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Judgment
Ashutosh J. Shastri, J
Present petitions under Article 226 of the Constitution of India are filed challenging the decision taken by the respondent authority and since the
facts are common, raising similar issue, at the request of learned advocates and with their consent, they are taken up for final disposal.
So far as Special Civil Application No.26442 of 2006 filed by Bachubhai Jivabhai Khokhariya is concerned, he was appointed as Armed Police
Constable in the police department on 21.11.1984 and after successful completion of training, was posted as Armed Constable initially at Police
Headquarters, District Sabarkantha at Himmatnagar. Throughout in the service career of the petitioner, no cause of action has arisen with regard to
his service and discharging the duties except the present one. So far as Special Civil Application No.26443 of 2006 filed by Shri Jashwantsinh Kaduji
Parmar is concerned, he was appointed as Armed Police Constable in the police department with effect from 1.3.1997 and in the same manner, after
successful completion of the training period, was posted as Armed Constable at Police Headquarter, District Sabarkantha at Himmatnagar. Here also,
the track record of the petitioner remained clean, except the present one.
Since both these petitions are arising out of the very same incident and both have been dealt with by the authority in the same manner, these
petitions have been clubbed together for its disposal and learned senior advocate Mr. B.B. Naik appearing with learned advocate Mr. Parthiv Bhatt
has led the hearing practically of both these petitions. Accordingly, we heard learned senior advocate Mr. B.B. Naik in Special Civil Application
No.26442 of 2006 and the submissions have been adopted by learned advocate Mr. M.B. Gohil appearing for the petitioner in Special Civil Application
No.26443 of 2006.
The case of the petitioners is that while they were serving in the year 2001 and were posted at Sabugar Petrol Pump on duty on 21/22.10.2001,
from 11.00 p.m. to 6.00 a.m., were strictly directed to guard the petrol pump, they were specifically assigned the duty to protect the petrol pump. On
that fateful day, one truck bearing registration No.GJ-12 U- 5716 was brought by driver Balaram Shankarji Mali from Kutch District near the said
petrol pump, where both the petitioners were discharging their duties. At about 3.45 a.m., the truck was parked near one godown, besides the petrol
pump. The driver and the cleaner were sleeping, at that time, some unknown persons came to the spot at about 4.15 a.m. and looted Rs.4000/- from
the pocket of the driver. Scuffle took place with those people with the driver and the cleaner. The cleaner screamed for help but, the miscreants after
injuring ran away from the spot and it is the case of department against the present petitioners that though there were cries for help, they did not go to
the place of the incident nor helped out and as such, have committed a breach of basic duty of a police officer and thereby, shown negligence in
performing the duty. The said incident in question was registered before Himmatnagar Town Police Station, being C.R. No.I-354 of 2001 for the
offences punishable under Sections 302, 394, 397, 326, 114 of Indian Penal Code read with Section 135 of the Bombay Police Act, since the cleaner
on account of the injuries succumbed to death in the hospital. So, here is a case in which, on one hand, these petitioners have been assigned the
specific duty to protect the petrol pump, whereas on the other hand, they were expected to protect and try to help the victims. This incident in question
has resulted into initiation of a departmental inquiry against the petitioners. They were served with the charge-sheet. Written explanation to the
charge-sheet also came to be given. Full-fledged departmental inquiry came to be conducted, in which the charges were denied by the petitioners.
Inquiry report was prepared on 2.1.2003 and then after full-fledged procedure, both these petitioners came to be dismissed from services by holding
them responsible for such breach of duty. After exhausting departmental appeal and the remedy provided under the Act and the Rules, these
petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for seeking the following reliefs:-
“(A) Your Lordships may be pleased to admit the present petition;
(B) Your Lordships may be pleased to issue a writ mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction
quashing and setting aside -
(i) the order dated 7.4.2003 passed by the respondent No.4 [Annexure “Fâ€] dismissing the petitioner from service;
(ii) the order dated 7th June 2003 passed by the respondent No.3 [Annexure “Gâ€] dismissing the appeal of the petitioner;
(iii) the dated 20th February 2006 passed by the respondent No.2 dismissing the revision application of the petitioner [Annexure “Hâ€]; and
(iv) the communication dated 11th July 2006 issued by the State Government [Annexure “Iâ€]
and further be pleased to direct the respondents- Authorities to reinstate the petitioner in service with all incidental and consequential benefits.
