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Saturday, July 20, 2013

service matter - an Assistant Wireless Operator was dismissed for misconduct - dis-proportionate quantum of punishment = the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly disproportionate. = while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the un-usual but by no means impermissible course of reducing the punishment to the extent indicated above. 16. These appeals are accordingly allowed in the above terms; with a further direction that the respondents shall do the needful expeditiously but not later than three months from the date of this order. No costs.

             published in


                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS.5162-63  OF 2013
              (Arising out of SLP (C) Nos.23363-23364 of 2011)

Jai Bhagwan                                  …….Appellant


Commr. Of Police & Ors.                            …….Respondents

                        J U D G M E N T

T.S. Thakur, J.

1.    Leave granted.

2.    These appeals by special leave  arise  out  of  an  order  dated  21st
October 2010 passed by  the  High  Court  of  Delhi  whereby  Writ  Petition
(Civil) No.5450 of 2005 filed by the  appellant  challenging  his  dismissal
from the post of Assistant Wireless Operator has been dismissed.   An  order
dated 18th February 2011 whereby the High Court  dismissed  Review  Petition
No.72/2011 filed by the appellant has also been assailed by  the  appellant.

3.    The appellant was posted as an Assistant Wireless  Operator  at  Patel
Nagar Police Station,  Delhi.    
A  cabin  was  provided  to  him  for  that
On the night intervening 28/29th July 2001 when Inspector  Harjeet
Singh went for checking the cabin used by the appellant he  found  the  same
locked from inside.  
The Inspector knocked at the door but got  no  response
from within the cabin.  
He then  knocked  the  door  harder  whereupon,  the
appellant shouted at him from inside saying,  “KYA  DARWAJE  KO  TOREGA  BE”
(Are you determined to break the door). When the door was eventually  opened
by the appellant, the Inspector found him wearing  plain  civilian  clothes.
He asked the appellant the reason for not being in proper uniform  to  which
the appellant replied that he liked to dress like that only.  
The  appellant
also refused to give the log book to the Inspector when asked  and  snatched
the same from him when the Inspector picked  it  up  from  the  table.  
appellant was, in the above circumstances,  charged  with  misconduct.   The
charge read as under:

           “I, Inspr. Anil  Dureja,  DE  Cell.  Delhi  charge  you  HC  Jai
           Bhagwan, No. 1212/Commn. That while discharging operator Duty at
           Radio a Radio Station P.S. Patel Nagar on the intervening  night
           28/297.2001 from 2000 hrs. to 0800 hrs. Inspr. Harjeet Singh who
           was night checking officer, approached for checking at the  door
           of wireless  cabin at 0035 hrs,    The cabin  was  found  locked
           from inside.  The Inspector knocked the door with little  force,
           you HC Jai Bhagwan shouted from inside in a  very  undisciplined
           manner “kya darwaje ko torego be” you were also found  in  plain
           clothes and when asked the reasons for the same you replied that
           you would like this only.  You also refused to give the log book
           when asked to do so snatched the log book  from  him  which  the
           later had  picked  up  from  the  table.   You  made  irrelevant
           transmission on District No at 0130 hrs  which  aggravated  your

                 The above act of misbeaviour and misconduct on the part of
           you HC (AWO) Jai Bhagwan No. 1212/Comn. Renders you  liable  for
           punishment under Section 21 D.P.  Act  read  with  Delhi  Police
           (Punishment and Appeal) Rules, 1980.”

