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Judgment
[1] THE petitioner has filed the present petition being aggrieved by the order dated 31.05.2016 passed by the Respondent No.3 by which his services has been terminated and order
dated 11.11.2016 by which the appellate authority has dismissed the appeal.
[2] The petitioner was appointed as a Constable in the Police Department on 17.06.2013. Thereafter he was send for Police Training Centre, Pachmadi Umariya. The petitioner was
arrested on 26.12.2014 in connection with the registration of a criminal case against him under Crime No.410/2014 at Police Station Mehgaon, District Bhind for the offences
punishable under Section 366, 376 and 34 of the IPC. After arrest he was sent to jail and released on bail on 11.02.2015. Accordingly he remained in jail from 28.12.2014 to
11.02.2015.
[3] On account of his involvement in the criminal case, by order dated 29.01.2015 he was placed under suspension. The petitioner tried by Sessions Court in Sessions Trial
No.65/2015. By order dated 04.06.2015 he has been acquitted from all charges. After the acquittal, the Superintendent of Police (Hq), Indore served him a charge-sheet dated
09.07.2015 on sole charge of unauthorized absent for 65 days. The petitioner submitted a detailed reply to the charge-sheet and being dis-satisfied with the reply, the Enquiry Officer
was appointed to conduct the enquiry.
[4] Vide order dated 07.08.2015 the Superintendent of Police (Hq), Indore has revoked the suspension due to acquittal in a criminal case. After conclusion of the Departmental
Enquiry, the Enquiry Officer has submitted the Enquiry Report. The petitioner was served with the Enquiry Report and he submitted objection to the same. By order dated
31.03.2016, the Superintendent of Police (Hq), Indore has passed the order of removal from service and the period of absence from 03.04.2014 to 06.04.2014 and 26.12.2014 to
16.02.2015 has been treated as “no work â€" no wagesâ€. Being aggrieved by the order of removal, the petitioner preferred an appeal. By order dated 31.05.2016 the appeal has
been dismissed. Thereafter he submitted a Mercy Appeal and that too has been rejected by order dated 11.11.2016. Hence, the present petition before this Court.
[5] After notice, the Respondents filed the return by submitting that the petitioner remained absent on 11.12.2013. Thereafter from 16.12.2013 to 26.01.2014 and again remained
absent on 03.04.2014; 07.11.2014 and 26.12.2014. He was arrested on 28.11.2014 and enlarged on 11.02.2015. Therefore, he remained absent for total 65 days without the permission
from the higher authorities. In short period of 3 years service, he was three times punished with the minor punishment and did not shown any improvement. Therefore, he has failed to
maintain the discipline under the Police Regulation. Hence, he has rightly been terminated.
[6] The facts of the case are not much in dispute. As per the charge-sheet, the petitioner remained absent 4 times on following dates :-
(1) From 11.12.2013 to 16.12.2013 â€" 4 days
(2) From 26.01.2014 to 28.01.2014 â€" 2 days
(3) From 03.04.2014 to 06.04.2014 â€" 4 days
(4) From 07.11.2014 to 09.11.2014 â€" 2 days
[7] Apart from the aforesaid period, he remained absent from 26.12.2014 to 16.02.2015. The petitioner gave explanation that he was arrested in a false criminal case and he remained in
the jail. He was enlarged on bail by the High Court of Madhya Pradesh in Misc. Criminal Case No.1206 of 2015 and immediately thereafter he reported for the duty. Later on by
judgment dated 04.06.2015 he has been acquitted from all the charges. Therefore, the petitioner was having valid justification of his absence for the period from 26.12.2014 to
16.02.2015. The Enquiry Officer has found the sole charge proved against the petitioner.
[8] The absence of the petitioner for major period is due to his arrest in a criminal case but in the said criminal case he has been acquitted. Apart from this he was found absent only for
4 days or 2 days etc. Therefore, the issue under consideration before this Court is whether the punishment of removal from service is proportionate to the misconduct committed by
the petitioner. It is settled law that the High Court under Article 226 of the Constitution of India can interfere with the punishment if it is shocking disproportionate to the proved
misconduct.
[9] The appellate authority also did not considere and simply accepted the order passed by the Disciplinary Authority. The DGP while passing the order dated 11.11.2016 in Mercy
Appeal has observed that in a short period of service, he was awarded thrice. Therefore, it is a fit case for interference as the punishment awarded to the petitioner is disproportionate
to the misconduct.
[10] The Apex Court in the case of Jai Bhagwan v/s Commissioner of Police [(2013) 11 SCC 187] has held as under :-
“11. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611, this Court held that the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on
an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision even as to the sentence is in defiance of logic, then the quantum of sentence would not
be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review. The following passage is apposite in this regard:
“25. …. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the
Court-Martial, if the decision even as to sentence is an in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity are
recognized grounds of judicial reviewâ€.
