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service matter – an Assistant Wireless Operator was dismissed for misconduct – dis-proportionate quantum of punishment = the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly disproportionate. = 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.

  published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40530

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5162-63 OF 2013
(Arising out of SLP (C) Nos.23363-23364 of 2011)
Jai Bhagwan …….Appellant

Versus

Commr. Of Police & Ors. …….Respondents

 

 

J U D G M E N T

 

T.S. Thakur, J.

1. Leave granted.

2. These appeals by special leave arise out of an order dated 21st
October 2010 passed by the High Court of Delhi whereby Writ Petition
(Civil) No.5450 of 2005 filed by the appellant challenging his dismissal
from the post of Assistant Wireless Operator has been dismissed. An order
dated 18th February 2011 whereby the High Court dismissed Review Petition
No.72/2011 filed by the appellant has also been assailed by the appellant.
3. The appellant was posted as an Assistant Wireless Operator at Patel
Nagar Police Station, Delhi. A cabin was provided to him for that
purpose. On the night intervening 28/29th July 2001 when Inspector Harjeet
Singh went for checking the cabin used by the appellant he found the same
locked from inside. The Inspector knocked at the door but got no response
from within the cabin. He then knocked the door harder whereupon, the
appellant shouted at him from inside saying, “KYA DARWAJE KO TOREGA BE”
(Are you determined to break the door). When the door was eventually opened
by the appellant, the Inspector found him wearing plain civilian clothes.
He asked the appellant the reason for not being in proper uniform to which
the appellant replied that he liked to dress like that only. The appellant
also refused to give the log book to the Inspector when asked and snatched
the same from him when the Inspector picked it up from the table. The
appellant was, in the above circumstances, charged with misconduct. The
charge read as under:

“I, Inspr. Anil Dureja, DE Cell. Delhi charge you HC Jai
Bhagwan, No. 1212/Commn. That while discharging operator Duty at
Radio a Radio Station P.S. Patel Nagar on the intervening night
28/297.2001 from 2000 hrs. to 0800 hrs. Inspr. Harjeet Singh who
was night checking officer, approached for checking at the door
of wireless cabin at 0035 hrs, The cabin was found locked
from inside. The Inspector knocked the door with little force,
you HC Jai Bhagwan shouted from inside in a very undisciplined
manner “kya darwaje ko torego be” you were also found in plain
clothes and when asked the reasons for the same you replied that
you would like this only. You also refused to give the log book
when asked to do so snatched the log book from him which the
later had picked up from the table. You made irrelevant
transmission on District No at 0130 hrs which aggravated your
misconduct.

The above act of misbeaviour and misconduct on the part of
you HC (AWO) Jai Bhagwan No. 1212/Comn. Renders you liable for
punishment under Section 21 D.P. Act read with Delhi Police
(Punishment and Appeal) Rules, 1980.”

 

4. An inquiry followed in which the charges were held proved. The
appellant found guilty and was dismissed from service by an order passed by
the Disciplinary Authority on 29th March 2002. Aggrieved by the said
order, the appellant preferred an appeal before the prescribed appellate
authority which too failed and was dismissed on 9th January 2003. The
appellant then approached the Central Administrative Tribunal for redress
but remained unsuccessful even there. He next approached the High Court of
Delhi in Writ Petition No.5450 of 2005 before whom he urged five distinct
grounds against the order of dismissal. It was firstly urged by the
appellant that a copy of the preliminary inquiry conducted by the DCP
Communication and relied upon by the Inquiry Officer was never supplied to
him thereby causing prejudice to the appellant. It was secondly urged that
Inspector Harjeet Singh had improved upon his version inasmuch as the
narrative given by him in the first report and that given in the second
report were materially different. Thirdly, it was contended that DCP
Communication could not act as the Disciplinary Authority inasmuch as it
was he who had conducted the fact finding inquiry that gave rise to a
likelihood of bias. The fourth submission urged on behalf of the appellant
before the High Court related to the appellant’s version that he was
medically advised against wearing the police uniform on account of some
kind of skin allergy. It was lastly contended that the allegations that he
was sleeping inside the wireless cabin was unsupported by any evidence and
that the punishment of dismissal from service awarded to him was in any
case much too harsh, unreasonable and disproportionate to the gravity of
the misconduct, to be countenanced by the Court.

5. The High Court examined each of these contentions and rejected the
same by an order that is impugned in the present appeals. The High Court
took pains to look into the evidence on record to find out whether there
was any perversity in the view taken by the disciplinary authority, the
appellate authority, or the Tribunal and found none. Even on the question
of quantum of punishment, the High Court held that the petitioner had no
case inasmuch as the incident in question was one of gross indiscipline and
the penalty of dismissal from service was justified.

6. We have heard learned counsel for the parties at some length and
perused the orders under challenge. The charges framed against the
appellant have been held proved by the disciplinary authority, the
appellate authority and even by the Tribunal concurrently. The High Court
reviewed those findings and found nothing perverse about the same. There
is in that view no room for our interference on that account. In fairness
to learned counsel for the appellant we must mention that even he did not
make any serious attempt to assail the concurrent findings of fact recorded
against the appellant. We have, therefore, no hesitation in affirming the
said findings.

