HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 08.11.2017 Delivered on 04.12.2017 Court No. - 7 Case :- SERVICE BENCH No. - 5473 of 2016 Petitioner :- Sub-Inspector [ENTITY] Respondent :- [ENTITY] Thru Prin.Secy.(Home Deptt.)Civil Sectt.& Ors. Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
(Delivered by Hon'ble [ENTITY], J.) Heard Sri [ENTITY], learned counsel for the petitioner and Sri [ENTITY], learned Standing Counsel for the State respondents.
By way of this writ petition filed under [SECTION] of the [ACT], prayer has been made to issue a direction in the nature of certiorari quashing the impugned punishment order dated 26.11.2013, appellate order dated 18.10.2014 and judgment and order dated 04.03.2016 passed by the State Public Services Tribunal, Indira Bhawan, Lucknow (hereinafter referred to as the Tribunal'), in [CASE NUMBER] ([ENTITY] Vs. State of U.P. and others).
Facts as submitted by learned counsel for the petitioner, in brief, are that Constable [ENTITY] and Constable [ENTITY] were entrusted with duty in Train No. 54308, Gajraula to Najibabad Passenger on 26.07.2013. They found an eight years old girl in the train and she was handed over to Head Constable [ENTITY] at police chauki G.R.P., Gajraula. When the matter came within the knowledge of petitioner, who was in charge of the police chauki G.R.P., Gajraula, he enquired about the telephone numbers of family members of the girl, but could not contact them due to night hours. In the next morning, he contacted the family members of the girl, who promised again and again to come there, but did not turn up. Thereafter he handed over the girl to police constables with direction to hand over the girl to her family members and entry was made in general diary on 27.07.2013 at 20:35 hours.
Enquiry was conducted in the matter and the Enquiry Officer submitted his enquiry report, by which petitioner was found guilty. A show cause notice was issued to him, to which reply was submitted by him. After considering the enquiry report and reply submitted by the petitioner, against the show cause notice, Disciplinary Authority imposed punishment order dated 26.11.2013, by which fine equal to seven days salary of the petitioner was imposed upon him. Against the aforesaid punishment order, appeal was preferred by the petitioner, which was rejected by Appellate Authority vide order dated 18.10.2014.
Petitioner filed [CASE NUMBER] before the Tribunal for redressal of his grievances, which was dismissed vide order dated 04.03.2016.
Aforesaid impugned orders dated 26.11.2013, 18.10.2014 and 04.03.2016 are under challenge to this writ petition.
Learned counsel for the petitioner submits that the girl was found by Constable [ENTITY] and Constable [ENTITY] during their duty on Train No. 54308 and she was handed over to Head Constable [ENTITY] at police chauki G.R.P., Gajraula. Petitioner was in charge of the police chauki and when he came to know the matter he tried his best to contact the family members of the girl, but they could not be contacted due to night hours. In the next morning the family members were contacted by the petitioner and they promised to come to police station, but did not come and thereafter the girl was handed over to police personnels for transmitting the girl and being handed over to her family members. Petitioner did his best to hand over the girl to her family members as soon as possible and he was not negligent in his duty. He further submits that the punishment order imposed upon the petitioner is harsh and disproportionate, so the impugned orders passed by the Disciplinary Authority, Appellate Authority and the Tribunal are liable to be set aside.
On the other hand, learned counsel for the respondents submitted that the petitioner did not act promptly to hand over the girl to her family members. He merely completed the formality to contact the family members of the girl. He failed to discharge his duty promptly. Impugned punishment order passed by the Disciplinary Authority is quite proportionate to the misconduct committed by the petitioner. There is no infirmity in the judgment passed by the learned Tribunal, hence the writ petition is liable to be dismissed.
We have heard arguments advanced by learned counsel for both the parties and perused the material placed on record.
After perusal of the material placed on record, the situation which emerges out is to the effect that the girl was found by Constable [ENTITY] and Constable [ENTITY] on 26.07.2013 in Train No. 54308 and she was handed over to Head Constable [ENTITY] at police chauki G.R.P., Gajraula. When girl was handed over to aforesaid head constable, it was night hours. Admittedly, petitioner contacted the family members of the girl on their telephone numbers, disclosed by the girl. It is noteworthy that it was bounded duty of the petitioner to wait for arrival of family members of the girl, who were contacted on phone. It is also admitted fact that the girl was transmitted to be handed over to her family members at 20:35 hours on 27.07.2013. It is not a case of department that any untoward incident happened with the girl, during the period when she was remaining at police chauki, G.R.P., Gajraula. Accordingly, nothing happened to the security of the girl at the police chauki, which was in charge of the petitioner. In these facts and circumstances of the matter, it cannot be said that the petitioner failed to take care about the safety of the girl at the police chauki G.R.P., Gajraula and transmit the girl to her family members. Considering all the aforesaid facts, the punishment imposed against the petitioner appears to be harsh and disproportionate.
