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2015 DIGILAW 596 (ORI)

Dibakar Behera v. Union of India

2015-10-16

B.R.SARANGI

body2015
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who was working as a Constable under the Central Industrial Security Force (C.I.S.P.), has filed this application assailing the order dated 26.06.2009 passed by the Disciplinary Authority imposing on him major penalty of removal from service, vide Annexure-10 and confirmation thereof in appeal by the appellate authority vide order dated 22.09.2009, Annexure-11 and the revisional order dated 24.08.2010, vide Annexure-12. 2.The epitome of the facts is that the petitioner by following due process of selection was appointed as a Constable under the C.I.S.F. on 28.4.2003 under the Commandant, Central Industrial Security Force, Rourkela Steel Plant, Rourkela. After completion of the training, he was posted to Bankot Press M.P. on 1.3.2004 under Dewases district and thereafter, he was transferred to JNPT SHEVA, district-Rayagarh, Mumbai. On 18.6.2006 his duty was fixed at Central Gate out Morcha of the C.I.S.F. Unit in B.Shift (i.e. from 13.00 hrs. To 21.00 hrs.) and while he was discharging his duties at the Central Gate out Morcha at about 1900 hours, the Inspector/Exe. Came nearer to the Gate (out Morcha) and directed the petitioner to go out and when he went out, the Inspector Reddy entered into the Morcha and thereafter suddenly came out and went to the control room to his post and resumed his duties. Thereafter, the petitioner came. After 15 minutes, the Inspector S.L.Reddy again came to the out Morcha followed by Sub-Inspector, C.S. Negi and constable, namely, Bilash Patil. The Inspector S.L. Reddy showed some currency notes to the Sub-Inspecteor, C.S. Negi from his won hand and alleged that he got the said currency notes from the Morcha of the petitioner and went away. The Inspector directed the petitioner to hand-over his rifle to constable, S.K. Sharma and detained him in the control room and took his signature in a paper without giving him any scope to read the contents. On the allegation of receipt of illegal gratification, seizure list of currency notes amounting to Rs. 395/- was prepared by the Inspector S.L. Reddy though the same was never recovered from the custody of the petitioner. After preparing the said report about the illegal gratification, the Inspector S.L. Reddy submitted the same to opposite party no.4. On the allegation of receipt of illegal gratification, seizure list of currency notes amounting to Rs. 395/- was prepared by the Inspector S.L. Reddy though the same was never recovered from the custody of the petitioner. After preparing the said report about the illegal gratification, the Inspector S.L. Reddy submitted the same to opposite party no.4. On receipt of the same, opposite party no.4 issued show cause notice to the petitioner on 26.7.2008 directing him to file his reply to the allegations made against him on 18.7.2008 within ten days of receipt of the notice. The petitioner after receipt of the same made an application on 30.7.2008 requesting the opposite party no.4 to supply him certain documents so as to enable him to prepare his reply to the show cause. After receiving such application on 30.7.2008, the Deputy Commandant attached to the office of opposite party no.4 vide his letter No.2159 dated 4.8.2008 supplied the photo copies of the documents as prayed for by the petitioner and on receipt of such documents, the petitioner submitted his reply to the show cause denying the allegations made against him. Opposite party no.4 having not been satisfied with the show cause given by the petitioner, initiated departmental proceeding against the petitioner.During enquiry, the Inspector S.L.Reddy,Sub-Inspector/Exe. C.S. Negi and Constable, Bilash Patil were examined by the Enquiry Officer .As per the statement made by P.Ws.2 and 3 followed by the deposition of the petitioner, no allegation, as alleged in the charge, has been clearly proved because both P.Ws.2 and 3 have deposed that they have never seen the petitioner with the seized money amounting to Rs.395/- nor did they have seen the money lying under the waste sheet, rather both of them have seen the money in the hand of the Inspector S.L. Reddy, who had narrated them a story that he seized the same from underside of the waste sheet after having seen the petitioner hunting something. Though the petitioner has made sincere effort to prove him innocent, the Enquiry Officer submitted his report to opposite party no.4 on 1.11.2008 against the petitioner. By letter dated 18.11.12008 the Enquiry Officer supplied such enquiry report to the petitioner with a direction that if the petitioner has got any objection on the report, he may file the same within a period of 15 days of receipt of the letter. By letter dated 18.11.12008 the Enquiry Officer supplied such enquiry report to the petitioner with a direction that if the petitioner has got any objection on the report, he may file the same within a period of 15 days of receipt of the