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2016 DIGILAW 192 (CAL)

Janak Raj Digra v. Union of India

2016-02-23

SANJIB BANERJEE

body2016
JUDGMENT : The object of the present exercise is to uphold the sanctity of the judicial process to give due effect to a judicial order which has attained finality. The petitioner was suspended on April 25, 2000 and disciplinary proceedings were initiated against him which culminated in an order of dismissal from service passed on December 6, 2001. Though the petitioner preferred an appeal from the order of punishment, he also challenged the disciplinary action on the ground of jurisdiction by way of a petition under Article 226 of the Constitution before this court. The domestic appeal was decided against the petitioner on December 3, 2002. The writ petition, WP 2081(W) of 2001, was disposed of on June 21, 2002 without interfering with the disciplinary action or the order of punishment. The appeal against such order was decided as late as in the year 2009. The appellate order of February 18, 2009 needs to be noticed in somewhat great detail in view of the unusual order proposed to be made herein. Though the petitioner’s domestic appeal against the order of punishment stood rejected by an order of December 3, 2002, the order passed by a Division Bench of this court on February 18, 2009 gave the petitioner a fresh opportunity to prefer an appeal from the order of punishment and the appellate authority was directed to consider such appeal by keeping in mind “the observations made by us in the judgment on the factual matrix and the authority must consider whether any lesser punishment could be inflicted upon him.” In view of the express observations in the appellate order of February 18, 2009, the extent to which the charges against the petitioner could be said to have been established had to be governed by the findings on facts rendered in such appellate order. Further, the punishment of dismissal from service could not be maintained and some lesser punishment could only have been inflicted on the petitioner. Notwithstanding the fact that there was no scope for any fresh domestic appeal against the order of punishment since the original appeal against the punishment order of December 6, 2001 stood rejected on December 3, 2002, in deference to the appellate court order of February 18, 2009, a fresh domestic appeal filed by the petitioner was entertained by the domestic appellate forum and decided on merits. In the respondents acting as aforesaid by not challenging the appellate court order of February 18, 2009, they are deemed to have accepted such appellate court order which can be seen to have attained finality on the matters decided therein. The fresh domestic appeal resulted in the order of punishment of December 6, 2001 being upheld all over again. In view of the appellate court order of February 18, 2009, the acceptance thereof by the respondents and the finality of the adjudication reflected therein, the order of punishment of December 6, 2001 could not have been affirmed by the domestic appellate forum in any manner or form. Such subsequent order of the domestic appellate forum of April 30, 2009 was assailed by way of a fresh petition before this court, WP 23363(W) of 2009. Such petition succeeded on August 12, 2015 with the following observation and the consequential directions: “The Division Bench of this Court refused to believe the case of the Disciplinary Authority that the guns were misappropriated. The charge levelled was of the guns being misplaced. The Division Bench had also recorded its anguish regarding the lapse of time elapsed for the disciplinary proceedings remaining pending and on that consideration had sent the petitioner to the Appellate Authority in stead of requiring the disciplinary proceedings to be held de novo. Once again the petitioner is before this Court. “In the facts and circumstances recorded above and on the submission made on behalf of the Union of India regarding the petitioner being directed to avail of the statutory remedy of review, this Court refrains from interfering but the Reviewing Authority must consider the observations made by the Division Bench as reproduced above in dealing with the review application of the petitioner to be made within a period of four weeks from date for it to be accepted.” Though there is no provision for review of an appellate order passed in disciplinary proceedings under the Border Security Force Act, 1968 or the Rules of 1969 framed under the Act, in consonance with the order of this court of August 12, 2015, the domestic appellate forum considered the matter afresh. However, such domestic appellate forum failed to appreciate the purport of the directions issued by the order of August 12, 2015 or the requirements of the appellate order of February 18, 2009. However, such domestic appellate forum failed to appreciate the purport of the directions issued by the order of August 12, 2015 or the requirements of the appellate order of February 18, 2009. The most recent domestic appellate decision of November 4, 2015 has been challenged by way of this petition. Upon the petition being received on January 20, 2016, the effect of the Division Bench order of February 18, 2009 was indicated in brief and the respondents were permitted to file their affidavit. A subsequent, more detailed order of February 15, 2016 indicated the nature of the order that could be passed while disposing of the present petition. The respondents have sought to justify the findings rendered in course of the domestic inquiry and the order of punishment of December 6, 2001 based on such findings. There is no doubt that the common theme in the several domestic appellate orders is that in the Border Security Force, which discharges para-military duties, a strict sense of discipline has to be inculcated. Ordinarily, in exercise of this extraordinary, supervisory jurisdiction under Article 226 of the Constitution, the writ court does not look into the findings rendered in course of any departmental action or the punishment awarded as an appellate body would; the judicial review exercised has more to do with the fairness of the procedure, the adherence to the principles of natural justice and the furnishing of adequate reasons in support of the findings and the punishment. It is very rarely that a writ court enters into matters of evidence while dealing with an order passed in disciplinary proceedings. The evidence is scarcely appraised or reappraised; and, if at all, never with a toothcomb. It is only when it is asserted that the findings are not based on any evidence at all or the findings are utterly at variance with the evidence on record, that the writ court may be excited to take an overview of the matter without delving into the nitty-gritty. In course of the appeal arising out of the first writ petition filed by the petitioner, the court went into the facts and a part of the evidence and disagreed with the findings rendered in course of the domestic inquiry. In course of the appeal arising