Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4715-4716 OF 2013
(Arising out of S.L.P.(C) NOs.22263-22264 of 2012)
S.R. Tewari ... Appellant
Versus
Union of India & Anr. ...Respondents
With
Contempt Petition (C) Nos.180-181 of 2013
S.R. Tewari ... Petitioner
Versus
R.K. Singh & Anr. ...Contemnors
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted in SLP(C) Nos. 22263-22264 of 2012. Page 2
2. These appeals have been preferred against the judgment and
order dated 15.2.2012 of the High Court of Delhi passed in Review
Petition No.102 of 2012; and the order dated 1.2.2012 in Writ Petition
No. 4207 of 2011. By way of this order the High Court has allowed
the writ petition filed by the Union of India – respondent no.1 against
the order of the Central Administrative Tribunal (hereinafter called
the ‘Tribunal’), raising a very large number of grievances. The
appellant was running from pillar to post as he had been harassed and
penalised for no fault of his own and has been awarded a punishment
which is uncalled for. Thus, he had moved the Tribunal, High Court
of Delhi and this Court several times.
3. Facts and circumstances giving rise to these appeals and
contempt petitions are as under:-
A. The appellant, an IPS Officer of 1982 batch joined the service
on 1.9.1982, promoted on the post of Deputy Inspector General
(D.I.G.), and subsequently as Inspector General of Police (I.G.) in his
cadre of the State of Andhra Pradesh in May 2001.
The appellant was
on deputation and was posted as I.G., Frontier Head Quarters, Border
Security Force (BSF) (North Bengal) from 23.6.2005 to 14.11.2006.
2Page 3
B. The appellant was put under suspension vide order dated
13.11.2006 as the disciplinary authority decided to hold disciplinary
proceedings.
As a consequence thereof, a charge sheet dated
23.3.2007 containing 8 charges was served upon him.
The appellant
denied all the said charges and therefore, an Inquiry Officer was
appointed.
The Department examined a large number of witnesses
and produced documents in support of its case.
The appellant also
defended himself and the Inquiry Officer submitted the report dated
23.12.2008 holding him guilty, as charge no.3 stood proved fully
while charge nos.4 and 6 stood proved partly.
C. The Disciplinary Authority did not agree with one of the
findings recorded by the Inquiry Officer on one charge and held that
charge no.4 was proved fully. In response to the show cause notice
issued to the appellant by the Disciplinary Authority, he submitted a
detailed representation against the disagreement note by the
Disciplinary Authority on 10.11.2009.
D. On being sought, the Union Public Service Commission
(hereinafter referred to as ‘UPSC’) gave its advice regarding the
punishment on 20.8.2010. The Central Vigilance Commission
3Page 4
(hereinafter referred to as ‘CVC’) also gave its advice in respect of the
charges against the appellant on 18.2.2009.
After considering all the
material, the Disciplinary Authority passed the order of punishment of
dismissal from service on 8.9.2010.
E. Aggrieved, the appellant challenged the said order of dismissal
by filing OA No.3234 of 2010 before the Tribunal. It was contested and opposed by respondent no.1. The Tribunal set aside the order of punishment dated 8.9.2010 vide judgment and order dated 11.2.2011 and directed for reinstatement of the appellant in service with all consequential benefits.
F. Aggrieved, respondent no.1, Union of India challenged the said
order of the Tribunal by filing Writ Petition (C) No.4207 of 2011
before the High Court of Delhi. The High Court vide its judgment
and order dated 1.2.2012 set aside the judgment and order dated
11.2.2011, passed by the Tribunal and directed respondent no.1 to
pass a fresh order in respect of charge nos.4 and 6 as in the opinion of
the High Court only the said two charges stood proved.
G. Appellant filed Review Petition No. 102 of 2012 against the
order dated 1.2.2012, however, the same was rejected vide order dated
4Page 5
15.2.2012.
H. Aggrieved, respondent no.1 filed SLP(C) No.14639 of 2012,
challenging the said order of the High Court of Delhi dated 1.2.2012.
However, the same was dismissed by this Court on 9.5.2012.
I. The appellant challenged the same order of the High Court
dated 1.2.2012 by filing these appeals. In the meanwhile, respondent
no.1 re-instated the appellant on 23.5.2012 and tentatively formed a
decision to impose a suitable penalty on the said two charges in view
of the order of the High Court dated 1.2.2012, a penalty of
withholding two increments for one year without cumulative
effect. The respondent no.1 sought advice from the UPSC, which
vide letter dated 13.8.2012 advised that the appellant be compulsorily
retired. The advice given by the UPSC was served upon the appellant
and he was asked to make a representation on the same.
In the meanwhile, this Court vide order dated 5.10.2012 asked
the appellant to file a detailed representation before respondent no.1,
who was asked in turn to pass a speaking and reasoned order within a
stipulated period in respect of the punishment. However, the order of
punishment would not be given effect to immediately and the
same would be placed before this Court on the next date of
5Page 6
hearing. In pursuance thereof, the appellant submitted the
representation on 5.10.2012. Respondent no.1 vide order dated
17.10.2012 passed the order imposing the punishment of compulsory
retirement. The said order was given effect to and communicated to
the appellant vide letter dated 19.11.2012.
J. Thus, the questions that arise for consideration of this Court are
whether the punishment of compulsory retirement awarded by the
Disciplinary Authority is proportionate to the delinquency proved and
whether the respondents in the contempt petitions wilfully violated the
order dated 5.10.2012 passed by this Court holding that the
punishment should not be given effect to until it is produced before
the court at the time of the next hearing.
