M. Bose vs Director General, Central Industrial Security Force, New Delhi and Others

Shivaraj Patil, J.—The facts briefly stated leading to this writ petition are the following :

The petitioner was enlisted on 15.2.1972 as Security Guard in the Central Industrial Force. On 26.9.1979, he was on duty at Main gate No. 1,

C.I.S.F. Unit from 20.15 to 20.30 hours. A Jeep came and stopped near the barrier. He went near the jeep and saw the Commandant, Mr. H. C.

Ramaiah siting in the front seat and Assistant Commandant Mr. Janakiraman siting in the driver seat. Having paid the compliments to the

Commandant he returned back to the barrier and opened the gate. It was alleged that on that day at about 20.30 hours, he deliberately disobeyed

the lawful order of superior officer, in that when the Assistant Commandant, Mr. Janakriraman ordered to the petitioner to pen the barrier for the

Commandant to enter inside the Range, he did not do so. The petitioner obeyed the order and opened the gate. If there was any hesitancy in

opening the gate immediately, if was due to the necessity of the checking the vehicles, when they entire the unit.

According to the petitioner, the charge itself was wrongly framed in stating that he refused to pen the barrier, which is factually wrong. All the

witnesses say that he opened the gate since the Commandant ordered him to open it. The evidence is not consistent with the charge. A minor

incident has been made very grave and an extreme penalty of dismissal was inflicted on him to create a fear in the minds of the other members of

the Force. It is the further case of the petitioner that the oral enquiry was vitiated by material and procedural irregularities and that it was held in

violation of the principles of natural justice. The charge was framed by P.W. 4, the Commandant himself, who was the person aggrieved and late a

prosecution witness. Further under Rule 29(A) of the Rules framed u/s 22, Sub-section (1) of the Central Industrial Security Force Act, 1978, the

disciplinary action against a member of a Force should be taken by the authorities, under whose control, the member was serving at the time when

the incident took place. In the case of the petitioner, the oral enquiry was conducted by an authority under whom, he did not serve at the time of

incident. The petitioner requested the Enquiry Officer to supply copies of statements of witnesses and vehicle diary so as to enable him to make out

his defence on the basis of the evidence recorded. But the Enquiry Officer refused to give the copies of statements asked for by the petitioner on

the ground that the Central Industrial Security Force Rules do not provide for giving copies of such statements.

The petitioner states that except the interested and one sided oral testimony of P. Ws. 1 to 4, there was no independent witness or any other

documentary evidence to prove the charge. The petitioner also stated that the punishment meted out to him for the minor charge is highly excessive,

unconscionable and grossly disproportionate amounting to victimisation.

On the basis of the abovesaid enquiry, the charge was held proved against the petitioner and an order of dismissal was passed by the third

respondent on 28.2.1981. The appeal filed by the petitioner to the second respondent was rejected on 6.5.1982. Thereafter, the revision petition

filed by the petitioner to the first respondent also met with the same fate, in that the revision petition was rejected on 9.3.1982. It was under those

circumstances, the petitioner approached this Court and presented this writ petition seeking the relief of the issuance of a writ of ceritorarified

mandamus to call for and quash the impugned orders with a direction for reinstatement of the petitioner in service with back wages.

The second respondent has failed a counter-affidavit contending that on 26.9.1979, the petitioner was on B1 shift duty at Main Gate I SHAR

Centre at about 20.20 hours. The commandant CISF Unit SHAR Centre entered the main gate area from Sulurpet in his jeep accompanied by the

Assistant Commandant R. Janikiraman, When the Assistant Commandant ordered the petitioner to open the barrier to enable the Commandant to

enter inside the range, he did not do so. He was placed under suspension by the Commandant SHAR on 29.9.1979 with immediate effect. His

Headquarters was ordered to be shifted to South Zone Office, Madras, as per the order dated 1.3.1980. He was served with the charge memo

on 4.10.1979. The petitioner neither acknowledged receipt of the said charge memo nor did he submit his explanation within the time limit

specified. Since the Commandant was himself one of the witnesses, the power of the disciplinary authority was ordered to be exercised by Sri A.

