Research › Search › Judgment

Manipur High Court · body

2013 DIGILAW 3 (MAN)

Ranbir Singh v. Union of India and Ors.

2013-05-14

A.M.SAPRE, N.KOTISWAR SINGH

body2013
JUDGMENT A.M. Sapre, CJ.- This is an appeal filed by Writ Petitioner of W.P.(C) No.547 of 2001 under Rule 2 of Chapter V-A of the Gauhati High Court Rules against the Judgment and Order passed by learned Single Judge on 08.08.2005. 2. By impugned order, the learned Single Judge dismissed the writ petition filed by the writ petitioner and in consequence upheld his termination order from the services. 3. So the short question which arises for consideration in this appeal is whether learned Single Judge was justified in dismissing the writ petition filed by the writ petitioner (appellant herein) and in turn was justified in upholding the termination order? 4. Facts of the case lie in a narrow compass. They however need mention infra. 5. The appellant (writ petitioner) was working in CRPF and was posted at Imphal (Manipur). He was given the rank as what is known in their set up - (No. 851151574 L/NK (GD)). On 14.12.1998 , the writ petitioner was suspended for the commission of misconduct while on duty and was then served with the charge sheet for commission of the said misconduct. The charge sheet contained three charges against the writ petitioner. They read as under: "STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST NO.8511515741 L/NK (GD) RANBIR SINGH (UNDER SUSPENSION WEF 14.12.98) OF GC IMP. ARTICLE-1 That the said No. 8511515741 L/NK (GD) Ranbir Singh while functioning as L. NK (GD), CRPF, Imphal, committed an offence of misconduct in discharge of duty in his capacity as a member of the Force u/s 11(1) of CRPF Act, in that, he deserted from 8th Bn., CRPF HQ New Delhi on 21.11.98 without prior permission from the competent authority which is prejudicial to good order and discipline of the Force. ARTICLE-II That the said No.851151574 L/NK (GD) Ranbir Singh while functioning as L/NK (GD) at GC, CRPF, Imphal, committed an offence of misconduct in discharge of duty in his capacity as a member of the Force u/s 11 (1) of CRPF Act, in that he consumed alcohol while on duty on 28.11.98 which is prejudicial to good order and discipline of the Force. ARTICLE-III That the said No.851151574 L/NK (GD) Ranbir Singh while functioning as L/NK (GD) at GC, CRPF, Imphal, committed an offence of misconduct in discharge of duty in his capacity as a member of the Force u/s 11 (1) of CRPF Act, in that he consumed alcohol while on duty on 13.12.98 and quarreled and created nuisance in the Ors Line which is prejudicial to good order and discipline of the Force." 6. The writ petitioner contested the charges and filed reply. The matter was accordingly referred to departmental inquiry. The inquiry officer was appointed to probe the charges as per provisions of CCCA Rules. The inquiry officer held an inquiry, examined the witnesses and then submitted his report dt. 8.3.1999. It was concluded in the report that the charges leveled against the writ petitioner are proved. The appointing authority then by his order dt. 24.3.99 dismissed the writ petitioner from the service. The writ petitioner then filed departmental appeal against the dismissal order. The appellate authority by order 27.7.99 dismissed the appeal. The writ petitioner then filed the revision. However the revision was also dismissed by order dt. 14.7.2000. It is against these orders, the writ petitioner felt aggrieved and filed the writ petition out of which this writ appeal arises. The writ court (single Judge) by impugned order dismissed the writ petition and upheld the orders impugned in the writ petition. It is against this order; the writ petitioner felt aggrieved and filed this intra court writ appeal. 7. Heard Ms. Babita Thoudam, learned counsel for the appellant and Mr. Amarjit Naorem, CGSC for the respondents. 8. Submission of the learned counsel for the appellant was essentially one. It was her submission that looking to the nature and gravity of the charges which were held proved against the appellant, the extreme penalty of the dismissal was not commensurate with the gravity of the charges. It was, according to her, disproportionate and hence lesser punishment other than that of the dismissal should have been inflicted upon the appellant to meet the ends of justice and in compliance to the CCCA Rules. It was, according to her, disproportionate and hence lesser punishment other than that of the dismissal should have been inflicted upon the appellant to meet the ends of justice and in compliance to the CCCA Rules. Learned counsel pointed out from the charges and the finding of the inquiry officer that the only gravamen of the charge leveled against the appellant was that he consumed some liquor while on duty and quarreled with his colleagues and secondly, on one occasion he was deserted from the place of his working while he had gone to Delhi without obtaining any prior permission from his higher authorities. It was her submission that since the appellant had by that time put in unblemished service for more than 14 years and hence for such isolated charges, which otherwise did not cause any loss to employer nor it involved any corruption charges per se or any kind of mischief or manipulation or bad intention to favour some one or like, the punishment of dismissal for such isolated charge appears to be quite harsh. Learned Counsel therefore urged that this court should in exercise of its extra ordinary powers under Article 226/227 of the Constitutional of India interfere in quantum of punishment and impose any other lesser punishment on the appellant in place of dismissal. Learned counsel urged that if this court finds that appellant should not be allowed to remain in service even with this kind of charge against him then, punishment of "compulsory retirement" can be imposed on him being the most appropriate one in the facts of this case and specified in the Rules so that at least he is able to get his pensionary benefits as per Rules. 