4. Shri P.S. Patwalia, learned senior counsel appearing for the
appellant has submitted that there has been misreading of evidence by
the High Court of Delhi that charge nos.4 and 6 have been proved
fully. The charges were trivial in nature and could not warrant the
punishment of compulsory retirement. The appellant faced
departmental proceedings for six years and had been deprived of
being considered for further promotion. He is due to retire in
6Page 7
December, 2013. The appellant remained under suspension for 11
months and was dismissed from service for about 19 months. He had
been granted ‘Z’ class protection initially which was subsequently
scaled down to ‘Y’ category. The appellant was given the said
security/protection even during the period of suspension and
dismissal. Even during that period he had been provided with a bullet
proof car and PSOs as he had been facing threats from naxalites.
Therefore, the punishment so imposed is to be set aside.
In view of the orders passed by this court stating that the
punishment order can be passed by the respondents but could not be
given effect to without production before the court stood voluntarily
violated. Therefore, the respondents in the contempt petitions are
liable to be punished for wilful disobedience of the same.
5. Per contra, Shri R.P. Bhatt, learned senior counsel for the
Union of India has vehemently opposed the appeals and contempt
petitions contending that the said charges stood fully proved against
the appellant. Being an IPS Officer, he knew his responsibilities and
no leniency should be granted. The order passed by this Court has not
voluntarily been violated. Therefore, the appeals as well as the
contempt petitions are liable to be dismissed.
7Page 8
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
7. The chargesheet dated 23.3.2007 containing the following 8
charges was served upon the appellant under Rule 8 of the All India
Services (Discipline and Appeal) Rules, 1969 for his alleged
misconducts during his tenure in BSF, North Bengal, on the following
counts :-
(i) Indulged in living with a lady by name Smt.
Chandrakala, not being his legally wedded wife.
(ii) Allowed unauthorized interference by Smt.
Chandrakala in the official functioning of North Bengal
Frontier causing premature release of four constables
from the Quarter Guard.
(iii) Complete disregard to the rules and without
jurisdiction, reviewed punishment awarded and
mitigated the sentence awarded to No. 86161306
Constable Prakash Singh by Frontier Headquarter, BSF
South Bengal.
(iv) Favoritism and manipulation in the selection of
Headmaster, BSF Primary School Kadmatala even
though the candidate did not possess essential
qualification and was not eligible.
(v) Assisted enrolment of a person in BSF from his
native district, UP by fraudulent means.
(vi) Misuse of official vehicle, arms and ammunition
8Page 9
and BSF personnel during the marriage of his son in
Feb. 2006 at his native place in Balia, UP.
(vii) Retaining of four BSF Constables for Personal
work.
(viii) Attachment of Shri Prakash Singh, constable
with North Bengal Frontier despite contrary remarks of
the PSO, North Bengal Frontier.
8. The Inquiry Officer held that out of the 8 charges levelled
against the appellant, charge nos.1, 2, 5, 7 and 8 were not proved at
all. Charge no.3 was proved fully and charge nos.4 and 6 stood partly
proved.
The Inquiry Officer dealt with the said charges as under:
I. Charge No.3 stood proved only to the extent of passing an
order in a case lying outside the jurisdiction of the Commanding
Officer.
II. Charge 4 proved partly to the extent of wrong selection of
Head Master and Teacher in BSF Primary School Kadmatala by the
Commanding Officer without any favouritism and manipulation.
III. Charge No.6 stood partly proved to the extent of using BSF
vehicle for private journey outside jurisdiction upto Balia without
prior permission of the Competent Authority.
9Page 10
9. The Disciplinary Authority dealt with two of the charges
differently:
Charge No.3: The appellant though not competent to review
the punishment awarded to one Sri Prakash in his capacity as a
prescribed officer and thus, it clearly established the misconduct on
the part of the appellant and the charge stood proved against him.
Charge No.4: Shri S.S. Majumdar did not fulfil the eligibility
criteria and was not recommended by the Selection Board for the
post of Head Master and thus, he had been favoured by the
appellant who appointed him as Head Master. Thus, this charge
stood proved.
10. All the proved charges were re-examined by the Tribunal. After
re-appreciating the evidence, the Tribunal dealt with charge no.3
observing that entertaining a review petition is a quasi-judicial
function. It may be without jurisdiction and the order passed can be
corrected in further proceedings but it does not amount to misconduct.
The Tribunal took note of the finding on charge no.4 that the order of
appointment of a primary school teacher as well as Head Master in
BSF School had been without favouritism/manipulation in the
selection process as recorded by the Inquiry Officer and came to the
10Page 11
conclusion that the selection was made by the Board having various
members and not by the appellant alone and it also took note of the
fact that Shri Majumdar was not appointed as a primary school
teacher by the appellant, rather he had been working in the school for
10 years. Other teachers who had been working for more than 7 years
were also considered. Instead of adducing any documentary evidence
the Department only examined witnesses in the inquiry. The appellant
was competent to decide the eligibility criteria for the post of Head
Master. There was no favouritism or manipulation on the part of
the appellant. The Tribunal further took note of the subsequent
developments as under:-
“It is rather strange that the same very respondents, who
were harping upon irregular appointment of Majumdar as
Headmaster, the same being against the education code,
when the applicant issued them show cause notice for
termination of services, directed him to withdraw the
same and permit all of them to continue in service. So
much so, it was specifically ordered that Majumdar
would be continued in service.”
