Satyendra Kumar vs Union of India and Others

S. N. Prasad, J.

1.This writ petition is under Article 226 and 227 of the constitution of India for quashing the order of compulsory retirement dtd.30th July, 2014,

Appellate Order dtd.7th October, 2014 and Revisional Order dtd.5th March, 2015 whereby and where under the petitioner has been inflicted with

punishment of compulsory retirement.

The brief fact of the case of the petitioner is that he, while working as Constable under the Central Industrial Security Force at Damanjodi in the

State of Orissa, has been proceeded departmentally for commission of irregularity for which two charges have been framed, i.e. one is not following

the direction of Senior Commandant dtd.28.3.2014 by which he has been directed to appear for counseling in the office of Sr. Commandant in the

CISF Unit, Nalco, Damanjodi but he has not appeared which is an act of gross indiscipline and insubordination; and the second charge is that in spite

of having been punished 9 times (8 minor and 1 major), he could not be able to mend himself. The petitioner has been directed to participate in the

enquiry, in which he has participated and has refuted the charges by submitting that the earlier orders of punishment is not so serious that he be

separated from service, that too when he has already been inflicted by minor punishments on 8 occasions and on one occasion only major punishment

was given and thereafter there was no allegation of any irregularity casted upon him. His denial regarding first charge is that he has orally been asked

to appear in the office of Senior Commandant for counseling without assigning any reason, as such when he has been asked to appear, he has written

a letter to the Senior Commandant to apprise him the reason so that he can, in a better way, be in a position to explain the same, but that has been

taken as gross indiscipline and thereby punished with punishment of compulsory retirement. According to the petitioner he has filed an appeal as well

as revision before the competent authority as provided under the Statute raising these points apart from the point of quantum of punishment which

according to the petitioner is not commensurate with the irregularities, if committed, taking into consideration the fact that he has rendered service in

the toughest area whenever he has been posted and also awarded. The petitioner being aggrieved with the order of punishment, has filed this writ

petition on the grounds stated above.

Opposite party - CISF has appeared and has been represented by the Central Government Counsel, namely, Chandrakant Pradhan who, on the

strength of the counter affidavit, has submitted that there is no illegality in the order of punishment, rather the opposite parties have taken correct

decision in separating the petitioner from service since in spite of having been punished several times, he could not mend himself, rather when he has

been called upon for counseling by issuing a general direction along with all who have been inflicted with more than 5 punishments, the petitioner has

chosen not to appear before the Sr. Commandant, rather he has written a letter asking the reason which is an example of gross indiscipline and

disobeying the order passed by the higher authority, which is not permissible for a member in discipline Force, taking this fact into consideration and to

maintain discipline in the Force, the opposite party â€" Force has taken right decision to initiate departmental proceeding to separate the petitioner from

service, hence the same may not be interfered with. He submits that the jurisdiction of High Court sitting under Article 226 of the Constitution of India

is very least and it can only be exercised when there is any perversity in the finding or the order is without jurisdiction or passed without following the

principles of natural justice or if the order is not commensurate with the irregularities committed. But according to him, it is not a case of such a nature

warranting any interference of the High Court sitting under Article 226 of the Constitution of India.

Heard the learned counsels for the parties and appreciated the arguments advanced on their behalf. It is evident from the record that the petitioner

was inflicted with 8 minor punishments and one major punishment. The minor punishments are in the nature of censure, reduction of pay scale for 5

days, 3 days, 7 days, etc. and one major punishment of withholding one increment with cumulative effect. The petitioner, after imposition of the said

punishments, was discharging his duties but was asked orally to appear for counseling in the office of Sr. Commandant. The petitioner, after receipt of

the said communication dtd.28.3.2014 has made a correspondence with the Sr. Commandant, CISF Unit, Nalco, Damanjodi on the same day

requesting that in place of his appearance in the counseling, a written order be issued to appear in the Orderly Room (Exhibit-2) which has been

treated to be flouting the order passed by the higher authority, as such decision has been taken to initiate departmental proceeding framing therein two

charges;

