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Judgment
M.Y. Eqbal, J.—This appeal by the employer under Clause 10 of the Letters Patent is directed against the judgment dated 11.12.2002 passed in C.W.J.C. No. 3492 of 2000(R), whereby the learned Single Judge, after setting aside the order of punishment, remitted the matter back to the Disciplinary Authority to pass appropriate order for reinstatement and for inflicting a lesser punishment.
The facts of the case lie in a narrow compass:
The respondent was a constable in Central Industrial Security Force, Bokaro Steel Plant, Bokaro. He was subjected to the departmental proceeding on the following charges:
(i) He absented from duty in duty in ''C'' shift on 25.7.1998 without information/permission.
(ii) Talked in an indisciplined manner with Assistant Commandant and refused to go for medical examination when ordered by superior.
(iii) Deserted unit lines on 26.7.1998 and continued till the date of issuance of memorandum of charge.
(iv) Habitual offender of committing various offences and misconduct and being incorrigible in nature in spite of the punishment awarded to him in past.
In the said departmental enquiry, the Enquiring Officer after giving reasonable opportunity of hearing to the respondent, concluded the enquiry and submitted the report finding that the charges have been proved. The Disciplinary Authority, the Commandant of C.I.S.F, Unit Bokaro Steel Limited, accordingly passed order on 30.1.1999 removing the respondent from service. Aggrieved by the order of Disciplinary Authority, the respondent preferred appeal before the D.I.G., C.I.S.F., Bokaro, who, by order dated 22.7.1999, rejected the appeal and confirmed the order of removal from service. The respondent then challenged the said order by filing the aforesaid writ petition. The learned Single Judge held that the misconduct with which the respondent was charged is neither serious not did it warrant dismissal from service. For better appreciation, the relevant portion of the judgment passed by the learned Single Judge is reproduced herein below:
This Court does not understand as to how the period beyond 20.08.1998 (i.e., the date of issuance of the chargesheet) stood stretched up to 22.10.1998. There is no chargesheet that he was absent up to 22.10.1998 but in relation to this charge, the Disciplinary Authority says that he was unauthorizedly absent from 26.07.1998 to 22.10.1998. In the charge sheet, it is mentioned that the petitioner deserted unit lines at 0445 hrs. on 26.07.1998 and continuing the same till date.: "Till date" therefore, means that till the date of issuance of the chargesheet and the chargesheet was issued on 20.08.1998. In that view of the matter giving a finding that the petition was absent for eighty eight days appears to be a finding for which there was no chargesheet.
So far as the charge No. 2 is concerned the same relates to talking in indisciplined manner under the influence of liquor. What was he talking about? What was the indsicpline exhibited by him? Was he abusing the senior officer? There is no such indication in the charge sheet. Additionally from paragraph 4 of the order or removal, all that is apparent is that the Petitioner had consumed liquor and under its influence he misbehaved with the AC-Z-11 (C.W.-1).
Thus from what is apparent on a bare reading of Annexure 2 is that whatever misconduct the Petitioner has been charged with, the same neither serious nor did nit warrant dismissal from service.
The only thing that is relevant to be taken into consideration is that the Petitioner belonged to a disciplined force and therefore, his action was required to be disciplined and therefore taking alcohol within the service area was certainly not expected from him.
The appellate order on appeal is again a confirmation of the punishment inflicted by the disciplinary authority.
For the reasons stated above, this Court holds that the punishment of removal from service is grossly disproportionate and is not at all commensurate with the nature of the misconduct charged against him. However, for having acted in an indisciplined manner after having consumed alcohol within the service area the petitioner cannot be allowed to go totally scot free. He certainly deserves a punishment, but not removal from service.
For the reasons stated above, the impugned orders by reason whereof the petitioner has been removed from service are hereby set aside and the matter is remanded to the Respondent No. 2 who will pass appropriate orders in relation to reinstatement and shall also consider the desirability of inflicting a lesser punishment after giving adequate opportunity of hearing and in accordance with law.
We have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondents.
The only question that falls for consideration is as to whether when the charges in the departmental enquiry has been proved and the order of removal from service has been passed by the Disciplinary Authority, the learned Single Judge is correct in law in setting aside the punishment and directing the Disciplinary Authority to pass an order of lesser punishment The above question is no longer res integra.
In the case of Y.P. Sarabhai Vs. Union Bank of India and Another, , the Supreme Court was considering a case where a security officer of a Bank was dismissed from service after holding departmental enquiry on the charges that he was not reporting for his duty and remained absent on the ground of illness. The Disciplinary Authority awarded the punishment of dismissal from service. The appellate authority dismissed the appeal holding that the conduct of the delinquent taking undue advantage of his normal sickness to avoid transfer was not genuine. The said order was challenged in the High Court but failed. Then the matter came to Supreme Court Dismissing the appeal, the Supreme Court held that finding of the departmental enquiry cannot be assailed in courts unless there is breach of principle of natural justice or violation of any rule or any material irregularity on the face of record is alleged and shown.
In the case of Union of India and Ors. v. Narain Singh AIR 2002 SC 2172>, the fact was that the respondent was appointed as a driver in the Border Security Force. He was charge sheeted for disobeying the lawful command given by the superior officer and also assaulting the superior officer. The Disciplinary Authority on admitted fact found the respondent guilty of charges and dismissed him from service. The appeal preferred by him was also dismissed. However, when the matter came before a Division Bench in appeal the High Court, although observed that the charges were serious in nature, held that passing extreme penalty of dismissal from service is unjustified and uncalled for. The Supreme Court setting aside the view taken by the High Court observed as under:
As seen above, the Division Bench notes that he charges against the Respondent are proved and that the charges are of serious nature. Once the court came to the conclusion that the charges were proved and that the charges were of the serious nature, it was not the function of the court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz (a) the person is coming from which place, (b) his family background and (c) his service record etc. were to be kept in mind. In our view the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view a Court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence, particularly in military, para-military or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of a serious nature the penalty was commensurate with the charge. Further the Division Bench has itself noted that this was the third time the Respondent was punished.
Coming back to the instant case, as noticed above, the charges levelled against the respondent are serious in nature inasmuch as a constable in CISF is not supposed to remain absent without permission and that he is not supposed to attend duty in a drunken condition and refused to go for medical examination. Moreover, in the past also the said respondent was punished because of misconduct committed by him. Taken into consideration all these aspects of the matter, the learned Single Judge was not justified in setting aside the order of punishment by exercising power under Article 226 of the Constitution of India.
For the reasons aforesaid, this appeal is allowed and the impugned judgment passed by the learned Single is set aside and the order passed by the Disciplinary Authority is restored.