T. Thiruvengadam, Assistant Inspector General (Southern Zone). Sri T. P. Balakrishnan Nambiar, Assistant Commandant (JAO), Southern Zone

was appointed as the enquiry Officer by order dated 21.12.1979. Later on, when the Assistant Commandant T. P. Balakrishnan Nambiar was

transferred to MPT. Sri N. Ramadoss, Assistant Commandant, Group Headquarters was appointed as the Enquiry Officer by order dated

6.8.1980. Four witnesses were examined on the said of the prosecution. The petitioner was given an opportunity to cross-examine these

witnesses. The petitioner neither produced any defence witness nor field any document in support of his case. However, he gave a statement

before the Enquiry Officer at the time of enquiry. On the basis of the material available before him, the Enquiry Officer found that the charge

framed against the petitioner was proved. The disciplinary authority agreed with the finding of the enquiry Office an issued a show cause notice

proposing the punishment of dismissal on 20.12.1980. The petitioner submitted his reply to the same on 8.1.1981. It was thereafter a final order

imposing the punishment of dismissal from service from the date of receipt of the said order was issued to the petitioner. The petitioner also

acknowledged receipt of the said order on 6.3.1981. The appeal and the revision petition field by the petitioner before the second and first

respondents respectively were rejected.

It is dined that the petitioner had put in ten yeas of loyal and sincere service. The petitioner was fined seven times, censured three times and his

increment was withheld twice for the offences committed by him till April, 1981. It is also denied that the petitioner went near the jeep for the

purpose of checking the vehicle before it entered the gate. The evidence given before the enquiry Office clearly points to that the petitioner refused

to open the gate and that he did not open the barrier an asked the Commandant Ramiah to talk to the Association leaders. He deliberately refused

to open the barrier, inspite of the orders of the Assistant Commandant. It was only after the Commandant directed him to pen the barrier, the

petitioner opened the gate. The incident covered by the charge is not a minor incident, but concerns the discipline of the Unit and that the petitioner

being the member of the security force was not justified in refusing to open the barrier.

According to the respondents, the enquiry conducted was fair and proper and that there were no procedural irregularities in the enquiry so

conducted. The principles of natural justice were also not violated in holding the enquiry. The enquiry was conducted strictly in accordance with the

Rules. It is further stated that the punishment imposed on the petitioner is not excessive or disproportionate and that it does not amount of

victimisation. The quantum of punishment is not excessive since indiscipline in the uniformed force would destroy the morale of the Force. Thus, it

is prayed for the dismissal of the writ petition.

Learned counsel appearing for the petitioner urged :

The charge framed is one, as if the petitioner refused to pen the gate to allow the jeep of the Commandant and thereby deliberately disobeyed

the order of the superior, which is an act of gross indiscipline as a Security, Guard, but the evidence of P. Ws. 1 to 4 clearly and consistently show

that the petitioner did open the gate after some hesistance. The charge being one and the evidence being contrary, the order of dismissal based on

such enquiry report cannot be sustained;

The enquiry was held in utter violation of the principles of natural justice; Copies of statements of P. Ws. and the document viz., vehicle diary

were not made available to the petitioner; P.W. 4 Ramiah, the Commandant himself was the complainant. He was examined as P.W. 4 and he

himself framed the charge against the petitioner. Thus, the petitioner was prejudiced in the enquiry; and

At any rate, the extreme penalty of dismissal from service imposed on the petitioner is excessive and grossly disproportionate to the act of

discipline alleged and held proved against the petitioner.

Per contra, learned counsel for the respondents argued in support an the justification of the impugned orders contending that the enquiry held

was fair and proper and was strictly in accordance with the Rules; that the petitioner was not entitled for copes of the depositions although he had

access to the records; the petitioner was given opportunity to cross-examine all the four witnesses examined in support of the charge; the petitioner

did not choose to file any written statement in answer to the charge framed against him; he neither produced any defence witness nor filed any

document in support of his case. In all fairness, when the Commandant himself was one of the witnesses some other officer was appointed as the

Enquiry Officer. The petitioner has failed to establish as to how he was prejudiced in the enquiry. He further submitted that the order or dismissal is

quite justified, in that it was not for the first time that there was a charge of indiscipline against the petitioner. In ten years of service, the petitioner

was fined seven times, censured three times and his increment was withheld twice for the various offences committed by him. Thus. Thus, the

previous adverse remarks and the punishments imposed on the petitioner lend support an justification for the order of dismissal.

I have carefully considered the respective submissions made by the learned counsel appearing for the parties on their relative merits. The

following points arise for consideration.

When the charge was one and the evidence let was different, whether the order of dismissal was justified?

Whether procedural irregularities were committed in holding the enquiry and whether the enquiry conducted was in violation of the principles of

natural justice?

and

Even accepting that the charge framed against the petitioner is proved whether the imposition of extreme penalty of his dismissal from service is

shockingly disproportionate to the gravity of the misconduct of the petitioner.