And then recorded the following finding:
“We accept the contention of the learned counsel for the
applicant that the respondents are blowing hot and cold in
the same breath. The applicant, at the most, could be
jointly held responsible for making selection of
Majumdar on the post of Headmaster, even though he
was the best amongst the lot to the extent that his
11Page 12
appointment was against the educational qualification
criteria mentioned in the advertisement itself, but for that,
as mentioned above, he alone could not be held
responsible.” (Emphasis added)
On charge no.6, the Tribunal took note of the facts as under:
“The charge has been partly proved by them completely
ignoring the explanation furnished by the applicant.
There is thus, an apparent error both on facts and law.
The respondents completely ignored the defence
projected by the applicant. Even though, prima facie, we
are of the view that the explanation furnished by the
applicant required acceptance, but once, while doing so
we will be appreciating evidence, we may not do the
same.” (Emphasis added)
And further held as under:
“On this charge, therefore, the course open may have
been to remit the matter to the concerned authorities, but
in the peculiar facts and circumstances of this case, we
refrain from doing so, as even if the charge to the extent
it stood proved, the same requires to be ignored inasmuch
as, once the applicant was entitled to take the vehicle and
PSOs to Balia, not obtaining prior permission would not
be a serious issue at all.” (Emphasis added)
11. The High Court while dealing with charge no.3 concurred with
the Tribunal that entertaining the review petition against the order of
punishment could have been without jurisdiction but there was no
finding by the Inquiry Officer that it was intentional. Therefore, there
could be a judicial error which could be set aside or corrected in
12Page 13
appeal or in any other proceedings but it did not amount to
misconduct. The same could not be a subject matter of enquiry as it
was not a misconduct for want of malafide or any element of
corruption or culpable negligence on the part of the appellant. In such
circumstances, it would not be permissible to consider it as a
misconduct.
So far as the appointment of Shri Majumdar as a Head Master
of the school is concerned, the High Court held that the appellant was
guilty of favouritism shown to Shri Majumdar.
Charge No.6 related to the allegation of using the vehicle from
Patna to Balia. The High Court also took note that the appellant was
granted ‘Y’ category security, due to threats from Naxalites. However,
he was not entitled to an escort vehicle for his journey from Patna to
Balia without permission. And in view of the above, the High Court
modified the findings recorded by the Tribunal.
12. We have reconsidered the case within permissible limits. The
case remained limited to the charge nos. 4 and 6 only as all other
charges have lost the significance at one stage or the other, and we have to advert only to the said charges.
13Page 14
The Inquiry Officer, the Disciplinary Authority, the Tribunal
and the High Court have considered all the facts involved herein. On
charge no.4, the High Court has admittedly committed a factual
mistake observing that Shri S.S. Majumdar had been appointed by
appellant as a regular teacher with retrospective effect. In fact there is
no evidence that appellant had appointed him or regularised him as
Shri Majumdar was already in service for a period of 10 years. Same
remained the position in respect of charge no.6 as the High Court misdirected itself as it considered the case as if the charge against the
appellant had been taking two vehicles; one his official car and
another an escort, though there had been no such charge levelled
against the appellant.
The High Court while dealing with the review petition on
charge no.4, did not consider the fact that the appointment of Shri
S.S. Majumdar as a Head Master, was a unanimous decision of the
Board and not that of the appellant alone. The High Court also did
not correct the mistake in its original judgment regarding the usage of
two vehicles.
14Page 15
13. In Commissioner of Income-tax, Bombay & Ors. v.
Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182, this Court
held that various parameters of the court’s power of judicial review of
administrative or executive action on which the court can interfere had
been well settled and it would be redundant to recapitulate the whole
catena of decisions. The Court further held:
“It is a settled position that if the action or decision is
perverse or is such that no reasonable body of persons,
properly informed, could come to, or has been arrived at
by the authority misdirecting itself by adopting a wrong
approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same.”
14. The court can exercise the power of judicial review if there is a
manifest error in the exercise of power or the exercise of power is
manifestly arbitrary or if the power is exercised on the basis of facts
which do not exist and which are patently erroneous. Such exercise of
power would stand vitiated. The court may be justified in exercising
the power of judicial review if the impugned order suffers from mala
fide, dishonest or corrupt practices, for the reason, that the order had
been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the
order had been passed by the authority only on the grounds of illegal-
15Page 16
ity, irrationality and procedural impropriety before it interferes. The
court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with
the order of the authority may impose heavy administrative burden on
the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. Union of India, AIR 1996 SC 11; People’s Union for Civil
Liberties & Anr. v. Union of India & Ors., AIR 2004 SC 456; and
State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, AIR 2005
SC 2080).
15. In Air India Ltd. v. Cochin International Airport Ltd. &
Ors., AIR 2000 SC 801, this Court explaining the scope of judicial review held that the court must act with great caution and should exercise such power only in furtherance to public interest and not merely
on the making out of a legal point. The court must always keep the
larger public interest in mind in order to decide whether its intervention is called for or not.
16. There may be a case where the holders of public offices have
forgotten that the offices entrusted to them are a sacred trust and such
offices are meant for use and not abuse. Where such trustees turn to
16Page 17
dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav & Anr. v.
State of Haryana & Ors., AIR 1994 SC 2166).
17. The court must keep in mind that judicial review is not akin to
adjudication on merit by re-appreciating the evidence as an appellate
authority. Thus, the court is devoid of the power to re-appreciate the
evidence and come to its own conclusion on the proof of a particular
charge, as the scope of judicial review is limited to the process of
making the decision and not against the decision itself and in such a
situation the court cannot arrive on its own independent finding.
(Vide: High Court of Judicature at Bombay through its Registrar
v. Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., AIR 1997
SC 2286; Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214; and Union of India & Ors. v.
Manab Kumar Guha, (2011) 11 SCC 535).