(C) Pending the hearing and final disposal of the petition, this Honourable Court may be pleased to stay and suspend the operation, implementation and
execution of
(v) the order dated 7.4.2003 passed by the respondent No.4 [Annexure “Fâ€] dismissing the petitioner from service;
(vi) the order dated 7th June 2003 passed by the respondent No.3 [Annexure “Gâ€] dismissing the appeal of the petitioner;
(vii) the dated 20th February 2006 passed by the respondent No.2 dismissing the revision application of the petitioner [Annexure “Hâ€]; and
(viii) the communication dated 11th July 2006 issued by the State Government [Annexure “Iâ€]
(D) An ex-parte ad-interim relief in terms of prayer (C) may kindly be granted.
(E) â€
Since, in substance, the reliefs are identical in nature from one of the petitions, the relief clause is mentioned of Special Civil Application No.26442 of
2006 hereinbefore.
Learned senior advocate Mr. B.B. Naik appearing on behalf of the petitioners has submitted that the petitioners cannot be held responsible for the
incident, which has not occurred on the spot at which the petitioners have been specifically assigned the duty. There cannot be a charge of breach of
duty or negligence in performing the duty since nothing had happened on the spot, i.e. the petrol pump, where the petitioners were assigned the duty.
No-doubt, generally the police officers are expected to protect the commission of crime, but here is a peculiar circumstance wherein these petitioners
have been given a directive by their superior authorities to protect the petrol pump with a specific assignment of duty. Written instructions in this
behalf were issued by the Additional Director General of Police, CID- Crime and the Railway, Gujarat State dated 19.2.1999 and 11.7.2000
respectively. These are the instructions issued by the higher authorities. So, if the petitioners could have gone at that place and something would have
been done at the place of their duty, they would have been held responsible for breach of duty and as such, under the circumstance, it is not open for
the authority to hold these petitioners guilty of the incident in question, which occurred not at the place of their discharge of duty.
Additionally, Mr. Naik has drawn the attention of this Court to Rule 38 contained in Chapter-I of the Bombay Police Manual Vol. II and has
canvassed the submission that these petitioners are not possible to be held responsible for an episode which took place somewhere else. Resultantly,
the order of dismissal based upon such incident is nothing but a clear example of arbitrary exercise of the powers, which smacks malafide. It has
further been contended that the incident in question, which took place at a place which is more than 500 meter away from the petrol pump and
therefore, it was not even permissible for the petitioners to leave the specific spot of duty and as such, having not appreciated this circumstance in its
true perspective, it appears that the authority has passed the order with non- application of mind.
Mr. Naik has further contended that even during the course of inquiry, none of the witnesses has substantiated the charge levelled against the
petitioners. On the contrary, the Manager of the petrol pump Mr. Vijaykumar Hasmukhbhai Darji, who was examined as Management Witness No.2,
in cross-examination, has clearly stated that the petitioner and his colleague were posted at the petrol pump to protect from robbery incidents. This
witness has further submitted that one of the police officers tried to move away to help out but there was no availability of either rickshaw or any
other transport vehicle. Yet another witness Shri Bhikhabhai Nakabhai Patel, who was examined as witness No.3, has also fortified the version of the
witness No.2 and as such, according to Mr. Naik, a bare look at these depositions would clearly indicate that there is hardly any negligence possible to
be attributed against the petitioners. During the course of inquiry, the issue of strict instruction from the superior authority not to leave the petrol pump
under any circumstance was clearly pressed into service. So, when that be so, how can a grievance be raised against the petitioners that they have
committed a fundamental breach of their duty. In fact, at a place where these petitioners have been placed for duty, no untoward incident had taken
place and they have vigilantly and scrupulously discharged their duty. The authority’s decision to dismiss the petitioners from service is absolutely
improper, unjust and arbitrary. As a result of this, the order of dismissal deserves to be set aside and consequently, all other decisions which have
taken place at the appellate as well as the revisional stage passed by the respective authorities also require to be quashed.
Mr. Naik has further submitted that even the findings arrived at are also not based upon cogent and convincing material and as such, the findings in
absence of any support from the material are perverse, based upon which, the order of dismissal requires to be set aside.