I will deal with all these three points in seriatim : Re : Point No. 1 : The charge frame reads thus :

Gross indiscipline misconduct while on duty at about 20.20 hours on 26.9.1979 at the main gate SHAH Centre by deliberately and intentionally

disobeying the lawful orders of the superior officer in that when the Assistant Commandant Sri Janikaraman ordered SG 7211162 M. Bose to

open the barrier for the Commandant CISF Unit SHAH Centre to enter inside the Range, he did not do so.

According to the evidence of P. Ws. 1 to 4 examined, in support of the charge, the petitioner did open the barrier reluctantly. On the basis of this

evidence, argument was built that the charge was that the petitioner intentionally disobeyed the order to open the gate and whereas it is clear from

the evidence of P. Ws. 1 to 4 that the petitioner did open the gate, but with some hesitance. There are therefore, two different versions. According

to learned counsel for the petitioner being a Security guard at the gate, it was his duty to check the vehicle before opening the barrier. It was about

20.20 hours on 26.9.1979. There was no special mark on the jeep so as to identify the jeep as of the Commandant and so also there were no

instructions to open the gate during night hours, without checking. Therefore, the petitioner went near the jeep and after seeing the commandant

and as per his order opened the gate. The other version as put forward by the respondents is that the petitioner inspite of the Assistant

Commandant ordering the petitioner to open the barrier, knowing fully well that the Commandant was in the jeep, he did not deliberately open the

gate immediately. He took sometime to open the gate and he opened it only after the Commandant ordered him to open it. Looking to the cross-

examination made by the petitioner with reference to the evidence of P. Ws. 1 to 4 and the case put forth by him, it cannot be said that the

petitioner did not correctly comprehend or understand the charge an that he was prejudiced in any way on account of the charge. He did not open

the gate immediately, according to the evidence. It is also stated that the gate was opened after sometimes with hesistance. However, both sides

correctly understood the respective versions and participated in the enquiry. In the light of the charge, which is not so vague or inconsistent with the

enquiry held, the petitioner cannot wriggle out of it, as I am of the view that the charge in disciplinary proceedings cannot be equated to or viewed

with same strictness as in respect of a charge for an offence triable under the Criminal Law. The disciplinary proceedings constitute a separate

class by themselves. In disciplinary mattes, what is material is that the person concerned should be conveyed as to with in substance is the

accusation against him. In may opinion, in disciplinary proceedings against a person it is enough if he is told of the alleged offences with reasonable

amount of precision and though not with mathematical exactitude. The information has got to be given to the delinquent initially in a disciplinary

proceeding with the object of reasonable apprising him of the allegations levelled against him with a view to enable him to meet the same and to

defend himself. Further, both the appellate as well as the revisional authorities having considered the material placed on record did not agree that

the findings recorded against the petitioner were vitiated on account of inconsistency between the charge and the evidence brought on record.

When it is clear from the records that the petitioner knew as to what were the accusations against him and participated in the enquiry and even

cross-examined the witnesses, it cannot be said that any prejudice was caused to him. I am aware this Court under Article 226 of the Constitution

of India, exercising supervisory jurisdiction, cannot act as Court of appeal to substitute its findings on reappraisal of evidence recorded in

disciplinary proceedings unless such findings were either perverse or based on no evidence. In this view, I do not in any force in the submission of

learned counsel for the petitioner, that the impugned orders are bad on account of inconsistency between the charge framed and the evidence let in.

Hence, the point No. 1 is answered accordingly.

Re : Point No. 2 :

As could be seen from the counter-affidavit filed on behalf of the second respondent, that as the Commandant himself was the witness (P.W. 4)

the power of the disciplinary authority was ordered to be exercised by Sri A. T. Thiruvengadam, Assistant Inspector General (Southern Zone), Sri

T. P. Balakrishnan Nambiar, Assistant Commandant (JAO) Southern Zone was appointed as the enquiry Officer and since he was transferred, Sri

N. Ramadoss, Assistant Commandant Group Headquarters was appointed as the Enquiry Officer. The rules do not provide for furnishing copies

of the depositions, as asked for by the petitioner. The petitioner was permitted to cross examine four witness in respect of the charge. He did not

file any written statement in reply to the charge. The petitioner neither produced any defended witness nor filed any document in support of his

case. It was not before me as to how any prejudice was caused to the petitioner in the enquiry held against him. The appeal and the revision

petition field by the petitioner were also dismissed by the second and first respondent respectively, who had looked into and considered all the

materials placed on record. Both the appellant as well as the revisional authorities have found that the enquiry held was fair and proper and that it

was not in violation of either the principles of natural justice or the Rules. As already stated, the High Court cannot act as an Appellate Court in

exercise of its supervisory jurisdiction, particularly in disciplinary proceedings, when the findings of fact are supported by the reasons recorded

based on evidence. Hence, my answer on the second point is in the negative.

