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2013 DIGILAW 641 (JHR)

Kapildeo Singh v. State of Jharkhand

2013-05-17

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court : Aggrieved by the order of dismissal from service dated 18.09.2000 passed by the Superintendent of Police in departmental proceeding No. 18/99 and order dated 06.10.2002 passed by the Deputy Inspector General of Police, South Chotanagpur Range, Ranchi whereby the appeal preferred by the petitioner has been dismissed, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that, the petitioner was appointed as Constable in Bihar Police in the year 1981 and at the relevant time he was posted at Lohardaga. By order dated 13.08.1998 petitioner and another constable were deputed to escort one undertrial prisoner namely, Uday Oraon to T.B. Sanatorium at Itki for his medical treatment. However, the patient was transferred to Ranchi Medical College and Hospital (hereinafter referred to as R.M.C.H.) for better treatment where he was admitted on 14.08.1998 and the said undertrial prisoner remained under treatment in R.M.C.H. till 22.08.1998. However, due to heavy rain the patient (undertrial prisoner) could not be taken to Lohardaga and only on 24.08.1998 the patient was taken out from Hospital to Ranchi Railway Station where on 24.08.1998 itself the said undertrial prisoner died. The matter was reported to the SubJail Superintendent at Lohardaga. The petitioner was served a chargememo dated 15.07.1999 on the allegation of dereliction of duty, misconduct, negligence and incapacity to perform police duty. On conclusion of enquiry, the charges against the petitioner were found proved and the report of the enquiry officer in departmental proceeding No. 18/99 was submitted on 30.07.2000. The petitioner submitted his reply to the proposed punishment of dismissal from service refuting all the charges levelled against him however, the order of dismissal from service dated 18.09.2000 was passed by the Respondent No. 3. Thereafter, the petitioner preferred an appeal against the order of dismissal from service dated 18.09.2000. The Appellate Authority considered the appeal and did not agree with the order of dismissal from service passed by the Superintendent of Police, however, by order dated 06.09.2002 the Appellate Authority directed the Superintendent of Police (Respondent No. 3) to reopen the file relating to departmental proceeding against the petitioner and to submit a report after verifying certain facts. The Appellate Authority considered the appeal and did not agree with the order of dismissal from service passed by the Superintendent of Police, however, by order dated 06.09.2002 the Appellate Authority directed the Superintendent of Police (Respondent No. 3) to reopen the file relating to departmental proceeding against the petitioner and to submit a report after verifying certain facts. It appears that pursuant to order dated 06.09.2002 of the Deputy Inspector General of Police, a report was submitted by the Superintendent of Police and after considering the said report the appeal preferred by the petitioner was dismissed by order dated 06.10.2002. In these facts and circumstances the petitioner has filed the present writ petition. 3. A counter-affidavit has been filed on behalf of the respondents stating that charges levelled against the petitioner were serious in nature and the charges were found proved in the departmental enquiry and therefore, the order of dismissal from service was passed. It has further been stated that by order dated 06.09.2002 the Respondent No. 2 raised certain queries and sought a report from Respondent No. 3 for his own satisfaction and as such the report given by the Respondent No. 3 might not have been furnished to the petitioner. Additionally, a plea has been raised that the petitioner is not entitled for supply of a copy of the report furnished by the Respondent No. 3 to the Respondent No. 2 pursuant to order dated 06.09.2002 and a further plea has been taken that it was not proper to supply to the petitioner the copy of the report prepared by the Respondent No. 3. 4. Another counter-affidavit dated 03.08.2011 has been filed on behalf of the Respondent No. 3 in which a contrary plea has been taken that the report submitted in the light of order dated 06.09.2002 of the Respondent No. 2, was furnished to the petitioner. 5. Heard learned counsel appearing for the parties and perused the documents on record. 6. Mr. 4. Another counter-affidavit dated 03.08.2011 has been filed on behalf of the Respondent No. 3 in which a contrary plea has been taken that the report submitted in the light of order dated 06.09.2002 of the Respondent No. 2, was furnished to the petitioner. 5. Heard learned counsel appearing for the parties and perused the documents on record. 