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2011 DIGILAW 1218 (CAL)

UNION OF INDIA v. Om Prakash Roy

2011-09-01

PRANAB KUMAR CHATTOPADHYAY, SHUKLA KABIR SINHA

body2011
JUDGMENT 1. THIS application has been filed in connection with the appeal preferred from the judgment and order dated 11th March, 2011 whereby and whereunder a learned Judge of this Court granted relief to the writ petitioner by allowing the writ petition on merits. 2. GOING through the impugned judgment and order under appeal, we find that the learned Single Judge upon considering the facts and circumstances of this case and following the decisions of the Supreme Court arrived at the conclusion that the punishment of dismissal from service imposed on the respondent No. 1/writ petitioner is shockingly disproportionate and, therefore, the learned Single Judge was pleased to set aside the order of dismissal passed by the disciplinary authority which was subsequently affirmed by the appellate authority. The learned Single Judge further issued specific direction for reinstatement of the writ petitioner in service immediately. The learned Single Judge also held that the writ petitioner should be treated in continuous service and will be entitled to receive all consequential benefits. 3. FROM the records we find that on the charge of using filthy language, the disciplinary authority imposed punishment of dismissal from service on the respondent No.1/writ petitioner. The learned Single Judge held the aforesaid punishment as shockingly disproportionate. 4. Mr. Soumya Majumder, learned Counsel representing the respondent No. 1 /writ petitioner submits that the allegations regarding attempt to assault the superior officer and using filthy language could not be substantiated on the basis of the evidences adduced during the enquiry proceedings. Mr. Majumder further submits that the alleged incident took place on 28th April, 1993 but the charge-sheet was issued on 4th June, 1993. Mr. Majumder also submits that the respondent No. 1/writ petitioner was assaulted on 5th March, 1993 and was admitted into the hospital for three days. Mr. Majumder submits that in view of the harassing attitude of the superior authority for transferring him to a different place in order to avoid further harassment. However, even assuming that the said respondent No. 1/writ petitioner used filthy languages towards the superior authority then also the punishment of dismissal from service should be regarded as shockingly disproportionate which has been rightly held by the learned Single Judge. In our opinion, the aforesaid punishment of dismissal from service should be substituted by a lesser punishment. 5. However, even assuming that the said respondent No. 1/writ petitioner used filthy languages towards the superior authority then also the punishment of dismissal from service should be regarded as shockingly disproportionate which has been rightly held by the learned Single Judge. In our opinion, the aforesaid punishment of dismissal from service should be substituted by a lesser punishment. 5. THE learned Additional Solicitor General submits that the matter should be sent back to competent authority for passing an appropriate lesser punishment. 6. Mr. Majumder, however, submits that in the facts of the present case, this Court should pass appropriate lesser punishment instead of sending the matter back to the concerned authority. Mr. Majumder cited a decision of the Supreme Court in the case of U.P. State Road Transport Corporation and others v. Mahesh Kumar Mishra and others reported in AIR 2000 SC 1151 wherein the Hon'ble Supreme Court following the earlier Three-Bench decision of the Supreme Court held that if the punishment imposed is shockingly disproportionate to the charges then it will be open to the Court to interfere with the quantum of punishment. The relevant extracts from the aforesaid decision are set out hereunder: "8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstances, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings. 9. Another Three-Judge Bench of this Court in Colour-Chem Ltd. v. A. L. Alaspurkar, (1998) 3 SCC 192 : (1998 AIR SCW 709 : AIR 1998 SC 948 : 1998 Lab IC 974), has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere." 7. Mr. Majumder cited another decision of the Supreme Court in the case of V. Ramanav. A.P.S.R.T.C. and others reported in AIR 2005 SC 3417 wherein the Supreme Court held: "13...........................Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof.................." 8. Mr. Mr. Majumder cited another decision of the Supreme Court in the case of V. Ramanav. A.P.S.R.T.C. and others reported in AIR 2005 SC 3417 wherein the Supreme Court held: "13...........................Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof.................." 8. Mr. Majumder also relied on a decision of the Supreme Court in the case of B. C. Chaturvediv. Union of India and others reported in (1995) 6 SCC 749 wherein the Hon'ble Supreme Court observed: "18.........................................................................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." It is well settled that the punishment or penalty to be imposed must be commensurate with the gravity of misconduct. The disciplinary authority while inflicting punishment must adhere to the doctrine of proportionality and cannot exercise the power in an arbitrary manner. 9. IN the case of B. C. Chaturvedi (Supra), the Supreme Court has specifically held that in the event, the punishment inflicted on an employee shocks the conscience of the High Court, then, sitting in judicial review, High Court can not only direct the authority to reconsider the punishment but in order to shorten the litigation can also impose appropriate punishment with cogent reasons in support thereof. 10. IN the instant case, the learned Single Judge upon considering the allegations levelled against the respondent No. 1 /writ petitioner held that the punishment imposed by the disciplinary authority and subsequently affirmed by the appellate authority is shockingly disproportionate and treating the same as a rare case, interfered with the quantum of punishment by directing the authorities to reinstate the respondent No. 1 /writ petitioner in service. We, however, find that if the punishment is shockingly disproportionate then suitable lesser punishment should have been imposed by the learned Single Judge. We, however, find that if the punishment is shockingly disproportionate then suitable lesser punishment should have been imposed by the learned Single Judge. In the aforesaid circumstances, following the principles as laid down by the Supreme Court' in the aforesaid decisions; we interfere with the quantum of punishment imposed upon the respondent No. 1/writ petitioner and direct the disciplinary authority to impose a suitable lesser punishment on the said respondent No. 1/writ petitioner in terms of Rule 148.3(e) or Rule 148.4(a) or (c) of the Railway Protection Force Rules, 1987 as in our view, the aforesaid punishment will be a sufficient corrective measure for the respondent No. 1 /writ petitioner and will also meet the ends of justice in the facts of the present case. 11. THE disciplinary authority is therefore, directed to impose the appropriate punishment as mentioned hereinabove in place of the earlier punishment within seven days from the date of communication of this order. 12. THE other directions of the learned Single Judge will, however, remain unaltered. THE respondent authorities are, therefore, directed to reinstate the respondent No. 1/writ petitioner in service forthwith as directed by the learned Single Judge upon treating the said respondent No. 1 /writ petitioner in continuous service. With the aforesaid observations and directions, the impugned judgment and order under appeal passed by the learned Single Judge stands modified to the extent mentioned hereinabove and this application as well as the appeal stand disposed of upon treating the said appeal as on day's list. 13. WE record our sincere appreciation for the assistance given by Mr. Soumya Majumder, learned Advocate who represented the respondent No. 1/ writ petitioner on the request of the Court. 14. IN the facts of the present case, there will be no order as to costs. Appeal, application disposed of.