Re. Point No. 3 :

The charge in the case on hand levelled against the petitioner was that he refused to open the gate so as to allow the vehicle of the Commandant to

enter the range of the Unit. The evidence on record shows that he opened the gate, not immediately, but hesitantly after sometime. On the basis of

the material on record, a finding of fact is recorded that there was disobedience on the part of the petitioner is not opening the gate immediately

and that it amounted to gross indiscipline on the part of the petitioner, In view of the conclusions, I have arrived on Point Nos. 1 and 2, I proceed

on the basis that the charge framed against the petitioner is proved. But then the only question remains for consideration is whether the extreme

penalty of dismissal imposed on the petitioner is grossly disproportionate to the misconduct on the facts and circumstances of this case.

It is the crystalised judicial view that every statutory power must be exercised reasonably including the exercise of disciplinary power. If the

quantum of punishment is grossly disproportionate, it may bear upon the reasonableness of the exercise of a disciplinary power and if so, it vitiates

the ultimate decision on penalty. Indeed if the management dismisses a servant for trivial act, it may indicate vindictiveness on its part which may

invite interference by court. The penalty imposed in any disciplinary proceedings cannot be so disproportionate to the act of misconduct that no

reasonable person would have ever imposed in the circumstances of the case. In the decision Bhim Singh v. District Superintendent of Police,

(Guj.) 1982 2 S.L.R. 629, in paragraphs 7 and 8, it is stated as follows :

In S. M. Shah v. South Gujarat University, 1923 1 G.L.R. 233, it was observed that the doctrine that every statutory power must be exercised

reasonably is too firmly entrenched in our jurisprudence to brook any refutation and that the exercised of disciplinary power is not free from the

said inhibition or limitation. The quantum of penalty, if it assumes disproportionate dimensions, may bear upon the reasonableness of the exercise of

the disciplinary power and in the result, it may, vitiate at lest, the ultimate decision on penalty. Having regard to the wide perspective and

pervasiveness of Article 14, the penalty imposed in any disciplinary proceeding cannot be so disproportionate to the misconduct proved that no

reasonable person would have ever imposed in like circumstances. The arbitrary, unjust and unfair exercise of penal powers would be manifest

under such circumstances and such an action would not constitute a ''right and just and fair'' decision. If there is any statutory instrument prescribing

minimum penalty for any specified misconduct, which is grossly disproportionate and which leaves to discretion with the disciplinary authority, such

instrument and the action thereunder will both be exposed to the risk of a challenge under Article 14; in the absence of such an instrument, the

order imposing the disproportionate penalty will be laid bare to a similar challenge.

It is further observed in the said decision that the age, maturity, antecedents, family background, motivation, socio economic factors, role played

in the commission of malpractice or unfair practice etc. are all factors which must enter into account in the quantification of penalty in disciplinary

jurisdiction. Besides, though penalties are imposed with the end in view of creating a different effect, the current thinking in penology even in the

context of hardened criminals is that reformation and curative technology are also as much a part of penalty procedures as retribution. This thinking

must be reflected with greater force in the disciplinary jurisdiction.

The Supreme Court in the decision reported in Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., , at the conclusion in paragraph 13 has

stated thus :

..... We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to be charge

framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal

on the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme

punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the

factory. We therefore hold that the termination of the appellant''s service is invalid and unsustainable in law, and that he is entitled to reinstatement

with full back wages and other benefits including continuity of service...

The Supreme Court yet in another decision in Ranjit Thakur Vs. Union of India (UOI) and Others, , dealing with the proportionately of punishment

in regard to the case of misconduct, referring to the decision Bhagat Ram Vs. State of Himachal Pradesh and Others, , pointed out that the

punishment imposed must be commensurate with the gravity of the misconduct, and that any penalty grossly disproportionate to the gravity of the

misconduct would be violative of Article 14 of the Constitution. On the facts of that case, the Supreme Court found that the punishment imposed

was strikingly disproportionate and it called for interference. Paragraph 25 of the said judgment reads thus :

..... 25. Judicial review generally speaking, is not directed against a decision, but is directed against the ''decision making process''. The question

of the choice and quantum of punishment is within the jurisdiction and discretion of the court material. 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 so as to shock the conscience and

amount in itself to conclusive evidence of bias. The doctrine of proportionately, 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-material, 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.