18. The question of interference on the quantum of punishment, has
been considered by this Court in a catena of judgments, and it was
held that if the punishment awarded is disproportionate to the gravity
17Page 18
of the misconduct, it would be arbitrary, and thus, would violate the
mandate of Article 14 of the Constitution.
In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC
2386, this Court observed as under:
“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 as to
shock the conscience and amount in itself to conclusive
evidence of bias. The doctrine of proportionality, as part
of the concept of judicial review, would ensure that even
on the aspect, which is otherwise, within the exclusive
province of the Court Martial, 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. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (Emphasis added)
(See also: Union of India & Anr. v. G. Ganayutham (dead by Lrs.),
AIR 1997 SC 3387; State of Uttar Pradesh & Ors. v. J.P.
Saraswat, (2011) 4 SCC 545; Chandra Kumar Chopra v. Union of
India & Ors., (2012) 6 SCC 369; and Registrar General, Patna
High Court v. Pandey Gajendra Prasad & Ors., AIR 2012 SC
2319).
18Page 19
19. In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC
484, this Court after examining various its earlier decisions observed
that in exercise of the powers of judicial review, the court cannot
“normally” substitute its own conclusion or penalty. However, if the
penalty imposed by an authority “shocks the conscience” of the court,
it would appropriately mould the relief either directing the authority to
reconsider the penalty imposed and in exceptional and rare cases, in
order to shorten the litigation, itself, impose appropriate punishment
with cogent reasons in support thereof. While examining the issue of
proportionality, court can also consider the circumstances under
which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain
manner though he had not intended to do so. The court may further
examine the effect, if the order is set aside or substituted by some
other penalty. However, it is only in very rare cases that the court
might, to shorten the litigation, think of substituting its own view as to
the quantum of punishment in place of punishment awarded by the
Competent Authority.
19Page 20
20. In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417,
this Court considered the scope of judicial review as to the quantum of
punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the
conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be “shocking to the conscience of the Court, in the sense that it was in defiance of logic or
moral standards.” In a normal course, if the punishment imposed is
shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in
order to shorten the litigation, in exceptional and rare cases, the
Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
21. In State of Meghalaya & Ors. v. Mecken Singh N. Marak,
AIR 2008 SC 2862, this Court observed that a Court or a Tribunal
while dealing with the quantum of punishment has to record reasons
as to why it is felt that the punishment is not commensurate with the
proved charges. In the matter of imposition of sentence, the scope for
interference is very limited and restricted to exceptional cases. The
20Page 21
punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected
to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681).
22. The role of the court in the matter of departmental proceedings
is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed
appreciation of the evidence on record. In the matter of imposition of
sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court
has to record reasons as to why the punishment is disproportionate.
Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and
Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC
1783).
21Page 22
23. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC
3053, this Court explained the observations made in Ranjit Thakur
(supra) observing that if the charge was ridiculous, the punishment
was harsh or strikingly disproportionate it would warrant interference.
However, the said observations in Ranjit Thakur (supra) are not to
be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers
the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there
could be judicial review and courts should not interfere merely on
compassionate grounds.
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible
material. The finding may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. If a decision is arrived at on
the basis of no evidence or thoroughly unreliable evidence and no
reasonable person would act upon it, the order would be perverse. But
if there is some evidence on record which is acceptable and which
22Page 23
could be relied upon, the conclusions would not be treated as perverse
and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep
Singh v. Commissioner of Police & Ors., AIR 1999 SC 677;
Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh
thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala,
(2010) 9 SCC 189).
Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible.
25. So far as charge no.4 is concerned, the matter was considered
by a Board consisting of several officers and the appellant could not
have been selectively targeted for disciplinary action. Further, no
material could be placed on record that BSF had ever formulated a
policy for regularisation of a temporary teacher as a regular teacher
and in such a fact-situation, the appellant could not have regularised
the services of Shri Majumdar as a school teacher, even if he had the
experience of 10 years. (This was not even a charge against the
appellant nor there was any finding of the Inquiry Officer, nor has
such a matter been agitated before the Tribunal).
23Page 24
It is evident from the record that as per letter dated 4.4.2013
sent by the Government of India to the appellant through the Chief
Secretary, Andhra Pradesh, the proposed punishment is as under:
“A penalty of withholding two increments for one year
without cumulative effect, be imposed on the appellant as
a punishment under Rule 6 of the All India Services
(Discipline and Appeal) Rules, 1969.”
26. The proved charges remained only charge nos.4 and 6 and in
both the cases the misconduct seems to be of an administrative nature
rather than a misconduct of a serious nature.
It was not the case of the
department that the appellant had taken the escort vehicle with him.
There was only one vehicle which was an official vehicle for his use
and charge no.6 stood partly proved.
In view thereof, the punishment
of compulsory retirement shocks the conscience of the court and by
no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by and proved against the
appellant.
The only punishment which could be held to be commensurate to the delinquency was as proposed by the Government of India
to withhold two increments for one year without cumulative effect.
It
would have been appropriate to remand the case to the disciplinary
authority to impose the appropriate punishment. However, consider-
24Page 25
ing the chequered history of the case and in view of the fact that the
appellant had remained under suspension for 11 months, suffered the
order of dismissal for 19 months and would retire after reaching the
age of superannuation in December 2013, the facts of the case warrant
that this court should substitute the punishment of compulsory retirement to the punishment proposed by the Union of India i.e. withholding of two increments for one year without having cumulative effect.
In view thereof, we do not want to proceed with the contempt
petitions. The appeals as well as the contempt petitions stand disposed
of accordingly.
………………………………J.
(Dr. B.S. CHAUHAN)
………………………………J.