(i) First relates to not following the direction of the Sr. Commandant to appear for counseling; and

(ii) Second is in spite of inflicting 9 punishments (8 minor and 1 major) he could not be able to mend himself. Accordingly the petitioner was asked to

appear before the enquiry officer, he has defended himself with a plea to exonerate him from the charges by submitting that he cannot be punished for

the offence in which he has already been punished and second that merely writing a letter to the Sr. Commandant cannot be said to be flouting the

order of the higher authority for the reason that he has not been issued with any written order in this regard rather he has orally been informed on

28.3.2014 and on the same date he has made a request to assign the reason for counseling. The enquiry officer has found the charges proved on the

basis of the deposition of the witnesses and thereby the disciplinary authority, while accepting it and after following the procedure, has inflicted him

punishment of compulsory retirement, against which the petitioner has preferred appeal as also revision but both these applications have been

dismissed affirming the decision taken by the disciplinary authority against which this writ petition has been filed. The petitioner has contested the case

in person and while appreciating his argument, this court, has come across the deposition of the witnesses as also the office memorandum dtd.26th

March, 2014, annexed as Annexure-B/1 to the counter affidavit wherein all concerned have been directed to make efforts to settle all the observations

immediately and submit compliance report by 2.4.2014 and the details of concerned has been mentioned in the next page of Annexure-B/1 in which

the name of the petitioner figures at Sl. No.21. The part of the thing which was to be complied with has also been referred which is “an advisory

letter has been issued to all marginally noted personnel of this unit to improve upon and to make them understood about the various adverse affects of

punishments in service career vide his officer letter dtd.16.1.2014â€​.

Whereas the petitioner has tried to satisfy this court that the process for asking one or the other constables to appear in counseling is to issue a written

letter in this regard and to demonstrate his argument, he has relied upon a request issued to Constable A.I. Saudagar dtd.16th February 2016 under

Annexure-10 annexed to the rejoinder affidavit.

It is not in dispute that the petitioner was working as a member of the discipline Force where, to maintain discipline and to avoid anarchy, it is

expected and it is the duty of all to remain in discipline otherwise the working of the Force will ultimately subject to suffer and the purpose for which it

has been established will not be achieved, rather there will be chaotic situation in the Force, but simultaneously it is also to be seen that the higher

authority is supposed to follow the rules and regulations and may not act arbitrarily.

The petitioner who has been inflicted with 9 punishments was called upon to participate in the counseling by orally asking to appear in the office of Sr.

Commandant against which the petitioner has made a communication to assign the reason, which has been taken as an act of indiscipline and flouting

the order of higher authority, hence he has been subjected to disciplinary proceeding apart from other punishments which has earlier been imposed. It

is evident from the memorandum of charge and the finding of the enquiry officer as well as the order passed by the authorities that the petitioner was

asked to appear on 28.3.2014 and on the same date he has made a correspondence to assign the reason and if possible to give him time in the Orderly

Room, as such it is not that the petitioner has not responded at all to the call given by the Sr. Commandant but the Sr. Commandant has taken it as

violation of his orders. It happens in the Force that on each and every situation written orders cannot be passed and the Force functions on the oral

command of the higher authorities, as such it cannot be said that the act of the petitioner is appreciable. This Court, sitting under Article 226 of the

Constitution of India is aware with the limitation of jurisdiction to exercise the powers of judicial review, but certainly it can exercise if the punishment

imposed is highly excessive and disproportionate, as such this court has thought it proper to first go into the legal proposition to exercise the power

conferred under Article 226 and 227 of the Constitution of India in the case of making interference if the punishment is shockingly disproportionate

and to examine the case of the petitioner in the light of the same. In this regard reference may be made to the judgment rendered by Hon’ble

Apex Court in the case of Ranjit Thakur Vrs. Union of India and Others, reported in (1987) 4 SCC 611 wherein, while dealing with the case of

summary court marshal wherein the punishment of dismissal from service was imposed upon the Army personnel on the allegation of disobeying the

lawful command given by his superior officer and the Hon’ble Supreme Court, while interfering in exercise of power of judicial review, has laid

down at paragraph 25 that judicial review generally speaking, is not directed against a decision, but is directed against the decision making process.