In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 W.L.R. 1174 (H.L.), Lord Diplock said :

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 these heads the grounds on 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''. That 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'' which is recognised in the administrative law of several of our fellow member of the European Economic Community.

Keeping in view, the aforementioned judicial pronouncements, I am of the view that in the case on hand the extreme penalty of dismissal of the

petitioner from service is strikingly and shockingly disproportionate to the act of misconduct. The evidence on record clearly establishes that the

petitioner did open the gate/barrier. According to the petitioner, only after checking the vehicle and satisfying that the Commandant was in the jeep,

he had done so. As a Security Guard, may be the petitioner was vigilant in his duties. But the evidence on record shows that inspite of the orders

of the superiors, the petitioners took sometime to open the gate and the petitioner opened the gate hesitatingly. For all these reasons, the court is

very clear in its mind that no reasonable person would ever have imposed such an extreme penalty of dismissal on the petitioner considering the

nature and gravity of misconduct alleged and proved.

In order to justify this major punishment of dismissal of the petitioner from service, on the basis of the counter-affidavit filed by the second

respondent, learned counsel for the respondents submitted, that it is not for the first time, that the petitioner was proceeded with the disciplinary

enquiry. In the last ten years of his service, the petitioner was punished on several occasions; he was fined seven times, censured three times and

his increment was withheld twice and that therefore the impugned orders dismissing the petitioner from service are justified. I must state at once

here that the previous punishments or adverse remarks made against the petitioner were not made part of the present charge. In the show cause

notice dated 20.12.1980 issued by the third respondent, proposing to impose punishment of dismissal from service also nothing is stated about the

previous adverse remarks made or punishment imposed on the petitioner. It is therefore clear from the records that right from the date of issuing

the charge memo to the petitioner till the date of passing of the order of dismissal, at no point of time or on no occasion, the petitioner was made

known that at the time of imposing the penalty, pursuant, to the charge made against him, the previous penalties, or adverse remarks made against

the petitioner would be used against him. The past service record of the delinquent official cannot be taken into account while determining quantum

of punishment unless it was made known that such record would be used against him. Or else he cannot be deemed to have been given a

reasonable opportunity of showing cause against the proposed penal action amounting to negation of basic principle of natural justice. An attempt

is made by the respondents for the first time by stating about this aspect in the counter-affidavit to justify the penalty, i.e. the impugned order

dismissing the petitioner from service. It cannot the petitioner from service. It cannot at all be accepted. Law in this regard is very clear.

In Gopal Rao v. State Government M.P., AIR 1954 Nag. 90 paragraph 10, reads :

It was not disputed that the competent authority is entitled to take into consideration the record of a civil servant''s past service in order to

determine the quantum of punishment. What, however was contended that if the civil servant is not all apprised of the record of his past service,

not is he informed that it will be taken into account in order to decide the question of punishment, he cannot be deemed to have been given a

''reasonable opportunity'' to show cause against the proposed action. Normally, the question of punishment is linked up with the gravity of the

charge and the penalty that is inflicted is proportionate to the guilt. Where the charge is trivial and ''prima facie'' merits only a minor penalty, a civil

servant may not even care to defend himself in the behalf that only such punishment as would be commensurate with his guilt will be visited on him.

In such a case, even if in the show cause notice a mere serious punishment is indicated that what the finding of the guilt warrants, he cannot be left

to guessing for himself what other possible reasons have impelled the proposed action. It is not, therefore, sufficient that other considerations on

which a higher punishment is imposed are present in the mind of the competent authority or are supported by the record of service of the civil

servant concerned. In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry,

it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action.