Mr. Naik has further submitted that there is a total non- application of mind, apart from the fact that no evidence is supporting the ultimate findings
of the authority but even the basic flaw is also not possible to be unnoticed. Here is a case in which the show cause notice, which was given on
10.2.2003 indicates the proposed penalty of removal from services, whereas the order which has been passed is an order of dismissal and as such,
apparently, there is a clear violation of not only the principles of natural justice but the order suffers from vice of non-application of mind. In any case,
according to Mr. Naik, the order of dismissal in the given situation cannot be said to be proportionate in any form and as such, the same deserves to be
corrected by quashing and setting aside the same. To substantiate and strengthen his submissions, Mr. Naik has relied upon the following decisions:-
(1) In the case of Kuldeep Singh Vs. Commissioner of Police and others reported in (1999)2 SCC 10 ;
(2) In the case of High Court of Judicature at Bombay, through its Registrar Vs. Shashikant S. Patil & Anr. reported in (2000)7 SLR 322;
(3) In the case of S.R. Tewari Vs. Union of India and Another reported in (2013)6 SCC 602;
(4) In the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and Another Vs. Rajendra Singh reported in
(2013)12 SCC 372;
(5) In the case of R. Mahalingam Vs. Chairman, Tamil Nadu Public Service Commission and Another reported in (2013)14 SCC 379;
(6) In the case of Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. And Another
reported in (2007)4 SCC 669.
By referring to this submission, learned senior advocate Mr. Naik has submitted that the order of dismissal cannot be said to be just and proper or
even proportionate. In this view of the matter, Mr. Naik has requested the Court to grant the reliefs as prayed from in these petitions.
As against this, learned Assistant Government Pleader Ms. Vrunda Shah appearing on behalf of the State authority has submitted that these
petitions are based upon concrete finding of facts and the basic expectation from the police officers is to protect the crime happening in front of them
and as such, the authority is thoroughly justified in dealing with the petitioners since they have miserably failed to prevent the crime from being
committed. Ms. Shah has further submitted that during the course of inquiry, both these petitioners have been given full-fledged opportunity. The
procedure contemplated under the relevant Rules has been clearly observed and after analyzing every material, the finding is arrived at and as such,
Ms. Shah has submitted that in a situation like this, it is not possible to substitute the findings by the writ Court in absence of any procedural lapse or
perversity. Hence, both the petitions lack merits, the same deserve to be dismissed. To substantiate her submissions, Ms. Shah has relied upon the
decision of the Apex Court in the case of Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya reported in (2017)1 SCC 76, 8and
has then contended that the scope of judicial review is very-very limited in case of departmental proceedings. Unless patent irregularity is reflected,
normally the trend is not to substitute the findings or penalty which has been inflicted upon by the competent authority. She has submitted there here is
a case in which there is neither any dispute with regard to competence of the authority who passed the order nor any procedural lapse is pointed out.
In that view of the matter, extraordinary mjurisdiction may not be exercised as this is not a fit case to undertake such exercise.
After submitting the aforesaid, learned Assistant Government Pleader Ms. Shah has left it to the discretion of the Court but has reiterated that the
petitions deserve to be dismissed.
Having heard learned advocates appearing for the parties and having gone through the material on record, few circumstances from the record of
the case are not possible to be unnoticed by this Court which are not disputed:-
(1) It is not in dispute that these petitioners were assigned the specific duty to protect the petrol pump and with a clear instruction not to leave the
place.
(2) There was a mandate in the form of written instructions issued by the Additional Director General of Police, CID-Crime and Railway, Gujarat
State dated 19.2.1999 and 11.7.2000 and these specific instructions by the higher authorities are to be scrupulously observed by the subordinate
officers, i.e. the petitioners herein.
(3) Further it is not disputed by the authority that these petitioners were strictly instructed by their superior officers that they should not leave the petrol
pump in any circumstance, which is clearly asserted and reflected on page 18 of the petitioner compilation in 2nd paragraph.
(4) It further appears to this Court that the show cause notice after completion of the departmental inquiry, was issued with respect to the proposed
penalty of removal, whereas the order, which has been passed against the petitioners, is that of dismissal. This circumstance is not disputed by learned
Assistant Government Pleader on instruction.