In the case of [PRECEDENT], it has been held by the Calcutta High Court that it is open to a Writ Court to interfere with an order of punishment if the same is found to be harsh and disproportionate. The relevant Para No.153 of the Report is reproduced below:
"There is merits in the contention on behalf of the petitioner that the punishment inflicted on him was harsh and disproportionate. In our opinion it is open to a Writ Court to interfere with an order for punishment if the same is found to be harsh and disproportionate. Reference may be made in this connection to [PRECEDENT] and [PRECEDENT] (para 15). As we have pointed out, the case of the petitioner and that of [ENTITY] was similar. By this letter dated 4th July, 1979 the Director informed that the appeal would be considered after submission of the report of inquiry against the petitioner. However as pointed out hereinabove, he disposed of the appeal' as the appellate authority of [ENTITY], one day before passing the order of punishment on the petitioner as his disciplinary authority. On 1st September, 1978, the petitioner asked for stay of the enquiry till the appeal of [ENTITY] was disposed of. By his letter dated 25th October, 1978 the Disciplinary Authority turned down this prayer. In this context we may point out that in the order itself no reason has been given as to why such punishment has been imposed. A case is sought to be made out in the affidavit filed in the writ petition to the effect that the petitioner was a class 'A' officer whereas [ENTITY] was a class 'C' officer. As no contemporaneous record or document could be produced before us to support the same such explanation is not acceptable to us. It is not genuine. It is merely an afterthought. The situation was similar. There is no reason why in the petitioner's case such a harsh order was to be passed whereas in the case of [ENTITY] there was only an order of refund of the excess amount drawn and withholding of increment for one year. In this context it may also be pointed out that not only that [ENTITY] was favourably treated but he was promoted immediately after the expiry of one year though his appeal was pending at the relevant time. His appeal was kept pending for unknown reason or a length of time but during the pendency of the appeal he was promoted. Though it is stated in the affidavit that he was promoted because he was the senior most eligible candidate but it was not stated that he must be promoted because of such seniority."
In the case of [PRECEDENT], it has been held by the Apex Court that the sentence has to suit the offence and the offender and it should not be vindictive or unduly harsh. The relevant portion reported in paragraph No.25 is reproduced below:
" The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. 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 proprotionality, as part of the concert of judicial review, would ensure that even on an 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. Irrationality and perversity are recognized grounds of judicial review."
Court had always exercised its power of judicial review on matters of disproportionate penalty. In earlier days the Court's power was limited to remand the case to the authorities for revising the penalty. In [PRECEDENT] it has been held that, in view of the time already lapsed in challenging wrongful termination, the Supreme Court thought it proper to set aside the punishment of removal from service and directed reinstatement treating the period of unauthorized absence as period not spent on duty. Earlier, in [PRECEDENT], the [ACT] Bench suggested :
"It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."
In [PRECEDENT], where Constables being aggrieved of inadequate accommodation went in procession to ventilate their grievance and the Police administration took it as a case of grave indiscipline and dismissed them from service, the Supreme Court interfered and held that penalty of dismissal was disproportionate and the respondents were directed to impose a minor penalty of stoppage of one increment without cumulative effect.
But, where the employee was taken up in a criminal proceedings for criminal assault to an officer within the office but was acquitted and thereafter he was dismissed from service in a departmental proceedings, the Supreme Court set aside the Tribunal order which was in favour of the employee and, applying the Wednesbury principles, held that Court or Tribunal would not interfere with punishment unless it is of the view that no reasonable person could ever have imposed such a punishment looking into the circumstances of the case. (See [PRECEDENT]).
In [PRECEDENT], Supreme Court observed that dismissal from service for loss of file was disproportionate and the punishment of stoppage of increment and holding at the Efficiency Bar was substituted.
Thus, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court or Tribunal it would appropriately mould the relief either directing the disciplinary/appellate authority to reconsider the penalty imposed ; or to shorten litigation, in exceptional and rare cases, may itself impose appropriate punishment with cogent reasons in support thereof.
The principle of proportionally has also been extended to service jurisprudence. In [PRECEDENT], the Supreme Court observed that the principle of proportionality was already in application in India and agreed with Lord [ENTITY] that this could safely be added to the three recognized principles of (i) "procedural propriety" (ii) "rationality" and (iii) "legality". The Supreme Court noticed that judicial review on the principles of irrationality and perversity are already recognized and agreed that the fourth' ground could be "proportionality". The Court observed :
"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 Court is very much concerned also with the effect of the decision. Therefore, where its conscience is shocked it can very well interfere in the ultimate decision with a view to modify the penalty and substitute its own decision. The Court need not remand the case back to the executive. Therefore, when an executive order is found to be arbitrary the magnitude of arbitrariness is required to be measured and if the order could be saved by applying the principles of proportionality, Court would revise the executive order substituting it by their own. This roughly compares with reading down rule' applied for interpretation of statutes. (See [PRECEDENT]).
For all the reasons mentioned hereinabove and law laid down by the Apex Court in the aforesaid cases, we are of the considered opinion that the punishment order imposed against the petitioner is harsh and disproportionate to the misconduct committed by the petitioner. Considering the entire facts and circumstances of the matter, we are of the considered opinion that it would serve the ends of justice, if the impugned punishment order is substituted to punishment of Censure' as provided under [SECTION] of the [ACT]. The writ petition deserves to be partly allowed.
Accordingly, the writ petition is partly allowed. Impugned judgment and order dated 04.03.2016 passed by the Tribunal is hereby set aside. Impugned punishment order dated 26.11.2013 passed by Disciplinary Authority is substituted to punishment of Censure'.
Order Date :-04.12.2017 SR [[ENTITY], J.] [[ENTITY], J.]