letter. On receipt of the letter from opposite party no.4 vide Annexure-6, the petitioner submitted his explanation stating therein that he is an innocent, duty abiding soldier, but he has been falsely entangled in the departmental proceeding and prayed to withdraw the charge by keeping in mind his nature as well as the future of his family. But the opposite party no.4 did not accept the plea of the petitioner and imposed the punishment of withholding of increment for a period of one year, which will have the effect of postponing his future increments vide order no.188 dated 17.1.2009 vide Annexure-7.The petitioner being a lower cadre employee, finding no other alternative, was compelled to accept the punishment. But all on a sudden, the opposite party no.3 issued an order on 28.5.2009 directing him to show cause within 15 days as to why he would not be imposed the penalty of removal from service instead of withholding of increment for the proven act of misconduct. The petitioner submitted his reply on 11.6.2009 stating, inter alia, that none of the witnesses except Inspector S.L. Reddy has seen the seizure of Rs.395/- from his custody so also he was never searched before the witnesses in connection with the said alleged amount of Rs.395/-. But he has been falsely implicated on the said charges and also prayed to exonerate him from the charge as the punishment imposed is very harsh. But without considering the same, opposite party no.3 passed the order on 26.6.2009 awarding major penalty of removal from service from the date of receipt of the order by confirming the proposed penalty as made in the show cause notice vide Annexure-8 and also by enhancing the proposed punishment suggested by the enquiry officer. Against the order of major penalty imposed by opposite party no.3, the petitioner preferred an appeal before opposite party no.2, who rejected the same on 26.2.2009 vide Annexure-11. Thereafter, the petitioner also preferred a revision, but the revisional authority without considering the facts in proper prospective, confirmed the order passed by the disciplinary authority as well as the appellate authority vide Annexure-12 dated 24.8.2010.Hence, this petition. 3.Mr. Thereafter, the petitioner also preferred a revision, but the revisional authority without considering the facts in proper prospective, confirmed the order passed by the disciplinary authority as well as the appellate authority vide Annexure-12 dated 24.8.2010.Hence, this petition. 3.Mr. P.K. Kar, learned counsel for the petitioner stated that the Enquiry Officer being the fact finding authority on consideration of the relevant materials placed before it when imposed penalty of stoppage of three increments, the disciplinary authority should not have enhanced the same to a major penalty like removal from service. He further submitted that the petitioner had no way out but to accept the punishment even though an amount of Rs.395/- has not been recovered form his custody and no eye witness is there in the said recovery save and except the Inspector S.L. Reddy. According to the learned counsel for the petitioner, the disciplinary authority without considering the fact in proper perspective enhanced the punishment to major penalty of removal from service, which has been made confirmed in appeal and revision, which is contrary to the provisions of law. To substantiate his contention, he has relied upon Navinchandra N. Majithia v. State of Maharashtra and others (2000) 7 SCC 640 , Om Kumar and others v. Union of India (2001) 2 SCC 386 , Dev Singh v. Punjab Tourism Development Corporation Ltd. and another, (2003) 8 SCC 9 , and Chandrama Bhusan Sarangi v. Union of India and others, 2011 (I) ILR CUT-398. 4.Mr. A.K. Bose, learned Assistant Solicitor General for the Union of India per contra stated that there is no procedural lapses in any manner while imposing the major penalty of removal from service against the petitioner and as such the proceeding has been conducted by following due procedure as envisaged under the C.I.S.F. Act, 1968 read with the C.I.S.F. Rules, 2001. He further submitted that the allegation made that the punishment is schockingly disproportionate to the charges levelled against the petitioner, the same has to be considered taking into the factual matrix of each case and no straight jacket formula can be formulated in such a condition. He further submitted that the allegation made that the punishment is schockingly disproportionate to the charges levelled against the petitioner, the same has to be considered taking into the factual matrix of each case and no straight jacket formula can be formulated in such a condition. He further submitted that since the petitioner was in possession of more than Rs.20/- when he was detailed in duty, recovery of Rs.395/- from his possession by the Inspector S.L. Reddy, the disciplinary authority is justified in imposing the major penalty of removal from service, which has been confirmed in appeal as well as in revision and therefore, this Court should not interfere with the impugned orders. 