(5) It further appears that during the course of inquiry proceedings, the management witnesses, i.e. witness Nos.2 and 3, have not clearly stated which
can be said to be establishing charge against the petitioners and therefore, there appears to be a lack of evidence and the said material is not possible
to be branded as cogent enough to sustain this extreme penalty.
(6) Further, it appears that there is a consistent grievance that favourable material during the course of inquiry has not been submitted and there
appears to be no sufficient explanation in this regard.
In light of the aforesaid circumstances, which are prevailing on record, it appears to this Court apparently that the dismissal, which is practically an
economic death of both the petitioners, cannot be said to be a proportionate penalty. Dismissal of service appears to be an excessive penalty and not
proportionate to the charge levelled against the petitioners.
Additionally, the Court has also taken note of the undisputed fact that for more than around 17 years, these petitioners have sincerely discharged
their services and at no point of time, they were subjected to such kind of allegation or even subjected to any departmental proceedings. So, there is
sincere service track record of the petitioners of more than 17 years.
Further, it appears from the record that it is not possible to digest that none of the petitioners made an attempt to salvage the situation, as coming
out from the evidence at some stage that though efforts were made, but no vehicle was available and at that time, emergency van had already come
to the spot. Therefore, these circumstances which are reflecting from the record, are not sufficient enough to inflict this penalty of dismissal against
the petitioners in the considered opinion of this Court.
While coming to this conclusion, the Court also cannot un-notice some of the provisions of the Bombay Police Manual Volume-II, which has been
placed on record by learned counsel for the petitioners. Rule 38 of the Bombay Police Manual has prescribed the duty of the constables and one of
the duties is to obey the instructions of the superior authorities. Since this Rule is not possible to be unnoticed, the Court would like to reproduce the
same hereafter:-
“38. Duties of Constables.- (1) Constables will perform such Police duties as may be ordered by Head Constables and their superior officers to
perform for the prevention and detection of crime, the maintenance of order, the apprehension of offenders on the warrants of Magistrates when such
are required by the Criminal Procedure Code, or without them in cases in which the police may arrest without warrant. The serving of summonses or
other magisterial processes, the escorting and guarding of prisoners, treasure or private or public property of which they may be placed in charge and
the exercise generally of such powers as are conferred on Police Officers by the Bombay Police Act XXII of 1951.
(2) On the occurrence of any crime for which the Police may arrest without warrant, Constable should at once act without waiting for orders, if
necessary in concert with the village Police, and if on duty on a railway, with the railway officials, and should make an immediate report and where
practicable in writing, for the information of the nearest superior Police Officer.
(3) It will also be the duty of Constables, in cases of fire or on any other occasion of danger, to assist and take every precaution in their power to
secure the public safety.
(4) Routine patrol duty will not be carried out by Constables. A Constable is to be used for rambling round to pick up information by chance in villages.
When he is for any duty coming in the sphere of a beat man, his instructions must be specific, e.g.-
“To
Constable A. B.
You are hereby informed that ‘F’ was last heard of as being at village ‘X. Proceed there and report:-
(a) If it is still thee;
(b) if so, how he earns his livelihood, and
(c) if he is not there, where he has gone.â€
(Para 20 of I.G.’s Cir. No.41 dated 4th December. 1948)
(5) It is not the duty of Railway Police Constables to act as ticketnippers, to the prejudice of their legitimate duties of maintaining order, detecting
crime and protecting persons and property; nor is it the duty of a Police Constable, Railway or District, to recover at railway stations or elsewhere, on
behalf of the Railway administration, excess fare from passengers.
(G.R. J.D. No.438, dated 17th January 1902 and I.G.’s No.4621 dated 1 st April 1913)
Now, in the background of the aforesaid circumstances, if the order of dismissal is viewed, it appears that the same is preceded by the findings of
the Presiding Officer dated 2.1.2003. The analysis of the material which has been deduced in writing, reflecting on page 78 and 79 of the petition
compilation, is such which has not succinctly been accepted as it appears that some of the material instructions and the depositions have not been
properly appreciated. When the Court looks at the original order of dismissal dated 7.4.2003, which reflects non-application of mind inasmuch as after
narration of the gist of evidence, there appears to be no independent finding on the defense of these petitioners being assigned a specific duty spot.