6. Mr. Purushottam Sharma Tripathy, the learned counsel appearing for the petitioner, has raised two fold contentions; (i) The order passed by the Appellate Authority is liable to be quashed on the ground of violation of principles of natural justice as, a copy of the report submitted by the Superintendent of Police pursuant to order dated 06.09.2002, was not furnished to the petitioner and the enquiry was conducted behind the back of the petitioner, and ; (ii) During the departmental enquiry no evidence could be brought on record in support of the charges levelled against the petitioner and the decision arrived at by the Disciplinary Authority as affirmed by the Appellate Authority is based on 'no evidence' and in fact, the decision making process itself was erroneous and therefore, the impugned orders are liable to be quashed. 7. The learned counsel appearing for the petitioner has further submitted that after disagreeing with the penalty order dated 18.09.2000 passed by the Superintendent of Police, it was not open to the Appellate Authority to order to reopen the departmental proceeding against the petitioner and call for a report from the Superintendent of Police. The learned counsel has also submitted that all the queries raised by Deputy Inspector General of Police in order dated 06.09.2002 were irrelevant. In view of the specific findings recorded by the enquiry officer, those queries were already answered by the enquiry officer and therefore, any further report on those queries would not invite a finding contrary to the specific finding recorded by the Deputy Inspector General of Police himself in his order dated 06.09.2002 whereunder, he has himself disagreed with the order of dismissal dated 18.09.2000 passed by the Superintendent of Police. 8. As against the above, Ms. Shivani Verma, learned counsel for the respondents, has contended that sufficiency of evidence is not a matter within the purview of this Court exercising jurisdiction under Article 226 of the Constitution of India. 8. As against the above, Ms. Shivani Verma, learned counsel for the respondents, has contended that sufficiency of evidence is not a matter within the purview of this Court exercising jurisdiction under Article 226 of the Constitution of India. Reiterating the stand taken in the counter-affidavit filed on behalf of the respondents, she has contended that in view of the seriousness of the charges and the proved misconduct of the petitioner, the order of dismissal from service was passed and therefore, this is not a case which warrants interference by this Court. 9. Countering the submissions made on behalf of the respondents, the learned counsel appearing for the petitioner has submitted that the evidence brought on record during the departmental enquiry must have a nexus with the charges framed. However, in the present case the evidence brought on record does not support the charges framed against the petitioner. He has submitted that the under-trial prisoner was seriously ill is not disputed and the postmortem report prepared by Dr. Tulsi Mahto clearly disclosed absence of any physical assault to the said under-trial prisoner. In fact U.D. Case No. 17/98 was also instituted which ended in filing of Final Form and therefore, the Appellate Authority in order dated 06.09.2002 had rightly disagreed with the penalty order dated 18.09.2000. 10. Adverting to the contention raised by the learned counsel appearing for the petitioner that non-supply of the report submitted by the Superintendent of Police pursuant to order dated 06.09.2002 of the Deputy Inspector General of Police would invite an order quashing the order of dismissal from service, I find that the respondents have taken contradictory stand in two counter-affidavits filed on their behalf. In the first counter-affidavit which has been filed by the Respondent No. 4 on behalf of all the respondents, a stand has been taken that the petitioner was not entitled for supply of a copy of the report furnished by the Superintendent of Police to the Deputy Inspector General of Police and in fact, it was considered improper to supply a copy of such report to the petitioner. In the counter-affidavit dated 03.08.2011 filed again by Respondent No. 4 on behalf of the Respondent No. 3, a plea has been taken that a copy of such report was furnished to the petitioner however, nothing has been brought on record in support of such a plea. In the counter-affidavit dated 03.08.2011 filed again by Respondent No. 4 on behalf of the Respondent No. 3, a plea has been taken that a copy of such report was furnished to the petitioner however, nothing has been brought on record in support of such a plea. In view of specific stand taken by the respondents in the first counter-affidavit which was filed on behalf of all the respondents, I am not inclined to believe the plea taken by the Respondent No. 3 in counter-affidavit dated 03.08.2011 that a copy of the report submitted by the Respondent No. 3 was supplied to the petitioner. The stand taken in the counter-affidavit dated 03.08.2011 is apparently an afterthought. Now, the question would be, whether the petitioner was entitled for supply of a copy of the report furnished by the Respondent No. 3 pursuant to order dated 06.09.2002 of the Respondent No. 2. 