Chetan Singh vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—The petitioner aggrieved of the orders dated 24th October, 1997 and 2nd June, 1998; has instituted the present writ proceedings with a prayer to quash and set aside the impugned orders terminating his services.

Shorn off unnecessary details the skeletal material facts necessary for appreciation of the controversy raised herein are that while working as Constable, GRP Police, at Ajmer, the petitioner was served with a charge sheet for creating disturbance after having consumed liquor in the company of Ram Swaroop, Mool Chand and Dara Singh. It was further alleged that the petitioner along with Ram Swaroop, Mool Chand and Dara Singh gave beating to one Naiki Ram, Constable, while he was going to mark his attendance. On conclusion of the inquiry, the Inquiry Officer submitted his inquiry report with a finding in affirmative on the charges levelled against the petitioner holding him guilty. A copy of the inquiry report was furnished to the petitioner seeking his response by the Disciplinary Authority. The Disciplinary Authority on the basis of the findings arrived at by the Inquiry Officer, agreed with his conclusion that the petitioner was guilty of the charges levelled against him and consequently, inflicted the penalty of removal from service. Vide order dated 24th October, 1997, the Appellate Authority confirmed the penalty declining the appeal of the petitioner vide order dated 2nd June, 1998; of which the petitioner is aggrieved of.

Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, has vehemently argued that the penalty imposed is shockingly disproportionate to the alleged misconduct, which according to the State-respondents, was found to be proved. According to the learned counsel, the Disciplinary Authority has failed to record any reason while inflicting the penalty of removal that the misconduct, committed by the petitioner, was of such a grave nature, which called for an extreme punishment of the nature of removal from service. Therefore, the orders passed by the Disciplinary Authority as well as the Appellate Authority are required to be interfered with by this Court. In order to fortify his submissions, the learned counsel for the petitioner has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Union of India (UOI) and Another Vs. S.S. Ahluwalia, , Ramanuj Pandey Vs. The State of M.P. and Others, , Management of Coimbatore District Central Co-operative Bank Vs. Secretary, Coimbatore District Central Co-operative Bank Employees Association and Another, , Ram Autar Singh Vs. State Public Service Tribunal and Others, , and State of Uttar Pradesh and Others Vs. Ram Daras Yadav, .

In response to the notice of the writ application, the State-respondents filed their counter affidavit pleading that the petitioner while working as Constable, GRP Line, at Ajmer, committed a grave misconduct on 11th January, 1997. For, he consumed liquor and at about 8.00 p.m. along with one Dara Singh, Constable, way laid one Shri Naiki Ram, Constable, while he was going on roll-call, and abused him as well as gave beating to him. A criminal case was registered for offence under Sections 341 , 323 , 34 and 504 IPC against the petitioner and Dara Singh for the said incident. It is further pleaded that on the same day, the petitioner, under the influence of liquor also created nuisance in the recreation room of GRP Police Line. The petitioner was found habitual of consuming liquor and creating nuisance, which amounts to gross misconduct and indiscipline.

Learned counsel, Dr. A.S. Khangarot, Addl. G.C., appearing on behalf of the State-respondents, reiterating the stand in the counter affidavit, asserted that the charge sheet was served under Rule 16/18 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short ''the Rules of 1958''), and a joint inquiry was initiated against the petitioner and other co-delinquents. The Inquiry Officer after conducting the inquiry strictly in accordance with the procedure prescribed under the Rules of 1958, affording ample opportunity of hearing to the petitioner and other co-delinquents. While concluding the inquiry, the Inquiry Officer returned the finding of guilt on both the charges levelled against the petitioner.

The inquiry was conducted strictly in accordance with the procedure prescribed, affording fair and reasonable opportunity of hearing to the petitioner as well as co-delinquents. Further, the petitioner after having been served with the notice, during the course of inquiry proceedings, appeared and filed an application denying all the charges levelled against him and prayed for time to engage a Defence Assistant.

Referring to the inquiry report, learned counsel would further submit that even after repeated notice served on the petitioner, he did not participate in the inquiry proceedings thereafter for reasons best known to him. On 11th April, 1997, the petitioner was again called upon to participate in the inquiry proceedings, but he did not respond, and therefore, ex-parte proceedings were drawn and inquiry was concluded. A copy of the inquiry report was also furnished to the petitioner seeking his response, but he did not submit any reply. Thus, the inquiry proceedings, which have been conducted strictly in accordance with the procedure prescribed under the Rules of 1958, cannot be faulted. Furthermore, in the matters of departmental inquiry, the scope of judicial review is permissible only on the parameters as enunciated by the Hon''ble Supreme Court.