5.On the facts pleaded above, a preliminary question was put by this Court to the learned counsel for the petitioner as to whether there is any procedural lapse in conducting the disciplinary proceeding, who fairly states that there is no procedural lapse on the part of the authority in conducting the enquiry. He, therefore, confined his argument to the imposition of major penalty like removal from service, which is disproportionate to the charges levelled against the petitioner on the allegation of recovery of an amount of Rs.395/- by the Inspector though there was no eye witness to such occurrence. Therefore, he stated that the disciplinary authority without considering the facts in proper prospective enhanced the punishment from stoppage of three increments to a major penalty of removal from service, which has been confirmed by appellate authority as well as the revisional authority, which is absolutely disproportionate to the charges levelled against the petitioner. 6.Reliance is placed by the learned counsel for the petitioner Om Kumar and others (supra) wherein the apex Court has considered the well settled principle of “doctrine of proportionality”. By ‘proportionality’ the apex Court meant that the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. Under the principle, the Court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. The doctrine of proportionality, which has been followed in various countries, have taken note by the apex Court in the said judgment. 7.In Dev Singh (supra) the delinquent officer, who was working as Senior Assistant, was dismissed from service on the allegation of misplacement of file and the apex Court held that the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment, which is totally disproportionate to the misconduct alleged and the same certainly shock the Court’s judicial conscience. In the said judgment relying upon the judgment in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 , Bhagat Ram v. State of H.P., (1983) 2 SCC 442 and U.P.SRTC v. Mahesh Kumar (2000) 3 SCC 450 , the apex Court held that the petitioner having unblemished career of 20 years, imposition of maximum punishment of dismissal from service for mere misplacement of file without any ulterior motive, is too harsh and disproportionate to the misconduct alleged and the same shock the conscience of the apex Court. The apex Court therefore, having considered the basis on which the punishment of dismissal was imposed on the delinquent officer, in order to avoid the prolonged litigation modified the punishment to withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority and further directed that the officer will not be entitled to any back wages for the period of suspension, but he will be entitled to the subsistence allowance payable up to the date of dismissal order. 8.In Shri Bhagwan Lal Arya (supra), the apex Court held that ordinarily the Court would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. 8.In Shri Bhagwan Lal Arya (supra), the apex Court held that ordinarily the Court would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, it is deemed proper to set aside the punishment of removal from service and instead directed the appellant, Bhawanan Lal Arya to be reinstated in service subject to the condition that the period for which the petitioner was absent from duty and the period calculated up to the date on which he reported back to duty, shall not be counted as a period spent on duty and he shall not be entitled to any service benefits for the said period. 9.In Chandrama Bhusan Sarangi (Supra) this Court taking into consideration the "doctrine of proportionality" set aside the order of punishment imposed by the disciplinary authority as confirmed by the appellate authority and revisional authority and directed the authorities to reinstate the petitioner in the said case in service, with further direction that he would not be entitled to any back wages from the date of his removal till the reinstatement in service and that on reinstatement, the disciplinary authority shall consider imposition of any adequate minor punishment on him. 10.In Nirakar Sahoo v. Neelachal Gramya Bank and another, 2012 (II) ILR-CUT-632, this Court set aside the order of dismissal from service and directed for stoppage of three increments without cumulative effect and further directed that he will be entitled to 30% of the salary for the period he has not worked. 11.In Susanta Dalai v. Union India and others, 2015 (II) ILR-CUT-113, this Court has already held 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. It is further held that the Courts while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. It is further held that the Courts 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 Court, 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. It is a settled principles of law that scanning of evidence is beyond the purview of the writ Court unless the same is perverse. The High Court under Article 227 of the Constitution of India does not sit as an appellate authority. 