Kakong Tayeng v. Asstt. Inspector General of Police
2003-06-20
I.A.ANSARI
body2003
DigiLaw.ai
JUDGMENT Iqbal Ahmed Ansari, J. 1. By making this application under Article 226 of the Constitution of India, the Petitioner, who was working as Constable in Arunachal Pradesh Police Force, has approached this Court seeking issuance of appropriate writ/writs setting aside and quashing the order, dated 13.6.94 (Annexure-C to the writ petition), whereby the Petitioner was dismissed from service. 2. In a nutshell, Petitioner's case runs as follows: When the Petitioner was serving as a Constable, he was served with office memorandum (Annexure- 'A') containing as many as 3(three) articles of charges directing him to show cause to the accusations levelled against him. The first charge was to the effect that the Petitioner was detained for sentry duty at the Police station from 1000 hours to 1800 hours on 9.9.1999, but he had failed to attend the duty on time and, instead, he was found sleeping at the Police Barrack under the influence of alcohol. The second charge against the Petitioner was that on reaching the Police Station, the Petitioner had started abusing and saying that he would shoot all the Police personnel except O.C.,P.S., HC(T) Raju. K and Ct.T. Yangfo with service rifle and at that time, the Petitioner was in possession of extra ammunitions. The third charge was that after taking sentry charge of the Police Station at Chyang Tajo, the Petitioner loaded three rounds of extra ammunition in his service rifle and fired one round towards HS(Const)-T.P. Chetry, who was on Govt. duty at the said Police Station. Though the Petitioner submitted his written statement in defence denying the charges, he was seriously handicapped in submitting his written statement inasmuch as he had not been supplied with copies of the documents relied upon by the disciplinary authority. No Presenting Officer was appointed and the Enquiry Officer, while conducting the enquiry, acted both as the Enquiry Officer and also as Presenting Officer. No defence assistance was provided to the Petitioner to help the Petitioner present his case. The Petitioner was denied opportunity to cross-examine the witnesses effectively. Though the enquiry was conducted purportedly in terms of the CCS(CCA) Rules, 1965, the relevant rules were not scrupulously followed. The Petitioner was found guilty of the first and third charge by the Inquiry Officer. Though no inquiry report was furnished to the Petitioner, the disciplinary authority i.e., the Respondent No. 1 considered the inquiry report.
Though the enquiry was conducted purportedly in terms of the CCS(CCA) Rules, 1965, the relevant rules were not scrupulously followed. The Petitioner was found guilty of the first and third charge by the Inquiry Officer. Though no inquiry report was furnished to the Petitioner, the disciplinary authority i.e., the Respondent No. 1 considered the inquiry report. The disciplinary authority, on consideration of the inquiry report, disagreed with the findings of the inquiry officer in respect of the second charge and held to the effect that all the three charges stood proved. For the conclusions so reached, the disciplinary authority assigned no cogent reasons and pass the impugned order, dated 13.06.94 (Annexure 'C') imposing major penalty of dismissal from service on the Petitioner. The Petitioner, then, preferred an appeal, but the same was also turned down by order, dated 16.3.1995 (Annexure 'D') passed by the Respondent No. 2. Left with no other alternative, the Petitioner has approached this Court seeking, with the help of the present application, relief/s as indicated hereinabove. 3. The Respondents have contested this case by filing their affidavit-in-opposition, their case being, briefly stated, thus: The Copies of the documents relied upon by the disciplinary authority were duly supplied to the Petitioner. It is not mandatory to appoint Present Officer. The Petitioner did not apply for giving him assistance of any Govt. servant in presenting his defence at the enquiry. Sufficient opportunity was provided to the Petitioner to cross-examine the witnesses, but he did not avail of the same. The Inquiry Officer conducted the inquiry with all fairness. The Petitioner did not cross-examine any of the witnesses produced at the inquiry on behalf of the disciplinary authority. The Inquiry officer found the Petitioner guilty of the first and third charge and submitted his report accordingly to the disciplinary authority. The disciplinary authority assigned sufficient reasons for not agreeing with the findings of the inquiry officer in respect of the second charge and held that the second charge too stood proved against the Petitioner and, then, passed the order dismissing the Petitioner from service. In the facts and circumstances of the case, the penalty, so imposed, is not disproportionate to the gravity of the charges proved against the Petitioner. The appellate authority also considered the appeal of the Petitioner and, on due application of mind, found the same without merit and dismissed the appeal.
