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2014 DIGILAW 184 (GUJ)

JUBEDABEN RANABHAI JUNEJA v. STATE OF GUJARAT

2014-02-05

AKIL KURESHI, SONIA GOKANI

body2014
JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These appeals arise out of common background. We may therefore, notice facts as emerging from Letters Patent Appeal No.1437/2010. 2. The appellant Jubedaben Juneja at the relevant time was engaged as a Head Constable (GradeI) and was posted at Gondal police station. Appellant of Letters Patent Appeal No.1438/2010 Indumati Jobanputra was head constable posted at the same police station. One accused lady who was arrested in connection with the offences punishable under sections 379, 511 read with 114 of the IPC, was kept at the house of the said lady constables on 6.10.1993. As per the appellants since there was no facility available with Gondal police station to keep a lady accused in lockup, she was brought to the house of Jubedaben and later on kept at the house of Indumati for custody. On 7.10.1993 at about 6 O’ clock in the morning, the accused escaped. A criminal case in this respect was filed in which ultimately both the lady constables were shown as accused of having committed offences punishable under sections 224, 225A and 225B read with section 114 of the IPC. 3. Learned Judicial Magistrate First Class, Gondal, by his judgment dated 17.8.2004 passed in Criminal Case No.519/1994 convicted both the accused constables for offence punishable under section 225A of the Penal Code and sentenced them to simple imprisonment for six months. He imposed fine of Rs.250/each. 4. We may notice that section 225A of the IPC prescribes punishment in case the person being a public servant legally bound as such public servant to apprehend, or to keep in confinement any person in any case not provided for in section 221, section 222 or section 223 or any other provision of law, omits to apprehend that person or suffers him to escape from confinement. The punishment prescribed under the said section is in two parts. Part (a) thereof provides for imprisonment of either description for a term which may extend to three years or with fine, if the act is done intentionally. Part (b) prescribes punishment for simple imprisonment for a term which may extend to two years or with fine, if the act is done negligently. We may also record that learned JMFC, Gondal, came to specific conclusion that the act of the accused lady constables was not intentional, but that they had demonstrated negligence. 5. Part (b) prescribes punishment for simple imprisonment for a term which may extend to two years or with fine, if the act is done negligently. We may also record that learned JMFC, Gondal, came to specific conclusion that the act of the accused lady constables was not intentional, but that they had demonstrated negligence. 5. Such judgment of the learned Magistrate was challenged by the accused. A common appeal was filed before the Sessions Court. The Sessions Court dismissed the appeal by judgment dated 31.7.2007. Against such judgement of the Sessions Court, the appellants also approached the High Court, The revisions petitions were also dismissed. 6. After the learned Magistrate recorded conviction against the accused, the department issued a show cause notice dated 25.10.2004 calling upon Jubedaben why she should not be dismissed from service in view of her conviction in a criminal case. In response to such show cause notice, appellant Jubedaben filed a detailed reply dated 7.11.2004. She contended that she had filed appeal before the Sessions Court against the judgment of the trial Court which is pending. Order of dismissal would ruin her financially and would be an excessive punishment. She had to keep the accused at her residence because there was no facility in the police station for such purpose. In any case, the offence for which she is convicted, is not one of moral turpitude. The disciplinary authority however, passed order dated 18.12.2004, dismissing Jubedaben from service. He gave detailed reasons for not accepting her contentions. In particular, he placed heavy reliance on the conviction of Government servant and the fact that in terms of section 311(2)(b) of the Constitution, based on such conviction, a major penalty could be imposed. He did not agree that pending appeal before the Sessions Court, no disciplinary action should be taken. 7. The order of dismissal was challenged by Jubedaben before the departmental appellate authority. Such appeal came to be dismissed by the DIG, Gandhinagar, by an order dated 21.2.2005 upon which she filed Special Civil Application No.4402/2010. Such petition came to be dismissed by the learned Single Judge by judgment dated 12.4.2010 in which the learned Judge considering the background of the case dismissed the petition. Hence these appeals. 8. Facts are identical in other appeal as well. 9. Such petition came to be dismissed by the learned Single Judge by judgment dated 12.4.2010 in which the learned Judge considering the background of the case dismissed the petition. Hence these appeals. 8. Facts are identical in other appeal as well. 9. Learned counsel Shri Gogia for the appellants vehemently contended that : a) the conviction was for negligence in keeping the custody of an accused. The accused had to be kept in custody of the appellants under unusual circumstances. Punishment of dismissal from service was therefore, harsh and excessive. b) appellants had put in long unblemished service which should not have been summarily terminated ignoring their financial hardship. c) the custody of the accused was given to the appellants since there was no facility to keep a lady accused at Gondal police station. They could not have refused the orders of the superior officers. The accused escaping from the custody, was not on account of any negligence on part of the appellants. 8.1) In support of his contention, the counsel relied on the following decisions : a) State of Madhya Pradesh and others v. Hazarilal reported in (2008) 3 Supreme Court Cases 273, where the Apex Court observed that conviction for a criminal offence does not imply that in every case dismissal must be imposed. Power to impose punishment must be exercised reasonably and fairly keeping in view the nature of offence and sentence imposed. b) State of H.P. and others v. Dharamdas reported in (1995) 5 Supreme Court Cases 683, in which a police inspector was dismissed from service on the ground that he failed to deposit the service revolver and six live cartridges. The Supreme Court in view of long unblemished service record and plausible explanation offered by him, substituted the order of dismissal into compulsory retirement. c) Jai Bhagwan v. Commr. of Police & ors. reported in 2013(8) Scale 392 in which the Court substituted the order of dismissal by a lessor punishment when the employee of a police department was charged for misbehaviour with senior officer and for such misconduct, was dismissed from service. The Court observed that the superior Courts and the tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. The Court observed that the superior Courts and the tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even though Courts are slow and generally reluctant to interefere with the quantum of punishment. Page 6 of 10 d) Surendra Prasad Shukla v. The State of Jharkhand & ors. reported in JT 2011(9) SC 560, in which the High Court was dismissed from service on the ground that he had kept a robbed car and gave shelter to the accused in h is house. The punishment was modified into one of compulsory retirement on the ground that there was no charge against him that he aided or abetted the offence or that he knew that his son was a culprit and yet did not inform the police. It was further observed that being a head constable, it was his duty to inquire from his son and the accomplices about the car kept in his quarters and having failed to do so he was guilty of negligence. 