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1996 DIGILAW 73 (GAU)

Mithilesh Singh v. Union of India

1996-04-30

D.N.CHOWDHURY

body1996
Constable 2405 Mithilesh Singh D Coy of Railway Protection Special Force has challenged his order of removal from service dated 4.1.1988 in this application. An appeal was preferred against the said order of removal before the appropriate authority and the said appeal was also rejected. Hence this petition. 2. The petitioner joined in the service of respondent as Constable on 16.4.1978 and while he was so serving a notice dated 4.7.1987 was served upon the petitioner under Rule 44 of the Railway Protection Force Rules, 1959 on the charge of gross indiscipline and carelessness of duty while the petitioner was detailed in quarter guard duty at Tarantaran in Punjab on 23.5.87. According to the statement of allegation served on the petitioner, the petitioner while was on duty on 23.5.87 he asked the Guard Commandar to keep his arms and ammunition with him, stating that he is proceeding to his native home. The Guard Commander, advised him (petitioner) not to leave without permission, the petitioner disobeying the order left his duty at 11.25 hours of that day. The petitioner submitted his written statement denying the charge and explaining the circumstances for leaving the station head quarter on 23.5.87. A departmental proceeding was held and the Enquiry Officer submitted his report and the disciplinary authority namely the Security Commissioner by his order dated 4.1.88 found the petitioner guilty of misconduct and ordered for removal of the petitioner from service. On appeal the Chief Security Commissioner on considering the appeal rejected the same by his order dated 25.10.89. The main grievances of the petitioner is that the disciplinary proceeding conducted by the respondent is blatently violation of the principle of the natural justice and on that ground alone the proceeding including the order of removal is liable to be set aside. The petitioner also submitted that even otherwise the purported proceeding is unjust and lacks fair play and therefore unfair requiring interference of the Court under Article 226 of the Constitution of India. Lastly it is averred that the impugned order of removal is arbitrary and the punishment inflicted is grossly disproportionate and therefore violative of Article 14 of the Constitution of India. 3. Mr. Lastly it is averred that the impugned order of removal is arbitrary and the punishment inflicted is grossly disproportionate and therefore violative of Article 14 of the Constitution of India. 3. Mr. BK Sharma, learned counsel for the respondent placed before me the entire record of the case to justify that the disciplinary proceeding were conducted in accordance with law and there is no procedural or substantive illegality in conducting the departmental proceeding. 4. Mr. Sharma, learned counsel for the respondents submits that the petitioner since belongs to a disciplined force is duty bound to maintain strict discipline more so when he was posted at a sensitive place. Mr. Sharma also submits that the disciplinary authority is a fact finding authority and is invested with the power not only to initiate and take disciplinary action against the employee but also is clothed with the powers of inflicting punishment. In short Mr. Sharma submits that since judicial review is not a appeal in disguise the writ Court should not interfere in the quantum of punishment. 5. The chargsheet issued under section 95 (i) of the Railway Protection Act read with Rule 44 RP Rules, 1959 contains the following statement of allegations : xxxx  xxxxx xxxx The petitioner in his written statement did not dispute the fact of his departure to his village home but explained the circumstances leading to his departure on 23.5.87, According to the petitioner his brother-in-law's marriage was fixed on May, 1987 and on his joining after his availing of leave on April, 1987, petitioner reported the matter to his superior officer on joining duty. According to the petitioner the Adjutant assured him about granting leave on account of his brother-in-law's marriage. On 22.5.87 petitioner returned to Tarantaran with the dak and informed Inspector In-charge that Adjutant has assured him about leave but Insector In-charge declined to grant leave and therefore the petitioner faced a piquant situation. According to the petitioner since marriage was fixed by him as the guardian of the brother-in-law to keep his honour as well as family honour. The petitioner also stated that since marriage was already fixed and as a guardian of the bridgegroom his presence was imperative and therefore he had to leave for home by informing his superior officer. According to the petitioner since marriage was fixed by him as the guardian of the brother-in-law to keep his honour as well as family honour. The petitioner also stated that since marriage was already fixed and as a guardian of the bridgegroom his presence was imperative and therefore he had to leave for home by informing his superior officer. He also handed over the arms and ammunition to him for safe custody and thereafter he bonafide left for his home for performing the marriage of his brother-in-law. The Enquiry Officer on enquiry held the delinqunt officer as guilty and considering the report, the respondent No.4, Security Officer passed order of removal dated 4.1.1988. 6. The disciplinary authority on the basis of the enquiry report found petitioner guilty of the charge and from the disciplinary point of view the disciplinary authority held that further retention of the petitioner in the disciplinary armed force department and accordingly decided to impose the penalty of removal. Petitioner was invited to explain and consider his case by office order dated 4.7.87 and the disciplinary authority passed final order of removal from service of the petitioner on 4.1.88. The appellate authority considering the appeal dismissed the appeal. I have gone through the materials on record including the materials/statement of witnesses relied upon by the disciplinary authority and considering all the aspect of the matter I do not find any infirmity or procedural impropriety in conducting the disciplinary enquiry. Despite some omissions the enquiry was conducted in a fair manner. Though I do not find any unfairness in the conduct of the enquiry proceeding the impugned order of removal from service on the facts and circumstances of the case appears to be unjust and unreasonable. The punishment or penalty awarded as to be put just reasonable and fair and must be in conformity with the equality clause enshrined in the Constitution of India. That the punishment is disproporitionate and the same is unjust and therefore is violative of Article 14 of the Constitution of India. I fully agree with the contention of Mr. The punishment or penalty awarded as to be put just reasonable and fair and must be in conformity with the equality clause enshrined in the Constitution of India. That the punishment is disproporitionate and the same is unjust and therefore is violative of Article 14 of the Constitution of India. I fully agree with the contention of Mr. BK Sharma, learned counsel for the Railway that judicial review is to ensure that individual was afforded a fair treatment and not to ensure further that after according to fair treatment the authority "reached on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eye of law". But that does not imply that the discretion by the administrative authority is beyond the purview of judicial control wider the discretion the greater is the possibility of misuse. Article 226 is a mechanism to control the arbitrary exercise of discretionary power. The subject is governed by law and not by men. Article 226 is not merely a provision but also a responsibility on the Courts to see that the power conferred on the authority is exercised justly and fairly. In exercise of power under Article 226 of the Constitution of India the writ Court can undoubtedly examine also the proportionality of the punishment. I have given my anxious consideration on the matter and considering the facts and circumstances of the case and also in view of the facts that the petitioner was serving in the Force since 1978 therefore I am of the view that punishment awarded to the petitioner is disproportionate and accordingly the order of removal is set aside. It will be for the authority to apply its mind in this regard and pass appropriate order, as regards the punishment other than any order of removal, dismissal or compulsory retirement from services in accordance with law keeping in mind the past service of the petitioner. The petition is accordingly allowed to the extent indicated above. Considering the facts and circumstances of the there shall be however no order as to costs.