In the decision reported in State of Mysore Vs. K. Manche Gowda, , the Supreme Court has held that nothing in law prevents the punishing

authority from taking the previous record of the Government servant also consideration during the second stage of the enquiry, even though the

previous record was not the subject matter of the charge at the first stage, but it is essential that the Government servant shall be given a reasonable

opportunity to know that fact so as to enable to meet the same. Paragraphs 7 and 8 of the said decision run thus :

Under Article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to

prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called

for or excessive. The said opportunity is to be a reasonable opportunity, and therefore, it is necessary that the Government servant must be told of

the grounds on which it is proposed to take such action; see the decision of this Court in the State of Assam and Another Vs. Bimal Kumar Pandit,

. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority

concerned in the proposing a particular punishment. He would not be in a position to explain why he does not deserve any punishment at all or that

the punishment proposed is excessive. If the imposed punishment was mainly based upon the previous record of a Government servant and that

was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the

Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record

would necessarily be taken into consideration by the Government in inflicting punishment on him, nor would it be an adequate answer to any that he

knew as a matter of fact that the earlier punishment were imposed on him or that he knew of his past record. This contention misses the real point,

namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts, will be taken into

consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record of what acts or

omissions of his in a particular period would be considered. In that fact was brought to his notice, he might explain that he had no knowledge of the

remarks of his superior officers that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had

been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he

was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those

punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of

the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been

given an opportunity to give his explanation. We cannot accept the doctrine of ''presumptive knowledge'' or that of ''purposeless enquiry'' as their

acceptance will be subversive of the principle of ''reasonable opportunity''. We, therefore, hold that it is incumbent upon the authority to give the

Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is

also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an

explanation.

(8) Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government Servant, if it is intended

to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot

be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a

Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only

recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same.

Whether a particular person has a reasonable opportunity or not depends to some extent upon the nature of the subject-matter of the enquiry. But,

it is not necessary in this case to decide whether such previous record can be made the subject-matter of charge at the first stage of the enquiry.

But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it

relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable

opportunity to know that fact and meet the same.

In the light of this legal position, I have no choice, but to reject the argument of learned counsel for the respondents that the past record and

previous penalties imposed on the petitioner should justify his dismissal from service on account of the misconduct proved. In this view of the

matter, I hold that the penalty, of dismissal of the petitioner from service is grossly and shockingly disproportionate to the gravity of the misconduct

proved against him. Unfortunately the appellate authority has also not considered as required under Rule 47(2)(c) of the Rules as to

proportionately of punishment.

Having regard to the conclusions arrived at by me as aforementioned, I have now to consider as to what should be the punishment and what

should be the final order. From the records, it appears that the writ petition was filed in the year 1982. The case was transferred to the Central

Administrative Tribunal, Madras by this Court and it was number as T.A. No. 344 of 1985. Subsequently, it was held that the case was not

maintainable before the Central Administrative Tribunal and therefore, it was retransferred to this Court on 4.11.1986. Learned counsel for the

petitioner by his letter dated 2.11.1984 made a request to trace out the case papers and post if for final hearing stating out the case papers and

post it for final hearing stating that the case was twelve years old. When the papers pertaining to his writ petition could not be traced out inspite of

the serious efforts made, orders were obtained to reconstruct the file on 30.3.1994. It was thereafter, the matter was listed for final hearing.

The Supreme Court in the case of Ex. Naik Sardar Singh v. Union of India, A.T.R. 1991 2 S.C. 290, having found that the evidence in that

case was duly recorded and the trial was not vitiated, as no prejudice had been caused to the delinquent held that the sentence awarded to him

was wholly disproportionate to the offence committed. In that view, it is stated that the ends of justice would sufficiently be met, if a lesser

punishment was awarded to the appellant in that case. In the case of Ranjit Thakur Vs. Union of India (UOI) and Others, , the Supreme Court

found that the punishment imposed was strikingly disproportionate and called for interference. Accordingly, the order of punishment was quashed

and the appellant in that case was ordered to be reinstated with all monetary and service benefits.

Bearing in mind the principles laid down in the various cases aforementioned, I am of the firm opinion that unduly harsh and grossly

disproportionate penalty of dismissal imposed on the petitioner cannot be allowed to stand. Hence, I record the finding on Point No. 3 in

affirmative. The order of dismissal was passed on 28.2.1981. Looking to the facts and circumstances of the case, I think that ends of justice would

amply be met, if any one of the punishments provided under Rule 31 of the Rules mentioned in Clauses (e) to (h) is imposed on the petitioner.

In the result, for the reasons stated above, I pass the following order :

This writ petition is allowed.

The impugned orders dismissing the petitioner from service are quashed. The petitioner shall be reinstated in service with all consequential

benefits that flow from quashing the impugned order of dismissal subject to term 3 of this order.

The respondents may impose any one of the penalties under Rule 31 in Clauses (e) to (h) of the Rules.

There will be no order as to costs.