12.In U.P. State Road Transport Corporation and others v. A.K. Parul, AIR 1999 SC 1552 , the apex Court in paragraph-3 held as follows:- “3,,,,.... This Court consistently has taken the view that while exercising judicial review the Courts shall not normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved. The interference with the punishment on the facts of this case cannot be sustained. In State Bank of India v. Samarendra Kishore Endow (1994) 2 SCC 537 : (1994) AIR SCW 1465), this Court held that imposition of proper punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226.” 13.In view of the decisions referred to above, there is no iota of doubt that while exercising power of judicial review under Article 226 of the Constitution, this Court shall not normally interfere with the punishment imposed by the authority nor shall interfere with the quantum of punishment imposed by the authority. It is within the domain of the authority to interfere with such quantum of punishment in a Court or tribunal. 14.The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited. It is within the domain of the authority to interfere with such quantum of punishment in a Court or tribunal. 14.The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited. This Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges proved. In such a case, the Court is to remit the matter back to the disciplinary authority for reconsideration of punishment. Of course in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. (see AIR 2007 SC 2954 ): You One Maharia-JV through You One Engineering and Construction Company Ltd. and another v. National Highways Authority of India). 15.The question of interference with the quantum of punishment has been considered by the Supreme Court in catena of judgments, and it was held that if the punishment awarded is disproportionate to the charge of misconduct, it would be arbitrary and thus, would violate the mandate of Article 14 of the Constitution (See. Bhagat Ram v State of Himachal Pradesh & others, AIR 1983 SC 454 , Ranjit Thakar v. Union of India and others, AIR SC 2386- (1987) 4 SCC 611 , Union of India and others v. Giriraj Sharma, AIR 1994 SC 215 , B.C. Chaturvedi v. Union of India and others, AIR 1996 SC 484 . 16.In the case of Ranjit Thakur (supra), the Apex Court observed as follows: “But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be 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 out ranges defiance of logic, then the sentence would not be immune from correction. 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 out ranges defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” 17.In the case of Union of India and others v. G. Ganayutham, AIR 1997 SC 3387 , the Supreme Court considered the entire law on the subject and observed :- “In such association, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi’s case that the Court might, to shorten litigation think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority.” 18.What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the direction of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive, or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court as well as the apex Court. Where punishment is excessive, or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court as well as the apex Court. This Court is Panchanath Samal v. Union of India, reported in 2015 (I) ILR-CTC-782-2015 (Supp-I) OLR, 1022 has considered the same in the above line. 19.Coming to the case in hand, the punishment of removal from service for the kind of misconduct proved against the petitioner appears to be grossly disproportionate. For recovery of the alleged currency note of Rs.395/- without any eye witness to the same, during the duty hour, removal from service is grossly disproportionate and shocking to the conscience. The petitioner being a young person and the entire family is depending upon him, imposition of major penalty like removal from service would disturb his entire family set-up, which would violates the right to livelihood as enshrined under Article 21 of the Constitution of India. In any case, for the allegation made against the petitioner, imposition of harsh punishment of removal from service being grossly disproportionate and shocks the conscience. Taking into consideration the totality of the circumstances, this Court is of the considered view that the punishment of removal from service should be substituted by an order for stoppage of three increments as proposed by the Enquiry Officer. 20.For the foregoing reasons, the impugned orders dated 26.06.2009, 22.09.2009 and 24.08.2010 in Annexures-10, 11 and 12 respectively are quashed. The order of punishment of removal from service be substituted by an order of stoppage of three increments, but the petitioner is not entitled to get any back wages for the period from the date of removal from service till the date of joining as he had not discharged his duty for the said period. 21.With the above observation and direction, the writ petition stands disposed of. Petition disposed of.