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2015 DIGILAW 446 (UTT)

RAKESH KUMAR v. UNION OF INDIA

2015-09-14

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. (oral) By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari to quash the order dated 17.02.2006 (copy Annexure-1 to the writ petition), passed by respondent no. 3. A further prayer has been sought for issuing a writ, order or direction in the nature of certiorari quashing the order dated 25.05.2006, passed by respondent no. 2, in the appeal dated 08.03.2006 (copy Annexure-8 to the writ petition). 2. Petitioner joined the Central Industrial Security Force (CISF), as constable, in the year 1985, and on the relevant date was posted at CISF Unit, T.H.D.C. (outpost Koteshwar), Tehri Garhwal since 16.10.2004. The petitioner was aggrieved by the order dated 17.02.2006, passed by respondent no. 3, whereby the services of the petitioner were terminated. 3. Brief facts giving rise to the present writ petition are that petitioner was served with a notice on 28.05.2005, alleging therein that on 15.11.2004, petitioner was posted at the office of General Manager, Koteshwar, from 2100 to 0500 hours, on night duty. On inspection, petitioner was not found on his given place of duty. On being asked it was found that petitioner with the help of civilian Haripal Singh had stolen two G.I. tin sheets from pump house with the intention to sell the same in the market. When S.I. S.S. Rawat gathered this information, he went towards the place of incident, where he met the petitioner and civilian Hari Pal Singh. On being asked, why the petitioner left his post, petitioner misbehaved with S.I. S.S. Rawat, twisted his arm and grounded him. 4. Petitioner filed his reply to notice dated 28.05.2005 on 11.07.2005, clarifying therein that he never had any conflict with S.I. S.S. Rawat (complainant). Subsequently, a charge-sheet was served upon the petitioner on 28.05.2005. On 23.07.2005, Inspector/Executive Vijay Kumar, CISF Unit THDC, Tehri was appointed Enquiry Officer in the case. On 02.01.2006, petitioner was asked to file his representation against the enquiry report within a period of 15 days in defence. Petitioner filed his representation on 20.01.2006 and denied the charges levelled against him and contended that the enquiry report prepared by the Enquiry Officer is biased and against the evidence and, hence, is liable to be ignored. On 17.02.2006, respondent no. Petitioner filed his representation on 20.01.2006 and denied the charges levelled against him and contended that the enquiry report prepared by the Enquiry Officer is biased and against the evidence and, hence, is liable to be ignored. On 17.02.2006, respondent no. 3 passed final order under Section 36 of the Central Industrial Security Force Rules, 2001 (hereinafter referred as CISF Rules), whereby the petitioner was dismissed from the service. 5. Aggrieved against his dismissal from service, petitioner filed an appeal on 08.03.2006 before petitioner no. 2 against the order dated 17.02.2006, passed by respondent no. 3. The appellate authority dismissed the appeal of the petitioner on 25.05.2006. 6. It is the submission of learned counsel for the writ petitioner that the order dated 17.02.2006, passed by respondent no. 3, is against the facts and evidence on record. It is also submitted that no medical report or any other evidence was produced before the Enquiry Officer, which shows that the petitioner had assaulted the complainant. There was no independent witness of the incident. The service record of the petitioner was unblemished and he never indulged in such type of activities before. It is further submitted that the statements of the witnesses namely, constable D.K. Tiwari, Harpal Singh and Jasvir Singh were recorded by the Enquiry Officer against their will and conscious. The Enquiry Officer was biased and he acted maliciously towards the petitioner in the enquiry. Affidavits of these witnesses were also brought on record. Lastly, it is submitted that there is clear violation of Article 311(2) of the Constitution of India in the case of the petitioner. 7. Learned Central Government Standing Counsel, appearing on behalf of the respondents, on the other hand, submitted that the writ petition is not maintainable in view of Rule 54 of the CISF Rules. The said rule is being reproduced here-in-below for convenience: “54. Revision. 7. Learned Central Government Standing Counsel, appearing on behalf of the respondents, on the other hand, submitted that the writ petition is not maintainable in view of Rule 54 of the CISF Rules. The said rule is being reproduced here-in-below for convenience: “54. Revision. –(1) Any authority superior to the authority making the order may either on his own motion or otherwise call for the records of any inquiry and revise any order made under these rules, and may – (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such order as it may deem fit, within six months of the date of communication of the order proposed to be revised; Provided that no order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (i) to (v) of rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if any, inquiry under rule 36 of Central Industrial Security Force Rules, 2001 has not already been held in the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid rules. (2) The provisions of rule 52 relating to appeals shall apply so far as may be to such orders in revision. (3) Orders and instructions issued by the Central Government on this subject from time to time shall be applicable mutatis mutandis as applicable under Central Civil Services (Classification, Control and Appeal) Rules, 1965.” 