These petitioners have discharged unblemished service career of 17 years and further none of the evidence is establishing cogently the dereliction of
duty of these petitioners. Written instructions of the superior authority in consonance with Rule 38 of the Bombay Police Manual does also not appear
to have been touched by the authority and additionally, when a show cause notice is perused, it reflects that same is issued for removal from services
and not for dismissal. As a result of this, even there was a readiness and willingness to assign any other punishment than dismissal. When that be so,
conjoint reading of this material attached to the petitions would lead to a situation where the order of dismissal is not possible to be treated as
proportionate looking to even the established guilt of the petitioners. Even the documents, five in numbers, which have been demanded appear to have
not been supplied, however its importance is not canvassed and therefore, conjoint reading of this process of inquiry as well as the order of penalty
suggests that this extreme penalty of dismissal cannot be said to be proportionate in any form. In the considered opinion of this Court, it is normal rule
that punishment must be commensurate with gravity of charge and as such also, keeping this view in mind, the order of dismissal appears to be not
sustainable in the eye of law.
Apart from that, even at the revisional stage as well as the appellate stage, no-doubt, the authorities have passed the orders but these orders are
also appear to be in the tune of the original order of dismissal as laconic and there appears to be no other independent application of mind or findings
and such orders are also not possible to be sustained in the eye of law since on the issue of proportionality of penalty, there appears to be no cogent
reasons. As a result of this, the overall view of the material indicates that hardly any case is made out by the State authority to oppose the petitions.
In the context of the aforesaid material, which is visible from the record, now the decisions which have been pressed into service by the respective
sides, deserve to be dealt with since both the sides have respectively placed the same on the record of the case.
(1) Learned senior counsel Mr. B.B. Naik has submitted few decisions. First one is in the case of Kuldeep Singh (supra); in which the concept of
reasonable opportunity during the course of departmental inquiry has been dealt with and further the finding of the Inquiry Officer was not supported
by adequate reasons. Here also, a grievance is raised by leaned counsel for the petitioners that no reasonable opportunity was given and material was
not produced and as such, to some extent, this judgment appears to be supporting the grievance of the petitioners.
(2) Yet another decision, which has been pressed into service, is the decision in the case of Shashikant S. Patil & Anr. (supra). The said decision is
also based on the fact that if there is a violation of principles of natural justice, or regulations have not been observed, the considerations arrived at got
vitiated. The main issue which cropped up for consideration before this Court is that an issue related to punishment, whether can be interfered with or
not and if proportionality of penalty is not commensurate with the gravity of charge and for that purpose, the decisions which have been relied upon
are in the case of R. Mahalingam (supra) and in the case of Coimbatore District Central Cooperative Bank (supra). While going through these
decisions, one thing is quite noticeable that if the punishment is found to be wholly disproportionate to the misconduct found or is shocking the
conscience of the Court, then there is no blanket proposition that despite this Court cannot look at the said issue, in the considered opinion of this,
judicial review is always possible to be pressed into service to determine as to whether the punishment is reasonable, fair and proportionate. The
doctrine of proportionality is quite vogue and as such, there cannot be any blanket proposition that the Court cannot look at imposition of penalty.
These judgments in the opinion of this Court are quite relevant to the rescue of the petitioners and as such, the background of this peculiar
circumstance is attracting the aforesaid proposition of law laid down by the Apex Court.
As discussed above, analysis of evidence, reasonability of the action, issuance of the show cause notice and comparison of evidence of the
witnesses would lead to a conclusion that the penalty of dismissal appears to be thoroughly disproportionate. The Court cannot overlook the specific
duty assigned to the petitioners by written mandate by the superior authority and cannot un-notice the fact that the incident in question has not
happened at the place where these petitioners were stationed for discharging their duty. Further, the Court is also apprised of the fact that these
petitioners have clean service track record, except the present episode, and therefore also, the Court is of the opinion that the proportionality of penalty
issue deserves to be re-looked by the Disciplinary Authority.
