Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 597 (JK)

Mohammad Amin Wani v. Union of India

2022-10-29

WASIM SADIQ NARGAL

body2022
JUDGMENT BRIEF FACTS: 1. The present petition has been preferred by the petitioner, whereby, the petitioner has sought quashment of the order impugned dated 15th June 2009 issued by respondent No. 4 to the extent the petitioner came to be dismissed from service of the respondent department besides seeking a writ in the nature of Mandamus directing the respondents to reinstate the petitioner and thereafter to allow him to perform his duties, as such. Besides, the petitioner is also seeking a writ in the nature of Mandamus directing the respondents to release the withheld wages/salary of the petitioner for the period he remained out of service on the strength of the impugned order dated 15th June 2009 which is subject matter of the present writ petition. 2. Before adverting to the grounds of challenge, it would be apt to give a brief factual background of the case. 3. The petitioner came to be appointed as constable and soon after his appointment, the petitioner joined the Department and started discharging his duties as such. It has been demonstrated by the petitioner that due to his alleged misconduct and misbehavior which has been wrongly attributed to the petitioner and led to his illegal dismissal of his service vide order impugned. It is a specific stand of the petitioner that he along with his company came to be deployed on 22nd May 2007 at Sultanpur, Uttar Pradesh with the State Assembly elections. It has been further averred in the petition that the petitioner along with his company reached the college where examination of the student was going on at that relevant point of time and the petitioner along with his colleagues were directed to remain outside the college till the examination is over. It has been alleged against the petitioner that some of his colleague took their luggage from the vehicle and headed towards the college where the accommodation facility was put in place for the company. On witnessing the aforesaid accident, the Assistant Commandant directed the company members not to enter inside the college and directed Hawaldar Major namely Prem Lal Sharma to follow on the entire company and thereafter the said Assistant Commandant started using very filthy, abusive derogatory language against the members of the company who were made to stand for almost 45 minutes under the scorching sun as a major punishment. 4. 4. It is specific stand of the petitioner that on 22nd May 2007, the petitioner was not feeling well on account of injuries sustained by him in his foot and owing to the said injury, the concerned company Hawaldar Major had deputed the petitioner for mess work as the petitioner was not able to perform his regular duties because of the aforesaid injury. Since the petitioner remained oblivious and unaware of the incident which occurred on 22nd May 2007, where the said Assistant Commandant had used filthy and abusive language against the members. In pursuance of the aforesaid accident, the departmental enquiry came to be set up against the petitioner along-with all three constables and one Surinder Kumar came to be appointed as an enquiry officer. 5. It is specific stand of the petitioner that the departmental enquiry came to be initiated and completed and accordingly, the enquiry report dated 23rd August 2007 came to be submitted, a perusal whereof, reveals that there was serious flaws in the said departmental proceedings and as a consequence of which, respondent No. 5 (Commandant 84th Battalion) vide order dated 17th October 2007 rejected the departmental proceedings and vide order dated 14th November 2007 ordered another fresh departmental enquiry which was to be initiated against the petitioner and other three constables under Rule 27 of the Central Reserve Police Force Rules 1955 vis-àvis the allegations leveled against them. 6. It is specific stand of the petitioner that the respondent No. 5 after analyzing the entire record and the enquiry report came to a incorrigible conclusion and found in disagreement with the recommendation of the enquiry officer by observing that the allegations leveled against the petitioner are not proved beyond reasonable doubt and the only evidence which was against the petitioner was circumstantial in nature and keeping in view all the facts and circumstances in its entirety inflicted the punishment of confinement to Quarter Guard for 28 days w.e.f. 5th June 2008 to 2nd July 2008 without salary and allowances. It is specific stand of the petitioner that although he was innocent and was not involved at all in the aforementioned incident dated 22nd May 2007, yet as a mark of respect and obedience to the superior officers, the petitioner underwent the aforesaid punishment awarded by respondent No. 5. 7. It is specific stand of the petitioner that although he was innocent and was not involved at all in the aforementioned incident dated 22nd May 2007, yet as a mark of respect and obedience to the superior officers, the petitioner underwent the aforesaid punishment awarded by respondent No. 5. 7. Further stand of the petitioner that the departmental enquiry came to be initiated against the petitioner under Section 11(1) of the Central Reserve Police Force Act, 1949 which provides for minor punishment, but surprisingly the petitioner was inflicted the major punishment of dismissal of service vide order impugned purportedly issued under Rule 29(d) of CRPF Rules, 1955. 