out of the first writ petition filed by the petitioner, the court went into the facts and a part of the evidence and disagreed with the findings rendered in course of the domestic inquiry. As a consequence, the appellate order of February 18, 2009 required the domestic appellate forum to consider the petitioner’s appeal against the order of punishment in the light of the observations contained in the order of February 18, 2009. As to the punishment that could be awarded by the domestic appellate forum, the order of February 18, 2009, in a sense, mandated “any lesser punishment” to be awarded to the petitioner. Historically and as a matter of practice, a writ of mandamus or an order in the nature thereof is issued by a Constitutional court to direct an authority answering to that description under Article 12 of the Constitution to do a particular thing in a particular way. The writ court scarcely usurps the jurisdiction of the administrative authority to do the thing that ought to have been done by the administrative authority and merely guides the administrative authority to do what the writ court decides that ought to have been done. A final order passed on a petition under Article 226 of the Constitution may be executed by the equitable mode of filing for contempt for its non-compliance or by a second petition under Article 226 of the Constitution. Article 226 has to be seen to be a complete mechanism by itself and the entire repository of the manner in which complete relief may be claimed and afforded thereunder, irrespective of procedural bottlenecks. Ordinarily, a writ court would not do a thing that can be directed to be done by an executive functionary or an administrative authority. But if a direction or an order in the nature of a direction is not followed, there is no bar to the writ court invoking its inherent authority under Article 226 of the Constitution to do the exact thing that the administrative authority or executive functionary should have done in the first place. But if a direction or an order in the nature of a direction is not followed, there is no bar to the writ court invoking its inherent authority under Article 226 of the Constitution to do the exact thing that the administrative authority or executive functionary should have done in the first place. As in this case, it is evident that the appeal against the order of punishment of December 6, 2001 was directed to be considered in the light of a certain position as to facts and an indication was given as to the extent of the punishment that could be inflicted on the petitioner. The domestic appellate forum acted contrary to the order of the appellate court passed on February 18, 2009. The second writ petition was allowed to afford the domestic forum an opportunity to correct its mistake and be guided by the observations and the directions contained in the appellate court order of February 18, 2009. The domestic forum has either failed to understand what it was required to do or is adamant or obstinate in not doing what it has been asked to do by a Constitutional court. In such a situation, it is necessary that an appropriate order of punishment may now be passed in this extraordinary jurisdiction in tune with the appellate court order of February 18, 2009. Since the order of February 18, 2009 did not accept the findings rendered by the inquiry officer in respect of some of the charges levelled against the petitioner, the reduced extent of misconduct of the petitioner has to be taken into account in considering the punishment that the petitioner deserves. That there was an element dereliction or misconduct on the petitioner’s part is indisputable; but the contemporary trend of proportionality demands that only the just desserts be awarded. On the basis of the appellate order of February 18, 2009, it is only such punishment as recognised in Section 48 of the said Act of 1968 lower than a punishment of dismissal from service that can be awarded. Section 48(1) of the Act lists 12 measures of punishment. Dismissal ranks third. Imprisonment ranks fourth. The reduction to a lower rank in case of an under-officer ranks fifth. The forfeiture of seniority of rank comes next and the forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose follows thereafter. Section 48(1) of the Act lists 12 measures of punishment. Dismissal ranks third. Imprisonment ranks fourth. The reduction to a lower rank in case of an under-officer ranks fifth. The forfeiture of seniority of rank comes next and the forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose follows thereafter. If the petitioner had been in service, the petitioner would have reached the age of superannuation in December, 2015. Thus, a punishment of imprisonment can no longer be awarded. Since the petitioner was not an under-officer at the time of the order of punishment, the petitioner cannot be reduced in rank. There is no question of forfeiture of seniority of rank since there was no promotion of the petitioner after the date of the incident when the petitioner misconducted himself. In tune with the appellate court order of February 18, 2009, the punishment that can be awarded to the petitioner may, at the highest, be under Section 48(1)(g) of the Act: of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose. Thus, in view of the appellate court order of February 18, 2009 the order of punishment passed against the petitioner on December 6, 2001 is set aside and the punishment reduced to that under Section 48(1)(g) of the Act in a modified form. The related issue is whether the petitioner should be awarded the salary for the entire period at the level that the petitioner earned as at the date of the order of punishment. There is an element of discretion available, both to the disciplinary authority and to the higher strata of quasi-judicial or judicial authority while considering an order of punishment, as to the extent of back-wages or salary that may be made available to an employee upon the substitution of an order of dismissal or termination by a lesser punishment. In this case, it is found to be appropriate that the petitioner be allowed subsistence allowance at the prevailing rate for the period December 6, 2001 till the date of the petitioner’s superannuation in the usual course. The petitioner’s scale of pay will be pegged to the scale enjoyed by the petitioner immediately prior to the order of punishment of December 6, 2001 and his retiral and other benefits will be considered on such basis. The petitioner’s scale of pay will be pegged to the scale enjoyed by the petitioner immediately prior to the order of punishment of December 6, 2001 and his retiral and other benefits will be considered on such basis. It is hoped that the appropriate calculations as to the petitioner’s monetary entitlement as on date will be indicated to the petitioner within a period of six weeks from date and the amount disbursed in accordance with law no later than four weeks thereafter. WP 29974(W) of 2015 is allowed as above, but without any order as to costs.