In the facts and circumstances of the case, the penalty, so imposed, is not disproportionate to the gravity of the charges proved against the Petitioner. The appellate authority also considered the appeal of the Petitioner and, on due application of mind, found the same without merit and dismissed the appeal. The writ petition has, therefore, no merit. 4. I have perused the materials on record. I have heard Mr. T.Michi, learned Counsel for the Petitioners, and Mr. B.L. Singh, learned Sr. Govt. Advocate, appearing on behalf of the Respondents. 5. There is no dispute before me that since the Petitioner was a Constable in Arunachal Pradesh Police Force and faced disciplinary proceeding, which could have entailed major penalty of dismissal from service, the disciplinary proceeding, held against the Petitioner, was governed by the provisions of CCS(CCA) Rules, 1965. There is also no dispute before me that since the penalty of dismissal from service imposed on the Petitioner is a major penalty, the same could not have been imposed without following the procedure laid down in Rule 14 of the CCS(CCA) Rules. It may be pointed out that Rule 14 is nothing, but a set of requirements, which are to be observed by the disciplinary authority for the purpose of ensuring that the principles of natural justice are not denied or violated before condemning a Government servant. It is under Clause (c) of Sub Rule (5) of Rule 14 that a disciplinary authority appoints Presenting Officer. For the sake of brevity, Clause (c) is quoted hereinbelow: Where the Disciplinary Authority itself inquires into any article of charge or appoints an Inquiry authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge. 6.
6. A careful reading of Rule 14(5)(c) shows that a disciplinary authority itself may hold inquiry into any article of charge or it may appoint an Inquiry Authority for holding inquiry into any article of charge and in either of the two cases, so indicated, the disciplinary authority may, by an order, appoint a Government servant or a legal practitioner to present the case on behalf of the disciplinary authority in support of the articles of charge and the Government servant or legal practitioner, so appointed, shall be known as the Presenting Officer. It transpires from the word 'may', used in Clause (c) of Sub Rule (5) of Rule 15, that it is not mandatory on the part of the disciplinary authority to appoint any Presenting Officer. Far from this, the appointment of a Presenting Officer is at the option of the disciplinary authority and hence, findings of a disciplinary proceeding cannot be interfered with merely on the ground that no Presenting Officer was appointed. However, if the omission to appoint Presenting Officer causes any prejudice to the Petitioner on account of the manner in which an inquiry in conducted, the non-appointment of Presenting Officer may constrain the Court to interfere with the findings reached on the conclusion of such an inquiry. 7. In the case at hand, no Presenting Officer was, admittedly, appointed. Though it has been alleged by the Petitioner that the Inquiry Officer had acted as Presenting Officer and also a Judge, it is of paramount importance to note that the Petitioner received, according to his own averments made in para 9 of the writ petition, a copy of the inquiry report along with the order of dismissal from service and, then, he preferred an appeal, which was considered and disposed of by the impugned order, dated 16.3.1995. No copy of the appeal petition was annexed by the Petitioner to this writ petition, but a copy of the same is available in the record of the proceedings. It is not disputed before me that the Petitioner preferred the appeal, on which was considered and disposed of by the impugned order, dated 16.3.1995, aforementioned. 8.
