D.N.PATEL,J. - (1.) When the matter is called out, learned counsel for the appellant is absent.
(2.) We have heard learned counsel for the respondent-State, at length, who has submitted that for the grossest misconduct committed by this appellant, charge-sheet was issued on 16th April, 2008 (Annexure-1). The charges levelled against this appellant were about dereliction on duty and absenteeism from the place of employment though he is a member of disciplined Force-Jharkhand Armed Police-VII, District-Hazaribagh. He was posted at very sensitive area at Hunterganj Police Station, District-Chatra and he was found absent on 22nd March, 2008 when checking was done between 10:00 a.m. and 12:00 noon. Another police man viz. Shri Sudeshwar Mahto was to be deputed at the place of this appellant and thereafter the appellant joined his duties on the next day i.e. on 23rd March, 2008 at 12:00 noon. He had also not taken care of his fire arm and live cartridges. Thereafter enquiry officer was appointed, who gave enquiry report on 24th June, 2008. Adequate opportunity of being heard was given to this appellant and charges levelled against him have been held as proved by the enquiry officer and, thereafter, before imposing punishment again opportunity of being heard was given and the disciplinary authority-Commandant of Jharkhand Armed Police-VII finally imposed punishment upon this appellant and his pay scale was reduced to the lowest pay scale of the cadre for three years vide order dated 9th August, 2008, against which, departmental appeal was preferred by the appellant and the same was dismissed vide order dated 12th January, 2009 (Annexure-6). Against this concurrent finding of facts, writ petition being W.P.(S) No. 1827 of 2009 was preferred by this appellant, which was dismissed by the learned Single Judge and, hence, the present Letters Patent Appeal has been preferred by the original petitioner. Learned counsel appearing for respondent-State further submitted that no error has been committed by the enquiry officer in holding the enquiry. Adequate opportunity of being heard was also given to this appellant. The enquiry officer's report is based upon the evidences taken during the course of enquiry and the charges levelled against this appellant have been held as proved. Once the enquiry is held as legal and valid, the only question is left out about the quantum of punishment. Learned counsel for respondent-State also submitted that looking to the nature of misconduct and the fact that this appellant is serving in a disciplinary force i.e. Jharkhand Armed Police Force, the punishment imposed by the disciplinary authority is much lesser than what he deserves. In fact, this appellant could have been dismissed by the State for the dereliction on duties instead of that bare minimum punishment has been imposed i.e. reduction of the pay scale to the lowest of the cadre and that too only for three years. Thus, the punishment is absolutely reasonable and commensurate with the nature of misconduct. It cannot be labelled as shockingly disproportionate nor it can be said as unreasonably excessive. Learned counsel appearing for the respondent-State has relied upon the following decisions: (a) (2011) 10 SCC 244 (b) AIR 2011 SC 1790 On the basis of the aforesaid decisions, it is submitted by the learned counsel for the respondent-State that this Letters Patent Appeal may not be entertained by this Court as no error has been committed by the learned Single Judge in dismissing W.P. (S) No. 1827 of 2009 vide judgment dated 10th August, 2010. REASONS:
(3.) Having heard learned counsel for the respondent-State and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (i) This appellant is an original petitioner, who had preferred W.P.(S) No. 1827 of 2009 which was dismissed by the learned Single Judge vide judgment dated 10th August, 2010, whereby, the punishment imposed upon this appellant by the disciplinary authority which was also confirmed by the departmental appellate authority, have been confirmed and, hence, the original petitioner has preferred the present Letters Patent Appeal. (ii) This appellant is working in the Jharkhand Armed Police-VII. On 22nd March, 2008, he was posted at Hunterganj Police Station area in the District of Chatra. When the checking took place, he was not available between 10:00 a.m. and 12:00 noon. He had left the place without permission of the high ranking administrative officer. The place at which he was posted was a very sensitive area, so far as the extremist activities are concerned. On 23rd March, 2008, he resumed the duties at 12:00 noon. He had also not taken care of his fire arm and live cartridges. This was the grossest misconduct, for which, charge-sheet was issued on 16th April, 2008 (Annexure-1). (iii) Thereafter enquiry officer was appointed. Enquiry was conducted and adequate opportunity of being heard was given to this appellant. Necessary witnesses were also examined and on the basis of the evidences on record, enquiry officer gave his report on 24th June, 2008 (Annexure-3), whereby, the charges levelled against this appellant have