against the petitioner is trivial in nature. In support of his contention, learned senior counsel relied upon the judgment delivered in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand , 2007 2 JLJR 328, wherein at para 18 of this Court has held as under: 18. When such a request has been made by the delinquent himself, it is the bounden duty of the disciplinary authority to have a look at the past records of the petitioner as desired by him mainly to consider if any lesser punishment than the dismissal like demotion or compulsory retirement could be inflicted upon the petitioner, on the basis of the past records." He further referred to a judgment delivered in the case of Jai Bhagwan Vs. Commr. of Police and Ors , 2013 3 JCR 347(SC) wherein the Hon'ble Apex Court at para 13 to 16 has held as under; "13. Coming to the case at hand we are of the view that the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly disproportionate. There is no allegation that the appellant had manhandled the police Inspector who had gone to check the cabin. Delay of 10 minutes in opening the cabin door, which according to the appellant was open but had got stuck because of humidity leading to expansion of the wooden frame, was not a matter that ought to have led to the appellant's dismissal after he had served the police force for over 10 years. Even assuming that the version given by the appellant was not acceptable the same did not constitute a misconduct of a kind that would justify the appellant's dismissal from service leading to forfeiture of his past service. That the appellant was not in uniform may also be breach of discipline calling for administrative action against him but not so severe as to throw him out of the police force. The analogy drawn by the appellant in this case and that of Ram Kishan's case (supra) is not, therefore, wholly misplaced. The delinquent in that case too was charged with misbehavior with his superior leading to his dismissal from service which was found by this Court to be disproportionate to the nature of misconduct calling for moderation. 14. Having said that we cannot ignore the fact that the appellant had falsely accused the Inspector of having used casteist abuses to humiliate him which allegation on an inquiry was found to be totally false. It is obvious that the appellant had tried to use the caste card only to escape punishment for the misconduct and indiscipline committed by him. There is no manner of doubt that an allegation like the one made by the appellant could have resulted in his prosecution and dismissal of the superior officer from service. The appellant's case in that view is not on all four corners of Ram Krishna to call for such leniency as was shown to Ram Krishna. 15. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the un-usual but by no means impermissible course of reducing the punishment to the extent indicated above. 16. These appeals are accordingly allowed in the above terms; with a further direction that the respondents shall do the needful expeditiously but not later than three months from the date of this order. No costs." ;