(DIPAK MISRA)
New Delhi,
May 28, 2013
25
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4715-4716 OF 2013
(Arising out of S.L.P.(C) NOs.22263-22264 of 2012)
S.R. Tewari ... Appellant
Versus
Union of India & Anr. ...Respondents
With
Contempt Petition (C) Nos.180-181 of 2013
S.R. Tewari ... Petitioner
Versus
R.K. Singh & Anr. ...Contemnors
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted in SLP(C) Nos. 22263-22264 of 2012. Page 2
2. These appeals have been preferred against the judgment and
order dated 15.2.2012 of the High Court of Delhi passed in Review
Petition No.102 of 2012; and the order dated 1.2.2012 in Writ Petition
No. 4207 of 2011. By way of this order the High Court has allowed
the writ petition filed by the Union of India – respondent no.1 against
the order of the Central Administrative Tribunal (hereinafter called
the ‘Tribunal’), raising a very large number of grievances. The
appellant was running from pillar to post as he had been harassed and
penalised for no fault of his own and has been awarded a punishment
which is uncalled for. Thus, he had moved the Tribunal, High Court
of Delhi and this Court several times.
3. Facts and circumstances giving rise to these appeals and
contempt petitions are as under:-
A. The appellant, an IPS Officer of 1982 batch joined the service
on 1.9.1982, promoted on the post of Deputy Inspector General
(D.I.G.), and subsequently as Inspector General of Police (I.G.) in his
cadre of the State of Andhra Pradesh in May 2001.
The appellant was
on deputation and was posted as I.G., Frontier Head Quarters, Border
Security Force (BSF) (North Bengal) from 23.6.2005 to 14.11.2006.
2Page 3
B. The appellant was put under suspension vide order dated
13.11.2006 as the disciplinary authority decided to hold disciplinary
proceedings.
As a consequence thereof, a charge sheet dated
23.3.2007 containing 8 charges was served upon him.
The appellant
denied all the said charges and therefore, an Inquiry Officer was
appointed.
The Department examined a large number of witnesses
and produced documents in support of its case.
The appellant also
defended himself and the Inquiry Officer submitted the report dated
23.12.2008 holding him guilty, as charge no.3 stood proved fully
while charge nos.4 and 6 stood proved partly.
C. The Disciplinary Authority did not agree with one of the
findings recorded by the Inquiry Officer on one charge and held that
charge no.4 was proved fully. In response to the show cause notice
issued to the appellant by the Disciplinary Authority, he submitted a
detailed representation against the disagreement note by the
Disciplinary Authority on 10.11.2009.
D. On being sought, the Union Public Service Commission
(hereinafter referred to as ‘UPSC’) gave its advice regarding the
punishment on 20.8.2010. The Central Vigilance Commission
3Page 4
(hereinafter referred to as ‘CVC’) also gave its advice in respect of the
charges against the appellant on 18.2.2009.
After considering all the
material, the Disciplinary Authority passed the order of punishment of
dismissal from service on 8.9.2010.
E. Aggrieved, the appellant challenged the said order of dismissal
by filing OA No.3234 of 2010 before the Tribunal. It was contested and opposed by respondent no.1. The Tribunal set aside the order of punishment dated 8.9.2010 vide judgment and order dated 11.2.2011 and directed for reinstatement of the appellant in service with all consequential benefits.
F. Aggrieved, respondent no.1, Union of India challenged the said
order of the Tribunal by filing Writ Petition (C) No.4207 of 2011
before the High Court of Delhi. The High Court vide its judgment
and order dated 1.2.2012 set aside the judgment and order dated
11.2.2011, passed by the Tribunal and directed respondent no.1 to
pass a fresh order in respect of charge nos.4 and 6 as in the opinion of
the High Court only the said two charges stood proved.
G. Appellant filed Review Petition No. 102 of 2012 against the
order dated 1.2.2012, however, the same was rejected vide order dated
4Page 5
15.2.2012.
H. Aggrieved, respondent no.1 filed SLP(C) No.14639 of 2012,
challenging the said order of the High Court of Delhi dated 1.2.2012.
However, the same was dismissed by this Court on 9.5.2012.
I. The appellant challenged the same order of the High Court
dated 1.2.2012 by filing these appeals. In the meanwhile, respondent
no.1 re-instated the appellant on 23.5.2012 and tentatively formed a
decision to impose a suitable penalty on the said two charges in view
of the order of the High Court dated 1.2.2012, a penalty of
withholding two increments for one year without cumulative
effect. The respondent no.1 sought advice from the UPSC, which
vide letter dated 13.8.2012 advised that the appellant be compulsorily
retired. The advice given by the UPSC was served upon the appellant
and he was asked to make a representation on the same.
In the meanwhile, this Court vide order dated 5.10.2012 asked
the appellant to file a detailed representation before respondent no.1,
who was asked in turn to pass a speaking and reasoned order within a
stipulated period in respect of the punishment. However, the order of
punishment would not be given effect to immediately and the
same would be placed before this Court on the next date of
5Page 6
hearing. In pursuance thereof, the appellant submitted the
representation on 5.10.2012. Respondent no.1 vide order dated
17.10.2012 passed the order imposing the punishment of compulsory
retirement. The said order was given effect to and communicated to
the appellant vide letter dated 19.11.2012.
J. Thus, the questions that arise for consideration of this Court are
whether the punishment of compulsory retirement awarded by the
Disciplinary Authority is proportionate to the delinquency proved and
whether the respondents in the contempt petitions wilfully violated the
order dated 5.10.2012 passed by this Court holding that the
punishment should not be given effect to until it is produced before
the court at the time of the next hearing.