8. It is specific stand of the petitioner that against the order dated 15th June 2009 passed by respondent No. 5, the appeals came to be filed by other two constables namely Kamaljit Singh and Satish Kumar, but the petitioner did not chose to file any appeal against the said order and as a mark of respect and obedience underwent the punishment of confinement to Quarter Guard for 28 days without pay and allowances as awarded by respondent No. 5. 9. It is specific case of the petitioner that respondent No. 4 (DIG, CRPF) got infuriated by the appeals filed by other two constables and with hostile attitude awarded the most extreme punishment of dismissal from service against the petitioner and other three constables in most illegal, arbitrary and vicious manner. 10. Feeling aggrieved of the arbitrary and capricious exercise of powers by respondent No. 4 in issuing the order impugned dated 15th June 2009, the petitioner has filed the present writ petition challenging the aforesaid order on the following grounds:- 1. Respondents being the instrumentality of the state ought to have acted in a just, fair and reasonable manner. The impugned order is in gross violation of the petitioner's constitutional and statutory rights and is therefore, illegal, unwarranted, irrational and has led to grave miscarriage of justice. 2. That the respondent was obliged to obey and uphold the mandate of Rule 29(d) of CRPF Rules, 1999 in letter and spirit. There was no proof against the petitioner, also, no witness deposed against him. Therefore, the punishment should not have been enhanced by the respondent. 3. 2. That the respondent was obliged to obey and uphold the mandate of Rule 29(d) of CRPF Rules, 1999 in letter and spirit. There was no proof against the petitioner, also, no witness deposed against him. Therefore, the punishment should not have been enhanced by the respondent. 3. Though the awarding of punishment is the domain of the employer, but in judicial review the writ court can interfere with punishment which is shockingly disproportionate to gravity of proved misconduct. 4. Initial proceedings were initiated under sec 11(1) of the CRPF Act, and the petitioner was charge sheeted thereunder, which provides for minor punishments. The petitioner, however, has been inflicted with a major punishment. The petitioner was allowed to defend against minor punishment only. 5. The petitioner mainly contends that he had sustained some leg injury because of which he was excused from his work and was asked to work as a mess worker and at the time of the incident he wasn't present at the site and was held liable merely on the basis of circumstantial evidence. 6. Since the petitioner was holding the post of Constable being a substantive employee which gives right to hold post till he attains the age superannuation and his services by no stretch of imagination can be terminated except by way of punishment for misconduct, negligence, inefficiency or any disqualification and appropriate proceedings are taken under relevant provisions of CRPF Act, 1949 read with CRPF Rules 1955 and Article 311(2) of the Constitution of India and in the present case, the arbitrary act of the respondents removing/discharging the petitioner from service by virtue of order impugned has resulted in infliction of major punishment without following the mandate of law. 11. The petitioner has also contended that the impugned order is actuated by malafides and outcome of ill will by the respondents just to achieve some collateral and /motive resulting into great hardship, harassment and embarrassment to the petitioner infringing thereby with impunity the fundamental rights guaranteed to the petitioner under Article 14 and 16 of the Constitution. 12. Per contra, the stand of the respondents is as under:- 1. 12. Per contra, the stand of the respondents is as under:- 1. That the petitioner along with three others misbehaved and manhandled their Assistant Commanded for which a departmental enquiry was held and charge levelled against the petitioner being proved, awarded the punishment of 28 days confinement to Quarter Guard and for the other three were awarded punishment of stopping of increment for three years with cumulative effect. 2. The respondent vide its letter issued a show cause notice to all four charged officials for enhancement of punishment to dismissal from service. The reply filed by the petitioner was forwarded to respondent No. 4. 3. After thorough examination, it was found that the charges levelled against the petitioner and others stand proved beyond doubt, the punishment awarded did not commensurate with the gravity of offence, under rule 29(d) of CRPF Rules 1955 and therefore the punishment was enhanced to penalty of dismissal from service. 4. That the Assistant Commandant in his statement had stated that the petitioner and three others used criminal force and assaulted on him. 5. In response to the plea taken up by the petitioner that he didn't have knowledge of Hindi language, however, one of the colleagues wrote the reply in Hindi for the petitioner and explained him the contents of the same and the said reply came to be written at the instructions of the petitioner. Also, at the inception of the enquiry, he was asked in which language you want the enquiry, in reply, the petitioner asked the officer to conduct in Hindi language. therefore, the plea is not sustainable 6. The claim of the petitioner that he was innocent is not supported by any material evidence. 