K. N. Saikia vs Union Of India And Ors

[1] Heard Mr. J. Majumder, learned counsel appearing for the petitioner. Also heard Mr. B. Majumder, learned CGC, appearing for the respondent-CRPF.

[2] By the impugned order dated 1st July, 2016, issued by the disciplinary authority, i.e., the Commandant, 83 Bn., the petitioner was dismissed from service in view of a disciplinary proceeding initiated against him. The petitioner by means of filing this writ petition has challenged the said order of dismissal.

[3] The petitioner while serving under the respondents as Head Constable, (GD), was charged with gross misconduct and misbehaviour towards his superior officer. The following articles of charges were framed against him (Annexure-I to the writ petition):

ARTICLE-I

"No. 850794837 HC/GD K. N. Saikia while functioning as HC/GD in D/83 Bn. committed an act of gross misconduct and misbehavior in his capacity as a member of the Force U/S 11(1) of the CRPF Act, 1949 in that he misbehaved with his seniors No. 690130668 SI/GD Balbir Singh and Coy Commander Shri Pankaj Chowdhury, Asst. Comdt. On 13.06.2002 and assaulted with Butt of SLR causing injury to Shri Pankaj Chowdhury, Asst. Comtd. which is prejudicial to good oral and discipline of the Force.

ARTICLE-II

No. 850794837 HC/GD K. N. Saikia while functioning as HC/GD in D/83 Bn. CRPF committed an act of neglect and disobedience of orders in the discharge of his duty in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949, in that on 13.06.2002 he consumed liquor while deputed on duty in sensitive ops area and did not turn up for duty from 2000hrs. At 2140 hrs. when No. 690130668 SI/GD Balbir Singh woke him up and asked him to perform duty, he refused to obey the lawful orders of SI (GD) Balbir Singh and thus committed an act of neglect and disobedience of orders in the discharge of duties which is prejudicial to good order and discipline of the Force."

[4] From the above articles of charges, it become clear that the petitioner had misbehaved with both the Sub-inspector, namely, Balbir Singh and Coy. Commander Sri Pankaj Chowdhury, Assistant Commandant on 13.06.2002. The petitioner had filed representation and denied the charges levelled against him. Thereafter, an inquiry officer was appointed and the petitioner was asked to participate in the proceedings.

[5] In course of the proceedings, the petitioner filed written representation. The witnesses were produced on behalf of the Union of India-CRPF. The petitioner had also adduced himself on his behalf. He did not produce any other witness except him. During proceeding all reasonable opportunities were provided to the petitioner.

[6] Learned counsel appearing for the petitioner has submitted that in the article of charges the place of commission of those misconduct and misbehaviour was not mentioned, for which the petitioner was prejudiced. However, learned counsel appearing for the petitioner finally has submitted that there is no procedural defect and there is no complain of violation of principle of natural justice, but, the punishment as imposed upon the petitioner is not commensurate with the misconduct he committed as alleged under the articles of charges.

[7] On the other hand, Mr. B. Majumder, learned CGC appearing for the respondents-CRPF has submitted that they have filed counter affidavit, wherein they have clearly stated the place of occurrence of the incident as alleged under the articles of charges.

[8] I have given my thoughtful consideration to the submissions of the learned counsel appearing for the parties to the lis. When there is no complain of violation of principle of natural justice, this Court would confine itself to examine whether the punishment of dismissal from service is highly disproportionate to the charges levelled against the petitioner. This leads this Court to peruse the evidence on record to examine the veracity of the evidence led by the witnesses in course of departmental proceedings.

[9] From the article of charges, it reveals that there is allegation of gross misconduct and misbehaviour towards two persons, namely, Sri Balbir Singh and another is Coy. Commander, Sri Pankaj Chowdhury. Sri Balbir Singh after his retirement from service appeared as witness before the Investigating Officer. He categorically stated that the delinquent did not commit any misconduct or did not misbehave with him. However, there was an altercation between the petitioner and Sri Pankaj Chowdhury, and both of them fell down on the stony ground. He along with others interfered with and separated them from each other.

[10] There was a flash of torch by raising his right arm and the Coy. Commander asked the petitioner to remove the same. The petitioner also raised his arm and due to pushing/dashing both of them fell on the ground.

[11] From the nature of evidence, it appears that both the petitioner and the Coy. Commander were under impression that one is raising his hand towards another. Sri Balbir Singh was asked about the activities of HC/GD/K. N. Saikia and in reply, he answered that the "delinquent was laborious and good and his behaviour and conduct were good." In reply to another question the said witness has stated that "Pankaj Chowdhury, Assitant Commandant and HC/GD K.N.Saikia both committed misbehaviour and misconduct on 13.06.2002, for which the incident occurred". Again, he replied to a question that "on that day HC/GD K. N. Saikia did not commit any misconduct nor misbehave with him and both Pankaj Chowdhury, Assistant Commandant and HC/GD/K.N.Saikia had committed misconduct and misbehaviour on 13.06.2002, for which the said incident happened". Again the said witness has stated that Sri Pankaj Chowdhury, Asst. Commandant sustained injury in his right hand and blood was coming out from that part but, I could not say whether the injury was caused by the SLR or torch. Both the persons were engaged in scuffling with each other on the ground.

