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2005 DIGILAW 539 (GAU)

Pradhuman Singh v. Union of India

2005-07-29

TINLIANTHANG VAIPHEI

body2005
JUDGMENT T. Vaiphei, J. 1. After hearing Mr. S. Deb, the learned Senior Counsel for the petitioner and Mr. P.K. Biswas, the, learned Assistant Solicitor General/appearing for the respondents, it is obvious that the only question which falls for consideration in this writ petition is whether the penalty of dismissal imposed upon the petitioner by the respondent No. 5 (Commandant, 13 Bn., C.R.P.C. Agartala) for overstaying his leave by 28 days calls for the interference of this Court? 2.. Unfolding his arguments, Mr. S. Peb, the learned Senior Counsel, strenuously submits that when the period of his overstay of leave was only for 28 days, the penalty of dismissal imported upon the petitioner la grossly excessive and disproportionate. It is true contends the learned Senior Counsel, the legislature has conferred the power to impose penalty only upon the disciplinary authority and that such a power is a discretionary one but then such power must be exercised reasonably and not in the manner as exercised by the respondent No. 5 as in the instant case which is so outrageous as to shock the conscience of this Court. Inviting my attention to the decision of the Apex Court in the Union of India v. Giriraj Sharma 1994 (3) Supp. SCC 755 he Submits that the ratio of this case is squarely applicable to the facts of this case. On the other hand, the learned Assistant SG contends that once the petitioner was hold to be guilty of the charge levelled against him, what penalty should be imposed upon the petitioner is exclusively the prerogative of the disciplinary authority and the disciplinary authority, having imposed the penalty impugned herein after duly considering the facts and circumstances, cannot be questioned on the quantum of penalty so imposed. He relies heavily on N. Rajarathinem v. State of Tamil Nadu : 1996 (74) FLR 2394 (SC) to support his submission. 3. To appreciate the rival submissions, a brief history of the material fact may be adverted to. The petitioner, prior to his dismissal from service, was serving as a Constable under the respondent No. 5. In the year 1993, on his application, the petitioner was granted 60 days earned leave against ninety days applied for w.e.f. 29.12.1994 to 26.2.1995. 3. To appreciate the rival submissions, a brief history of the material fact may be adverted to. The petitioner, prior to his dismissal from service, was serving as a Constable under the respondent No. 5. In the year 1993, on his application, the petitioner was granted 60 days earned leave against ninety days applied for w.e.f. 29.12.1994 to 26.2.1995. The petitioner claimed that he suffered from jaundice from 10.2.1995 to 7.4.1995 and was undergoing treatment from the Medical Officer, Additional Public Health Centre, Bariarpur (Munger), a medical certificate whereof is annexed to this writ petition at Annexure-3. This prompted him to apply for extension of his earned leave for another twenty days, i.e., w.e.f. 27.2.1995 to 18.3.1995, which was apparently granted by the respondent No. 5 vide Annexure-7. According to the petitioner, as he had not fully recovered from his illness, he again made another application for extension of his leave by thirty days. His application was obviously not granted this time. When he reported for duty on 15.4.1995, he was unceremoniously arrested by executing the warrant of arrest executed by the respondent No. 5 in Case No. 2 of 1995. He was charged with the offence punishable under Section 10(m) of the Central Reserve Police Force Act, 1949 ('CRPF' Act for short), i.e. for not reporting for duty after expiry of his leave. He was thereafter tried by the respondent No. 5 purportedly acting as Chief Judicial Magistrate and was convicted and sentenced to undergo a simple imprisonment of thirty days. 4. It would appear that following his conviction and sentence, the petitioner was asked to make his representation as to why appropriate action should not be taken against him vide the letter dated 10.5.1995 (Annexure-11). The petitioner made his representation vide Annexure-12 praying for allowing him to remain in service for enabling him. to look after and maintain his aged parents and his family and at the same time explaining therein the facts and circumstances which compelled him to overstay his leave. But his representation obviously did not impress the respondent No. 5, who thereupon by the impugned order dismissed him from service. The petitioner claimed that he thereafter preferred an appeal before the respondent No. 4 (Deputy Inspector General, CRPF, Hyderabad, vide Annexure-14. It is, however, denied by the respondents that such appeal was ever received by them. But his representation obviously did not impress the respondent No. 5, who thereupon by the impugned order dismissed him from service. The petitioner claimed that he thereafter preferred an appeal before the respondent No. 4 (Deputy Inspector General, CRPF, Hyderabad, vide Annexure-14. It is, however, denied by the respondents that such appeal was ever received by them. Be that as it may, it will now be too late in the day to direct the petitioner to pursue his appeal. 