4. Shri P.S. Patwalia, learned senior counsel appearing for the
appellant has submitted that there has been misreading of evidence by
the High Court of Delhi that charge nos.4 and 6 have been proved
fully. The charges were trivial in nature and could not warrant the
punishment of compulsory retirement. The appellant faced
departmental proceedings for six years and had been deprived of
being considered for further promotion. He is due to retire in
6Page 7
December, 2013. The appellant remained under suspension for 11
months and was dismissed from service for about 19 months. He had
been granted ‘Z’ class protection initially which was subsequently
scaled down to ‘Y’ category. The appellant was given the said
security/protection even during the period of suspension and
dismissal. Even during that period he had been provided with a bullet
proof car and PSOs as he had been facing threats from naxalites.
Therefore, the punishment so imposed is to be set aside.
In view of the orders passed by this court stating that the
punishment order can be passed by the respondents but could not be
given effect to without production before the court stood voluntarily
violated. Therefore, the respondents in the contempt petitions are
liable to be punished for wilful disobedience of the same.
5. Per contra, Shri R.P. Bhatt, learned senior counsel for the
Union of India has vehemently opposed the appeals and contempt
petitions contending that the said charges stood fully proved against
the appellant. Being an IPS Officer, he knew his responsibilities and
no leniency should be granted. The order passed by this Court has not
voluntarily been violated. Therefore, the appeals as well as the
contempt petitions are liable to be dismissed.
7Page 8
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
7. The chargesheet dated 23.3.2007 containing the following 8
charges was served upon the appellant under Rule 8 of the All India
Services (Discipline and Appeal) Rules, 1969 for his alleged
misconducts during his tenure in BSF, North Bengal, on the following
counts :-
(i) Indulged in living with a lady by name Smt.
Chandrakala, not being his legally wedded wife.
(ii) Allowed unauthorized interference by Smt.
Chandrakala in the official functioning of North Bengal
Frontier causing premature release of four constables
from the Quarter Guard.
(iii) Complete disregard to the rules and without
jurisdiction, reviewed punishment awarded and
mitigated the sentence awarded to No. 86161306
Constable Prakash Singh by Frontier Headquarter, BSF
South Bengal.
(iv) Favoritism and manipulation in the selection of
Headmaster, BSF Primary School Kadmatala even
though the candidate did not possess essential
qualification and was not eligible.
(v) Assisted enrolment of a person in BSF from his
native district, UP by fraudulent means.
(vi) Misuse of official vehicle, arms and ammunition
8Page 9
and BSF personnel during the marriage of his son in
Feb. 2006 at his native place in Balia, UP.
(vii) Retaining of four BSF Constables for Personal
work.
(viii) Attachment of Shri Prakash Singh, constable
with North Bengal Frontier despite contrary remarks of
the PSO, North Bengal Frontier.
8. The Inquiry Officer held that out of the 8 charges levelled
against the appellant, charge nos.1, 2, 5, 7 and 8 were not proved at
all. Charge no.3 was proved fully and charge nos.4 and 6 stood partly
proved.
The Inquiry Officer dealt with the said charges as under:
I. Charge No.3 stood proved only to the extent of passing an
order in a case lying outside the jurisdiction of the Commanding
Officer.
II. Charge 4 proved partly to the extent of wrong selection of
Head Master and Teacher in BSF Primary School Kadmatala by the
Commanding Officer without any favouritism and manipulation.
III. Charge No.6 stood partly proved to the extent of using BSF
vehicle for private journey outside jurisdiction upto Balia without
prior permission of the Competent Authority.
9Page 10
9. The Disciplinary Authority dealt with two of the charges
differently:
Charge No.3: The appellant though not competent to review
the punishment awarded to one Sri Prakash in his capacity as a
prescribed officer and thus, it clearly established the misconduct on
the part of the appellant and the charge stood proved against him.
Charge No.4: Shri S.S. Majumdar did not fulfil the eligibility
criteria and was not recommended by the Selection Board for the
post of Head Master and thus, he had been favoured by the
appellant who appointed him as Head Master. Thus, this charge
stood proved.
10. All the proved charges were re-examined by the Tribunal. After
re-appreciating the evidence, the Tribunal dealt with charge no.3
observing that entertaining a review petition is a quasi-judicial
function. It may be without jurisdiction and the order passed can be
corrected in further proceedings but it does not amount to misconduct.
The Tribunal took note of the finding on charge no.4 that the order of
appointment of a primary school teacher as well as Head Master in
BSF School had been without favouritism/manipulation in the
selection process as recorded by the Inquiry Officer and came to the
10Page 11
conclusion that the selection was made by the Board having various
members and not by the appellant alone and it also took note of the
fact that Shri Majumdar was not appointed as a primary school
teacher by the appellant, rather he had been working in the school for
10 years. Other teachers who had been working for more than 7 years
were also considered. Instead of adducing any documentary evidence
the Department only examined witnesses in the inquiry. The appellant
was competent to decide the eligibility criteria for the post of Head
Master. There was no favouritism or manipulation on the part of
the appellant. The Tribunal further took note of the subsequent
developments as under:-
“It is rather strange that the same very respondents, who
were harping upon irregular appointment of Majumdar as
Headmaster, the same being against the education code,
when the applicant issued them show cause notice for
termination of services, directed him to withdraw the
same and permit all of them to continue in service. So
much so, it was specifically ordered that Majumdar
would be continued in service.”
