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2004 DIGILAW 132 (MP)

Mohkam Singh v. State of M. P.

2004-02-09

DIPAK MISRA

body2004
ORDER Dipak Misra, J. 1. The petitioner was appointed as a Constable in the Department of Home in month of February, 1963. While he was posted as Constable at Police Station, Aron in the district of Gwalior in the year 1986 he was served with a charge-sheet as per Annexure-A-1. Two charges were levelled against him; (i) during his subsistence of first marriage he got married to another woman and thereby violated the Rule of Conduct as provided under the M.P. Civil Service (Conduct) Rules, 1965; and (ii) his behavior with Aadivses of village Aron was indiscipline. The petitioner disputed the allegation:; made against him and putforth his stand that he never misbehaved with Aadivases. The allegation of second marriage has been categorically disputed by the petitioner. 2. After the explanation was offered by the petitioner the Disciplinary Authority appointed an Inquiry Officer who proceeded with the inquiry. During the inquiry the Presenting Officer examined four witnesses, namely. Babu, Bhikaram, Bijlu and Laxminarayan. The deposition of said witnesses have been brought on record as Annexures-A-2 to A-6 respectively. The petitioner did not examine any witness. The Inquiry Officer vide his report Annexure-A-7 returned a finding that the charges levelled against the petitioner have been proved. In view of the finding recorded by the Inquiry Officer a show-cause notice vide Annexure-A-8 dated 3-8-1987 was issued to the petitioner along with the proposed punishment. The petitioner submitted his explanation pointing out many a defect in the proceeding. The explanation of the petitioner was not accepted by the Superintendent of Police, Gwalior and he passed the order of dismissal as per Annexure-A-11. Being dissatisfied the petitioner preferred an appeal to the Deputy Inspector General of Police who dismissed the appeal as per the order contained in Annexure-13. An application for review was preferred before the Inspector General of Police, the respondent No. 3, but the same did not meet with success. A representation made to the Director General of Police faced rejection, 3. Assailing these orders it is averred in the petition that the charges levelled against the petitioner were not proved inasmuch as the first wife was not examined during the course of inquiry and there was no proof whatsoever that the petitioner has contracted the second marriage. It is also averred that the petitioner never misbehaved with Adivasis and his conduct cannot be treated as indiscipline. It is also averred that the petitioner never misbehaved with Adivasis and his conduct cannot be treated as indiscipline. It is also putforth that Munnibai, the alleged second wife of the petitioner, was taking bath at a common government water tap and there was some quarrel and, therefore, the petitioner misbehaved with others. But such a allegation though has been stated by the witnesses in their statement yet it cannot be regarded to have been proven. It is also averred that it is a case of no evidence and if one charge is treated to be proved a stray and isolated incident cannot attract the punishment of dismissal. 4. A counter affidavit has been filed by the answering respondents contending, inter alia, that in the inquiry proceeding the charges were proved and, therefore, the assertion that it is a case of no evidence is unacceptable. It is also putforth that the assertion that the second marriage has not been proved is not correct and by no stretch of imagination it can be said that the punishment is excessive. 5. I have heard Mr. P. R. Bhave, learned Senior Counsel for the petitioner and Mr. Ashok Agrawal, learned Government Advocate for the State. 6. It is submitted by Mr. Bhave that if the statement of the witnesses are perused with studied scrutiny it would be manifest that the charge of bigamy has not been proved. It is urged by him that there is no material on record to come to the definite conclusion that the petitioner had misbehaved with Adivasis. Submission of Mr. Bhave is that even if the second part of the charge is treated to be proved the evidence brought on record is not such which would warrant dismissal of the petitioner from service. In essence, the pronouncement of Mr. Bhave is that the doctrine of proportionality is attracted. 7. Mr. Ashok Agrawal, learned Government Advocate, upon perusal of the enquiry proceeding though admitted that neither the first wife nor the alleged second wife have been examined during the enquiry, yet he submitted that when the witnesses have deposed that the petitioner had misbehaved the impact and effect of the same should not be marginalized. It is his further submission that the witnesses have clearly stated that the petitioner was rude to the Adivasis and misbehaved with them. 8. It is his further submission that the witnesses have clearly stated that the petitioner was rude to the Adivasis and misbehaved with them. 8. To appreciate the rival submissions raised at the Bar, I have carefully scrutinized the evidence brought on record. It is not disputed before me that except four