9. Learned counsel for the respondent supported the impugned order and prayed for its upholding. He urged that no case for interference in the impugned order is called for when one looks to the gravity of the charges. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellant (writ petitioner) and hence are inclined to allow the appeal in part as indicated infra. 11. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellant (writ petitioner) and hence are inclined to allow the appeal in part as indicated infra. 11. The question as to whether writ court while exercising powers under Article 2267 227 of the Constitution of India in its writ jurisdiction or Tribunals constituted under the labour/industrial laws possess power to interfere in the quantum of punishment imposed by the employer on any delinquent employee remains no more res Integra and is settled by judicial pronouncement and the statutory provisions. So far as the Tribunals constituted under the Industrial Disputes Act (for short called "The Act") are concerned, the legislature has amended the Act by inserting Section 11-A which now enables the Tribunal/courts to interfere in the quantum of punishment, if it finds that the punishment of dismissal/ discharge from services imposed on the delinquent employee is shockingly disproportionate to the gravity of the charge. So far as jurisdiction of writ court is concerned, it cannot perhaps be disputed that writ court in its extra ordinary powers conferred under Article 226/227 of the Constitution of India does enjoy the powers to interfere in the quantum of punishment in appropriate cases and substitute awarding of any lesser punishment in place of dismissal/discharge as it may consider proper. 12. The Supreme Court in a case reported in 2010 AIR (SC) 75 Chairman cum Managing Director, Coal India vs. Mukul Kumar had the occasion to examine this question. Justice R.M. Lodha speaking for the bench examined the issue in great detail after taking into consideration the entire case law on the subject not only of our country but also of English courts and then in Para 26 while recognizing such power with his distinctive style of writing held as under :- "26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months." 13. Keeping the aforesaid principle of law in mind and applying to the facts of the case, we find that appellant had put in around 14 years of unblemished service till the date of commission of misconduct. At least nothing was produced to show otherwise on this issue. Keeping the aforesaid principle of law in mind and applying to the facts of the case, we find that appellant had put in around 14 years of unblemished service till the date of commission of misconduct. At least nothing was produced to show otherwise on this issue. Now so far as the three charges leveled against the appellant was concerned though rightly, they were not challenged on merits in this appeal it relates to consumption of some liquor by the appellant and then having some exchange of words with other employee which resulted in some quarrel whereas the third relates to his temporary desertion from the place without obtaining the leave from his boss. 14. In our opinion, looking to the nature of three charges, though held proved yet, they do not justify dismissal of an employee from the service. It is, in our opinion, disproportionate to the gravity of the charges leveled. In other words, for such misconduct, any punishment other than dismissal was more appropriate as it would have been found commensurate with its gravity. 15. In 2077 (8) SCC 536 Surendra Prasad Shukla vs. State of Jharkhand, their lordships of Supreme Court in a case of police officer who was found in possession of stolen car though was held negligent in discharge of his duties and exhibiting indiscipline in discharge of his duties interfered in quantum of punishment of dismissal awarded to him considering it to be disproportionate looking to the nature of charge and hence converted it to that of compulsory retirement. It was held that dismissal for such charge being in the nature of shockingly disproportionate to the nature of gravity of the charge, it is liable to be substituted with "compulsory retirement." 16. In our opinion, having regard to the totality of the circumstances, as taken note of supra, such as nature of the charge, its gravity and coupled with the fact that the appellant has put in already 14 years of the service prior to the date of his dismissal and now almost 14 years have since passed after dismissal till date and still he has some more years to his credit, we consider it just and proper to interfere in the quantum of punishment and instead award to the appellant the punishment of "compulsory retirement from the service in place of dismissal". We consider that it may not be proper in the facts of this case to remand the case to the authorities concern for deciding to impose appropriate punishment as provided in Rules in place of dismissal though that is the normal Rule, but since the case is quite old and will cause further delay if remanded to the departmental authorities for this cause and secondly, the facts of the case do warrant and enable this Court to interfere in quantum of punishment, this Court has exercised its extra ordinary powers accordingly. 17. In the light of foregoing discussion, the writ appeal succeeds and is allowed in part. Impugned order is set aside. The order of dismissal dt. 24.3.1999 of the appellant is accordingly quashed and instead it is substituted by awarding the punishment of compulsory retirement of the appellant from the service from the same date (24.3.1999), i.e. the date of dismissal order. 18. The respondents are accordingly directed to give consequential benefits which the appellant is entitled to receive due to imposition of punishment on him of compulsory retirement as per Rules. Let the consequential benefits be worked out as per rules and he be accordingly paid the benefits within six months from the date of receipt of this order. 19. No costs. ______________