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Judgment
K.A. Swami, C.J.—This appeal is directed against the order dated 25.10.1994 passed by the learned single Judge in W.P. No. 3378 of 1987, as the learned single judge has set aside the order dated 30.3.1985 passed by the First Appellant-first Respondent in the W.P. confirming the order dated 25.3.1982 passed by the second Appellant-second Respondent in the W.P. who confirmed the order dated 21.3.1981 passed by the third Appellant-third Respondent in the W.P.
The matter arises out of the disciplinary proceedings instituted against the writ Petitioner (Respondent in the appeal) for the alleged unauthorised absence for a period of 45 days. The learned single judge had recorded the finding that the disciplinary proceeding had been conducted in accordance with law and fair and proper opportunity had been afforded to the Respondent - writ Petitioner, and the finding recorded by the disciplinary authority as confirmed by the appellate authorities was valid. Accordingly, the learned single judge had held that the same did not call for interference. However, on the question of penalty, the learned single judge had taken the view that having regard to the nature of the misconduct, the penalty imposed was disproportionate and harsh and that this question had not been considered by the appellate authorities. The learned single judge had also taken into consideration that in an earlier case of one Dayalan, where the unauthorised absence was for a period of 3 1/2 months, the penalty of censure had been imposed. Accordingly, the learned single judge had quashed all the orders in so far as they related to imposition of penalty of removal from service of the Petitioner and had directed the disciplinary authority to impose the penalty of censure. The learned single judge had also further directed the authority to reinstate the Respondent-writ Petitioner in service and accord all consequential benefits that flowed from the quashing of the impugned orders relating to imposition of penalty, except back wages, as those back wages had been given up by the Respondent-writ Petitioner.
It is submitted by the Learned Counsel for the Appellants that when once the High Court finds that the misconduct is established and the finding recorded by the disciplinary authority in that regard does not suffer from any infirmity and the same has been arrived at after affording fair and proper opportunity, it has no jurisdiction to interfere with the quantum of punishment, much less to prescribe the punishment.
On the contrary, it is contended on behalf of the Respondent-writ Petitioner that the learned single judge has directed the imposition of the penalty of censure as similar penalty was imposed in the case of one Dayalan and also in the light of the submissions made on behalf of the Respondent-writ Petitioner that the writ Petitioner would give up back wages. It is submitted by the Learned Counsel for the Respondent-writ Petitioner that if the order of the learned single judge is to be interfered with on the ground that there is no justification to prescribe the imposition of penalty, the Respondent-writ Petitioner may be permitted to withdraw the concession as to back wages, shown by him before the learned single judge.
Therefore, the question that arises for our consideration is as to whether the High Court in exercise of its jurisdiction under Article 226 of the Constitution, on coming to the conclusion that a fair and proper opportunity has been afforded to the delinquent and the finding recorded by the disciplinary authority that the misconduct is proved does not suffer from any infirmity, can interfere with the penalty.
5.1. In support of his submission, Learned Counsel for the Appellants has placed reliance on the two decisions of the Supreme Court in Union of India (UOI) Vs. Parma Nanda, and in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, For the reasons to be presently recorded, we consider it difficult to read both the decisions of the Supreme Court in the manner the Learned Counsel for the Appellants wants us to read. In Union of India (UOI) Vs. Parma Nanda, the Tribunal constituted under Article 323-A of the Constitution recorded a finding that the finding in respect of charges 1(a) and 1(b) should be set aside as they are opposed to the principles of natural justice and the finding in respect of charges 1(c) and 1(d) need not be disturbed. The Tribunal remitted the matter with a direction that it is left to the Government xo decide whether on the basis of those charges, the punishment of dismissal should be maintained or whether a lesser punishment would suffice. The Supreme Court set aside the order of the Tribunal on the ground that as long as the finding on one of the charges and the misconduct to which such charge relates, is sufficient to sustain the penalty of dismissal merely because the Tribunal finds that the other charges are not sustainable, does not entitle the Tribunal to interfere with the quantum of punishment. Therefore, it is not possible to read the said decision that it lays down the law that the High Court, or the Tribunal exercising the power similar to the one exercised by the High Court, cannot go into the question as to whether the penalty imposed is proportionate to the misconduct. In fact, the Supreme Court in the decision has affirmed the earlier decision of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, . So also, the decisions in Union of India (UOI) Vs. Sardar Bahadur, which again affirmed the decision of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, . Again in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, , it has been specifically pointed out that the Court can go into the question as to whether the punishment imposed in commensurate with or proportionate to the nature of the misconduct and has held that in such case, the proper course to be adopted would be to send the matter either to the disciplinary authority or the appellate authority as to imposition of appropriate punishment. The relevant portion of the judgment is as follows:
Now coming to the facts of this case, it would appear that the main charge against the Respondent is putting forward a false claim for reimbursement of expenditure incurred for transporting his belonging from Phek to Amarpur. So far as charge 5 is concerned there is no finding that the account became irregular or that any loss was incurred by the bank on account of the irregularity committed by the Respondent. In the circumstances it may be that the punishment of removal imposed upon the Respondent is harsh but this is a matter which the Disciplinary Authority or the Appellate Authority should consider and not the High Court or the Administrative Tribunal. In our opinion, the proper course to be adopted in such situations would be to send the matter either to the Disciplinary Authority or the Appellate. Authority to impose appropriate punishment.
(emphasis supplied)
Therefore, we are of the view that it is always open to this Court to interfere, if it is of the opinion that the penalty imposed is harsh and disproportionate to the proved misconduct. In the instant case, the proved misconduct is unauthorised absence for 45 days. The Respondent-writ Petitioner had put in three years of service and he had a long service to his credit. In these circumstances, it is not possible to hold that the penalty of removal from service is proportionate to the misconduct. Therefore, the learned single judge to the extent he has interfered with the impugned orders relating to the penalty, cannot be held to have committed any error of law; nor can he be held to have exceeded his jurisdiction. However, while remitting the matter, the learned single Judge has directed that the penalty of censure alone should be imposed. That, in our opinion, is not open to this Court to prescribe the penalty while remitting the matter to the disciplinary authority for consideration of imposition of penalty. Therefore, the question raised by us for determination is answered as follows: Even after finding that the disciplinary proceedings conducted by the disciplinary authority is fair and proper that the finding recorded on the charge of misconduct that is proved does not suffer from any lack of fair and proper opportunity to the delinquent, it is still open to the High Court in exercise of its jurisdiction under Article 226 of the Constitution to interfere with the order if it comes to the conclusion that the penalty imposed is harsh and disproportionate to the proved misconduct. In such case, it has to remit the case to the disciplinary authority or the appellate authority, as the case may be, depending upon the facts and circumstances of the case, to consider afresh the imposition of penalty.
For the reasons stated above, the writ appeal is allowed in part. The directions issued by the learned single judge that penalty of censure should be imposed and that the Respondent-writ Petitioner should be reinstated and should be paid backwages, do not arise at this stage and the same are set aside. The concession shown by the Respondent-writ Petitioner as to giving up the backwages having regard to the insistence by the Appellants that the matter should be remitted back for consideration of the penalty, is treated as withdrawn. In all other respects, the order of the learned single judge is maintained and the matter is remitted back to the disciplinary authority to consider the question of imposition of penalty afresh in accordance with law, within three (3) months from today. There will be no order as to costs.