11. In “State of Madhya Pradesh Vs. Chintaman Sadashiva Waishampayan”, reported in AIR 1961 SC 1623 , the Hon'ble Supreme Court has held, 10. “.......It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Art. 226 it is for the High Court to consider whether the constitutional requirements of Art. 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Art. 311(2) have been satisfied or not......” 12. In “State of Mysore & Ors. Vs. Shivabasappa Shivappa Makapur”, reported in AIR 1963 SC 375 , the Hon'ble Supreme Court took note of the following passage of the decision rendered in “New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. In “State of Mysore & Ors. Vs. Shivabasappa Shivappa Makapur”, reported in AIR 1963 SC 375 , the Hon'ble Supreme Court took note of the following passage of the decision rendered in “New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. Ltd.”, reported in AIR 1957 SC 232 : 6.“........Discussing next what those rules required, it was observed that the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him........” 13.In “Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi”, reported in 1969 (2) SCC 838 , the Hon'ble Supreme Court found the enquiry proceeding vitiated because the enquiry officer collected information from outside source and utilised the same in his findings recorded against the delinquent officer without disclosing that information to the officer. 14. In “State of Assam & Anr. Vs. Mahendra Kumar Das & Ors.”, reported in (1970) 1 SCC 709 , when it was found that the enquiry officer considered the materials gathered by AntiCorruption Branch and relied on such materials without supplying a copy of the same to the delinquent officer, the Hon'ble Supreme Court discussed the issue as under, 23. “From the above averments it will be noted that the respondent no doubt made a grievance of the consultation stated to have taken place during the midst of the enquiry between the Enquiry Officer and the AntiCorruption Branch. But his specific averment was that the findings against him recorded in the enquiry were based upon the report of the AntiCorruption Branch the copy of which was not furnished to him. The State, on the other hand, did not controvert the fact that the Enquiry Officer did have consultation with the AntiCorruption Branch on the dates mentioned in the record of proceedings. The State, on the other hand, did not controvert the fact that the Enquiry Officer did have consultation with the AntiCorruption Branch on the dates mentioned in the record of proceedings. But, according to the State, no part of any information contained in that report had been taken into account in the enquiry proceedings and that on the other hand the report of the Enquiry Officer was exclusively based on the evidence adduced during the enquiry. 15. In “State of Punjab Vs. Bhagat Ram”, reported in (1975) 1 SCC 155 , the Hon'ble Supreme Court has observed, 7. “The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination. 8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken.” 16. In “State of Uttar Pradesh Vs. Mohd. Sharif”, reported in (1982) 2 SCC 376 , where the statements recorded during the preenquiry stage were not supplied to the delinquent officer, the Hon'ble Supreme Court held that the person was denied reasonable opportunity to defend himself in the disciplinary enquiry. Again, in “Kashinath Dikshita Vs. Union of India and Others”, reported in (1986) 3 SCC 229 , the Hon'ble Supreme Court took a similar view when it was found that the officer was not supplied with a copy of statements recorded at preenquiry stage and such statements were relied upon by the department in support of the charges framed against the employee. Union of India and Others”, reported in (1986) 3 SCC 229 , the Hon'ble Supreme Court took a similar view when it was found that the officer was not supplied with a copy of statements recorded at preenquiry stage and such statements were relied upon by the department in support of the charges framed against the employee. The Hon'ble Supreme Court has observed as under; 12. “Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself .........” 17. In view of the aforesaid, it is thus clear that the petitioner was entitled for supply of a copy of the report submitted by the Respondent No. 3 in response to queries raised by Deputy Inspector General of Police in order dated 06.09.2002. Non-supply of the said report has definitely caused serious prejudice to the petitioner for, the petitioner has been deprived of an opportunity to reply to any adverse circumstance found against him. It was possible for the petitioner to rebut or explain the materials collected by the Respondent No. 3, by relying on the findings recorded in the enquiry report dated 30.07.2000. Since the petitioner has been deprived of such an opportunity and the impugned order dated 06.10.2002 has been passed solely on the basis of the report submitted by the Superintendent of Police, pursuant to order dated 06.09.2002, I am of the opinion that the order dated 06.10.2002 passed by the Deputy Inspector General of Police is not sustainable in law and is liable to be quashed. 