8. Learned counsel for the writ petitioner controverted the same by placing paragraph 2 of the judgment rendered by Hon’ble Apex Court in Hukum Chandra vs Vivek Singh and another, 2004 (1) U.D. 477. It will be useful to look into paragraph 2 of said judgment. Learned counsel for the writ petitioner controverted the same by placing paragraph 2 of the judgment rendered by Hon’ble Apex Court in Hukum Chandra vs Vivek Singh and another, 2004 (1) U.D. 477. It will be useful to look into paragraph 2 of said judgment. The same reads as under: “A petition filed in the High Court seeking relief under Article 226 or 227 of the Constitution of India was entertained in the year 1993 by the then High Court of Allahabad. Consequent upon re-organisation of the State of Uttar Pradesh, the matter came to be transferred to the High Court of Uttaranchal at Nainital. On 24.11.2003, when the matter came up for hearing, the High Court formed an opinion that an alternate efficacious remedy of filing a revision as provided by Section 18 of Uttar Pradesh Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 was available to the appellant, the petition did not lie. The petitioner in the High Court had explained in his petition the circumstances in which it was impracticable then to file the revision and therefore the writ jurisdiction of the High Court was being invoked. That explanation had found favour with the High Court while admitting the petition and issuing rule. After the matter had remained pending for little over 10 years, the High Court was not justified in dismissing the writ petition solely on the ground of availability of an alternative remedy. Availability of an alternate efficacious remedy does not implicitly and necessarily take away the jurisdiction of the High Court to hear a writ petition and exclusion of exercise of writ jurisdiction on account of availability of alternate remedy is a rule of discretion.” 9. A similar view had been taken by the Hon’ble Supreme Court in Dr. Bal Krishna Agarwal vs State of U.P. and others (1995) 1 SCC 614 , wherein it was held as under: “Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondent 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994. 10. This Court is, therefore, of the opinion that availability of an alternate efficacious remedy does not implicitly and necessarily take away the jurisdiction of the High Court to hear a writ petition and exclusion of exercise of writ jurisdiction on account of availability of alternate remedy is a rule of discretion. Looking in to the facts of the case, this Court is inclined to exercise that discretion in favour of the petitioner. 11. The writ petition is heard at length. Both the learned counsel made an endeavour to assert their submissions by way of relying upon documentary evidence. When the Court confronted learned counsel for the writ petitioner with the plea that the discipline in Forces and Para Military Forces, CISF etc., should be of highest quality, learned counsel for the writ petitioner did not deny the same. He also did not deny the legal proposition that the standard of proof in departmental proceedings is of ‘preponderance of probability’ and not ‘proof beyond reasonable doubt’. 12. At this stage, learned counsel for the writ petitioner submitted that in case the petitioner is reinstated in service, he is ready to forego his claim of entire wages right from the date of his termination till the date of judgment/order. He drew the attention of this Court towards paragraph 3 of the affidavit of the petitioner in this regard, which says that the petitioner is running 52 years and is going to be 53 in the month of May 2015. Since 2006, the petitioner is unable to find any gainful employment for himself and, hence, he alongwith his family consisting of his wife, marriageable daughters and a son, are in penury. Since 2006, the petitioner is unable to find any gainful employment for himself and, hence, he alongwith his family consisting of his wife, marriageable daughters and a son, are in penury. It is also stated in paragraph 3 of the affidavit of the petitioner that the deponent is ready to forego his claim of entire wages right from the date of his termination till the date of judgment. 13. This Court doesn’t find any infirmity in the orders which are subject matter of challenge in this writ petition. The petitioner has no case on merits. However, it appears that the punishment awarded to the petitioner is disproportionate and is not commensurate to his guilt. 14. The question as to whether this Court should direct 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, is answered by a Three-Judge Bench of Hon’ble Apex Court in B.C. Chaturvedi vs Union of India, (1995) 6 SCC 749 , laid down as under:- “A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court / Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. 