Jokhi Ram vs Union of India

Debi Prosad Dey, J. - This writ application has been filed by the petitioner challenging the order dated June, 17, 2009 passed by the disciplinary authority, the order dated September, 29, 2009 passed by the Appellate authority and the final order dated June, 22, 2010 passed by the divisional authority whereby and where under the service of the petitioner has been terminated since the charges against the petitioner were proved and the petitioner was found guilty of such charges. The petitioner has further prayed for cancellation of such orders and for issuance of a writ for mandamus, commanding the respondents concerned and each one of them to re-instate the petitioner forthwith in the post of constable with all consequential benefits.

The specific charge, as has been set out in the article of charge against the petitioner, is that the petitioner abused his superiors in filthy languages under the influence of liquor and he also could not join his duties due to abnormal condition on account of intoxication and lastly since the date of his joining as a constable of Central Industrial Security Force Unit at Durgapur Steel Plant on and from 25th June, 1987, he was found guilty on very many counts including one major and eight minor punishments and thereby he could not prove himself to be worthy of a member of disciplined force. All the aforesaid charges were proved against the petitioner. The petitioner preferred an appeal against such findings of the disciplinary authority but the appeal was turned down by the appellate authority. Thereafter, the petitioner moved before the highest authority for review of such order but the review application of the petitioner was also rejected by the divisional authority. Finally, the petitioner was terminated from his service on the basis of such report of disciplinary authority.

Learned Advocate appearing on behalf of the petitioner contended that the only allegation against the petitioner was that he was under the influence of liquor and he abused his seniors in filthy languages under the influence of liquor. Learned Advocate for the petitioner further contended that the prosecuting authority could not produce any document to show that the petitioner was under the influence of liquor at the relevant point of time yet the disciplinary authority has found the petitioner guilty of being intoxicated at the relevant point of time. Secondly learned Advocate for the petitioner contended that for abusing the senior in filthy languages, the petitioner has been awarded with the punishment of termination which in terms of judicial pronouncement should be termed to be shockingly dis-proportionate and accordingly the said order of termination has to be set aside.

Learned Advocate appearing on behalf of the respondent contended that the punishment awarded to the petitioner in no way can be construed as shockingly dis-proportionate since on earlier occasions the petitioner was also found guilty at least on nine occasions. It would be apparent from the Article of charges that the petitioner was either absent from shift duty or was found sleeping or was found guilty for mis-behaviour with the commander in charge under the influence of liquor etc. The activities of the petitioner clearly go to show that the petitioner could not develop his attitude and devotion to duty despite awarding very many punishments by the authority and thereby ultimately the authority found that the petitioner was not at all fit enough to be a member of such disciplined force. On that score the authority was justified in terminating the service of the petitioner.

Learned Advocate appearing on behalf of the petitioner has referred a decision reported in 2011(4) Calcutta Law Times 109 Union of India v. Om Prakash Roy. It has been held by our High Court relying on AIR 2000 SC 1151(Uttar Pradesh State Road Transport Corporation and Ors v. Mahesh Kumar Mishra and ors., (1998)3 SCC 192 Colour Chemical Limited v. A.L. Alaspurkar that if the punishment imposed is shockingly dis-proportionate to the charges held proved against the employee, it will be open to the Court to interfere.

There is absolutely no dispute with the proposition of law laid down by the Apex Court as well as by our Division Bench to the extent that if the punishment imposed is shockingly dis-proportionate to the charges, in that event Court can definitely interfere with such punishment by invoking the jurisdiction under Article 226 of the Constitution of India. In the case under reference (2011)4 Calcutta Law Times 109, punishment for dismissal from service was imposed upon the writ petitioner for abusing his seniors and the said punishment was treated to be shockingly dis-proportionate in respect of charges levelled against the petitioner. The Division Bench thus set aside the said order of dismissal and directed the authorities to pass appropriate order for punishment of the erring employee.

The said decision is not squarely applicable in the given facts and circumstances of this case. It is apparent from Article of charges that the petitioner not only abused his seniors under the influence of liquor but he was examined by a Doctor also and Doctor found that the petitioner could not even stand on his legs under the influence of liquor. In my humble view no further examination is required to establish that at the relevant point of time the petitioner was under the influence of liquor.