4.    An inquiry followed  in  which  the  charges  were  held  proved.  
appellant found guilty and was dismissed from service by an order passed  by
the Disciplinary Authority on  29th  March  2002.  
Aggrieved  by  the  said
order, the appellant preferred an appeal  before  the  prescribed  appellate
authority which too failed and  was  dismissed  on  9th  January  2003.  The
appellant then approached the Central Administrative  Tribunal  for  redress
but remained unsuccessful even there. He next approached the High  Court  of
Delhi in Writ Petition No.5450 of 2005 before whom he  urged  five  distinct
grounds against the order  of  dismissal.   It  was  firstly  urged  by  the
appellant that a copy of  the  preliminary  inquiry  conducted  by  the  DCP
Communication and relied upon by the Inquiry Officer was never  supplied  to
him thereby causing prejudice to the appellant. It was secondly  urged  that
Inspector Harjeet Singh had  improved  upon  his  version  inasmuch  as  the
narrative given by him in the first report and  that  given  in  the  second
report were  materially  different.  Thirdly,  it  was  contended  that  DCP
Communication could not act as the Disciplinary  Authority  inasmuch  as  it
was he who had conducted the fact  finding  inquiry  that  gave  rise  to  a
likelihood of bias.  The fourth submission urged on behalf of the  appellant
before the High Court  related  to  the  appellant’s  version  that  he  was
medically advised against wearing the police  uniform  on  account  of  some
kind of skin allergy. It was lastly contended that the allegations  that  he
was sleeping inside the wireless cabin was unsupported by any  evidence  and
that the punishment of dismissal from service awarded  to  him  was  in  any
case much too harsh, unreasonable and disproportionate  to  the  gravity  of
the misconduct, to be countenanced by the Court.

5.    The High Court examined each of these  contentions  and  rejected  the
same by an order that is impugned in the present appeals.   The  High  Court
took pains to look into the evidence on record to  find  out  whether  there
was any perversity in the view taken  by  the  disciplinary  authority,  the
appellate authority, or the Tribunal and found none.  Even on  the  question
of quantum of punishment, the High Court held that  the  petitioner  had  no
case inasmuch as the incident in question was one of gross indiscipline  and
the penalty of dismissal from service was justified.

6.    We have heard learned counsel for  the  parties  at  some  length  and
perused  the  orders  under  challenge.  The  charges  framed  against   the
appellant  have  been  held  proved  by  the  disciplinary  authority,   the
appellate authority and even by the Tribunal concurrently.  The  High  Court
reviewed those findings and found nothing perverse about  the  same.   There
is in that view no room for our interference on that account.   In  fairness
to learned counsel for the appellant we must mention that even  he  did  not
make any serious attempt to assail the concurrent findings of fact  recorded
against the appellant. We have, therefore, no hesitation  in  affirming  the
said findings.

7.     What  was  argued  by  learned  counsel  for   the   appellant   with
considerable  tenacity  was  the  dis-proportionality  of  the  quantum   of
punishment imposed upon the appellant.  It was contended  that  the  charges
against the  appellant  were  limited  to  using  rude  language  against  a
superior officer who had come to check the wireless cabin  provided  to  the
appellant. The fact that the appellant was not in proper uniform or  took  a
little more time than necessary in opening the door also did not  materially
add to the gravity to the misconduct, if any.   Dismissal from  service  for
such a minor act of misdemeanor was according  to  learned  counsel  totally
unreasonable and disproportionate even assuming that the  charges  had  been
satisfactorily proved.  Relying upon the  decision  of  this  Court  in  Ram
kishan v. Union of India  (1995)  6  SCC  157  it  was  contended  that  the
delinquent was in that case also charged with an act like  the  one  alleged
against the appellant.  This Court had, however, stepped  in  to  set  aside
the order of dismissal passed by the disciplinary authority and reduced  the
punishment to stoppage of two increments only.  It was urged that a  similar
order in the instant case would meet the ends of justice.

8.    On behalf of the respondent, it was submitted that the conduct of  the
appellant was highly objectionable and unbecoming of any one serving in  the
police force where the need for maintaining discipline  is  paramount.   Any
leniency towards those responsible for such  misconduct  was,  according  to
the learned counsel, bound to encourage others to  commit  similar  or  more
serious acts of indiscipline and misconduct which  will  not  be  in  public
interest as it is bound to  undermine  discipline  as  a  value,  erode  the
efficacy of the police force and shake the confidence of the people  in  its
efficiency.  It was also submitted that the appellant had not only sent  out
an unwarranted message on the wireless regarding the incident but  had  gone
to the extent of making a false  accusation  against  the  Inspector,  which
aggravated  the  appellant’s  misconduct  wholly  unbecoming  of  a   police
officer.  A  false  charge  implicating  his  superior  for  using  casteist
remarks was a serious matter.  Dismissal from service, in that view was  the
only punishment which the appellant  deserved  and  with  which  this  Court
ought not to interfere.