10. Facts in the case are more or less undisputable. Under whatever circumstances, both the appellants were in joint custody of the lady accused. Though the appellants have been contending that for want of proper facilities at Gondal police station, they were asked to keep the custody of the said accused. The disciplinary authority has not entirely accepted this version. Be that as it may, we are prepared to accept the appellants’ version that they kept the lady accused in their custody for want of such facility at the police station which even otherwise seems more plausible, the fact remains that they were entrusted with the custody of the lady accused. It so happened that the accused escaped early in the morning. For such act, both the constables were tried and convicted by the criminal Court. Their convictions have achieved finality right upto the stage of High Court. It is true that they were convicted for offence under section 225A(b) of the IPC which prescribes punishment for Government servant suffering escape of a person required to be kept in judicial custody for the act of his/her negligence. Their convictions have achieved finality right upto the stage of High Court. It is true that they were convicted for offence under section 225A(b) of the IPC which prescribes punishment for Government servant suffering escape of a person required to be kept in judicial custody for the act of his/her negligence. However, merely because there was no active involvement of the accused attributed and that the accused escaped due to their negligence, by itself, would not be sufficient to hold that the punishment was disproportionate. We must appreciate the charges of proved misconduct in the background of their duties and responsibilities for the Government servant. In the present case, they were lady police constables. The act of an accused escaping from the custody is a serious lapse. If it is done intentionally, it is a serious offence. Even if allowed to happened negligently, it is made punishable under section 225A(b) of the IPC. Whether made punishable or not, it is undoubtedly an act of serious concern. As police officials, they were required to keep the custody of the accused. They could not afford to offer no explanation for the accused slipping away. Therefore, the explanation was rather simple that the lady accused early in the morning went to answer the nature’s call. They themselves got busy in brushing teeth and in the process, the accused slipped away. In our opinion, the appellants simply cannot escape the liability of their gross negligence and consequential misconduct. Even otherwise, what should be the appropriate punishment for proved misconduct is ordinarily left to the disciplinary authority and to be reviewed by the appellate and the revisional authority. In essence, the Courts are reluctant to interfere with the quantum of punishment once serious misconduct is established against the Government servant. The departmental mechanism is provided for imposition of punishment by the disciplinary authority and reconsideration by the higher, appellate and revisional authorities. Once this challenge is exhausted, the Court’s role would be rather limited to find out whether the punishment imposed was so shockingly disproportionate to the proved charge as observed by the Supreme Court in case of B.C. Chaturvedi v. Union of India and others reported in (1995) 6 Supreme Court Cases 749. Once this challenge is exhausted, the Court’s role would be rather limited to find out whether the punishment imposed was so shockingly disproportionate to the proved charge as observed by the Supreme Court in case of B.C. Chaturvedi v. Union of India and others reported in (1995) 6 Supreme Court Cases 749. It is true that in the later decisions and in particular, in case of State of Madhya Pradesh and others v. Hazarilal(supra) and in case of Ranjit Thakur v. Union of India and others reported in (1987) 4 Supreme Court Cases 611, the Supreme Court has invoked the principle of proportionality and often times, undertaken more incisive inquiry than ordinarily permitted under the Wednesbury principle of judicial review. In other words, the doctrine of proportionality is often applied and if found that the punishment is grossly disproportionate to the proved misconduct, interference may still be called for instead of confining itself to principle of shockingly disproportionate to the conscience of the Court. In either view, we do not find that the case calls for interference. The appellants were police constables. The incident of the accused slipping away from their custody for which they could offer explanation which at best can be stated to be lame, would not be a fit case where we would recommend the disciplinary authority to reconsider the punishment. 11. Once we come to such conclusion, rest of the contentions of the appellant must fail. The fact that the appellants were granted benefit of probation by the Sessions Court is not a ground for not imposing punishment on the basis of their convictions. So much is settled principle of law. 12. The contention that the disciplinary authority considered the conviction of the appellant for more serious offence and therefore, was mislead into passing harsh punishment of dismissal also cannot be accepted. It is true that at one stage, the disciplinary authority referred to sections other than section 225A of the IPC also. However, the entire order has to be read as a whole and it leaves no manner of doubt that he disciplinary authority was conscious that the appellants were convicted for the act of suffering escape of an accused from the custody due to their negligence. This precisely is the distinction between clauses (a) and (b) of section 225A of the IPC. This precisely is the distinction between clauses (a) and (b) of section 225A of the IPC. The mere fact that conviction appeal of the Government servant was pending before the Sessions Court was then also not a ground for not proceeding against them departmentally. In any case, now even the appeals stand dismissed. 13. Both the Letters Patent Appeals are therefore, dismissed.