The question of choice and quantum of punishment is within the jurisdiction and discretion of the court marshal, 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 an

aspect which is, otherwise, within the exclusive province of the court marshal, 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. Irrationality and perversity are recognized grounds of judicial review. In

Council of Civil Service Unions Vrs. Minister for the Civil Service reported in (1984) 3 WLR 1174 Lord Diplock said as follows:-

 “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come

about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first

ground I would call „illegality‟ the second „irrationality‟ and the third „procedural impropriety‟. That is not to say that further development on a

case by case basis may not in curse of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of

„proportionality‟ which is recognized in the administrative law of several of our fellow members of the European Economic Community;

xxxxxxxxxx.† At paragraph 26 the reference of judgment rendered in the case of Bhagat Ram Vrs. State of Himanchal Pradesh reported in AIR

1983 SC 454 wherein the Hon’ble Apex Court has held that it is equally true that penalty imposed must be commensurate with the gravity of the

misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Accordingly

Hon’ble Apex Court, while interfering with the order of dismissal of the said army personnel, has corrected it in exercise of power of judicial

review by setting aside the sentence with the order of reinstatement along with all consequential benefits. In the case of Ram Kishan Vrs. Union of

India and Others reported in (1995) 6 SCC 157 that is the case where the constable was dismissed on the charge of abusing his superior but the

nature of abusive language was not stated, hence the order of punishment of dismissal has been directed to be reversed to that of stoppage of two

increments on the principle of making interference by reaching to the conclusion that the imposition of punishment of dismissal from service is harsh

and disproportionate to the gravity of charge imputed to the delinquent constable. In the case of Dev Singh vrs. Punjab Tourism Development

Corporation Ltd. and Another, reported in (2003) 8 SCC 9 wherein at paragraph 6 it has been held that if the punishment imposed by the disciplinary

authority or the appellate authority shocks the conscious of the court, then the court would appropriately mould the relief either by directing the

disciplinary/appropriate authority to consider 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.

In the case of Union of India and Another Vrs. S. S. Ahluwalia, reported in (2007) 7 SCC 257 wherein while dealing with the scope of judicial review

in a matter of imposition of penalty as a result of departmental proceeding which has been held to be very limited but the court can interfere with the

punishment if it is found to be shockingly disproportionate to the charges found to be proved and in such a case the court has to remit the matter

before the authority for reconsideration of punishment (para 8). In the judgment rendered in the case of Jai Bhagwan Vrs. Commissioner of Police

and Others reported in (2013) 11 SCC 187, the said judgment was in the case of Assistant Wireless Operator who has been inflicted with the

punishment of dismissal from service on the allegation that he was not in proper uniform and refused to give the Log Book to the Inspector when

asked and snatched the same from him when the inspector has picked it from the table, but Hon’ble Apex Court, while exercising the power of

judicial review, by referring to the judgment rendered in the case of Ranjit Thakur Vrs. Union of India and Others (supra), Dev Singh vrs. Punjab

Tourism Development Corporation Ltd. and Another (supra), has entered into the quantum of punishment and reversed the order of dismissal to that

of the order of reinstatement. In the case of Ishwar Chandra Jayaswal Vrs. Union of India and Others reported in (2014) 2 SCC 748 which was a

case of illegal demand in which the order of dismissal was passed, but the Hon’ble Apex Court, by exercising the power of judicial review by

relying upon the judgments rendered in the case of Union of India Vrs. S.S. Ahluwalia (supra) has reversed the order of dismissal to that of the order

of reinstatement since it was shockingly disproportionate. It is, thus, evident after going through the ratio laid down in the judgments referred herein

above that the High Courts or the Hon’ble Supreme Court can exercise the power of judicial review on the pretext of the punishment having been

found to be excessive and not commensurate with the offence committed.