7. The respondent no. 4 under the provisions of Rule 29(d) of CRPF Rules 1955 is empowered to enhance punishment at its discretion while passing the order on a revision petition. LEGAL ANALYSIS. 13. I have heard learned counsel for the parties and perused the record. 14. It is a rarest of rare case where on the basis of the enquiry report and based on circumstantial evidence, the petitioner was found guilty of indirect involvement in the incident and as a consequence of which the disciplinary authority has imposed punishment of 28 days confinement in Quarter Guard which the petitioner had underwent being a subordinate officer and did not chose to file any appeal. After having undergone the aforesaid punishment for the alleged offence which was attributable to the petitioner, the concerned DIG without conducting any further enquiry or basis or following the principle of natural justice enhanced the punishment from 28 days to dismissal from service by resorting to the provisions of Rule 29 (d) of CRPF Rules. When the present case was being heard, learned counsel appearing on behalf of respondents was directed to disclose the reason and the evidence for enhancement of the punishment from Quarter Guard confinement to dismissal and the learned ASGI fairly conceded that there no evidence to show the enhancement of the punishment and even the concerned law officer appearing on behalf of the Union of India fairly conceded in court to the aforesaid fact that the punishment imposed on the petitioner was disproportionate to the alleged offence. Besides, the petitioner by no stretch of imagination could be imposed the punishment of dismissal, more particularly, when he has already undergone the punishment of 28 days confinement in Quarter Guard and imposing the punishment of dismissal for the same offence would tantamount to double jeopardy. For facility of reference, it would be apt to reproduce the following CRPF Act and CRPF Rules:- 28. Appeals-(a) Every Subordinate Officer or every officer of any other rank below him including an enrolled follower, against whom an order under serial numbers 1 to 4 of the Table in Rule 27 or under clauses (d) and (e) of section 13 is passed is entitled to prefer one appeal against such order to the Inspector General, if the original order was passed by the Deputy Inspector General and to the Deputy Inspector General if the original order was passed by the Commandant. (e) An appeal which is not filed within 30 days of the date of the original order, exclusive of the time taken to obtain a copy of the order or record, shall be barred by limitation. 29. Revision-(a) A member of the Force whose appeal has been rejected by a competent authority may prefer petition for revision to the next Superior Authority. The power of revision may be exercised only when in consequence of some material irregularity, there has been injustice or miscarriage of justice or fresh evidence is disclosed. (b) The procedure prescribed for appeals under sub-rules (c) to (g) of rule 28 shall apply mutatis mutandis to petition for revision. The power of revision may be exercised only when in consequence of some material irregularity, there has been injustice or miscarriage of justice or fresh evidence is disclosed. (b) The procedure prescribed for appeals under sub-rules (c) to (g) of rule 28 shall apply mutatis mutandis to petition for revision. (c) An appellate authority while passing orders on a revision petition may at its discretion enhance punishment: Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment should not be enhanced: Provided further than an order enhancing the punishment shall be treated as an original order for the purpose of appeal, except when such an order has been passed by the Govt. in which case no further appeal shall lie. Against such an order passed by the Deputy Inspector General appeal shall lie to the Inspector General and by the Inspector General to the Central Govt. (d) The Inspector General or the Deputy Inspector General may call for the records of awards of any punishment and confirm, enhance, modify or annul the same, or make or direct further investigation to be made before passing such orders: Provided that in a case in which it is proposed to enhance punishment, the accused shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced. 11. (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act award in lieu of or in addition to, suspension or dismissal any one or more of the following punishments to any member of the force whom he considered to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the force, that is to say:- (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowances; (c) confinement to quarters, lines or camp for a term not exceeding one month; (d) confinement in the quarter-guard for not more than twenty eight days with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the force. 15. 