No copy of the appeal petition was annexed by the Petitioner to this writ petition, but a copy of the same is available in the record of the proceedings. It is not disputed before me that the Petitioner preferred the appeal, on which was considered and disposed of by the impugned order, dated 16.3.1995, aforementioned. 8. A careful reading of the above appeal petition discloses that no whisper, far less accusation, was made by the Petitioner, while preferring the appeal or in his appeal, that the inquiry conducted was unfair, the Inquiry Officer had acted as prosecutor/Presenting Officer and/or that the enquiry officer had extracted incriminating materials against the Petitioner from the witnesses concerned. 9. Situated thus, I have no option but to hold that omission to appoint Presenting Officer did not, in the present case, cause any prejudice to the Petitioner. As regards the Petitioner's accusation that the Inquiry officer did not give effective opportunity to the Petitioner to cross-examine the witnesses, suffice is to reiterate here that no such allegation was made by the Petitioner in his appeal aforementioned. This accusation made by the Petitioner is, therefore, as correctly contended by the learned Senior Govt. Advocate, is a result of after-thoughts. 10. While dealing with the Petitioner's grievance that he was handicapped in submitting his written statement in defence on account of the fact that the copies of the documents relied upon by the disciplinary authority had not been furnished to him, it needs to be noted that this plea too could not be substantiated by the Petitioner. As a matter of fact, the Petitioner, admittedly, submitted his written statement in defence denying all the charges levelled against him and it was only with regard to the third charge that he had stated to the effect that he had not intentionally fired from his service rifle and that the shooting was accidental. In his written statement, the Petitioner gave no indication that he had been, in any way, handicapped due to non-furnishing of the copies aforementioned. At no point of time, during the course of the inquiry or thereafter, the Petitioner complained that he was finding himself handicapped on account of non- receipt of copies of any of the documents, in question. Even in his appeal, the Petitioner did not agitate that non-furnishing of copies of any document to him had caused any prejudice to him. 11.
Even in his appeal, the Petitioner did not agitate that non-furnishing of copies of any document to him had caused any prejudice to him. 11. In view of the fact that the Petitioner had not alleged, at the first available opportunity, that the inquiry conducted was unfair and/or that he was, in any way, handicapped in cross-examining the witnesses on account of non-furnishing of any document, this plea too cannot be given any weight at all. This conclusion gets further strengthened from the fact that at the time of hearing of this Writ petition, Mr. T. Michi, learned Counsel for the Petitioner, could not show as to copy of which document had not been furnished to the Petitioner that can be said to have caused prejudice to the Petitioner. 12. Coming to the grievance of the Petitioner that no defence assistance was provided to him, it needs to be noted that it is Rule 14(8)(a), which contains provisions for appointment of defence assistant for a delinquent, who faces disciplinary proceeding under the CCS and CCA Rules, 1965. Rule 14(8)(a) reads as follows: (8)(a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place, where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority, having regard to the circumstances of the case, so permits: Provided that the Government servant may take the assistance of any other Government servant posted at any other station if the Inquiry Authority, having regard to the circumstances of the case and for reasons to be recorded in writing, so permits. 13. A bare reading of Rule 14(8)(a) clearly shows that it is on the request made by a delinquent that the Disciplinary Authority and/or Inquiry Authority, as the case may be, appoint defence assistant. There is nothing in the materials on record to show that the Petitioner made any request to the Disciplinary Authority or to the Inquiry Authority to appoint any Government servant or to allow him (i.e. the Petitioner) to engage any legal practitioner for the purpose of obtaining assistance in defending himself in the disciplinary proceeding. This apart, to a pointed query made by this Court, Mr.