[12] One R. Krishnamurthy also appeared before the Inquiry Officer to adduce his evidence and has stated that he asked Coy. Commander how did he get the injury and then in reply, the Coy. Commander has stated that "there have been quarrel between two of us and at that time I fell down on the stony ground from the above for which, the injury was sustained". The said witness was questioned as to whether on 13.06.2002, being the member of the Force, K. N. Saikia has committed misconduct and misbehaved with his senior under Section-11(1) of the CRPF Act, 1949, in reply the said witness stated that "he has no knowledge about it".

[13] The petitioner in his evidence has stated that "when I told, not to use abusive language to me, I have come, whatever you want to do, do it; at that he had slapped me." He also stated that he caught hold hands of Sri Pankaj Chowdhury to save himself from slapping. On questioned about how and by whom the injury was caused, he replied that "when we fell down on the ground while quarreling there was scuffling between us and we were climbing on each other and the ground was stony. Thus, probably he sustained injury due to stony ground." He was also asked whether he sustained any injury, he replied that he was in full uniform with SLR Rifle, for that he did not sustain any injury. When he was asked why he flashed torch light on the mouth/face of Sri Pankaj Chowdhury, the petitioner replied at starting when he came to me he flashed light from the torch in order to see him in the darkness and thereafter, he did not.

[14] From the evidence it is also revealed that the quarrel was continued for 19/20 seconds. The Inquiry Officer has submitted his inquiry report to the disciplinary authority and a copy was also furnished to the petitioner. The petitioner had submitted representation. The disciplinary authority after considering the evidence on record and the representation submitted by the petitioner, had issued the punishment order dated 1st July, 2016. Thereafter, the petitioner preferred an appeal before the appellate authority and the appellate authority vide order dated 1st September, 2016 had affirmed and uphold the order of dismissal from service imposed against the petitioner by the disciplinary authority.

[15] There should not be any dispute that the Court in exercise of its jurisdiction under Article-226 of the Constitution of India cannot re-examine or re-appreciate the evidence on record. But, when the question arises about the proportionality of the penalty and if the Court finds the punishment so imposed shockingly hits judicial conscience of the Court, then, in my opinion, the Court should weigh the evidence whether the punishment is commensurate on record to examine the gravity of the misconduct committed by a delinquent in discharging of his official duties.

[16] It is admitted that that the petitioner was on duty and it was a dark night too. The Commandant Sri Pankaj Chowdhury, after completing his dinner was walking on the verandah of his quarter and at that time, the petitioner had flashed his torch to identify the person. It was a distance of 3/4 ft. Both of them raised their hands. The Assistant Commandant raised his right arm to remove the torch light. On misunderstanding, the petitioner was slapped by him. The petitioner also raised his arm to save himself after being slapped once by Sri Pankaj Chowdhury.

[17] Further, I find that the charge of misconduct was levelled against two officers. Apart from Panjak Chowdhury, there is another person, namely, Balbir Singh. Balbir Singh in his examination has clearly denied that the petitioner had misbehaved with him on 13.06.202. He also stated that the petitioner is laborious and good in his duty.

[18] In course of inquiry, Sri Pankaj Chowdhury has stated that due to scuffling, both the petitioner and he himself fell down on the ground and suffered injury and abrasion due to stony ground.

[19] I have given my conscious consideration to the gravity of misconduct committed by the petitioner as well the aggravating and mitigating circumstances. After meticulous assessment of the entire circumstances, according to this Court, the penalty of dismissal from service appears to be irrational and thus, disproportionate since it appears to be too harsh. However, it is also to be kept in mind that the petitioner being a member of disciplined, this aspect should be considered that he should not have been involved in scuffling with his superior officer i.e. Sri Pankaj Chowdhury. According to this Court the said punishment of dismissal from service is required to be interfered with.

[20] No doubt, the scope of judicial interference in respect of awarding penalty is very limited. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognized concept of judicial review in our jurisprudence. In a judgment of Chief Executive Officer, Krishna District Cooperative Central Bank Limited and Another vs. K. Hanumantha Rao and Another, reported in (2017)2 SCC 528, the Apex Court held that if the punishment is so disproportionate that it shocks the judicial conscience, the Court would interfere.

[21] In the landmark decision of the Apex Court in Union of India and Another vs. B. C. Chaturvedi, reported in (1995) 6 SCC 749 has held that [see page-759 para-12]. At para-17 of the case as stated (supra), the High Court had made reference to the case of Rangaswami v. State of T. N., reported in 1989 Suup. (1) SCC686; 1989 SCC (Crl)617; AIR 1989SC 1137__........In Rangaswami (supra), a Bench of 3 Judge of this Court, while considering the power to interfere with the order of punishment, held that: "this Court while exercising the jurisdiction under Article-136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India And Others vs. Samarendra Kishore Endow And Another, reported in (1994)2SCC 537, wherein the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment."