18. 18. Coming back to the facts of the case, it is an admitted position that the under-trial prisoner namely, Uday Oraon was seriously ill and that was the reason when he was taken to Itki Sanatorium, the doctors referred him for better treatment to R.M.C.H. During the departmental proceeding Dr. Arvind Mishra from Itki Sanatorium was examined by the department and the said witness has admitted that in view of the serious condition of the patient, he was referred to R.M.C.H. for specialised treatment. In the evidence of another Doctor namely, Ganesh Prasad, this has come on record that the said undertrial prisoner was aged about 70 years and he was first sent to Sadar Hospital, Lohardaga from where the said patient was sent to Itki sanatorium and finally, in view of the opinion of the doctors that his treatment was not possible there, the patient was referred to R.M.C.H. This witness has also admitted that the petitioner informed him that undertrial prisoner was discharged from R.M.C.H. on 22.02.1998, however, due to heavy rain they could not proceed for Lohardaga and the said undertrial prisoner died on the Railway Platform at Ranchi in the evening of 24.08.1998. Thereafter, a Magistrate was appointed to conduct the inquest. The doctor who conducted the postmortem examination was also examined by the department as a witness and he has stated that he did not find any injury on the body of the deceased. This witness has further stated that the deceased died due to serious illness. One Md. Kalimudjama, the Officer Incharge of G.R.P., Ranchi stated that U.D. Case No. 17/98 was registered and the Investigating Officer submitted Final Form on 26.08.1998 in which cause of death has been recorded as 'prolonged illness'. 19. A certain Dr. Anirudh Prasad Singh, Superintendent, R.M.C.H., Ranchi stated before the enquiry officer that Dr. Ajit Kumar Sinha had given a written complaint against both the constables that they were misbehaving with nurses and other patients in drunken state. This witness has further stated that he had given information to the Bariatu Police Station and the Superintendent of Police, Lohardaga regarding the said complaint. The enquiry officer has recorded that this fact was not confirmed by the Bariatu Police Station nor there was any reference of the said complaint in any record. Dr. This witness has further stated that he had given information to the Bariatu Police Station and the Superintendent of Police, Lohardaga regarding the said complaint. The enquiry officer has recorded that this fact was not confirmed by the Bariatu Police Station nor there was any reference of the said complaint in any record. Dr. Ajit Kumar Sinha who had given complaint regarding misbehaviour of both the constables, to the Medical Superintendent, R.M.C.H., though made a witness by the department, was not examined as he did not appear before the enquiry officer. The enquiry officer has also recorded that besides Dr. Ajit Kumar Sinha, the Officer Incharge of Bariatu Police Station namely, Rajendra Oraon and the Executive Magistrate, Ranchi namely, Mr. D.K. Verma also did not appear before him for their evidence. 20. A perusal of the enquiry report dated 30.07.2000 would disclose that in view of the evidence on record, the enquiry officer has recorded a specific finding that the undertrial prisoner namely, Uday Oraon was very old and was seriously ill. The enquiry officer has also found that due to heavy rain and unavailability of any conveyance, the undertrial prisoner and both the constables stayed in the Hospital on 22.08.1998 and 23.08.1998. The undertrial prisoner was taken to the Railway Station on 24.08.1998 where he died and the information in this regard was immediately given to the concerned officer. The enquiry officer has also confirmed that the undertrial prisoner namely, Uday Oraon died due to 'prolonged illness'. However, the enquiry officer has opined that in view of the statement of Dr. Anirudh Prasad Singh, the Superintendent of R.M.C.H, the charge of misbehaviour with the employees and other patients in the Hospital by both the constables stood proved, even though, the complaint of Dr. Ajit Kumar Sinha was not confirmed by the Bariatu Police Station. 21. In view of the aforesaid, it is manifest that the enquiry officer considered the statement of Dr. Anirudh Prasad Singh, the Superintended of R.M.C.H. as a gospel truth. However, he failed to notice that Dr. Anirudh Prasad Singh never claimed himself a witness to the alleged misbehaviour of the petitioner with the hospital employees and other patients. Dr. Anirudh Prasad Singh made a statement before the enquiry officer that Dr. Anirudh Prasad Singh, the Superintended of R.M.C.H. as a gospel truth. However, he failed to notice that Dr. Anirudh Prasad Singh never claimed himself a witness to the alleged misbehaviour of the petitioner with the hospital employees and other patients. Dr. Anirudh Prasad Singh made a statement before the enquiry officer that Dr. Ajit Kumar Sinha, PODT had given a written complaint and it is an admitted position that the said complaint was the only source of information, based on which he made the statement before the enquiry officer. Neither the bedhead ticket of the patient on which the complaint was written was ever produced nor Dr. Ajit Kumar Sinha was examined. The alleged complaint of Dr. Ajit Kumar Sinha was not confirmed by the Bariatu Police Station nor the then Officer Incharge of the Bariatu Police Station namely, Rajindra Oraon was examined. 