9.    What is the appropriate quantum of  punishment  to  be  awarded  to  a
delinquent is a  matter  that  primarily  rest  in  the  discretion  of  the
disciplinary authority.  An authority sitting in appeal over any such  order
of punishment is by all means entitled to examine the  issue  regarding  the
quantum of punishment as much as it  is  entitled  to  examine  whether  the
charges have been  satisfactorily  proved.   But  when  any  such  order  is
challenged before a Service Tribunal or  the  High  Court  the  exercise  of
discretion  by  the  competent  Authority  in   determining   and   awarding
punishment is generally respected except where the same is found  to  be  so
outrageously disproportionate to the gravity  of  the  misconduct  that  the
Court considers it be arbitrary in  that  it  is  wholly  unreasonable.  The
superior Courts and the Tribunal  invoke  the  doctrine  of  proportionality
which has been gradually accepted as one of the facets of  judicial  review.
A punishment that is so excessive or disproportionate to the offence  as  to
shock the conscience of the Court is seen as unacceptable even  when  Courts
are  slow  and  generally  reluctant  to  interfere  with  the  quantum   of
punishment.    The law on the  subject  is  well  settled  by  a  series  of
decisions rendered by this Court.  We remain content with reference to  only
some of them.

10.   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:

           “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 review”.

11.   Similarly, in Dev Singh  v.  Punjab  Tourism  Development  Corporation
limited (2003) 8 SCC 9, this Court, following Ranjit Thakur’s  case  (supra)

           “…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

12.   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.

13.   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.

14.   Having said that we cannot ignore the  fact  that  the  appellant  had
falsely accused the Inspector of having used casteist  abuses  to  humiliate
him which allegation on an inquiry was found to be  totally  false.  
It  is
obvious that the appellant had tried to use the caste card  only  to  escape
punishment for the misconduct and indiscipline committed by him.  
There  is
no manner of doubt that an allegation like the one  made  by  the  appellant
could have resulted  in  his  prosecution  and  dismissal  of  the  superior
officer from service.  
The appellant’s case in that  view  is  not  on  all
four corners of Ram Krishna to call for such leniency as was  shown  to  Ram

15.   In the totality of these circumstances, we are of the view that
dismissal from service of the appellant is a harsh punishment the order  for dismissal could be substituted by an order of reduction to  the  rank  of  a constable with the  direction  that  while  the  appellant  shall  have  the benefit of continuity of service he shall not be entitled to any arrears  of pay or  other  financial  benefits  for  the  period  between  the  date  of dismissal and the date of  his  reinstatement  against  the  lower  post  of constable.  
We are conscious of the  fact  that  this  Court  could  in  the
ordinary course remit the matter back  to  the  disciplinary  authority  for passing  a  fresh  order  of  punishment  considered  proper  but   we   are deliberately avoiding that course.  
We are doing so  because  the  order  of dismissal of the appellant was passed in the year 2001.  
A  remand  at  this distant point of time is likely to lead to further delay and  litigation  on the subject which is  not  in  the  interest  of  either  party.   
We  have,
therefore, upon an anxious thought as to the quantum of punishment  that  is appropriate taken the un-usual but  by  no  means  impermissible  course  of reducing the punishment to the extent indicated above.

16.   These appeals are accordingly allowed  in  the  above  terms;  with  a
further direction that the respondents shall do  the  needful  expeditiously
but not later than three months from the date of this order.  No costs.

                                         (T.S. THAKUR)

                                                         (GYAN SUDHA MISRA)
New Delhi
July 5, 2013

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