This apart, to a pointed query made by this Court, Mr. T.Michi, learned Counsel for the Petitioner, has candidly conceded that no such request was made by the Petitioner in writing. 14. Coupled with the above, the Petitioner, it transpires, did not agitate in his appeal preferred against his order of dismissal from service that he ought to have been provided with defence assistance. 15. Considering the matter in its entirety, I am firmly of the view that it was not essential, in the facts and circumstances of the case, to appoint any Government servant and/or to permit the Petitioner to engage any legal practitioner to assist the Petitioner and that such non-appointment did not cause any prejudice to the Petitioner. 16. What is, now, imperative to note is that though it has been agitated, on behalf of the Petitioner, at the time of hearing, that he had not been furnished with a copy of the inquiry report at any time and that without having received the inquiry report, he had to approach this Court with the present writ application, paragraph No. 9 of the writ petition reveals that the Petitioner, as already indicated hereinabove, clearly stated that he was given a copy of the inquiry report alongwith the order of dismissal. In paragraph No. 10 of the writ petition, the Petitioner has, however, submitted that the inquiry report, so furnished, was not legible and he found it extremely difficult to read it properly. This apart, the impugned order, dated 13.06.94, whereby the Petitioner stood dismissed, mentions that a copy of the inquiry report has been enclosed with the order of dismissal. Hence, it is clear that before the Petitioner- preferred his appeal against the imposition of penalty, he knew the findings of the inquiry officer and also the findings of the Disciplinary Authority. In his appeal, the Petitioner had not submitted that he was dissatisfied with the correctness of the findings of the inquiry report and/or of the conclusion reached by the Disciplinary Authority and/or that the enquiry conducted was unfair. What he had, in fact, agitated was that the penalty imposed on him was severe, harsh and disproportionate to the misconduct alleged to have been committed by him. 17. It is, no doubt, true, as pointed out by Mr.
What he had, in fact, agitated was that the penalty imposed on him was severe, harsh and disproportionate to the misconduct alleged to have been committed by him. 17. It is, no doubt, true, as pointed out by Mr. T. Michi, learned Counsel for the Petitioner, that if an inquiry is held by any authority other than the Disciplinary Authority, then, a copy of the inquiry report, which is submitted by the Inquiry Authority to the Disciplinary Authority, shall be furnished to the delinquent concerned before the correctness of the findings arrived at by the Inquiry Authority is adjudged and decided by the Disciplinary Authority and before any penalty is imposed on the delinquent. What would happen in a case, where the inquiry report was not furnished to a delinquent before the findings of the Inquiry Authority were considered by the Disciplinary Authority and penalty was imposed on the delinquent? The law on this aspect of the matter has been succinctly laid down by the Apex Court in Managing Director, ECIL v. B. Karunakaran ( AIR 1994 SC 1074 ) in the following words: 7.(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such case. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case.
They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report) no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical of justice. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he as not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.
It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and it directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be correct position in law (Emphasis is supplied) 18. From the above observations of the Apex Court made in B. Karunakaran (supra), it is clear that the Court cannot adopt shortcut way of setting aside order imposing penalty on a delinquent merely on the ground of non-furnishing of inquiry report and directing reinstatement of such delinquent. Far from this, the Apex Court has laid down that a copy of the inquiry report may be furnished to the delinquent and if the delinquent satisfies the Court that the omission to supply copy had caused any prejudice to him, the Court may interfere with the order of punishment, but not otherwise. 19.
Far from this, the Apex Court has laid down that a copy of the inquiry report may be furnished to the delinquent and if the delinquent satisfies the Court that the omission to supply copy had caused any prejudice to him, the Court may interfere with the order of punishment, but not otherwise. 19. In the case at hand, the inquiry report, according to overwhelming materials available on record, stood furnished to the Petitioner, at least, alongwith the impugned order of dismissal, but at no stage either at the time of preferring statutory appeal or at the time of hearing of the writ petition, it could be pointed out, on behalf of the Petitioner, that the findings of the inquiry report suffer from any perversity and/or that the same are contrary to the materials on record and/or against the weight of the materials on record and/or how the non-furnishing of the inquiry report to the Petitioner had caused prejudice to him. 20. Coupled with the above, it has already been pointed out hereinabove that in his statutory appeal, the Petitioner did not say even a word to show that he was aggrieved by any of the findings of the inquiry report and/or that the findings were incorrect or perverse. 21. Situated thus, there is no escape from the conclusion that as far as the Petitioner is concerned, he has not been prejudiced on account of omission to furnish inquiry report to him before the inquiry report was considered by the Disciplinary Authority. 22. What is, now, of immense importance to note is that the inquiry officer found the Petitioner guilty of the 1st and 3rd charge, but as far as the 2nd charge is concerned, the same was held to not proved. The finding of the Inquiry Officer on the 2nd charge has not been agreed to by the Disciplinary Authority as reflected from the impugned order, dated 13.06.94. As regards the Enquiry Officer's finding on the 1st charge that the same stood proved, the Disciplinary Authority agreed with this finding. For the agreement so expressed, the Disciplinary Authority is not bound to assign any reason nor has it been contended before me that even for agreeing with the findings of an Enquiry Officer, the Disciplinary Authority must assign reasons.