Learned counsel for the State-respondents urged that having regard to the nature of the misconduct committed by the petitioner, which was found proved after an inquiry conducted strictly in accordance with the procedure prescribed under the Rules of 1958 and the penalty as a consequence thereof; calls for no interference in exercise of writ jurisdiction under Article 226 of the Constitution unless the action was faulted for violation of Wednesbury Principle. Further, the penalty could be interfered with only if it was found outrageously and shockingly disproportionate. Reliance has been placed on the opinion of the Hon''ble Supreme Court in the case of Ex-Constable Ramvir Singh Vs. Union of India (UOI) and Others, , Charanjit Lamba Vs. Commanding Officer, Southern Command and Others, , and Deputy Commissioner, KVS and Others Vs. J. Hussain, .

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

From a glance of the inquiry report dated 27th May, 1997, it is evident that the petitioner was served with the notice to participate in the inquiry proceedings initiated under Rule 16/18 of the Rules of 1958. Despite service of the notice, the petitioner did not appear before the Inquiry Officer on 17/19th March, 1997. The petitioner was again served with a notice dated 21st April, 1997, to participate in the inquiry proceedings. However, the petitioner did appear before the Inquiry Officer in response to the notice dated 28th March, 1997, and submitted an application seeking time to arrange for his representation in the proceedings through a defence assistant. Thereafter, neither the petitioner appointed any Defence Assistant to participate in the inquiry proceedings on his behalf nor he participated in the inquiry proceedings and consequently, the inquiry was concluded ex-parte.

The Disciplinary Authority served a copy of the inquiry report on the petitioner calling for his response. No reply was filed to the inquiry report by the petitioner. On a consideration of the findings arrived at by the Inquiry Officer and on the basis of the evidence and materials available on record, the Disciplinary Authority imposed the penalty of removal from service vide order dated 24th October, 1997, which has been confirmed by the Appellate Authority declining the appeal of the petitioner vide order dated 2nd June, 1998. The inquiry proceedings were conducted strictly in accordance with the procedure prescribed under the Rules of 1958. The petitioner, after having participated once did not participate in the proceedings any further, in spite of the fact that he was served with the notice of the proceedings initiated against him.

There is no illegality in the decision making process, and therefore, the orders inflicting penalty cannot be faulted for any error or any illegality in decision making process in the backdrop of law declared by the Hon''ble Supreme Court applying the Wednesbury Principle.

In case of Coimbatore District Central Cooperative Bank (supra), the Hon''ble Supreme Court explaining the ''doctrine of proportionality'' observed that with the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts and one of such modes of exercising power, known to law is the ''doctrine of proportionality''. The Hon''ble Supreme Court observed thus:--

"17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived at in our legal system but has come to stay. With the rapid growth of Administrative Law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the ''doctrine of proportionality''.

''Proportionality'' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise - the elaboration of a rule of permissible priorities.

de Smith states that ''proportionality'' involves ''balancing test'' and ''necessity test''. Whereas the former (''balancing test'') permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (''necessity test'') requires infringement of human rights to the least restrictive alternative. [''Judicial Review of Administrative Action''(1995); pp. 601-605; para 13.085; see also Wade & Forsyth; ''Administrative Law''; (2005); p.366]."

In the case of S.S. Ahluwalia (supra), the Hon''ble Supreme Court opined that the scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings, is very limited and interference with the punishment is permissible, if the same is found to be ''shockingly disproportionate'' to the charges and the nature of misconduct proved.

In the case of Ram Daras Yadav (supra), which has been heavily relied upon by the learned counsel for the petitioner, dealing with the issue of proportionality of punishment with reference to a member of Police Force, wherein the delinquent was allegedly found involved in the acts of indiscipline. For, while in duty, he used abusive language against his companion and further, aimed a rifle threatening him to eliminate. In those facts, the Hon''ble Supreme Court taking note of the fact that discipline is the backbone of the police force and highest degree of discipline is imperative for the smooth functioning of a police force, interfered with the penalty of dismissal holding it to be clearly disproportionate. Instead of penalty of dismissal, three increments were ordered to be withheld and the respondent (Ram Daras Yadav) therein, was ordered to be reinstated with 50% back wages.

