1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6546 of 1998 The District Superintendent of Police & Anr. ....Petitioners Vs. Shri Jagdish Chandrakant Gharge & anr. ....Respondents Mr. S.R. Nargolkar, GP for the petitioners. Mr. Prashant Bhavake i/b. Mr. N.V. Bandiwadekar, Advocate for resp. no.1. None for respondent no.2. CORAM:­ A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:­ March 18, 2010 P.C. Heard Counsel for the parties. 2. By this Petition under Article 226 of the Constitution of India, the Judgment and Order of the Maharashtra Administrative Tribunal dated 6th February, 1998 in original Application No. 4099/1992 is under challenge. Briefly stated, the Respondent was serving as a Police constable in Sangli. In December 1989, he was served with the chargesheet and proceeded with a departmental enquiry against him. The charges were as under:- 2 “ (1) He left Head quarters on 30.6.1989 without obtaining the permission of his superiors and came to the Control Room in the Office of the Superintendent of Police. (2) At the Control Room, he breached discipline by speaking arrogantly with P.S.I. Shri P.A. Shinde at about 15-35 hours on 30.6.1989. (3) He remained absent between 14-00 hrs. to 21-00 hrs. On 30.6.1989 at his place of duty at the islampur S.T. Stand and made a false entry in his notebook that he was present on duty at the S.T. Stand.” 3. The enquiry was completed by the District Enquiry Officer who submitted his Report dated 17th August, 1990. The enquiry officer found that the charges against Respondents were duly proved. The enquiry officer found that the Respondent without taking prior written permission of the superior left his head quarters while on duty. He did not observe discipline and did not maintain diligence in performing government service. On the recommendation of the enquiry officer the appointing Authority imposed punishment of removal from service. The said decision was challenged before the Tribunal. The Tribunal in the first place examined the controversy with regard to the respective three charges and rejected the stand of the Respondents. The Tribunal held that the enquiry was fair and proper. The Tribunal has upheld the finding of guilt against the Respondent. However, the Tribunal decided in favour of the Respondents on the question of punishment. We would think it apposite to reproduce the reasons which weighed with the Tribunal to reverse the order of removal and instead direct reinstatement of the Respondent. The relevant portion of the Judgment reads thus: 3 “11. What then remains is the question of quantum of punishment. The Supreme Court in the recent case of union of India Vs. G. Ganayutham (1997) 7 SCC observed as below. “in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role, that the administrative was, on the material before him, irrational according to wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases that the Court might, -- to shorten litigation-- t hink of substituting its own view as to the quantum of punishment in the place of punishment awarded by the competent authority. It has however been pointed in B.C. Chaturvedi and other cases that power of the Supreme Court under Art. 136 is different. 12. The charges that are held as proved in this case cannot be said to indicate any moral turpitude and in our opinion the punishment of removal imposed by the Respondent-State is certainly grossly disproportionate to the charges held as proved. The Petitioner has already been out of service for more than 7 years or so. While normally we would have liked to remit the matter back to the Appellate Authority, to consider a more appropriate penalty commensurate with the charges held as proved, we think it would be preferably for this Tribunal itself to reduce the penalty, so as to shorten the time taken. Hence, the following order.” 4. The above view is the subject matter of challenge in the present Writ Petition filed by the State of Maharashtra. The Respondent has not questioned the correctness of the view taken by the Tribunal on merits of the case. The 4 only question that needs to be addressed in the present Writ Petition is, therefore, regarding appropriateness of the opinion recorded by the Tribunal on the quantum of punishment. 5. The sole reason noticed by the Tribunal as can be discerned from the observations in Paragraph 12 of the impugned decision is that the charges proved against the Respondent did not involve moral turpitude and punishment of removal from service is, therefore, grossly disproportionate to the charges proved against the Respondents. As noticed earlier, the charges framed against the Respondent were in relation to serious misconduct. We cannot overlook the fact that the Respondent was the police constable and member of discipline force. For such official leaving the head quarters without prior permission of the superior is unacceptable. At any rate, the charge no. 3 which has been proved against the Respondent is a serious charge as the Respondent has been found to be indulging in making false entry in his notebook to indicate that he was present on duty at the relevant time. Considering the charge as framed against the Respondent, it is not possible to take the view that the punishment of removal is grossly disproportionate as has been found by the Tribunal. The Tribunal was impressed by the fact that the charge did not involve moral turpitude. We disagree with the opinion of the Tribunal so recorded. The quantum of punishment has to be decided on the touchstone whether a reasonable employer could have imposed such punishment in the fact situation of the present case. In our opinion, the punishment imposed by the Appointing Authority considering the seriousness of the charge cannot be said to be unreasonable at all. The Counsel appearing for the Respondent invited our attention to the decision of the Apex Court in the case of Chairman-cum- Managing Director, Coal India Limited & anr. Versus Mukul Kumar 5 Choudhuri & Ors. reported in 2009 AIR SCW 5596. Our attention was invited to the Paragraph 26 of this Judgment. We are of the opinion that the dictum in the said Judgment is in the context of fact situation of that case as is noted in the said Paragraph. The Counsel for the Respondent would then contend that if at all the Court was inclined to reverse the opinion of the Tribunal, the question regarding punishment may be left open to be considered afresh by the Disciplinary Authority and in any case by the Tribunal. This submission does not commend to us. In as much as, we are of the opinion that there is no infirmity in the conclusion reached by the Disciplinary Authority so as to impose punishment of removal, considering the seriousness of the charge against the Respondent which has been duly proved. 6. Taking over all view of the matter, the Disciplinary Authority in our opinion, was justified in imposing punishment of removal of the Respondent from service. In that view of the matter, the question of relegating the Respondents before the Disciplinary Authority or for that matter the Tribunal does not arise. It is well established position that the scope of interference by the Tribunal with the order of punishment is circumscribed. Keeping those principles in mind, we have no hesitation in allowing this Writ Petition and set aside the impugned decision to the extent it directs reinstatement of the Respondent in service. Instead the original Application filed by the Respondent would stand dismissed with no order as to costs. Ordered accordingly. (R.M. SAVANT, J) (A.M.KHANWILKAR, J)