For the agreement so expressed, the Disciplinary Authority is not bound to assign any reason nor has it been contended before me that even for agreeing with the findings of an Enquiry Officer, the Disciplinary Authority must assign reasons. This apart, it is not contended before me, at the time of hearing, that the accusations made under Article I have not been proved by the materials on record. It is, therefore, I hold, rightly contended by the Disciplinary Authority that Article-I stood proved. In other words, while agreeing with the findings of the Enquiry Officer in respect of the accusations made under Article 1, the Disciplinary Authority did not entirely agree with the findings of the Enquiry Officer in respect of the accusations made under Article II. The observations of the Disciplinary Authority made, on this aspect of the matter, in the impugned order, dated 13.06.94, are as follows: After going through the enquiry papers and connected records, I do not agree with the findings of the Enquiry Officer that the charge framed in Article-II are not proved. I also do not agree that charge in Article-III is only proved to the extend of the Constable's loading of extra rounds. The Enquiry Officer's conclusion that the firing was accidental is also erroneous and surprising in view of the evidence available before him in large measure. It is a clearly seen in PS General diary records made at the time of the incident that the finding was intentional. Keeping of illegal rounds is also a serious act of misconduct. 23. It has been agitated, on behalf of the Petitioner, that the Disciplinary Authority has not assigned any reason for nor agreeing with the Enquiry Officer's conclusion in respect of Article-II that this charge stood not proved. From a careful reading of the above observations made by the Disciplinary Authority, it is abundantly clear that the Disciplinary Authority has assigned no reasons for not agreeing with the findings, so reached, by the Enquiry Officer. In the absence of any reason assigned by the Disciplinary Authority, no importance can be given to the opinion of the Disciplinary Authority that the 2nd charge stood proved against the Petitioner. To this extent, the impugned order, dated 13.06.94, is infirm and I hold that the accusation made under Article II was not proved against the Petitioner.
In the absence of any reason assigned by the Disciplinary Authority, no importance can be given to the opinion of the Disciplinary Authority that the 2nd charge stood proved against the Petitioner. To this extent, the impugned order, dated 13.06.94, is infirm and I hold that the accusation made under Article II was not proved against the Petitioner. However, as far as Article-III is concerned, the Enquiry Officer has held that this charge is proved to the extent that the delinquent (i.e. the Petitioner) had loaded three rounds of extra ammunitions. This finding has not been agreed to by the Disciplinary Authority in its entirety inasmuch as according to the Disciplinary Authority, the material s on record reveal that the Petitioner was guilty of the charge. 24. Coupled with the above, I have perused the inquiry report and it transpires from the reading of the report that on reaching the police station, the Petitioner started abusing in un-parliamentary words, he loaded three extra rounds of ammunition in his service rifle and the said that he would shoot someone and at that the point of time, H.C. (T) TR Chetry came and entered into the toilet, whereupon the Petitioner fired at the door of the toilet. It was constable T.Payeng, who intervened and snatched away the rifle from the hands of the Petitioner apprehending that the Petitioner might injure him (constable T.Payeng) also. In the face of such clear materials on record, it could not have been held that the shooting, in question, from the rifle was accidental. The fact, therefore, that the Disciplinary Authority did not agree with the finding of the Enquiry Officer in respect of Article-III that the shooting was accidental can not be said to be incorrect or untenable in the face of the materials on record. 25. What crystallizes from the above discussion is that as far as tire charges levelled against the Petitioner under Articles-I and III are concerned, the same stood proved. The question, which, now, arises for consideration is as to u bother She penalty of dismissal from service could have been imposed on the Petitioner if Article-II was taken to have not been proved against him.