And then recorded the following finding:
“We accept the contention of the learned counsel for the
applicant that the respondents are blowing hot and cold in
the same breath. The applicant, at the most, could be
jointly held responsible for making selection of
Majumdar on the post of Headmaster, even though he
was the best amongst the lot to the extent that his
11Page 12
appointment was against the educational qualification
criteria mentioned in the advertisement itself, but for that,
as mentioned above, he alone could not be held
responsible.” (Emphasis added)
On charge no.6, the Tribunal took note of the facts as under:
“The charge has been partly proved by them completely
ignoring the explanation furnished by the applicant.
There is thus, an apparent error both on facts and law.
The respondents completely ignored the defence
projected by the applicant. Even though, prima facie, we
are of the view that the explanation furnished by the
applicant required acceptance, but once, while doing so
we will be appreciating evidence, we may not do the
same.” (Emphasis added)
And further held as under:
“On this charge, therefore, the course open may have
been to remit the matter to the concerned authorities, but
in the peculiar facts and circumstances of this case, we
refrain from doing so, as even if the charge to the extent
it stood proved, the same requires to be ignored inasmuch
as, once the applicant was entitled to take the vehicle and
PSOs to Balia, not obtaining prior permission would not
be a serious issue at all.” (Emphasis added)
11. The High Court while dealing with charge no.3 concurred with
the Tribunal that entertaining the review petition against the order of
punishment could have been without jurisdiction but there was no
finding by the Inquiry Officer that it was intentional. Therefore, there
could be a judicial error which could be set aside or corrected in
12Page 13
appeal or in any other proceedings but it did not amount to
misconduct. The same could not be a subject matter of enquiry as it
was not a misconduct for want of malafide or any element of
corruption or culpable negligence on the part of the appellant. In such
circumstances, it would not be permissible to consider it as a
misconduct.
So far as the appointment of Shri Majumdar as a Head Master
of the school is concerned, the High Court held that the appellant was
guilty of favouritism shown to Shri Majumdar.
Charge No.6 related to the allegation of using the vehicle from
Patna to Balia. The High Court also took note that the appellant was
granted ‘Y’ category security, due to threats from Naxalites. However,
he was not entitled to an escort vehicle for his journey from Patna to
Balia without permission. And in view of the above, the High Court
modified the findings recorded by the Tribunal.
12. We have reconsidered the case within permissible limits. The
case remained limited to the charge nos. 4 and 6 only as all other
charges have lost the significance at one stage or the other, and we have to advert only to the said charges.
13Page 14
The Inquiry Officer, the Disciplinary Authority, the Tribunal
and the High Court have considered all the facts involved herein. On
charge no.4, the High Court has admittedly committed a factual
mistake observing that Shri S.S. Majumdar had been appointed by
appellant as a regular teacher with retrospective effect. In fact there is
no evidence that appellant had appointed him or regularised him as
Shri Majumdar was already in service for a period of 10 years. Same
remained the position in respect of charge no.6 as the High Court misdirected itself as it considered the case as if the charge against the
appellant had been taking two vehicles; one his official car and
another an escort, though there had been no such charge levelled
against the appellant.
The High Court while dealing with the review petition on
charge no.4, did not consider the fact that the appointment of Shri
S.S. Majumdar as a Head Master, was a unanimous decision of the
Board and not that of the appellant alone. The High Court also did
not correct the mistake in its original judgment regarding the usage of
two vehicles.
14Page 15
13. In Commissioner of Income-tax, Bombay & Ors. v.
Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182, this Court
held that various parameters of the court’s power of judicial review of
administrative or executive action on which the court can interfere had
been well settled and it would be redundant to recapitulate the whole
catena of decisions. The Court further held:
“It is a settled position that if the action or decision is
perverse or is such that no reasonable body of persons,
properly informed, could come to, or has been arrived at
by the authority misdirecting itself by adopting a wrong
approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same.”
14. The court can exercise the power of judicial review if there is a
manifest error in the exercise of power or the exercise of power is
manifestly arbitrary or if the power is exercised on the basis of facts
which do not exist and which are patently erroneous. Such exercise of
power would stand vitiated. The court may be justified in exercising
the power of judicial review if the impugned order suffers from mala
fide, dishonest or corrupt practices, for the reason, that the order had
been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the
order had been passed by the authority only on the grounds of illegal-
15Page 16
ity, irrationality and procedural impropriety before it interferes. The
court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with
the order of the authority may impose heavy administrative burden on
the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. Union of India, AIR 1996 SC 11; People’s Union for Civil
Liberties & Anr. v. Union of India & Ors., AIR 2004 SC 456; and
State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, AIR 2005
SC 2080).
15. In Air India Ltd. v. Cochin International Airport Ltd. &
Ors., AIR 2000 SC 801, this Court explaining the scope of judicial review held that the court must act with great caution and should exercise such power only in furtherance to public interest and not merely
on the making out of a legal point. The court must always keep the
larger public interest in mind in order to decide whether its intervention is called for or not.
16. There may be a case where the holders of public offices have
forgotten that the offices entrusted to them are a sacred trust and such
offices are meant for use and not abuse. Where such trustees turn to
16Page 17
dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav & Anr. v.
State of Haryana & Ors., AIR 1994 SC 2166).
17. The court must keep in mind that judicial review is not akin to
adjudication on merit by re-appreciating the evidence as an appellate
authority. Thus, the court is devoid of the power to re-appreciate the
evidence and come to its own conclusion on the proof of a particular
charge, as the scope of judicial review is limited to the process of
making the decision and not against the decision itself and in such a
situation the court cannot arrive on its own independent finding.
(Vide: High Court of Judicature at Bombay through its Registrar
v. Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., AIR 1997
SC 2286; Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214; and Union of India & Ors. v.
Manab Kumar Guha, (2011) 11 SCC 535).
