Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1203 (DEL)

MAHESH CHAND v. UOI

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) THE short question that falls for consideration in this writ petition is whether the punishment of dismissal from service on account of overstaying leave is in the facts and circumstances of the case disproportionate to the gravity of the misconduct committed by the petitioner. The legal position regarding scope of interference by a writ court with the quantum of punishment imposed upon a delinquent employee is well settled by a long line of decisions rendered by the supreme Court. In Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454 , their lordships recognized as correct the proposition that the quantum of punishment to be imposed upon a delinquent employee for misconduct is a matter that lies in the discretion of the disciplinary authority. Even so, the Court held that penalty imposed always be commensurate with the gravity of the misconduct and any penalty which is disproportionate to the gravity of the misconduct proved against the employee would violate Article 14 of the constitution. That proposition was reiterated in Ranjit Thakur v. Union of india (1987) 4 SCC 611 . The Court was considering the legality of a punishment order having regard to gravity of the misconduct proved against the employee in that case. Their lordships observed that judicial review generally speaking is directed against the decision making process and that while the choice of the quantum of punishment is within the jurisdiction and discretion of the Court martial, the sentence must suit the offence and the offender. It should not be so disproportionate to the offence as to shock the conscience of the Court and amount in itself to conclusive evidence of bias. The Court recognized the doctrine of proportionality as a part of the concept of judicial review to ensure that even on an aspect which is otherwise within the exclusive province of the Court Martial if the decision of the Court Martial as to sentence is in outrageous defiance of logic, the sentence would not be immune from correction. The following passage is in this regard, apposite : "judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the 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. The following passage is in this regard, apposite : "judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the 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 vindictive 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, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. " (para 25) ( 2 ) THE above proposition of law has been reiterated by the Supreme Court in a number of subsequent decisions handed down by their lordships including b. C. Chaturvedi v. Union of India and Ors. (1995) 6 SCC 749 , where the Court observed : "the High Court/tribunal, while exercising the power of judicial review, cannot normally substitute their own conclusion of penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate 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 reason in support thereof. " ( 3 ) REFERENCE may also be made to the decision of the Supreme Court in Om kumar v. Union of India (2001) 2 SCC 386 where their lordships declared that while dealing with question of quantum of punishment, the Court would apply the wednesbury principle of reasonableness. If the punishment is in violation of those principles, it would normally remit the matter to the administrator for a fresh decision on the quantum of punishment. Only in rare cases where there has been a long delay because of the time taken in completing the disciplinary proceedings or the time taken in the Courts can the Court substitute its own view as to quantum of punishment. Only in rare cases where there has been a long delay because of the time taken in completing the disciplinary proceedings or the time taken in the Courts can the Court substitute its own view as to quantum of punishment. To the same effect is the decision of the supreme Court Union of India v. K. G. Soni (2006) 6 SCC 794 and Regional Manager rajasthan SRTC v. Sohan Lal (2004) 8 SCC 218 , to cite only a few of the pronouncements of the Supreme Court dealing with the subject. ( 4 ) THE challenge in the present writ petition is to an order of dismissal passed by the disciplinary authority and upheld by the appellate authority. The charge eventually leading to the dismissal of the petitioner was confined to overstaying leave by 85 days on two different occasions, on each one of which occasions the petitioner had lost one of his parents. The petitioner's contention that the misfortune that befell him and the family justified in some measure if not totally his delayed joining for duty has been rejected by the authorities below. What is important is that there is no denial of the essential facts based on which the petitioner sought a lenient view for his delayed resumption of duty in his unit. It is not in dispute that when the petitioner was first given 30 days leave w. e. f. 4. 12. 2001 to 02. 01. 2002 in connection with his own marriage, his father passed away on 30. 12. 2001. His arrival in the unit for duty was consequently delayed by 32 days beyond the sanctioned leave. On the second occasion, the petitioner was sanctioned leave for 28 days from 15. 03. 2002 to 11. 04. 2002 in connection with the demise of his mother. He was supposed to join back for duty on 12. 04. 2002. He instead joined only on 06. 07. 