been held as proved. (iv) Thereafter disciplinary authority had also given adequate opportunity of being heard to this appellant and ultimately passed an order on 9th August, 2008, whereby, his pay scale has been reduced to the lowest pay scale of the cadre for three years. This order is at Annexure-4 to the memo of this Letters Patent Appeal. (v) Thus, adequate opportunity of being heard has been given to this appellant, even second showcause notice was also given. Enquiry Officer's report is based on the evidences on record and thus enquiry is legal and valid. (vi) Once the enquiry is held as legal and valid, the only question left out to be decided by this Court is about the quantum of punishment. This appellant is working in the disciplined force viz. Jharkhand Armed Police-VII. He was posted at very sensitive area at Hunterganj Police Station in District-Chatra, which is a naxalite affected area and he was not available on duty when the checking took place on 22nd March, 2008 between 10:00 a.m. and 12:00 noon and another police man was to be deputed on his place and on the next day i.e. 23rd March, 2008 at 12:00 noon, he remained present for joining his duties. Even the fire arm and live cartridges were also not taken care of by this appellant. This is the grossest misconduct on the part of the police. (vii) Looking to the quantum of punishment i.e. reduction in the pay scale to the lowest pay scale of the cadre for three years is a very lenient view taken by the Government, otherwise, the services of this appellant could have been terminated as dismissed. Nonetheless looking to the quantum of punishment inflicted by the disciplinary authority which was confirmed by the departmental appellate authority, it cannot be said that the punishment inflicted upon this appellant-delinquent is unreasonably excessive nor can it be labelled as shockingly disproportionate. (viii) It has been held by the Hon'ble Supreme Court in the case of State of Meghalaya and Ors. v. Mecken Singh N. Marak, as reported in AIR 2008 SC 2862, in paragraph nos. 8 and 9 as under: "8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that grave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. On re-appreciation of evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instant appeal. 9. The next question which falls for consideration is whether the competent authority was justified in removing the respondent from service and whether the Division Bench of the High Court was right in remitting the matter to the Appellate Authority for passing appropriate order of punishment short of removal. The record would indicate that the respondent was a senior police officer. He was instructed by his Commandant to go to Shillong to disburse the pay in a vehicle belonging to the department and along with him another police officer was also deputed for safe carriage of pay to be disbursed to the Bn personnel posted at Shillong. Further, the respondent was issued 0.38 bore revolver with 12 rounds. It is an admitted position that the respondent was instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and travelled to Bn headquarters in a bus wherein not only he lost cash of Rs. 17,314/but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whether the Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent. A Court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons, The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the Court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted. (Emphasis supplied) (ix) It has been held by the Hon'ble Supreme Court in the case of Deputy Commissioner, KVS and Ors. v. J. Hussain, as reported in AIR 2014 SC 766, in paragraph no. 11 as under: "11. Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal's room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the Court. Though it does not appear to be excessive either, but even if it were to be so, merely because the Court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too the extent that it shocks the conscience of the Court and the Court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the repetition that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once, it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty. The High Court has also mentioned in the impugned order that the respondent is a married man with family consisting of number of dependents and is suffering hardship because of the said "economic capital punishment". However, such mitigating circumstances are to be looked into by the departmental authorities. It was not even pleaded before them and is an after effect of the penalty. In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust and Anr. v. State of Karnataka and Ors. (2006) 1 SCC 430 in the following words : "A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court." (Emphasis supplied) (x) It has been held by the Hon'ble Supreme Court in the case of Union of India and others v. P. Gunasekaran, as reported in AIR 2015 SC 545, in paragraph no. 13 as under: "13. Despite the well settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience. (Emphasis supplied);