In the case of Ramanuj Pandey (supra), the Hon''ble Supreme Court again considered the issue of permissibility of judicial review where the punishment imposed was found to be excessive or disproportionate. On a survey of the earlier opinions of the Hon''ble Supreme Court held thus:--

"9. Admittedly, it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the Court is only secondary. But in view of the gravity of the misconduct, namely, the appellant having apprehended Laxmi Narain and registering him under Section 13 of the Lunacy Act, where the disciplinary authority held appellant guilty for detaining a public servant in police post without any reason and removed him from government services, the interference with the imposition of punishment is necessary.

In the present matter the appellant, while discharging his duties apprehended Laxmi Narain and registered him under Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of police department, but the same was also not grave enough to punish him with removal from services. The appellant as a head constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance."

In the case of Ex-Constable Ramvir Singh (supra), where the proportionality with the proved misconduct/misbehaviour was the issue, the Hon''ble Supreme Court relying upon the case of Union of India v. Datta Linga: (2005) 13 SCC 709, observed thus:--

"17. Yet again in Union of India and Ors. v. Datta Linga Toshatwad (2005 13 SCC 709, this Court opined:

"8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged."

From a glance of the judgment in the case of Ex-Constable Ramvir Singh (supra), it is evident that he refused to take meals in protest for penalty of removal from service on account of his failure to return to place of duty despite instructions being given to him. Thus, the facts of the case referred to and relied upon are entirely different and distinguishable from one at hand.

In the case of Charanjit Lamba (supra), while considering the issue of disproportionate penalty, the Hon''ble Supreme Court did not interfere with the penalty of dismissal in the matter of an Army Officer wherein the misconduct reflected upon his honesty and integrity i.e. for making false T.A. claim and not paying electricity bill, which is not case at hand.

In the case of J. Hussain (supra), the employee (J. Hussain) was charged for forceful entries into the Principal''s Office in fully drunken condition and he was beyond the control. The matter was reported to the Police, who took him into hospital for medical examination wherein consumption of alcohol by J. Hussain was confirmed by the Senior Medical & Health Officer. In the instant case at hand, the case is that the petitioner made good his escape from the place of incident, and therefore, he could not be subjected to any medical examination.

From the inquiry report, it is further reflected that but for Naiki Ram (PW3), who was allegedly given beating and one Arjun Ram (PW6) none other out of 12 witnesses, made any allegation of the incident of beating to Naiki Ram. According to other 10 witnesses, the incident is of consuming alcohol and use of foul language among themselves i.e. the petitioner and the co-delinquents. From the order of penalty imposed, it is further reflected that the Disciplinary Authority has taken into consideration earlier record of the petitioner and observed that the petitioner was habitual of consuming liquor and creating nuisance whereas neither this was a charge against the petitioner nor he was ever served with any notice of that kind and no material has been placed on record in support thereof.

The Hon''ble Supreme Court a number of cases observed that an employee is required to be given a reasonable opportunity of being heard in respect of charges against him. From the inquiry report and charges levelled against the petitioner, it is not in dispute that the petitioner was not furnished with any charge sheet for being ''habitual'' of consuming liquor and creating nuisance. Be that as it may, since the petitioner did not participate in the inquiry proceedings, I do not consider necessary to delve in that area.

Having considered the totality of the facts, circumstances and materials available on record, from where it is evident that the petitioner along with other co-delinquents is said to have consumed alcohol and he gave beating to one Naiki Ram while he was on his way for a roll-call. Considering the settled proposition of law that scope of judicial review is very limited and the interference is open only if the penalty inflected is found to be shockingly disproportionate. This Court is of the opinion that the penalty inflected by the State-respondents in the singular facts of the instant case at hand, is shockingly disproportionate to the nature of proved charges.

Consequently, the impugned order of inflecting penalty of removal from service dated 24th October, 1997 and confirmed by the Appellate Authority vide order dated 2nd June, 1998; are hereby quashed and set aside. The matter is remanded back to the Disciplinary Authority for reconsideration of the punishment less than the punishment of removal/dismissal from service. The exercise aforesaid shall be concluded by the Disciplinary Authority within a period of two months from the date of receipt of a certified copy of this order.

No costs.