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2004 DIGILAW 709 (PAT)

Narayan Singh v. State Of Bihar

2004-07-18

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. This appeal is directed against the order dated 6.5.2004 passed by the learned Single Judge dismissing the writ application being CWJC No. 1003 of 1999 filed by the appellant challenging the order of compulsory retirement by way of punishment in terms of Rule 824 (c) of the Bihar Police Manual. 2. The facts which are not in dispute is that in 1993 the appellant was deputed at Pihra out post in the district of Giridih. One Shubh Kant Jha was also posted there. On 16.11.1993 altercation took place between them with regard to playing Radio, as a result of which there was scuffle and Shubh Kant Jha sustained injury. On the written report given by Shubh Kant Jha, Sadar Giridih P.S. Case No. 45 of 1993 dated 22.11.1993 was lodged in which chargesheet was submitted and during trial the appellant was discharged. The appellant was placed under suspension and departmental proceeding was initiated in which after conclusion of the departmental proceeding the allegations were proved and order for compulsory retirement was passed under the aforesaid provision of the Bihar Police Manual which was upheld in appeal and memorial filed by the appellant has also been dismissed. 3. So far the departmental proceeding is concerned, the witnesses have been examined and they have supported the allegation and the Inquiry Officer found allegation proved and that has been accepted by the disciplinary authority. Nothing has been pointed out by the learned counsel appearing for the appellant to show that the inquiry was conducted in breach of the principles of natural justice. Thus, we agree with the view taken by the learned Single Judge that so far the conclusion arrived at by the disciplinary authority with regard to participation of the appellant in the scuffle and the assault stands proved. 4. Learned counsel appearing for the appellant, however, submitted that the punishment awarded to the appellant is shockingly disproportionate for the reason that the occurrence took place suddenly as a result of altercation between the appellant and the companion with regard to playing radio. No action has been taken against Shubh Kant Jha. It is not the case where there is deliberate allegation of any assault. Learned counsel for the State on the other hand submitted that the appellant is a member of disciplined force and once he has assaulted his colleague, the punishment awarded to him is legal and valid. No action has been taken against Shubh Kant Jha. It is not the case where there is deliberate allegation of any assault. Learned counsel for the State on the other hand submitted that the appellant is a member of disciplined force and once he has assaulted his colleague, the punishment awarded to him is legal and valid. 5. Power of judicial review with regard to awarding of punishment in departmental proceeding is very limited. The Court cannot assume the jurisdiction of the appellate Court. It can interfere with the punishment only when it appears that the punishment is shockingly disproportionate to the charges proved. The Apex Court in the case of Shri Bhagwan Lal Arya V/s. Commissioner of Police, Delhi and others, reported in (2004) 4 Supreme Court Cases 560 held as follows: "In B.C. Chaturvedi vs. Union of India (three Judge Bench) the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case at para 18, this Court has observed as under: (SCC p. 762) 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to reconsider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 6. In view of the settled law, two options are left open to this Court. In case it is found that the punishment is shockingly disproportionate, either to consider or decide the question of punishment itself or to remit the matter. Ordinarily, the matter is remitted to the authority concerned who is competent to consider the matter. In view of the settled law, two options are left open to this Court. In case it is found that the punishment is shockingly disproportionate, either to consider or decide the question of punishment itself or to remit the matter. Ordinarily, the matter is remitted to the authority concerned who is competent to consider the matter. Taking into consideration the fact that the authorities while imposing the punishment has not taken into consideration the fact that there was sudden altercation with regard to playing radio which resulted in scuffle and assault and there being nothing on record to show such past conduct of the appellant specially when no action has been taken against other person who indulged in the scuffle, namely, Shubh Kant Jha, we are of the view that punishment awarded to the appellant appears to be disproportionate and it requires reconsideration by the disciplinary authority. 7. Accordingly, the order of punishment awarded by the disciplinary authority is set aside and the matter is remitted to the disciplinary authority to consider the question of punishment in the light of observations made above. 8. In the result, the order of the learned Single Judge is set aside and the appeal is allowed to the extent indicated above.