Similarly, in Dev Singh v. Punjab Tourism Development Corporation Limited, (2003) 8 SCC 9, this Court, following Ranjit Thakur’s case (supra) held:
“6. … a court sitting in an appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty. However, if the
punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court then the court would appropriately mould the relief either by directing
the disciplinary/ appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with
cogent reasons in support thereof. It is also clear from the above noted judgments of this court, if the punishment imposed by the disciplinary authority is totally disproportionate to
the misconduct proved against the delinquent officer, then the court would interfere in such a case.â€
Reference may also be made to the decisions of this Court in Union of India v. Ganayutham (1997) 7 SCC 463, Ex-Naik Sardar Singh v. Union of India (1991) 3 SCC 213 and Om
Kumar v. Union of India (2001) 2 SCC 386, which reiterate the same proposition.
Coming to the case at hand we are of the view that the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly
disproportionate. There is no allegation that the appellant had manhandled the police Inspector who had gone to check the cabin. Delay of 10 minutes in opening the cabin door, which
according to the appellant was open but had got stuck because of humidity leading to expansion of the wooden frame, was not a matter that ought to have led to the appellant’s
dismissal after he had served the police force for over 10 years. Even assuming that the version given by the appellant was not acceptable the same did not constitute a misconduct of a
kind that would justify the appellant’s dismissal from service leading to forfeiture of his past service. That the appellant was not in uniform may also be breach of discipline calling
for administrative action against him but not so severe as to throw him out of the police force. The analogy drawn by the appellant in this case and that of Ram Kishan’s case
(supra) is not, therefore, wholly misplaced. The delinquent in that case too was charged with misbehaviour with his superior leading to his dismissal from service which was found by
this Court to be disproportionate to the nature of misconduct calling for moderation.â€
[11] The Apex Court in the case of Krishna District Cooperative Central Bank Limited v/s K. Hanimantha Rao [(2017) 2 SCC 528] has held as under :-
“7.2. Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that Courts, while exercising their power of judicial
review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High
Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/ employer is wholly
disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes.
7.2.1. No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial
review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our
jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of Jharkhand & Ors. v. Kamal Prasad & Ors.[1]). It would
also be apt to extract the following observations in this behalf from the judgment of this Court in Deputy Commissioner, Kendriya Vidyalaya Sangthan & Ors. v. J. Hussain[2]:
“8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is
reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power
which vests with the appellate authority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed
to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [(2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101] . In exercise of power of
judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial
review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of
the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.
When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this
principle would be attracted, which is in tune with the doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER
680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of
the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E)
“...Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently
classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second
‘irrationality’ and the third ‘procedural impropriety’. This is not to say that further development on a case by case basis may not in course of time add further grounds. I
have in mind particularly the possible adoption in the future of the principle of ‘proportionality’.â€
An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] .
Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that “all powers have legal limits†invoked the aforesaid doctrine in the following words: (SCC p. 620, para
25)
“25...The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. 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 an 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. Irrationality and perversity are recognised grounds
of judicial review.â€
7.2.2. No such finding is arrived at by the High Court to the effect that the punishment awarded to respondent No.1 was shockingly disproportionate.
7.2.3. Even otherwise, we do not find it to be so having regard to the fact that respondent No.1 did not perform his duties with due diligence and his negligence in performing the duties
as a Supervisor has led to serious frauds in number of accounts by the subordinate staff. It was, therefore, for the disciplinary authority to consider as to whether respondent No.1 was
fit to continue in the post of Supervisor.
7.3. The impugned order is also faulted for the reason that it is not the function of the High Court to impose a particular punishment even in those cases where it was found that
penalty awarded by the employer is shockingly disproportionate. In such a case, the matter could, at the best, be remanded to the disciplinary authority for imposition of lesser
punishment leaving it to such authority to consider as to which lesser penalty needs to be inflicted upon the delinquent employee. No doubt, the administrative authority has to
exercise its powers reasonably. However, the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of
the public authority. The Court must strive to apply an objective standard which leaves to the deciding authority the full range of choice. In Lucknow Kshetriya Gramin Bank & Anr.
v. Rajendra Singh[3], this principle is formulated in the following manner:
“13. 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 Apparel Export Promotion Council v. A.K. Chopra [(1999) 1 SCC 759 : 1999 SCC (L&S) 405] this principle was explained in the following manner: (SCC p. 773, para
22)
“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 of 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.â€
Yet again, in State of Meghalaya v. Mecken Singh N. Marak [(2008) 7 SCC 580 : (2008) 2 SCC (L&S) 431], this Court reiterated the law by stating: (SCC pp. 584-85, paras 14
and 17)
“14. 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 as 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.
xx xx xx
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 226. 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.â€
[12] In view of the above, this petition is allowed. The impugned orders are hereby set-aside. The petitioner be reinstated into the service with 50% of back wages. It is open to the
authorities to impose the punishment other than compulsory retirement/termination/removal from service. The authorities are also directed to reconsider about the period of
suspension.
No order as to costs. Cc as per rules.