15. That the order impugned dated 15th June 2009 is illegal and arbitrary because the same has been passed ignoring the provisions of Section 11(1) of CRPF Act as the petitioner has been charge sheeted in the aforesaid provisions and the disciplinary proceedings were initiated against him by resorting to the provisions which provides for minor penalty, but the respondent No. 4 in flagrant violation of above said provision has imposed a major punishment of dismissal from service which is not sustainable in the eyes of law. 16. The moot question which arises for consideration in the present case is whether the authorities could impose the additional punishment by way of enhancement in exercise of the alleged power of review under Rule 29 (d) of the CRPF Rules when the sentence awarded stood executed. 17. From the order impugned, no valid reason has been recorded and the order impugned does not disclose any such reasons muchless a legal, plausible and valid reason justifying the enhancement. Even though, the power to suo-moto revise the punishment including enhancement has to be considered by the Inspector General or DIG in terms of Rule 29(d), however, such power by no stretch of imagination can be allowed to be exercised in an arbitrary manner as has been done in the present case. Such power in all fairness could be exercised before the sentence is awarded and executed and not after that. In the present facts and circumstances of the case, the petitioner has already undergone the punishment inflicted pursuant to the detailed enquiry of 28 days confinement to Quarter Guard for 28 days awarded by the Commandant, who was the competent authority and the petitioner had already undergone the punishment and thereafter, the decision to impose the major penalty by way of dismissal cannot sustain the test of law. 18. The imposition of the punishment of dismissal after undergoing the earlier punishment for the same offence amounts to imposing two punishment which comes within the mischief of double jeopardy. Article 20 of the Constitution of India provides certain protection in this regard. 18. The imposition of the punishment of dismissal after undergoing the earlier punishment for the same offence amounts to imposing two punishment which comes within the mischief of double jeopardy. Article 20 of the Constitution of India provides certain protection in this regard. For facility of reference, Article 20 of the Constitution of India is reproduced as under:- (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. 19. Clause 2 of Article 20 clearly prohibits two punishments for the same offence. In the present case, admittedly two punishments have been awarded to the petitioner for the same offence. Since the first punishment having been enforced and implemented, it was not permissible for the respondents to have imposed second punishment which is extreme punishment and falls within the realm of major punishment, when the petitioner had already undergone the first punishment. Thus, on this ground alone, the order impugned cannot sustain the test of law and is liable to be quashed/set-aside. 20. I am fortified by the view taken by the Punjab and Haryana High Court in case titled Mohd. Latief vs. Union of India & Ors. (2010) 2 SCT 85 decided on 20.11.2009. 21. The law has been settled at not in various authoritative pronouncements that the punishment for misconduct can be imposed strictly in consonance with the statutory rules and following the principles of natural justice and it cannot be an ipse-dixit of the enquiry officer. It goes without saying that the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charges framed against the delinquent stood proved against him. The enhancement of the punishment in the present case to dismissal by virtue of the order impugned is not supported by any material or cogent reasons and thus the punishment imposed is shocking and disproportionate to the gravity of the misconduct in the present case. The enhancement of the punishment in the present case to dismissal by virtue of the order impugned is not supported by any material or cogent reasons and thus the punishment imposed is shocking and disproportionate to the gravity of the misconduct in the present case. Admittedly, in the present case, by virtue of order dated 15th June 2009 passed by respondent No. 5 i.e., the disciplinary authority, no proof has been found against the petitioner regarding his involvement in the incident in pursuant to the detailed enquiry and yet the punishment of dismissal has been imposed by resorting to the powers under Section 29(d) of CRPF Rules by virtue of order impugned which is shockingly disproportionate to the alleged offence/misconduct of which, there is no proof. The respondent No. 4 in the present case has issued the order of dismissal against the petitioner on no evidence and, as such, the same cannot sustain the test of law and deserves to be set-aside and quashed. 22. Arbitrariness is an anathema to the principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus a statutory authority is not permitted to act whimsically/arbitrary and action of the statutory authority should be guided by the principles of reasonableness and fairness and the authority by no stretch of imagination can be permitted to abuse the law or to use it unfairly. Admittedly, in the present case, the statutory authority has exercised the power in an arbitrary manner which is shockingly disproportionate to the alleged offence/misconduct of which there is no proof and that too after the petitioner has undergone the first punishment imposed by the disciplinary authority. 