18. The question of interference on the quantum of punishment, has
been considered by this Court in a catena of judgments, and it was
held that if the punishment awarded is disproportionate to the gravity
17Page 18
of the misconduct, it would be arbitrary, and thus, would violate the
mandate of Article 14 of the Constitution.
In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC
2386, this Court observed as under:
“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 as to
shock the conscience and amount in itself to conclusive
evidence of bias. The doctrine of proportionality, as part
of the concept of judicial review, would ensure that even
on the aspect, which is otherwise, within the exclusive
province of the Court Martial, 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. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (Emphasis added)
(See also: Union of India & Anr. v. G. Ganayutham (dead by Lrs.),
AIR 1997 SC 3387; State of Uttar Pradesh & Ors. v. J.P.
Saraswat, (2011) 4 SCC 545; Chandra Kumar Chopra v. Union of
India & Ors., (2012) 6 SCC 369; and Registrar General, Patna
High Court v. Pandey Gajendra Prasad & Ors., AIR 2012 SC
2319).
18Page 19
19. In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC
484, this Court after examining various its earlier decisions observed
that in exercise of the powers of judicial review, the court cannot
“normally” substitute its own conclusion or penalty. However, if the
penalty imposed by an authority “shocks the conscience” of the court,
it would appropriately mould the relief either directing the authority to
reconsider the penalty imposed and in exceptional and rare cases, in
order to shorten the litigation, itself, impose appropriate punishment
with cogent reasons in support thereof. While examining the issue of
proportionality, court can also consider the circumstances under
which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain
manner though he had not intended to do so. The court may further
examine the effect, if the order is set aside or substituted by some
other penalty. However, it is only in very rare cases that the court
might, to shorten the litigation, think of substituting its own view as to
the quantum of punishment in place of punishment awarded by the
Competent Authority.
19Page 20
20. In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417,
this Court considered the scope of judicial review as to the quantum of
punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the
conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be “shocking to the conscience of the Court, in the sense that it was in defiance of logic or
moral standards.” In a normal course, if the punishment imposed is
shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in
order to shorten the litigation, in exceptional and rare cases, the
Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
21. In State of Meghalaya & Ors. v. Mecken Singh N. Marak,
AIR 2008 SC 2862, this Court observed that a Court or a Tribunal
while dealing with the quantum of punishment has to record reasons
as to why it is felt that the punishment is not commensurate with the
proved charges. In the matter of imposition of sentence, the scope for
interference is very limited and restricted to exceptional cases. The
20Page 21
punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected
to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681).
22. The role of the court in the matter of departmental proceedings
is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed
appreciation of the evidence on record. In the matter of imposition of
sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court
has to record reasons as to why the punishment is disproportionate.
Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and
Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC
1783).
21Page 22
23. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC
3053, this Court explained the observations made in Ranjit Thakur
(supra) observing that if the charge was ridiculous, the punishment
was harsh or strikingly disproportionate it would warrant interference.
However, the said observations in Ranjit Thakur (supra) are not to
be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers
the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there
could be judicial review and courts should not interfere merely on
compassionate grounds.
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible
material. The finding may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. If a decision is arrived at on
the basis of no evidence or thoroughly unreliable evidence and no
reasonable person would act upon it, the order would be perverse. But
if there is some evidence on record which is acceptable and which
22Page 23
could be relied upon, the conclusions would not be treated as perverse
and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep
Singh v. Commissioner of Police & Ors., AIR 1999 SC 677;
Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh
thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala,
(2010) 9 SCC 189).
Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible.
25. So far as charge no.4 is concerned, the matter was considered
by a Board consisting of several officers and the appellant could not
have been selectively targeted for disciplinary action. Further, no
material could be placed on record that BSF had ever formulated a
policy for regularisation of a temporary teacher as a regular teacher
and in such a fact-situation, the appellant could not have regularised
the services of Shri Majumdar as a school teacher, even if he had the
experience of 10 years. (This was not even a charge against the
appellant nor there was any finding of the Inquiry Officer, nor has
such a matter been agitated before the Tribunal).
23Page 24
It is evident from the record that as per letter dated 4.4.2013
sent by the Government of India to the appellant through the Chief
Secretary, Andhra Pradesh, the proposed punishment is as under:
“A penalty of withholding two increments for one year
without cumulative effect, be imposed on the appellant as
a punishment under Rule 6 of the All India Services
(Discipline and Appeal) Rules, 1969.”
26. The proved charges remained only charge nos.4 and 6 and in
both the cases the misconduct seems to be of an administrative nature
rather than a misconduct of a serious nature.
It was not the case of the
department that the appellant had taken the escort vehicle with him.
There was only one vehicle which was an official vehicle for his use
and charge no.6 stood partly proved.
In view thereof, the punishment
of compulsory retirement shocks the conscience of the court and by
no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by and proved against the
appellant.
The only punishment which could be held to be commensurate to the delinquency was as proposed by the Government of India
to withhold two increments for one year without cumulative effect.
It
would have been appropriate to remand the case to the disciplinary
authority to impose the appropriate punishment. However, consider-
24Page 25
ing the chequered history of the case and in view of the fact that the
appellant had remained under suspension for 11 months, suffered the
order of dismissal for 19 months and would retire after reaching the
age of superannuation in December 2013, the facts of the case warrant
that this court should substitute the punishment of compulsory retirement to the punishment proposed by the Union of India i.e. withholding of two increments for one year without having cumulative effect.
In view thereof, we do not want to proceed with the contempt
petitions. The appeals as well as the contempt petitions stand disposed
of accordingly.
………………………………J.
(Dr. B.S. CHAUHAN)
………………………………J.
(DIPAK MISRA)
New Delhi,
May 28, 2013
25