Now, as against this, learned Assistant Government Pleader has drawn the attention of this Court to a recent decision delivered by the Apex Court
in the case of Mahesh Dahiya (supra). But, the same is in a different factual scenario and the grievance reflected in the said decision is quite
uncommon to the background of the present facts and therefore, though in the respectful agreement with the said proposition of the Apex Court, the
background of the facts of the case on hand is not permitting the Court to apply the same as a straitjacket formula and as such, the aforesaid decision
is not possible to be applied to the case on hand.
Keeping in view the ultimate analysis and the observations made by the Apex Court in the decisions which have been relied upon, this Court is of
the confirmed opinion that the punishment of dismissal in a given set of circumstance on hand is thoroughly disproportionate and looking to the
attending circumstances, even if the Disciplinary Authority is inclined to impose penalty upon these petitioners, then also dismissal from service, which
is practically an economic death, is not a measure which can be taken by the respondent authority and as such, the basic order of penalty, i.e.
dismissal from service, deserves to be quashed and set aside and as a consequent thereof, consequential orders passed by the Appellate Authority as
well as the Revisional Authority are also required to be quashed and set aside.
This Court normally would have interfered with and quantified the punishment to the present petitioners, but in one of the decisions of the Apex
Court, i.e. in the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank and Anr. Vs. Rajenda Singh reported in AIR 2013 SC 354,0
a clear proposition is laid down that the quantum of punishment issue is normally to be left to the Disciplinary Authority and the Court cannot usurp the
jurisdiction of the Disciplinary Authority and as such, keeping in view the said proposition of law, this Court is of the opinion that the Disciplinary
Authority may consider the case of the petitioners in respect of the penalty and suitable, rational, reasonable and proportionate penalty may be
imposed, except removal or dismissal from service.
Since the Court has considered the said proposition of law, the relevant observations contained in para 12 and 13 of the said judgment in the case
of Lucknow K. Gramin Bank (supra) are reproduced hereinafter:-
“12. Indubitably, the well ingrained principle of law is that it is the Disciplinary Authority, or the Appellate Authority in appeal, which is to decide
the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee.
Courts cannot assume and usurp the function of the Disciplinary Authority. In the matter of Apparel Export Promotion Council v. A.K.Chopra,
reported in 1999 (1) SCC 759 : (AIR 1999 SC 625) this principle was explained in the following manner:
22 The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on
the respondent for his proven misconduct The High Court should not have substituted its own discretion for that the authority. What punishment was
required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent
authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the
High Court cannot be sustained on this ground alone
Yet again, in the case of State of Meghalaya and Ors. v. Mecken Singh N. Marak, reported in 2008 (7) SCC 580 : (AIR 2008 SC 286,2 t)his Court
reiterated the law by stating:
In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High
Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has
jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled
that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons
therefor.
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. In the impugned order of the High Court no reasons whatsoever have been indicated to why the punishment was considered
disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.
15and16 xxxxxxxxxxxxxxxx
Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the
disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case has
not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the
appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate
punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article
Judged in this background the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has
interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.
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.â€
As a result of this, the present petitions are allowed in part with following consequential directions which would meet the ends of justice:-
(1) The impugned orders dated 7.4.2003 passed by the respondent authority dismissing the petitioners from service as well as the order of the
Appellate Authority dated 7.6.2003 and also the order of the Revisional Authority dated 20.2.2006 are hereby quashed and set aside and consequently,
the respondent No.4 authority, which is stated to be the Disciplinary Authority, is directed to re-look to the penalty aspect and pass a proportionate
order, if deems it proper, except order of dismissal or removal from services against the petitioners.
(2) Since the Court has relegated the issue of penalty to the Disciplinary Authority for passing a fresh order in accordance with law and on the basis
of the principle of doctrine of proportionality, which penalty to be imposed upon is not expressed by this Court but, the Court expects the respondent
authority to apply its mind and consider the other attending circumstances to pass a fresh order.
(3) While taking such fresh decision in the decision making process, it is expected that reasonable opportunity afresh be given to the petitioners since
the issue of penalty to be dealt with by the authority afresh.
(4) Considering the fact that these petitions are of 2006 and the order of dismissal is of 2003, the respondent authority shall take a fresh decision in
accordance with law as early as possible within a period of THREE MONTHS from the receipt of the writ of this Court and shall pass a reasoned
order.
With the aforesaid observations, the petitions stand partly allowed with no order as to costs. Rule is made absolute to the aforesaid extent.