5. It is no longer in dispute that the petitioner overstayed his leave by 28 days. i.e. from 18.3.1995 to 15.4.1995. There is also nothing on record, either by pleading or otherwise, it show that the petitioner was earlier penalized for misconduct. What, however, stands out from the record is that the petitioner was already punished by sentencing him to undergo 30 days simple imprisonment on identical facts for the offence punishable under Section 10(m) of the CRPF Act. imposition of appropriate punishment is undoubtedly within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with such punishment but normally not to the High Court. The power of the High Court under Article 226 of the Constitution of India is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eye of the Court. That is why Courts are normally loath to interfere with the punishment imposed by the disciplinary authority in a disciplinary proceeding against its employee, lest it will lead to indiscipline or insubordination among them. The fear or indiscipline or insubordination is more pronounced the military or para-military forces. 6. Playing said so, it cannot at the same time be said that as writ Court will remain a silent spectator when its door is knocked by the victims of gross injustice or of a punishment which is grossly excessive or excessively disproportionate to the misconduct proved against the delinquent employee. 6. Playing said so, it cannot at the same time be said that as writ Court will remain a silent spectator when its door is knocked by the victims of gross injustice or of a punishment which is grossly excessive or excessively disproportionate to the misconduct proved against the delinquent employee. To what extent and in what manner, a writ Court can interfere with the penalty imposed by the disciplinary authority have now been firmly settled by the Apex Court in a long line of decisions starting from B.C. Chaturvedi v. Union of India 1996 (72) FLR 316 (SC) wherein it has been observed: The disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or the gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute their 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 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. 7. Giriraj Sharma Case (supra), a decision cited by the learned Senior Counsel for the petitioner, is incidentally a case relating to the CRPF. The Apex Court therein was considering whether the penalty of dismissal imposed upon the respondent by the disciplinary authority for overstay in his leave by 12 days was proper or not. The respondent was an electrician in the CRPF. Holding that the penalty imposed was grossly excessive, the Apex Court observes: ...Assuming Mr. Jain is right, we are of the opinion that so far the present case is concerned, the allegation is in regard to the incumbent having overstayed the period of leave by 12 days. The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for overstaying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order but the circumstances forced him to do so. In that view of the matter the learned Counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty, if they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission. 8. As noticed earlier, the petitioner in the case at hand was charged with, and was found to have overstayed his leave by 28 days. His explanation did not find favour with the disciplinary authority whereupon the impugned order of dismissal was issued. In the instant case, no whisper of allegations has been made by the respondents in their counter that the petitioner used to have blemished service record or that he was at one time or another penalized for misconducts. There is nothing on record either to indicate that he was assigned with sensitive works or was expected of exactness or discipline required to be maintained. The mere fact that he belonged to the disciplined force, in my considered view, cannot, without anything more, be sufficient to inflict a penalty of dismissal from service for overstaying his leave by 28 days, that too, even after he was sentenced to undergo 30 days of simple imprisonment on identical facts and allegations. Therefore, this is undoubtedly a case where the punishment imposed upon the petitioner is grossly excessive and shockingly disproportionate to the misconduct proved against him. In that view of the matter, I am inclined to interfere with the quantum of penalty imposed upon the petitioner. 