Uma Shankar Shrivastava vs Union of India and Others

C.K. Prasad, J.

A departmental enquiry was initiated against the petitioner. In the said departmental enquiry, charges levelled against the petitioner were as follows-

While functioning as Inspector Manikpur, he failed to arrest accused Phoolchand, s/o Jawahar Kesharwani who was main accused in Crime No. 63/80 u/s. 3 RP (UP) Act of Manikpur post involving loss of property worth Rs. 75,000/- and continued to show the accused as absconding.

He further failed to obtain RPF Custody remand of aforesaid accused Phoolchand when the latter was arrested and handed over by Shri K.N. Singh, Inspector, Jabalpur on 14.11.1981 and also failed to recover the property of other cases which the accused was confessing.

He further failed to submit his explanation when asked by ASO JBP vide his letter No. SPL/Rep/90/80 dated 17.11.31 on aforesaid counts till date.

He was found guilty of all the charges. A show-cause notice was given to him proposing punishment of compulsory retirement. He filed his reply. On consideration of the reply filed by the petitioner, Chief Security Officer i.e. disciplinary authority (respondent No. 3) passed the order of reduction of rank of the petitioner from the rank of Inspector Grade II to the rank of Sub-Inspector Grade for a period of 2 years without affecting seniority. Petitioner preferred appeal against the said order before the appellate authority. Appellate authority i.e. the Director General of Railway Protection Force (respondent No. 2) in exercise of its power under Rule 217.3 of the Railway Protection Force Rules, 1987 issued show-cause to the petitioner for enhancement of the punishment; as to why he be not removed from service. Petitioner filed his reply and on consideration of the same, appellate authority by order dated 26.6.1985 (Annex. B) ordered that the petitioner be removed from service with effect from the date of service of order on him. Petitioner, by this writ petition filed under Article 226 and 227 of the Constitution of India prays for quashing of the order passed by the disciplinary authority as also the appellate authority.

Shri R.N. Singh, appearing on behalf of the petitioner does not dispute the power of the appellate authority to enhance the punishment nor he made any submission to assail the finding recorded by the Enquiry Officer, up-held by the disciplinary and the appellate authority. His only submission is that punishment of removal from service is disproportionate to the gravity of allegation. In this connection, he has drawn my attention to the order of the disciplinary authority who, while imposing the punishment of reduction in rank has taken into consideration the previous service record of the petitioner of 30 years. Disciplinary authority has dealt with this matter in the following words -

To sum up, the delinquent has failed to put up any substantial point in his defence in reply to Show Cause Notice. However, on going through the previous record of service, I find that he had put in 30 years service and during this period he has not received any major punishment. Security Officer, Bhusawal has also recommended to take lenient view of the case. Hence I modify the proposed punishment of Compulsory retirement and order that the delinquent is reduced from the present rank of Inspector Gr. II Rs. 470-750 (Rs) to the rank of Sub-Inspector Gr. Rs. 330-560 (RS) for a period of TWO years without effecting seniority etc. from the date of receipt of this order.

Shri Singh submits that as the punishment of removal of service is disproportionate to the gravity of allegation, same calls for interference by this Court in its writ jurisdiction. In support of his submission, Shri Singh has placed reliance on a Judgment of Supreme Court in the case of Shankar Dass Vs. Union of India (UOI) and Another, and my attention has been drawn to the following paragraph of said Judgment-

It is to be lamented that despite these observations of the learned Magistrate the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service" on the ground of conduct which has led to his conviction on a criminal charge". But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Cl. (a) of the second proviso to Art. 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical." Another decision on which learned counsel has placed reliance is the Judgment of the Supreme Court in the case of B.C. Chaturvedi Vs. Union of India and others, and my attention has been drawn to the following paragraph-

A review of the above legal position would establish 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. If 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.

There is no difficulty in accepting the stand taken by Shri Singh that in case the punishment awarded is whimsical, disproportionate to the gravity of allegation or in other words, shocking to the conscience of the Court, this Court has jurisdiction and authority to appropriately mould the punishment, but this discretion of the Court is exercised in exceptional and rare cases.

Now, in view of the aforesaid legal position, I am obliged to consider as to whether punishment of removal from service for the charge levelled against the petitioner is whimsical or disproportionate to the gravity of allegation and exceptional case is made out for exercise of jurisdiction conferred under Article 226 and 227 of the Constitution of India. Petitioner was an Inspector in the Railway Protection Force. Robbery was committed in a running train. One Phoolchand was accused in the said case. Petitioner while functioning as Inspector failed to arrest him and continued to show him as absconding. Shri Singh contends that because of the efforts of the petitioner, he apprehended all the thieves and recovered property worth Rs. 74,000/- stolen in the train robbery. He submits that inspite of his best efforts, petitioner could not apprehend accused Phoolchand and this act of the petitioner is not of such a serious nature so as to warrant removal from service. Misconduct of the petitioner pertains to what he has not done and not what he had done. Appellate authority while enhancing the punishment has taken into account that the petitioner purposely did not apprehend Phoolchand and shown him as an absconder. Appellate authority thus has enhanced the punishment after application of mind and taking into consideration the relevant factors. Distinction has to be made between an act of Police Officer failing to arrest an accused, although efforts are made than with an act of a Police Officer who purposely does not apprehend an accused and shows him absconder. Here, according to the finding of the disciplinary as well as appellate authority, petitioner purposely did not apprehend the accused and shown him absconder.

Another fact projected by Shri Singh to demonstrate that the punishment is shocking, he points out that the petitioner in his 30 years of service was not visited with any major penalty and as such, punishment of removal from service is disproportionate to the gravity of allegation. True it is that past service record of an employee is relevant and germane to decide the quantum of punishment but it can not be said that in a case where an employee has not been visited with major penalty, earlier, penalty of removal from service can not be imposed. Here in the present case, petitioner was a member of Railway Protection Force, robbery was committed in a running train and although he had been able to apprehend some accused persons and recovered stolen articles but purposely, according to the finding, did not arrest one of the accused and shown him absconding. Appellate authority has enhanced the punishment on consideration of relevant factors and in my considered opinion, the same cannot be said to be either whimsical or disproportionate to the gravity of allegation or in other words shocking to the conscience of the Court.

Only submission made on behalf of the petitioner having failed, I do not find any merit in the writ petition and it is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to cost. Security amount, if deposited, be refunded to the petitioner.