witnesses whose statements have been brought on record no other witness was examined. This Court is not supposed to appreciate the evidence but when it was urged with emphasis that it is a case of no evidence and nothing has been brought on record to show that the petitioner has entered into second marriage or has misbehaved with Adivasis, I thought it appropriate to look at the evidence. As far as charge relating to bigamy is concerned it can definitely be said that it has not been proved. The Inquiry Officer in his has relied upon the bald statement of these witnesses. It would have been understandable if any evidence like voters' list or ration card had been brought on record to show that someone is the first wife of the petitioner and some other is the second wife. The first wife could have been examined to know whether her husband has entered into the second marriage. In the absence of any kind of oral and documentary evidence it is difficult to accept the conclusion that the charge in relation to bigamy has been proved. 9. As far as the second aspect is concerned the same is also based on very feeble foundation. All the witnesses have said on one particular day about one and half years before the enquiry the petitioner had quarreled and abused certain persons. Assuming the said charge has been proved I am of the considered opinion that solely on the basis of the said charge, in the absence of any other antecedent prior to the same, it is not warranted to impose the punishment of dismissal. In my considered opinion the punishment is shockingly disproportionate and definitely invites the applicability of doctrine of proportionality. 10. In ordinary course of things I would have remitted the matter to the Disciplinary Authority or the Appellate Authority to reconsider the matter with regard to quantum of punishment, but it is worth while to state that the petitioner had approached the Madhya Pradesh Administrative Tribunal in the year 1989. 10. In ordinary course of things I would have remitted the matter to the Disciplinary Authority or the Appellate Authority to reconsider the matter with regard to quantum of punishment, but it is worth while to state that the petitioner had approached the Madhya Pradesh Administrative Tribunal in the year 1989. After the abolition of the Tribunal the matter stood transferred to this Court in the year 2003. At that time the petitioner was 48 years old. It is submitted by Mr. Bhave that the petitioner has reached the age of superannuation. Taking into consideration this special aspect I am of the considered view that this Court can substitute the punishment. In this regard I may refer with profit to the Division Bench decision of this Court rendered in the case of Union of India and Another v. Shri A.K. Mishra and Another, W.P. No.(s) 1827/2003 decided or. 10-12-2003 wherein the Division Bench after placing reliance on the decision tendered in the cases of B.C. Chaturvedi v. Union of India and Others, (1995) 6 SCC 749 and Director General, RPF and Others v. Ch. Sai Babu, (2003) 4 SCC 331 held as under:- 23. Looking at the law as enunciated by the Supreme Court and taking into account the totality of circumstances, it is permissible in the rarest of rare cases for the High Court to substitute a punishment if that punishment would meet the ends of justice. This is not to say that in all the cases, the High Court or the Tribunal has the power for substitution of punishment. The general rule is if the punishment is shockingly disproportionate, it should invariably be sent to the Disciplinary Authority for re-appraisal of the matter in accordance with law. But there are rare occasions when the Court comes to the conclusion that the punishment so imposed is so shockingly disproportionate that it requires interference by the Court. It may on those rare occasions set aside that punishment and render a punishment that would sub-serve the larger interest of the employer and employee and such substituted punishment would be in public interest. In view of the aforesaid enunciation of law the Court can in certain cases, depending upon the fact situation, substitute the punishment. In my considered opinion the fact and circumstances do permit such substitution. In view of the aforesaid enunciation of law the Court can in certain cases, depending upon the fact situation, substitute the punishment. In my considered opinion the fact and circumstances do permit such substitution. Accordingly, the order of dismissal passed by the Disciplinary Authority and affirmation thereof by the higher authorities are quashed and it is directed that the petitioner be imposed with punishment of stoppage of three increments without cumulative effect. However, taking into consideration all other spectrum, the petitioner would not be entitled to full back wages but would only be entitled to 25 % of the back wages. The said benefit be extended to the petitioner within a period of three months from the date of receipt of the order passed today. The retrial benefits shall also be extended to him within the said period. 11. In the result the writ petition is allowed to the extent indicated above. There shall be no order as to costs.