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2024 DIGILAW 401 (JHR)

Shyam Sundar Mahato v. Union of India

2024-04-15

ARUN KUMAR RAI, SUJIT NARAYAN PRASAD

body2024
JUDGMENT : I.A. No.1049 of 2023 1) Having heard the learned counsels for the parties and being satisfied with the grounds shown in the limitation petition, the delay of 12 days in filing the appeal is condoned. 2) Accordingly, I.A. No.1049 of 2023 stands allowed and disposed of. L.P.A. No. 42 of 2023 Prayer 3) This intra-court appeal is directed against the order dated 06.12.2022 passed by the learned Single Judge in W.P. (S) No. 660 of 2021, whereby and whereunder the writ petition has been dismissed by declining to interfere with the order dated 15.10.2019 passed by the Commandant-cum-Disciplinary Authority, whereby the Disciplinary Authority imposed punishment of reduction of pay by two stages from Rs.33,300/-to 31,400/-for a period of two years with a direction that during the period of reduction the appellant will not earn increment of pay and that on expiry of this period the reduction will have effect on postponing his future increment of pay. Further, the appellate order dated 19.01.2020 as also the revisional order dated 26.05.2020 has also been sought to be quashed by which the order dated 15.10.2019 passed by the Disciplinary Authority has been affirmed. Facts 4) The facts leading to initiation of the departmental proceeding and the impugned punishment are that the appellant while discharging his duties at BCCL Area No.6, Dhanbad on 19.07.2019 in the 2nd shift, he was provided with 7.62 M.M. SLR Butt No.382 with 100 round 7.62 M.M. (98 live and 02 blank round) and 05 magazine. 5) It is further evident that in course of the duty at 17:15 hours when some women and children came to steal coal, he drove them away from the coal dump and during the course of drive away, from the SLR of the appellant, one magazine with 18 live round and 02 blank round fell down somewhere in that area. The aforesaid fact came to his knowledge when the appellant physically checked his SLR. 6) He immediately informed the Shift In-charge, but considering the said lapses of the appellant, the departmental proceeding has been initiated by framing the regular charge of negligence in discharging the duties without any sincerity. 7) The appellant had appeared before the Enquiring Officer. He has availed the opportunity. The Enquiring Officer had found the charge proved. 6) He immediately informed the Shift In-charge, but considering the said lapses of the appellant, the departmental proceeding has been initiated by framing the regular charge of negligence in discharging the duties without any sincerity. 7) The appellant had appeared before the Enquiring Officer. He has availed the opportunity. The Enquiring Officer had found the charge proved. The enquiry report was referred before the Disciplinary Authority who on acceptance of the enquiry report has passed an order on 15.10.2019 whereby imposing punishment of reduction of pay by two stages from Rs.33,300/-to 31,400/-for a period of two years with a direction that during the period of reduction the appellant will not earn increment of pay and that on expiry of this period the reduction will have effect on postponing his future increment of pay. 8) The appellant against the said order preferred an appeal as also revision which were dismissed vide orders dated 19.01.2020 and 26.05.2020 respectively. 9) Being aggrieved by the said orders, the appellant preferred W.P. (S) No.660 of 2021, however, the learned Single Judge considering the nature of allegation has declined to interfere with the order of punishment by dismissing the writ petition. 10) Before the learned Single Judge, the issue of punishment said to be not in consonance with the charge was also raised, but even the same has not been found proper to be considered so as to interfere with the order of punishment on the ground of punishment being excessive. Submission of the learned counsel for the appellant 11) Mr. Saibal Mitra, learned counsel appearing for the appellant, has submitted in the course of the argument that he is only raising the sole propriety of the order whereby and whereunder the learned Single Judge has not interfered with the quantum of punishment. Submission of the learned counsel for the appellant 11) Mr. Saibal Mitra, learned counsel appearing for the appellant, has submitted in the course of the argument that he is only raising the sole propriety of the order whereby and whereunder the learned Single Judge has not interfered with the quantum of punishment. 12) The learned counsel has further submitted that the appellant has already put in 15 years of service which was unblemished and without any complaint from any quarter and whatever incidence took place based upon which the memorandum of charge has been issued, the same is the first occurrence and having no mala fide in this regard and he is the person who has been found about the said lapses committed on his part, hence, taking into consideration the said fact, it is a fit case where the interference ought to have been shown so far as quantum of punishment is concerned, since, the punishment which has been imposed is major in nature. Submission of the learned counsel for the respondents 13) While, on the other hand, Mr. Anil Kumar, learned A.S.G.I. appearing for the respondents, has defended the impugned order by referring the gravity of charge. It is further submitted that the appellant is a trained soldier of a force, but he was very negligent at that time and breached the stringent protocol for handling arms, resultantly, he lost the said ammunition. Thus, the punishment inflicted upon the appellant commensurate the gravity of charge and therefore, the appeal is fit to be dismissed. Analysis 14) This Court has heard the learned counsel appearing for the parties and gone across the finding recorded by the learned Single Judge in the impugned order. 15) This Court, at the outset, is to refer herein that the learned counsel appearing for the appellant has submitted that he is neither questioning the memorandum of charge nor the finding recorded by the Enquiring Officer is being questioned, since the order of punishment is only being questioned on the ground that the said punishment is excessive. 16) Before adverting into the aforesaid submission, this Court needs to refer herein the position of law under which the High Court in exercise of powers conferred under Article 226 of the Constitution of India is required to interfere with the order passed by the Administrative Authority on quantum of the punishment. 