22. In “Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.”, reported in (2006) 4 SCC 713 , the Hon'ble Supreme Court has observed that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence. 23. It cannot be disputed that the Disciplinary Authority simply concurred with the opinion of the enquiry officer and the penalty order dated 18.09.2000 does not disclose any application of independent mind by the Disciplinary Authority. Further, the Appellate Authority at the first instance held that the undertrial prisoner namely, Uday Oraon died due to prolonged illness and not because of assault by the constables. He also believed that the said undertrial prisoner could not be brought to Lohardaga immediately because of heavy rain. The Appellate Authority, therefore, did not approve the penalty order dated 18.09.2000 passed by the Superintendent of Police. In his order dated 06.09.2002, the Appellate Authority has recorded a finding that though the enquiry officer did not specifically opine that the charges against the petitioner stood proved, however, the Disciplinary Authority passed an order of dismissal from service merely recording that he concurred with the opinion of the enquiry officer. The entire process for reaching at a conclusion that the charges against the petitioner stood proved, was erroneous. In the aforesaid background the decision taken by the disciplinary Authority has to be examined. 26. The entire process for reaching at a conclusion that the charges against the petitioner stood proved, was erroneous. In the aforesaid background the decision taken by the disciplinary Authority has to be examined. 26. A century thereafter, in “Associated Provincial Picture Houses Limited Vs. Wednesbury Corpn., reported in (1948) 1 KB 223, which is famously known as 'Wednesbury case', the observation of Lord Greene is considered as basic principle relating to judicial review of administrative or statutory discretion ; “......it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. .......The effect of the legislation is not to set up the court as an arbiter of the correctness one view over another.” 27. In “Council of Civil Service Unions Vs. Minister for the Civil Service”, reported in (1984) 3 ALL ER 935, Lord Diplock observed, “.............Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;.....” 28. In “R. Vs. Secy. of State for the Home Deptt., ex p Brind”, reported in (1991) 1 AC 696, Lord Bridge explained the 'primary review' in the following passage: “The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.” 32. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.” 32. It would be now useful to recapitulate the law laid down by the Hon'ble Supreme Court with respect to power of the High Court exercising jurisdiction under Article 226 of the Constitution of India to interfere with the quantum of punishment. 33. In “Om Kumar & Ors. Vs. Union of India”, reported in (2001) 2 SCC 386 , the Hon'ble Supreme Court has observed, “The quantum of punishment in disciplinary matters is primary for the disciplinary authority to decide and the jurisdiction of the High Courts under Article 226 of the Constitution of India or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the wellknown principles known as Wednesbury principles.” 34. In “Union of India Vs. H.C. Goel”, reported in AIR 1964 SC 364 , the Hon'ble Supreme Court has held as under, 20. “This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of true of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence..............” 35. In “Union of India & Anr. Vs. Ganayutham”, reported in (1997) 7 SCC 463 , the Hon'ble Supreme Court has held that “in the matter of penalty imposed in a disciplinary case unless the Court/Tribunal opines in its clear role that the administrator was on the material before made irrational the punishment cannot be quashed.” 36. In “Apparel Export Promotion Counil Vs. A.K. Chopra”, reported in (1999) 1 SCC 759 , the Hon'ble Supreme Court has observed, 16. “...........Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. ................Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty...........” 37. In “Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors.”, reported in (2005) 5 SCC 100 , the Hon'ble High Court has held as under, 39. “The findings of the learned Tribunal as noticed hereinbefore, are wholly perverse. It apparently posed into itself wrong questions. It placed onus of proof wrongly upon the appellant. In “Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors.”, reported in (2005) 5 SCC 100 , the Hon'ble High Court has held as under, 39. “The findings of the learned Tribunal as noticed hereinbefore, are wholly perverse. It apparently posed into itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out.” 38. In “Ranjit Thakur Vs. Union of India & Ors.”, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has observed, 25.