[22] Based on overall assessment of various legal precedents related to the issue of nature of punishment for a departmental proceeding the Apex Court at Para-18 of B. C. Chaturvedi (supra) held that "the disciplinary authority and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof."

[23] In B. C. Chaturvedi (supra) it was further observed that it is to be kept in mind that while deciding the case of B.C. Chaturvedi (supra), Justice Hansaria, J, (one of the companion judges of the Bench, as he then was) agreeing with the view of two other Hon'ble judges of the Bench (Ramaswamy, J and B. C. Jiban Reddy, J (as their Lordships then were), Justice Hansaria had expressed his view in regard to the issue of imposing penalty and the power of judicial review of the Court had observed that the framer of the Constitution permitted the High Court to even strike down parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out.

[24] The learned Judge (Hansaria, J) had further viewed that "in a case of dismissal, Article 21 gets attracted. And, in view of the inter-dependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case, 1970 (3) SCR 530, which thinking was extended to cases attracting Article 21 in Maneka Gandhi vs. Union of India. AIR 1978 SC 597, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram vs. State of Himachal Pradesh, 1983 (2) SCC 442 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it.

[24.1] Learned Judge further observed that "I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate."

[24.2] In the concluding paragraph, the learned Judge observed that "I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra v. Union of India, AIR 1992 Orissa 261 (FB), by asking why the power of doing complete justice has been denied to the High Courts? I feel happy that I have been able to state, as a Judge of the Apex Court that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment."

[25] Recently in the case of Rathin Ghosh vs. West Bengal State Electricity Distribution Company Ltd. and Others, reported in MANU/SC/0990/2019, the Apex Court had an occasion to remember the case of B.C. Chaturvedi (supra) which reads as under:

"We are conscious of the scope of judicial review by the High Court and this Court in reference to disciplinary proceedings. A three judge Bench of this Court in B.C. Chaturvedi v. Union of India and Ors, MANU/SC/0118/1996: (1995) 6 SCC 749, in paragraph has laid down parameters of judicial review in the disciplinary proceedings to the following effect:

"20. There cannot be any dispute to the proposition that disciplinary authority has exclusive power to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The punishment to be imposed on a delinquent employee has to be proportionate to the charge and in event punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article-14. The test as has been approved by this Court is that the High Court and this Court can interfere with the punishment imposed by the disciplinary authority when it shocks conscience of the Court. The present is a case where the punishment is so disproportionate to the charge that it clearly shocks the conscience of the Court....."

[26] Reverting to the context of the present case, charge was framed against the petitioner for misbehaving with his seniors, namely, Balbir Singh and Coy. Commander Shri Pankaj Chowdhury. As I discussed earlier, Balbir Singh participating in the proceeding and in his deposition has totally denied the said charge levelled against the petitioner and while answering to questions Balbir Singh has categorically stated that "Pankaj Chowdhury, Asstt. Com. and HC/GD K. N. Saikia both committed misbehaviour and misconduct on 13.06.2002, for which the incident occurred." He further answered that "on that day HC/GD K. N. Saikia did not commit any misconduct nor misbehaved with me and both Shri Pankaj Chowdhury Asstt. Com. and the HC/GD K. N. Saikia have committed misconduct and misbehaviour on 13.06.2002, for which the said incident happened." In this situation, in my considered view, the disciplinary authority or the appellate authority being fact finding authorities have failed to exercise their discretionary power vested with them to impose appropriate penalty keeping in view the magnitude and gravity of the misconduct which, according to me, is shockingly disproportionate and irrational calling for interference of this Court in the light of the legal position delineated herein-above.

[27] It is in this backdrop, this Court is inclined to exercise its power of judicial review and mould the relief directing the punishing authorities to reconsider the penalty of dismissal imposed upon the petitioner. In my considered view, this is one of the exceptional cases where this Court can substitute the penalty of dismissal by imposing any other penalty like reduction in next lower rank. However, keeping high hopes and trust upon the punishing authorities concerned, I refrain myself to pass any direction in this regard and has left it open for the competent authority to revisit the issue, applying their mind afresh and decide the appropriate punishment commensurate to his misconduct in the light of foregoing discussion.

[28] In view of above direction and observation, the impugned order of dismissal dated 1st July, 2016 issued by the disciplinary authority and confirmed by the appellate authority vide order dated 1st September, 2016 cannot sustain and accordingly set aside and quashed. The respondents are directed to issue necessary order in the light of the above observation and direction within a period of 2(two) months from the date the petitioner shall furnish a copy of the order to the disciplinary authority concerned.

[29] In the result, the present writ petition stands allowed in part, in the above terms. Pending application(s), if any, also stands disposed.