The question, which, now, arises for consideration is as to u bother She penalty of dismissal from service could have been imposed on the Petitioner if Article-II was taken to have not been proved against him. Normally and ordinarily, a writ Court shall not interfere with the quantum of penalty imposed on a delinquent unless the penalty imposed is so disproportionate to the gravity of the charge that it shakes the conscience of the Court. 26. On considering the question as to whether the Courts were justified in interfering with the punishment, while maintaining the conviction, the Apex Court has laid down in Union of India v. R.K. Sharma ( AIR 2001 SC 3053 ) as follows: The Division Bench has, in the impugned order, relied upon the authority of this Court in the case of Bhagat Ram v. State of H.P., reported in AIR 1983 SC 454 , for proposition that the penalty must be commensurate with the gravity of misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article14 of the Constitution. To be noted that this case was under the Army Act but in respect of a civil servant. The Division Bench also relied upon the following observation in the case of Ranjit Thakur v. Union of India, reported in (1987) 4 SCC 611 . Judicial review generally speaking is not directed against a decision, but is directed against the "decision making process". The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindicative or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. 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 of the Court even as to sentence is an outrageous defiance of logic, than the sentence would not be immune from correction. Irrationality are perversity and recognized grounds of judicial review.... As stated above, both the Single Judge as well as the Division Bench have held that the four charges set out have been proved and that the Respondent was guilty of those charges.
Irrationality are perversity and recognized grounds of judicial review.... As stated above, both the Single Judge as well as the Division Bench have held that the four charges set out have been proved and that the Respondent was guilty of those charges. Having so held it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of the Court Martial. These are not matters in which Court should interfere. In our view, the observation in Ranjit Thakur's case (supra) extracted above, have been misunderstood. In that case the facts were such-that they disclosed a bias on the part of the Commanding Officer. In that case the Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer.... The above observations are not to be taken to mean that a Court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a Court should not interfere. Even otherwise, in our view, both the Courts below have erred in coming to the conclusion that the sentence awarded was too harsh considering the nature and degree of the offence established. The first charge, as set out hereinabove, indicates that the Respondent, who was the commanding officer 'A' Company 11 Assam Rifles, had received a signal to visit the forward post, check alertness and report all OK. It is not denied that the signal had been received. It has been proved that the Respondent did not visit the forward post. The Respondent improperly detailed a JCO of the company to visit the forward post. This was a various serious charge. If a Commanding Officer breaches orders received from the Headquarters how can discipline be maintained in the Army. (Emphasis is supplied) 27. The ratio, which has, thus, been laid down by the Apex Court in RK Sharma's case (supra) is that while exercising powers under Article 226 or 227, the Courts are not to interfere with punishment, because it considers the punishment to be disproportionate and it is only in extreme cases which, on their face, show perversity or irrationality that there can be judicial interference.
It is also clearly held in this case that merely on compassionate ground, a Court should not interfere with the sentence awarded." 28. In the case at hand, though the charge under Article-I cannot be stated to be grave enough to make a person liable to be dismissed from service, the fact remains that the Petitioner was a member of police force, which demands complete discipline from the members of the force. In this backdrop, when the conduct of the Petitioner, as reflected from Article-III is considered dispassionately, it clearly transpires that the Petitioner had acted in a manner, which was not only pre-judicial to the discipline of the force, but was also detrimental to the welfare of the members of the force. A person, who behaves as irresponsibly as the Petitioner had behaved, cannot be allowed to remain in a disciplined force, such as, the police. Viewed from this angle, it is clear that even if Article-II is treated as not proved against the Petitioner, the proof of misconduct under Article-III in itself makes him liable to be removed from service. 29. What logically follows from the above discussion is that the penalty of removal from service imposed on the Petitioner cannot be held to be disproportionate to the gravity of the misconduct proved to have been committed by the Petitioner. 30. In the result and for the reasons discussed above, this writ petition falls and the impugned order of dismissal from service passed by the Disciplinary Authority as well as the order passed by the appellate authority affirming the order of dismissal cannot be interfered with. 31. The writ petition shall accordingly stand dismissed. 32. No order as to costs. Petition dismissed.