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.” [Emphasis supplied] 15. Hon’ble Apex Court in U.P. State Road Transport Corporation and others vs Mahesh Kumar Mishra and others, AIR 2000 SC 1151 , observed as under: “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. Hon’ble Apex Court in U.P. State Road Transport Corporation and others vs Mahesh Kumar Mishra and others, AIR 2000 SC 1151 , observed as under: “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. Another Three-Judge Bench of this Court in Colour-Chem Ltd. v. A. L. Alaspurkar, (1998) 3 SCC 192 , 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. As pointed out earlier, the order of the High Court though extremely brief, must have been based on overall consideration of the facts of the case and it must have exercised its jurisdiction only when it was shocked to notice that though all the passengers had been issued tickets, the only dispute was with regard to the point at which they had boarded the Bus from which the punishment of dismissal from service was highly disproportionate. ……………………………………………………. Under these circumstances, we do not agree with the contention of the counsel for the appellants, that the High Court should not have interfered with the quantum of punishment inflicted upon the respondent…………” 16. It will be appropriate to reproduce the following observations made by Hon’ble Apex Court in Ranjit Thakur vs Union of India and others AIR 1987 SC 2386 . Relevant extract of said judgment is reproduced here under: “Re : contention (d) : 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. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. 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 Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 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 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…………….”. In Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454 (at p 460) this Court held : “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution.” The point to note and emphasise is that all powers have legal limits. 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.” 17. Reverting back to facts of the instance case, the misconduct, which has been proved against the petitioner, is that on the relevant day, the petitioner while posted as a subordinate to the complainant Sub Inspector twisted his arm, grounded him and assaulted/used criminal force upon his superior officer. It cannot be allowed to remain uncorrected in judicial review.” 17. Reverting back to facts of the instance case, the misconduct, which has been proved against the petitioner, is that on the relevant day, the petitioner while posted as a subordinate to the complainant Sub Inspector twisted his arm, grounded him and assaulted/used criminal force upon his superior officer. As has been stated earlier, the quality of discipline in the Forces/Para Military Forces should be of highest degree and, therefore, the misconduct as established against the petitioner is highly condemnable, but at the same time, one should not lose sight of the fact that dismissal or removal from service is not the only punishment to curve such tendency / instances of indiscipline. 18. The following are the major penalties, apart from minor penalties, which could be imposed on an enrolled member of the Force, namely: - Major penalties :- (i) dismissal from service which shall ordinarily be a disqualification for future employment under the Government; (ii) removal from service which shall not be a disqualification for future employment under the Government; (iii) compulsory retirement; (iv) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced with or without further directions regarding conditions of restoration to the grade or post or service from which enrolled members of the Force was reduced and his seniority and pay on such restoration to that grade, post or service; (v) save as provided for in clause (viii) below, reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the enrolled member will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will have the effect of postponing the future increments of his pay. 19. Had the dismissal from service or removal from service been the only penalty to be imposed upon an enrolled member of the Force, the Parliament, in its wisdom, would have restricted itself only to the dismissal and removal, and would not have provided for compulsory retirement, reduction to a lower time scale of pay etc. 19. Had the dismissal from service or removal from service been the only penalty to be imposed upon an enrolled member of the Force, the Parliament, in its wisdom, would have restricted itself only to the dismissal and removal, and would not have provided for compulsory retirement, reduction to a lower time scale of pay etc. In other words, the disciplinary / appellate authority or the Courts are required to see as to which of the penalty would be befitting to the delinquent in the given circumstances of the case. For example, if it is a case of corruption, criminal breach of trust, culpable homicide, rape or other serious office, the one and only punishment, in departmental enquiry, would be, ordinarily, dismissal from service, unless there are some mitigating circumstances, and in that case, the delinquent would be removed from service. The punishment awarded in the instant case is, strikingly disproportionate, if not shockingly disproportionate, although the Court has no sympathy for such people. 20. It is submitted by learned counsel for the writ petitioner that the petitioner got the first promotional pay scale in the year 1996 and the second one in the year 2006. This Court, therefore, thinks it proper that a punishment of permanent reduction to the lowest time scale of pay {(see major penalties (iv)} will serve the interest of justice in the instant case. 21. The writ petition is, accordingly, disposed of by modifying the impugned order dated 17.02.2006, passed by respondent no. 3, to the extent that instead of punishment of dismissal from service, the petitioner shall be awarded punishment of permanent reduction to the lowest time scale of pay. The authorities concerned are directed to reinstate the petitioner in service forthwith after imposing the punishment as is modified by this Court as above. It is, however, made absolutely clear that the petitioner shall not be entitled to any back wages. No order as to costs.