“............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 recognised grounds of judicial review...........” 39. In view of the aforesaid discussions, when the penalty order dated 18.09.2000 passed by the Disciplinary Authority is tested, I find that it is liable to be quashed. The penalty of dismissal from service is not only excessive, it is disproportionate to the charge alleged and found proved by the enquiry officer. 40. The petitioner was appointed in the year 1981 and by the penalty order dated 18.09.2000 he was dismissed from service and thus more than 12 years have passed since he was dismissed from service and it is more than 32 years when he was first appointed as a constable. In view of these facts, I am of the opinion that at this stage it would not be proper to remand the matter to the Authorities for a fresh consideration. The petitioner even if found guilty of misbehaviour with the hospital employees and other patients could not have been dismissed from service as the punishment of dismissal from service for such misconduct would definitely be excessive and it would be disproportionate to the charges proved. The petitioner has not been charged with intentionally detaining the undertrial prisoner due to which death occurred. The petitioner has not been charged with intentionally detaining the undertrial prisoner due to which death occurred. It has also not been found during the departmental enquiry that undertrial prisoner was assaulted by the constables rather, a contrary finding has been recorded which goes in favour of the petitioner. Therefore, the order of dismissal from service which would deprive the petitioner of his retiral benefits including the pension also, would not be justified in the present case. I am of the considered view that it would meet the ends of justice if the order of dismissal is converted into the order of 'Compulsory Retirement'. 41. In “Harjit Singh & Anr. Vs. State of Punjab & Anr.”, reported in (2007) 9 SCC 582, the Hon'ble Supreme Court interfered with the order of dismissal from service and imposed the punishment of compulsory retirement observing as under, 15. “In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” 42. In “Surendra Prasad Shukla Vs. State of Jharkhand & Ors.”, reported in (2011) 8 SCC 536 , it was found that the delinquent, a Head Constable in State Police, who had served for 34 years, was dismissed from service as a stolen car was recovered from the government quarter occupied by the delinquent employee. However, no charge of abetting or aiding the offence under Section 392 I.P.C., for which his son was charged, was framed against him, the Hon'ble Supreme Court held that the punishment of dismissal from service, which would deprive the employee of his pension also, was shockingly disproportionate to negligence proved against him. The Hon'ble Supreme Court partly allowed the appeal and modified the punishment of dismissal from service to compulsory retirement. 43. In “State Bank of Bikaner & Jaipur Vs. The Hon'ble Supreme Court partly allowed the appeal and modified the punishment of dismissal from service to compulsory retirement. 43. In “State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya”, reported in AIR 2011 SC 1931 , a case in which the delinquent employee without verification, instructed his colleague to transfer a dormant account into operative category, at the request of an unknown person visiting the bank and claiming to be account holder, which turned out to be false, the Hon'ble Supreme Court had held as under, 11. “However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement. 12. We, accordingly, allow the appeal and set aside the judgment of the High Court. We uphold the finding of guilt recorded by the disciplinary authority, but modify the punishment from 'dismissal' to 'compulsory retirement'. There is therefore no question of grant of any backwages.” 44. In “Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad & Ors.”, reported in (1985) 1 SCC 120 , the Hon'ble Supreme Court has converted the order of punishment of dismissal from service into an order of compulsory retirement on compassionate ground. 45. In view of the aforesaid discussions, the writ petition is partly allowed. The order of 'dismissal from service' is converted into an order of 'Compulsory Retirement' w.e.f. 01.09.2000. However, there would be no order as to costs. 