23. The question of interference and 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 gravity of misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. 24. I am fortified by the judgment of the Supreme Court in case titled S.R. Tewari vs. Union of India & Anr. (2013) 2 SriLJ 88, (2013) 4 Supreme 457 decided on 28th May 2013 wherein the Hon'ble Supreme Court in para 18 has held as under:- 18. 24. I am fortified by the judgment of the Supreme Court in case titled S.R. Tewari vs. Union of India & Anr. (2013) 2 SriLJ 88, (2013) 4 Supreme 457 decided on 28th May 2013 wherein the Hon'ble Supreme Court in para 18 has held as under:- 18. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386 , this Court observed as under: '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 the 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. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.' 19. In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC 484 , this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot 'normally' substitute its own conclusion or penalty. However, if the penalty imposed by an authority 'shocks the conscience' of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. 20. In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417 , this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be 'shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards.' In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. 21. In State of Meghalaya & Ors. v. Mecken Singh N. Marak, AIR 2008 SC 2862 , this Court observed that a Court or a Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy. 22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy. 22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553 ; and Sanjay Kumar Singh v. Union of India & Ors. 23. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053 , this Court explained the observations made in Ranjit Thakur (supra) observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur (supra) are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. 24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or SWP No. 965/2010 Page 13 of 18 excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 25. The Hon'ble Supreme Court in case titled Union of India & Ors. vs. Giriraj Sharma (1994) AIR (SC) 215 decided on 17th March 1993, wherein the Hon'ble Supreme Court in para 2 has held:- 2. Mr. Jain the learned Counsel for the appellant Union of India contended that the interpretation placed on Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter called 'the Act') is not correct and it is on account of this erroneous understanding of the provision that the High Court quashed the order of dismissal. In support of his contention he invited our attention to a decision of the Rajasthan High Court reported in AIR 1965 Raj 140 . He also relied on certain other decisions but it is sufficient to state that according to him the learned Judges of the High Court had committed an error in interpreting the said Sub-section. In our opinion it is not necessary for us to construe Sub-section (1) of Section 11 of the Act in the backdrop of the facts of the present case. Assuming Mr. Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having over-stayed the period of leave by 12 days. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been contravened in the counter is harsh since the circumstances show that it was not his intention to willfully flout the order, but the circumstances force him to do so. In that view of the matter the learned Counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty. In that view of the matter the learned Counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty. If they so desired, but a major penalty of dismissal from service was not called for We agree with this submission. 26. The Hon'ble Supreme Court in case titled Bishan Singh & Ors. vs. State of Punjab and Another, AIR (SC) 2670 decided on 3rd August 1996 has held thus:- 4. It is true that the appellants are disciplined members of the police force. The grievance of inadequate accommodation provided to them is a legitimate grievance to be represented to the officer for its redressal. No doubt, prohibitory order was issued and there is violation thereof; however, the appellants marched peacefully to make their representation. Under these circumstances, it cannot be said that they have committed misconduct warranting extreme penalty of dismissal from service. Accordingly, the order of the High Court is set aside. However, the respondents are directed to impose penalty of stoppage of one increment without cumulative effect. 