7. What was argued by learned counsel for the appellant with
considerable tenacity was the dis-proportionality of the quantum of
punishment imposed upon the appellant. It was contended that the charges
against the appellant were limited to using rude language against a
superior officer who had come to check the wireless cabin provided to the
appellant. The fact that the appellant was not in proper uniform or took a
little more time than necessary in opening the door also did not materially
add to the gravity to the misconduct, if any. Dismissal from service for
such a minor act of misdemeanor was according to learned counsel totally
unreasonable and disproportionate even assuming that the charges had been
satisfactorily proved. Relying upon the decision of this Court in Ram
kishan v. Union of India (1995) 6 SCC 157 it was contended that the
delinquent was in that case also charged with an act like the one alleged
against the appellant. This Court had, however, stepped in to set aside
the order of dismissal passed by the disciplinary authority and reduced the
punishment to stoppage of two increments only. It was urged that a similar
order in the instant case would meet the ends of justice.

8. On behalf of the respondent, it was submitted that the conduct of the
appellant was highly objectionable and unbecoming of any one serving in the
police force where the need for maintaining discipline is paramount. Any
leniency towards those responsible for such misconduct was, according to
the learned counsel, bound to encourage others to commit similar or more
serious acts of indiscipline and misconduct which will not be in public
interest as it is bound to undermine discipline as a value, erode the
efficacy of the police force and shake the confidence of the people in its
efficiency. It was also submitted that the appellant had not only sent out
an unwarranted message on the wireless regarding the incident but had gone
to the extent of making a false accusation against the Inspector, which
aggravated the appellant’s misconduct wholly unbecoming of a police
officer. A false charge implicating his superior for using casteist
remarks was a serious matter. Dismissal from service, in that view was the
only punishment which the appellant deserved and with which this Court
ought not to interfere.

9. What is the appropriate quantum of punishment to be awarded to a
delinquent is a matter that primarily rest in the discretion of the
disciplinary authority. An authority sitting in appeal over any such order
of punishment is by all means entitled to examine the issue regarding the
quantum of punishment as much as it is entitled to examine whether the
charges have been satisfactorily proved. But when any such order is
challenged before a Service Tribunal or the High Court the exercise of
discretion by the competent Authority in determining and awarding
punishment is generally respected except where the same is found to be so
outrageously disproportionate to the gravity of the misconduct that the
Court considers it be arbitrary in that it is wholly unreasonable. The
superior Courts and the Tribunal invoke the doctrine of proportionality
which has been gradually accepted as one of the facets of judicial review.
A punishment that is so excessive or disproportionate to the offence as to
shock the conscience of the Court is seen as unacceptable even when Courts
are slow and generally reluctant to interfere with the quantum of
punishment. The law on the subject is well settled by a series of
decisions rendered by this Court. We remain content with reference to only
some of them.

10. In Ranjit Thakur v. Union of India (1987) 4 SCC 611, this Court held
that the doctrine of proportionality, as part of the concept of judicial
review, would ensure that even on an aspect which is, otherwise, within the
exclusive province of the Court-Martial, if the decision even as to the
sentence is in defiance of logic, then the quantum of sentence would not be
immune from correction. Irrationality and perversity, observed this
Court, are recognized grounds of judicial review. The following passage is
apposite in this regard:

“the doctrine of proportionality, as part of the concept of
judicial review, would ensure that even on an aspect which is,
otherwise, within the exclusive province of the Court-Martial,
if the decision even as to sentence is an in defiance of logic,
then the quantum of sentence would not be immune from
correction. Irrationality and perversity are recognized
grounds of judicial review”.

 

11. Similarly, in Dev Singh v. Punjab Tourism Development Corporation
limited (2003) 8 SCC 9, this Court, following Ranjit Thakur’s case (supra)
held:

“…a court sitting in an appeal against a punishment imposed in
the disciplinary proceedings will not normally substitute its
own conclusion on penalty. However, if the punishment imposed by
the disciplinary authority or the appellate authority shocks the
conscience of the court then the court would appropriately mould
the relief either by directing the disciplinary/ appropriate
authority to reconsider the penalty imposed or to shorten the
litigation it may make an exception in rare cases and impose
appropriate punishment with cogent reasons in support thereof.
It is also clear from the above noted judgments of this court,
if the punishment imposed by the disciplinary authority is
totally disproportionate to the misconduct proved against the
delinquent officer, then the court would interfere in such a
case.”

 
12. Reference may also be made to the decisions of this Court in Union of
India v. Ganayutham (1997) 7 SCC 463, Ex-Naik Sardar Singh v. Union of
India (1991) 3 SCC 213 and Om Kumar v. Union of India (2001) 2 SCC 386,
which reiterate the same proposition.

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 misbehaviour 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.

…………..………………………J.
(T.S. THAKUR)
………….………………………J.
(GYAN SUDHA MISRA)
New Delhi
July 5, 2013

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