So far as the fact of this case is concerned, there is no dispute that the petitioner has been punished on earlier occasions 9 times all together out of

which 8 times the punishment is very minor, i.e. withholding of salary for 1, 2, 3, 5 or 7 days, while 1 punishment is withholding increment by one year

with cumulative effect, but that not led the authority to initiate departmental proceeding rather what led the authorities to initiate departmental

proceeding is the disobedience of the order passed by the Sr. Commandant by which the petitioner was asked for counseling on 28.3.2014 and when

he has made correspondence to this effect by asking the reason since he has not been communicated anything in writing that for what purpose he is

being called upon, however, learned counsel for the Central Government has tried to satisfy that there was a general direction reflecting the name of

the petitioner in the communication dtd.26th March, 2014 to appear for counseling to guide them to improve upon and to make them understood about

the various adverse affect of punishments in service career as it is being admitted by the opposite party - Force that no written communication has

been given to the petitioner assigning the reason as has been reflected in the general direction as contained in communication dtd.26th March, 2014

showing the name of the petitioner at Sl. No.21 and if the petitioner is asking from the Sr. Commandant as to why he is being called upon for

counseling with a request that he may be allowed to come in the Orderly Room which led the Sr. Commandant to treat it as misconduct. According to

my view, if the Sr. Commandant would have written a specific communication in this regard and if the petitioner would have made a communication

requesting him to change the place of counseling then it could have been said to be a misconduct by the incumbent who is holding the post in the

Force, but since no written communication has been made by the Sr. Commandant to the petitioner and if the petitioner has made a request, for that,

order of major punishment in the nature of compulsory retirement cannot be said to be proper one. This court is not making any observation in favour

of the petitioner so far as his conduct is concerned, rather the Court is only concerned with the quantum of punishment to assess as to whether in the

facts and circumstances, order of compulsory retirement can be passed by the authority and if passed, can it not be said to be excessive, that too

when he has already been punished with the earlier punishments by inflicting punishment which is minor in nature save and except one punishment

which is of withholding one increment with cumulative effect. The intent of the communication dtd.26th March, 2014 was to give advice so that the

members of the Force against whom the punishments has been inflicted may understood the adverse effect of punishment which also suggests that it

is advisory in nature and not by way of command by the Sr. Commandant, as such if that has been violated by the petitioner, on the basis of that can

he be punished with a major punishment of compulsory retirement putting him to be separated from service merely after rendering 12 years of service.

This court, after applying the principle laid down by Hon’ble Apex Court as referred herein above especially in the judgment rendered in the

case of Ranjit Thakur Vrs. Union of India and Others (supra) which is a case of an army personnel against whom also there is allegation of using

abusive language but the Hon’ble Apex Court, after considering the offence committed by him and considering it with the quantum of punishment,

has reversed the order of punishment with that of reinstatement, applying the said principle, according to the considered view of this court, the

punishment imposed upon the petitioner is also shockingly disproportionate with the misconduct committed by the petitioner, as such the writ petition

deserves to be allowed, accordingly it is being allowed, in consequence thereof the order passed by the disciplinary authority dtd.30.07.2014 under

Annexure-5, the appellate order dtd.07.10.2014 under Annexure-7 and Revisional order dtd.05.03.2015 under Annexure-9 are hereby quashed.

This court, after following the observation of Hon’ble Apex Court not to substitute the order of punishment in routine manner by not assuming

the power of the Disciplinary authority save in rare cases, thinks it proper to remit the matter before the disciplinary authority to pass fresh order as

per the observation made herein above within period of six weeks from the date of production / receipt of certified copy of this order. In the result the

writ petition and Misc. Case, if any, stands disposed of.