16) Before adverting into the aforesaid submission, this Court needs to refer herein the position of law under which the High Court in exercise of powers conferred under Article 226 of the Constitution of India is required to interfere with the order passed by the Administrative Authority on quantum of the punishment. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Supreme Court in the case of Union of India and Others Vs Managobinda Samantaray 2022 SCC OnLine SC 284. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under “9.---Quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters.6 In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate. 17) The law is also settled regarding the consideration to be given by the High Court under Article 226 of the Constitution of India regarding the proportionality of the punishment by taking into consideration the gravity of charge as per the ratio laid down by the Hon'ble Apex Court wherein it has been held that the interference in the order of punishment can be made if the conscience of the Court shocks that the punishment which has been imposed is highly disproportionate to the offence committed but while coming to such conclusion, it is incumbent upon the High Court to give a reason as to why the conscience of the Court has shocked. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Director General, RPF and Ors. Vs. Ch. Sai Babu, (2003) 4 SCC 331 wherein at paragraph-6 it has been observed that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer since the learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. Paragraph-6 of the said judgment is being reproduced as under: “6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works”. 18) It is evident from the aforesaid judgment that in order to show interference in the order of punishment passed by the Administrative Authority on quantum, the requirement by the Court is that such power can only be exercised if the conscience of the Court shocks. The said judgment also laid down the proposition that merely the conscience of the Court shocks, that cannot be said to be sufficient reason to interfere with the punishment on quantum, rather why the conscience of the Court shocks, the reason to be assigned. 19) This Court reverting back to the facts of the case needs to refer herein the memorandum of charge so as to come to the conclusion as to whether the punishment so imposed, which is major in nature as per the Conduct Rules applicable to the appellant, can be interfered with on the ground of the punishment said to be excessive in nature. The memorandum of charge needs to be referred to as under:- 20) It is evident from the memorandum of charge that the allegation against the appellant is that he has not performed his duties with utmost care and sincerity which led to missing of one magazine with 18 live round and 02 blank round which has finally been found by the local police and was handed over to the Company Commander Area No.6. The appellant had appeared before the Enquiring Officer and after getting an opportunity, the charge has been found to be proved. 21) The only defence taken by the appellant is the unblemished service career of 15 years has not been taken into consideration. The appellant had appeared before the Enquiring Officer and after getting an opportunity, the charge has been found to be proved. 21) The only defence taken by the appellant is the unblemished service career of 15 years has not been taken into consideration. It further needs to be refer herein that the appellant since is working as a member of a Disciplined Force from where high expectation is there to maintain the devotion and sincerity in discharge of duty. It is not denied by the appellant that he was not holding the SLR, which is a high technique weapon, but in course of getting hold of the coal traffickers, the magazine with 18 live round and 02 blank round has been found to be missing. However, he has reported the same to the concerned immediate controlling authority, but the same was not recovered and finally the same was found by the local police and subsequent thereto, was handed over to the Company Commander of Area No.6. 22) The question herein is that the appellant, who is the member of the disciplined force, but he has failed in showing devotion in not keeping the magazine with 18 live round and 02 blank round which was in his weapon i.e. SLR and in that pretext, the punishment of reduction of pay by two stages from Rs.33,300/-to 31,400/-for a period of two years with a direction that during the period of reduction the appellant will not earn increment of pay and that on expiry of this period the reduction will have effect on postponing his future increment of pay. 23) This Court in its purview based upon the proposition laid down by the Hon’ble Apex Court referred to hereinabove that it is not a case where any sympathy is to be shown to be interfere with the administrative order of the Disciplinary Authority by remitting the matter for reversal of the order of punishment, otherwise, the same will accelerate such type of lapses which will ultimately be detrimental not only for the disciplined forces but also the society, because herein the said magazine with 18 live round and 02 blank round have been found by the local police, but if it would have been found by unsocial elements, then the consequences cannot be judged. 24) This Court applying the principle laid down by the Hon’ble Apex Court in the case referred to hereinabove is of the view that if the learned Single Judge has also declined to interfere with the order of punishment so far as the quantum of punishment is concerned, the said according to considered view of this Court cannot be said to suffering from any error. Even otherwise also, the power of judicial review in interfering with the order of punishment passed by the administrative disciplinary authority is very least, however, the interference can be shown so far as quantum of punishment is concerned, if it is found to be excessive said to be not commensurate with the gravity of the charge. But the fact reflects herein that the present case is not coming under the parameter of the aforesaid consideration. 25) Accordingly, the impugned order needs no interference by this Court. Resultantly, this appeal is dismissed.