2002, after a delay of 85 days. His version that he was down with typhoid and was under treatment in Primary Health Centre, Dankaur has been rejected on the ground that there was no evidence to show that he was admitted to any hospital. The only other reason given for rejecting that version was that the petitioner had not produced any medical reimbursement claim for medicines which he was entitled to seek as per the existing rules. The only other reason given for rejecting that version was that the petitioner had not produced any medical reimbursement claim for medicines which he was entitled to seek as per the existing rules. ( 5 ) APPEARING for the petitioner, Mr. Y. S. Chauhan argued that the respondents had taken a very harsh view of the matter while dismissing him from service. He urged that the overstaying leave by 85 days was not in the peculiar facts and circumstances of the case a misconduct of such a grave nature as to call for his dismissal from service which was the only source of livelihood for him and his family. He contended that the respondents had overlooked the fact that the petitioner had on both occasions lost one of his parents. The petitioner's illness only compounded the said misfortune and ought to have been taken as a mitigating circumstance by the respondents while imposing any punishment upon him. Reliance was placed by Mr. Chauhan upon the decision of the Supreme Court in Union of India and Ors. v. Giriraj Sharma AIR 1994 SC 215 in support of his submission that dismissal merely on the ground of overstaying leave was a harsh and disproportionate punishment. ( 6 ) THERE is in our view considerable merit in in the submission made by mr. Chauhan. Overstaying leave is no doubt a misconduct especially when the person concerned is serving in military or para-military force as was the position in the present case. If resumption of duty after the expiry of leave is made optional, ignored or taken lightly, there would be more people enjoying the comforts of their home and the company of their families than serving on the borders or keeping vigil in disturbed areas where they are supposed to be posted. Besides discipline is the very foundation of any armed force. Having said so, we cannot ignore the need for humanizing the treatment which ought to be given to those serving in armed and para-military forces. Anyone serving in such forces may like any other public functionary be prevented by circumstances beyond his control from resuming duties immediately after the leave expires. There may be cases where resumption of duties may not be an impossibility but given regard to what human life and affairs are, circumstances may sufficiently justify a delayed joining back for duties. Anyone serving in such forces may like any other public functionary be prevented by circumstances beyond his control from resuming duties immediately after the leave expires. There may be cases where resumption of duties may not be an impossibility but given regard to what human life and affairs are, circumstances may sufficiently justify a delayed joining back for duties. Suffice it to say that it would all depend upon the facts and circumstances of each case whether the overstaying of leave was or was not justified. No strait jacket formula can be formulated or applied in such cases nor can any norms be prescribed for a uniform application to all situations. What is to be kept in mind by the disciplinary authority and those hearing appeals against the orders of punishment is whether overstaying of leave was for such a long period and so unjustified that the same smacked of indiscipline, defiance or desertion. Whether the justification advanced for late resumption of duty was, factually false or wholly unacceptable being moon shine and whether the person concerned was a habitual offender in the sense that he was incorrigible in his conduct and disrespect for the rules regulating his service conditions. It is only where the authorities find the case to be hopeless on all these fronts that they may be justified in getting rid of the man by dismissing him. In other cases, a lesser punishment ought to be sufficient to meet the ends of justice. ( 7 ) THE present is, in our opinion, one such case where the dismissal was totally disproportionate to the gravity of the misconduct committed by the petitioner. The first incident involving an overstay of 32 days was a mix of celebration in the family followed by the demise of his father. The second started with the demise of his mother and ended with his illness. The inquiry did not show that the story about the death of his parents during the two intervals was a false claim. The illness was also supported by the prescriptions which the petitioner produced but was disbelieved only because he had not claimed any reimbursement. In the totality of these circumstances, the order of dismissal passed by the respondents cannot, in our view, be sustained. The illness was also supported by the prescriptions which the petitioner produced but was disbelieved only because he had not claimed any reimbursement. In the totality of these circumstances, the order of dismissal passed by the respondents cannot, in our view, be sustained. ( 8 ) THE next question is whether we should ourselves decide about the punishment which would meet the ends of justice or leave it to the disciplinary authority to do so. The predominant legal opinion on the subject is that it is only in rare cases that the Court should take upon itself the function of the disciplinary Authority in determining the quantum of punishment. The present may not be one such case where we ought to do that. The proper course in our opinion is to leave the question of lesser punishment, which the petitioner may be given, to be determined by the disciplinary authority. ( 9 ) IN the result, we allow this petition; set aside the impugned order and direct the reinstatement of the petitioner in service. We leave it open to the disciplinary authority to decide about the lesser punishment, if any, that may be imposed upon the petitioner. The competent authority shall also determine the treatment to be given to the period between the date he was dismissed from service and the date he is reinstated in accordance with the rules, keeping in view the lesser punishment that may be imposed upon him. Parties are left to bear their own costs. The petitioner shall report back to his unit for further orders to be passed by the disciplinary authority on 30th July, 2007.