Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 157 (JK)

Union of India v. Shammi Kumar

2015-04-08

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasanthakumar, C.J. 1. The Union of India has filed this appeal against the order made in OWP No.48/1995 dated 14.12.1999 wherein the learned Single Judge allowed the writ petition by setting aside the order of dismissal and ordered to grant pension and the said order was directed to be implemented within a period of six months. 2. Brief facts necessary for disposal of the appeal are as follows:- (a) The writ petitioner, namely Rattan Chand, who died during pendency of the appeal, was enrolled as Sepoy in the Indian Army in the year 1971 and was dismissed in the year 1992 on the ground that he has deserted from the Armed Force. According to the writ petitioner he was posted at Amritsar and on 10.08.1990 he received a telegram from his home town informing that his wife is seriously ill. He applied for casual leave for five days from 11.08.1990 to 16.08.1990, which was sanctioned. The writ petitioner came to his home town at Samba District Jammu on 11.08.1990 and found that condition of his wife was very serious. There was no adult member in his family to look after his wife. Due to the said reason he overstayed i.e. beyond the leave period and for the reason of his over-stay, he was dismissed from service even though he has shown sufficient cause for his overstay. (b) His contention was that Section 38 of the Army Act, 1950 was invoked against him instead of invoking the provisions of Section 39(v), which states that if a person commits offence that is to say without sufficient cause to overstay on conviction by Court Martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the Act. (c) The writ petitioner was dismissed from service on 04.01.1992 and by that time he had served for more than 21 years. The said dismissal order was challenged before the learned Single Judge and the order was set aside. 3. (c) The writ petitioner was dismissed from service on 04.01.1992 and by that time he had served for more than 21 years. The said dismissal order was challenged before the learned Single Judge and the order was set aside. 3. The contention of the appellant in this appeal is that the writ petitioner was a habitual absentee and had been awarded two red entries under Section 39(a) and 29(b) and the overstay of the writ petitioner having been committed for the third time, he was dismissed from service and Army being a disciplined force, overstay is not permissible and the order of dismissal was justified and the learned Single Judge was not right in setting aside the same. 4. We have considered the submissions of the learned counsel for the parties and gone through the relevant papers/material on record. 5. It is not in dispute that the writ petitioner had served in the Army for about 21 years on the date of dismissal and on earlier two occasions he was proceeded against and was awarded red entries. It is also an admitted fact that for five days the writ petitioner was granted leave on the ground that his wife was not doing well and the doctors have also given certificate to the effect that his wife was being treated even after five days. Therefore, sufficient cause is shown for his overstay. Still the Army being a disciplined force, the person serving in the Army cannot overstay as it will hamper the movement of Army personnel, whose duties are special in nature. The writ petitioner died and his wife was brought on record on 30.11.2006 as legal heir and she prosecuted the appeal and she also died on 29.01.2014 and her legal heirs were brought on record. In such circumstances, a proportionality of punishment can be considered by this Court. 6. The proportionality in punishment, whether commensurate with the gravity of the charge/charges, is one of the ground on which the court can interfere if the punishment is shockingly disproportionate in a given case. In the decision reported in (1987) 4 SCC 611 (Ranjit Thakur v. Union of India and ors), Hon’ble the Supreme Court in paragraph nos. 25 and 27 held thus:- 25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. In the decision reported in (1987) 4 SCC 611 (Ranjit Thakur v. Union of India and ors), Hon’ble the Supreme Court in paragraph nos. 25 and 27 held thus:- 25. 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 B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: “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 upon which administrative action is subject to control by judicial review. The first ground l 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; 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. In the decision reported in (2009) 15 SCC 620 , (Chairman-cum-Managing Director, Coal India Ltd. and anr v. Mukul Kumar Choudhuri and ors.), Hon’ble the Supreme Court in paragraph nos. 19, 20 and 21 held thus:- 19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. In the decision reported in (2009) 15 SCC 620 , (Chairman-cum-Managing Director, Coal India Ltd. and anr v. Mukul Kumar Choudhuri and ors.), Hon’ble the Supreme Court in paragraph nos. 19, 20 and 21 held thus:- 19. 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. 20. 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. 21. 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. In the decision reported in (2011) 13 SCC 553 ( Union of India and ors. v. Bodupalli Gopalaswami), in paragraph 28, Hon’ble the Supreme Court held thus:- 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. 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 recognised grounds of judicial review. In (2013) 6 SCC 602 ( S. R. Tiwari v. Union of India and another), Hon’ble the Supreme Court interfered with the quantum of sentence holding that the misconduct proved against the officer seems to be of an administrative nature rather than a misconduct of a serious nature. 7. The writ petitioner served for about 21 years before his dismissal. The charge against the writ petitioner is overstaying of leave and the reason for his overstay was explained by the delinquent officer. For such misconduct his dismissal order issued is too harsh as no reasonable person will impose. The writ petitioner should have been imposed with some other punishment, like compulsory retirement, so that he could get pension and other retiral benefits. It is not the case of the appellant that in every case where absence or overstay of leave is established, extreme penalty of dismissal is being passed and the punishing authority is vested with discretion. Punishment has to be imposed based on the circumstances of each case. 8. Having regard to admitted fact that only red entries were marked on earlier two occasions and in similar circumstances army imposed compulsory retirement in several cases, this Court is of the firm view that it would be appropriate to impose the punishment of compulsory retirement, instead of dismissal from service. 9. In such circumstances, the punishment imposed against the writ petitioner shall be treated as compulsory retirement instead of dismissal. 9. In such circumstances, the punishment imposed against the writ petitioner shall be treated as compulsory retirement instead of dismissal. Consequently the appellants are directed to calculate the pension and other benefits payable to the deceased writ petitioner with effect from 04.01.1992 to 29.05.2004 and family pension to his widow during her life time i.e. with effect from 30.05.2004 to 29.01.2014 and pay the same to the legal heirs within a period of two months from the date of receipt of copy of this order. The order of the learned Single Judge stand modified to that extent. No costs.