9. Having held that the impugned order of dismissal is unwarranted, there is still another aspect which disturbs this Court and which requires deeper examination. The question is on granting back wages to the petitioner. In that view of the matter, I am inclined to interfere with the quantum of penalty imposed upon the petitioner. 9. Having held that the impugned order of dismissal is unwarranted, there is still another aspect which disturbs this Court and which requires deeper examination. The question is on granting back wages to the petitioner. On a review of the past decision of the Apex Court, it becomes clear that granting of back wages to employee, whose dismissal from service was found by Courts to be excessive and unwarranted by the facts on record, is not automatic. In Giriraj Sharma case (supra), the Apex Court granted full back wages to the petitioner. But this was apparently ordered on the basis of the findings that the explanation of the petitioner that he was forced to overstay his leave on account of unexpected circumstances, was no controverted by the respondents in their counter and that it was not his intention to wilfully flout the order. That does not appear to be the case here. In the instant case, the explanation of the petitioner for a overstaying his leave by 28 days has been hotly denied and contested by the respondents. Moreover, the findings, of overstay of 28 days by the petitioner of his leave by 28 days have not been challenged by the petitioner at the time of hearing of this writ petition and, therefore, have attained finality. 10. In Sub-Divisional Inspector (Postal) v. K.K. Pavitheram 1996 (72) FLR 690 (SC) the Apex Court relying on the earlier decision in Rajasthan SRTC v. Bhagyo Hal : 1994 Supp (1) SCC 573 held that when it was found that an employee deserved punishment, no back wages could be awarded to the employee. In the instant case also, it must be noted that the petitioner was not exonerated from the charges levelled against him. All that this Court orders in this case is that the respondents should award lesser punishment to the petitioner. In the instant case also, it must be noted that the petitioner was not exonerated from the charges levelled against him. All that this Court orders in this case is that the respondents should award lesser punishment to the petitioner. Again, in Shri Bhagwan Lal Arya v. Commissioner of Police : 2004 (101) FLR 193 (SC) : 2004 (17) AIC 604 where the Apex Court found dismissal of a police constable on the ground of absence of more than two months on medical grounds with sanction of leave to be excessive and disproportionate and accordingly set aside the punishment, it refused to grant back wages but ordered that the period of absence should not be counted as period spent on duty. 11. That apart, one cannot overlook the time lag since the dismissal of the petitioner i.e., some ten years have passed. No doubt, the petitioner was quite prompt in filing this Writ petition. But what followed subsequently in the litigation arena is not understandable. Affidavit-in-opposition was also filed by the respondents without unreasonable delay i.e., on 16.9.1996 (the writ petition was moved on 3.4.1996). The record, however, does not show that the petitioner was in a hurry for disposal of the case. The order dated 16.9.1996 reveals that in the presence of both the parties, the case was directed to be listed for hearing in the usual course. On 10.4.1997, it was adjourned on the prayer of both the parties. Thereafter, the matter was adjourned from time to time, for which neither the Court nor the respondents could be held responsible. Taking into account the afore-cited decisions of the Apex Court coupled with the circumstances referred to earlier, in my considered view, the petitioner is not entitled to back wages. 12. Thereafter, the matter was adjourned from time to time, for which neither the Court nor the respondents could be held responsible. Taking into account the afore-cited decisions of the Apex Court coupled with the circumstances referred to earlier, in my considered view, the petitioner is not entitled to back wages. 12. The result of the forgoing discussions is that this writ petition is disposed of with the following directions: (a) the order of dismissal of the petitioner from service is hereby quashed without disturbing the findings of misconduct against: him; (b) the respondents, particularly, the respondent No. 5 shall reinstate the petitioner to his former post within a period of two months from the date of receipt of this judgment; (c) the petitioner shall not be entitled to back wages; (d) it shall be open to the respondents to impose a minor penalty, if they so desire, but a major penalty of dismissal, removal or termination from service is not called for. The writ petition is accordingly disposed of in the manner indicated above but without any order as to costs.