27. Generally the judicial review of the quantum of punishment is available with a very limited scope. It is only when the penalty imposed appears to be shocking disproportionate to the nature of misconduct that the courts would frown upon and in such cases, it has to be left to the disciplinary authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment. 28. Admittedly, in the present case, the punishment imposed is shockingly disproportionate to the nature of misconduct and accordingly it would be left to the disciplinary authority to take a decision afresh keeping in view all the facts and circumstances of the case as the decision to impose punishment in a particular case is essentially the domain of the departmental authorities. The court cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and the nature of penalty to be awarded as this function is exclusively within the jurisdiction of the competent authority. Since decision has already been taken by disciplinary authority and punishment of 28 days confinement to Quarter Guard without pay and allowances has already been undergone which is perfectly commensurate to the gratuity of alleged misconduct. Since decision has already been taken by disciplinary authority and punishment of 28 days confinement to Quarter Guard without pay and allowances has already been undergone which is perfectly commensurate to the gratuity of alleged misconduct. Imposition of penalty of dismissal subsequently, is highly disproportionate and shocks the conscious of the court. 29. I am fortified by the view taken by the Hon'ble Supreme Court in case titled Lucknow K. Gramin Bank vs. Rajendra Singh decided on 29th July 2013, the relevant paragraph is reproduced hereunder:- 13. As is clear from the above that the Judicial Review of the quantum of punishment is available with a very limited scope. It is only when the - penalty imposed appears to be shocking disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/Appellate Authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment. In the present case, however, we find that the High Court has, on the one hand directed the appellate authority to take a decision and in the same breath, snatched the discretion by directing the Appellate Authority to pass a particular order of punishment. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above. 16. This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above. 16. This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases. The principles discussed above can be summed up and summarized as follows: (a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. 30. Hon'ble Supreme Court on the same analogy has also enunciated the following principles in case titled B.C. Chaturvedi vs. Union of India & Ors., wherein the Hon'ble Supreme Court has under as under:- It 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. 31. The Division Bench of this Court in case titled Mahesh Narain Gupta vs. State of UP & Ors. (2011) 2 ILR 570 had also occasioned to deal with the same issue and had held as under:- At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice of charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis , will have to record a finding that those documents are sufficient enough to prove the charges. 32. In Mohammad Yunus Khan vs. State of Uttar Prradesh & Ors. (2010) 10 SCC 539 , wherein the Hon'ble Supreme Court has under as under:- We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. 33. The Hon'ble Supreme Court in a recent judgment titled M/s Indian Oil Corporation Ltd. vs. Shri Rajendra D. Harmalkar decided in April 2022 has held that unless and until punishment imposed by a disciplinary authority is shockingly disproportionate or there is procedural irregularity in the inquiry, the High Court would not be justified in interfering with such punishment [M/s Indian Oil Corporation Ltd v Shri Rajendra D Harmalkar]. In the instant case, there is no material evidence for enhancing the punishment of the petitioner. He was held liable merely on the basis of circumstantial evidence an ha also undergone a punishment for the same, therefore it is evident that the punishment of dismissal from service is disproportionate and the high court is justified in interfering with such punishment. CONCLUSION 34. He was held liable merely on the basis of circumstantial evidence an ha also undergone a punishment for the same, therefore it is evident that the punishment of dismissal from service is disproportionate and the high court is justified in interfering with such punishment. CONCLUSION 34. Thus in the light of what has been discussed hereinabove coupled with the settled legal position, I am of the view that: (1) The order impugned dated 15th June 2009 by virtue of which the petitioner came to be dismissed from service cannot sustain the test of law and is hereby quashed/set-aside as the same is shockingly disproportionate to the misconduct. (2) The order impugned is also quashed/set-aside for the reasons that the same has been passed in contravention of the provisions of Clause (2) of Article 20 of the Constitution of India as the petitioner has been punished for the same offence twice which falls within the realm of double jeopardy, since he has already undergone the punishment of confinement of Quarter Guard for 28 days with salary and allowances in pursuant to order of respondent No. 5 dated 15th June 2009 and after undergoing the aforesaid punishment, the petitioner has again been inflicted the punishment of dismissal from service for the same offence. (3) Further the respondents are directed to reinstate the petitioner and allow him to join the duties, as such. (4) Respondents are further directed to release the withheld wages/salary of the petitioner for the period he remained out of service owing to the above referred impugned order dated 15th June 2009, if he is not gainfully employed, elsewhere. (5) Further the respondents are directed to release all consequential benefits in favour of the petitioner in consequence of his reinstatement in the respondent department. 35. The writ petition as such is allowed.