24. A perusal of the report of the Enquiry Officer, in the proceedings before us, shows that there is absolutely no reference to any data or material, if any, collected by him when he consulted the Deputy Superintendent of Police, AntiCorruption Branch on July 14 and 15, 1958. But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and, without any apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent officer concerned. If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied on by the Enquiry Officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated. It was, under such circumstances, that this Court, in U.P. Warehousing Corpn. v. Chandra Kiran Tyagi accepted the view of the High Court that the enquiry proceedings were vitiated by the Enquiry Officer collecting information from outside sources and utilising the same in his findings recorded against the delinquent officer without disclosing that information to the accused officer. It was, again, under similar circumstances that this Court in Sanawarmal Purohit case upheld the order of the High Court holding the enquiry proceedings to be contrary to the principles of natural justice when the Enquiry Officer had collected information from third parties and acted upon the information so collected, without disclosing the same to the accused. If the disciplinary authority himself had been also the Enquiry Officer and, during the course of the enquiry he had collected materials behind the back of the accused and used such materials without disclosing the same to the officer concerned, the position will be still worse and the mere fact that such an order passed by the disciplinary authority had even been confirmed by an Appellate Authority without anything more, will not alter the position in favour of the department.” 24. In 1841 in “Queen v. James Bolton,(1841) 1 QB 66, Lord Denman, C.J, made the following observation which is considered authoritative and good law even today : “The first of these is a point of much importance, because of very general application; but the principle upon which it turns is very simple: the difficulty is always found in applying it. The case to be supposed is one like the present, in which the Legislature has trusted the original, it may be (as here) the final jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular & according to law. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” 25. It was further observed by Lord Denman, C.J., “Beyond this we cannot go. The affidavits, being before us, were used on the argument; and much was said of the unreasonableness of the conclusion drawn by the magistrates, and of the hardship on the defendant if we would not review it, there being no appeal to the sessions. We forbear to express any opinion on that which is not before us, the propriety of the conclusion drawn from the evidence by the magistrates: they and they alone were the competent authority to draw it; and we must not constitute ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other.” 12. “........It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority... In another sense it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith: and in fact, all these things run into one another.” Lord Green also observed (KB p.230: All ER p.683) 29. After the English Human Rights Act, 1998 was passed, English Courts almost crystalised the principle of 'primary' and 'secondary' review in Convention cases and non-Convention cases however, a new approach was evolved by the House of Lords in “R. Vs. Chief Constable of Sussex ex p International Trader's Ferry Ltd.”, reported in (1991) 1 All ER 129. 30. In India, however, the principle of 'proportionality' has always been applied to administrative action affecting fundamental freedoms. When administrative action is attacked as discriminatory under Article 14 of the Constitution of India, the Courts in India have applied the principle of proportionality. However, where administrative action is challenged as “arbitrary” under Article 14, the Courts have applied Wednesbury principle. The test laid down in “E.P. Royappa Vs. State of T. N.”, reported in (1974) 4 SCC 3 that, if the administrative action is arbitrary, it can be struck down under Article 14 of the Constitution of India, is now being uniformally followed by the Courts in India. Thus, where an administrative action is challenged as “arbitrary” under Article 14, the Courts would then be confined only to a 'secondary' role to see whether the administrator acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether the view taken is one which no reasonable person could have taken. 31. When judged on the aforesaid principle, I find that the Disciplinary Authority in his primary role has adopted an erroneous procedure in reaching to a conclusion that the charges levelled against the petitioner stood proved. 31. When judged on the aforesaid principle, I find that the Disciplinary Authority in his primary role has adopted an erroneous procedure in reaching to a conclusion that the charges levelled against the petitioner stood proved. Not only both the authorities namely, the enquiry officer as well as the disciplinary authority have acted illegally and omitted relevant factors from consideration, the view taken by them is such which no reasonable person could have taken.