Secondly, learned Advocate for the petitioner fairly contended that nothing could be shown on behalf of the petitioner to deny charges as stipulated in Article of charge III since admittedly the petitioner was found guilty on very many occasions. It would be appropriate to quote about the aforesaid charges from page 170(annexure of the writ petition) for proper appreciation of the case of the petitioner, which runs as follows:

"He was awarded one major and eight minor penalties under Rules is established fact. The details of penalties awarded are as under:-

i. "05 days pay fine" for failed to draw SLR from coy Kote while returning from IS duty vide 8th Rev. Bn. Jaipur Final Order No.V-15014/CISF/8RB/(14)/UR-35/99-2948 dated 19.07.1999.

ii. "Censure" for absent from ''A shift duty on 14.12.2000 vide NTPC Tanda Final Order No.V-15015/CISF/NTPC(T)/Disc/2001-337 dated 10.02.2001 vide NTPC Tanda F.O. No.(337) dated 10.02.08.

iii. "Withholding of one increment for a period of one year without cumulative effect" for misbehavior with Coy CHM & Gate sentry during IS duty at BHEL Jagdispur on 21.08.2001 vide NTPC Tanda Final Order No.V- 15015/CISF/NTPC(T)/Disc/01-2306 dated 27.10.2001.

iv. "03 days pay fine" for misbehavior with Coy Comdr. Under influence of liquor during Bidhan Sabha election duty at ITI Raiberaly on 28.01.2002 vide NTPC Tanda Final Order No.V/15015/CISF/NTPC(T)/Disc/02-643 dated 22.03.2002.

v. "03 days pay fine" for found sleeping in duty during ''C'' shift on 04.09.2002 vide NTPC Tanda F.O No.V-15015/CISF/NTPC(T)/Disc/02-2196 dated 05.10.2002.

vi. "Withholding of one increment for a period of one year with cumulative effect" for misbehavior with Doctor of NTPC and CISF personnel under influence of liquor at NTPC Hospital on 15.03.2003 vide DIG/NZ appellate order No.V- 11014/88/NZ/Disc/2003-4314 dated 20.05.2004. vii. "Censure" for 01 day OSL from station leave vide Asstt. Commandant, GBS New Delhi F. O. No.V 15015/CISF/GBS/Zone-II/Disc/74/05-1211 dated 19.08.2005.

viii. "02 days pay fine" for found sleeping in ''C'' shift duty at Sanchar Bhavan, New Delhi on 28/29.10.2006 vide Dy. Commandant, GBS New Delhi Final Order No.V-15014/CISF/D/Disc/GBS/U/R-37/2006-1495 dated 16.11.2006.

ix. "03 days pay fine" for absent from ''C'' shift duty on 11/12.11.2007 vide Asstt. Commandant, GBS New Delhi Final Order No.V-15014/CISF/GBS/Zone-I/D Coy/2007-1653 dated 12.12.2007."

It is therefore apparent from the aforesaid charges which have already been proved against the petitioner that being a member of disciplined force the petitioner was found guilty for the aforesaid charges on earlier occasions and he was awarded one major and eight minor penalties under rules yet the petitioner could not develop his performance and attitude being a member of disciplined force. In such circumstances, the decision referred to herein above is not at all applicable in the context of given facts and circumstances of this case.

On the contrary, it appears that the petitioner being member of a disciplined force has time and again involved in such activities which resulted in awarding punishment against the petitioner at least on nine occasions prior to this disciplinary proceeding. The authorities thought it fit to terminate the service of the petitioner on the ground that the activities of the petitioner are contrary to the rules of such disciplined force and un-becoming of a member of disciplined force and that is why, the order of termination has been passed by the highest authority of such force.

On the face of the record as well as Article of Charges, it transpires that sufficient opportunities were given to the petitioner to amend his activities so that he may continue in a disciplined force complying with the rules and regulations of such disciplined force. Time and again the petitioner has been booked for violating the rules and regulations of such disciplined force and at least on nine occasions one major and eight minor penalties were awarded against the petitioner. The petitioner however did not amend himself instead he was found involved in repeating the self-same occurrence in total violation of such rules of the disciplined force. The authority while considering the punishment of the petitioner, have taken into consideration about the antecedents of the petitioner and found that the activities of the petitioner in no way can be amended and the petitioner has repeated such occurrence time and again despite being punished on very many occasions. There is absolutely no scope for further development of the petitioner in respect of his activities and devotion to duty and the petitioner has become a liability in such disciplined force. Therefore, it cannot be said that the punishment awarded to the petitioner is shockingly dis-proportionate and the petitioner should be given further chance to remain in such force.

In the premises set forth above it cannot be said that the punishment awarded to the petitioner is shockingly dis-proportionate to the charges levelled against the petitioner and therefore, I find no reason to interfere with the order passed by the authorities terminating the service of the petitioner.

It may be mentioned here that the writ jurisdiction cannot be invoked to review the decision of the disciplinary authority except on the ground of violation of the Principle of Natural Justice. Nothing has been pointed out to show that sufficient opportunity of hearing was not provided to the petitioner at the time of holding such enquiry and accordingly, the instant writ application is devoid of merit.

The writ application is thus dismissed.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.