E-J.i'.EPh-a ^i'^i IsST' iri^£>' ^LE-li_? AlT'T'?£l.''°t.i-n SSSLJ ^ lcc~ K^ H A. ^F-'F^i ssS;. H^GH COURT OF CHHATTSSQA^H AT BILASPUR CORA!" ; Hon'ble Shri H.L.Daftu, ChsefJust'ce h'on'ble Shri V.K.ShEivastava, Judge UVrit Piatitinn Nn.261 nf 9GO' itii IE^ 6—^fcESki^/sS= :^^u?B^iuW 3 ^ 6 ^itf'^' I. '^.t- i^!^ r^nss^ ^QP r:'f^M.%-u l^s3E~'l*s«^cr^. r"'tk^r^ ^^irf'E^^E ^•^-^^EUE-t- Sd/- III 10N^BL£SMR!V.K,SHRiVASM,^A.At, ri\ C9-% 'OST PQR •^if C ;; ^li^ S ''* Sd//- V.K.Shrivastava Judge 'UNCEMENT ~'Pva j^.-?ati^3^fot^c^ „ ,^t?5 J..-^ jg ^j*^^ ^T i r'jis; su^r^.u<fsn . ^^SsV'^e,&wi:ws -' ~il i:;si? Sd/- ChiefJustice **•• HJGH COURT OFCHHATriSGARH AT BtLASPUR DIVISiON BENCH HON'BLESHRl H.L.DATTU, CJ. HON'BLESHRi V.K. SHRIVASTAVA, J. Writ Petitlon No.%1 of2 1 1. State of Chhattisgarh, through Secretary, Home Deptt. Chhattisgarh : / Raipur 2. Superintendent of Police, Durg, Chhattisgarh Versus 1. Dukhharan Singh aged about 45 years S/o Ramji Singh Thakur Resident of Darhi, Tahsil: Bemetara, Distt. : Durg 2. State Administrative Tribunal, through Registrar, Jabalpur (MP) Shri Sanjay S. Agrawal, G.A. for the State/petitioners. Smt. l-tamidaSiddique.counsel for respondent No.1. ORDER (Passed on C3ri April, 20Q7) The following r,'~. order ofthe Court was passed by .L. ,C.J. The State of Chhattisgarh represented by its Secretary, Home Department, the Superintendent of Police, Dyrg are the petitioners in this writ petition filed under Article 227 of the Constitution of india inter alia oaliing in question the correctness or otherwise of the order passed by the M.P. Admjnistrative Tribuna!, Jabaipur Benoh, Jabalpur ('the Tribunaf' for short) in O.A.No.1687 of 1991, dated 16-5-2000. By the impugned order, the Tribunal has allowed the application filed by the applicant/respondent No.1 herein and has set aside the imposition of penalty of dismissal from sen/ice, passed by the disciplinary authority, dated 19-2-1990 and has reserved liberty to the disciplinary authority to impose any punishment other than dismissai,. removal and compulsory retirement fromservioe. 1 h. ; ,r' \I-- -<*.- lr (2) The applicant before the Tribunal was working as a Police Constable in the Police Department. While he was working at Durg, the second petitioner herein had issued a oharge memo dated 13-9-1989 and in that it vvas al!eged that the applicant had wilfuily and without prior permission had remained absent from 3-5-1989 to 24-5-1989 and the other charge was that he was habitual for such unauthorized absence and on that count he was admonished earlier on three oocasions. The enquiry officer appointed for the purpose of enquiry into the allegations made in the charge memo had come to the conclusion that the oharge-sheeted employee is guilty of the charges alleged in the oharge memo. In his report he has stated as under: "1. R-lfcb 3.5.89 ^24.5.89 ?TEP fNT ^ sryfrT ^wftr ^-^ thtfciit' ^ si^crfNTT "?g^7 ct7rt<^5'iiai ^ Siyii'Mis'iicii y^RIa c?»<ii 1 2. ^ ^ 3 sTR ydlfecl f^ ^rFT ^ 6!lciu^ 1^7f ^ •3TTTR°T 4 ^TT? ''T (OT ^farf ^ flpTT ^ RT mf^r f^ sRTtrc^ ^q ^ ST ^ ~3pT 3TT^ ?^T |" (3) After accepting the findings of the enquiry officer, the disciplinary authority had passed an order dated 19-2-1930 imposing punishment of removal from service. After unsuccessful attempts before the Appellate Authorities, the applicant was before the Tribunal in O.A.No.1687/1991. The Tribunal has allowed the application filed by the applicant and has set aside the orders passed by the disciplinary authority, dismissing the applicant from service and has further directed the disoiplinary authority to impose any other punishment other than dismissal, removal and compuisory retirement from service. It is the correctness or othervi/ise ofthis order, is the subiect matter of this writ petition. \___ Ij I: I; :BT """ "" (4) Shri Sanjay S- Agrawal, learned Government Advocate appearing for the petitionere would submit, that the Tribunal ought not to have interfered with the punishment imposed by the disciplinary authority, unless the punishment imposed is shookingiy disproportionate to the charges alleged and proved. It is further stated that the applicant/respondent No.1 herei'n is working in a disciplined force and any act of indiscipline by such a person sternly requires to be punished. According to learned Government Advocate, the on!y pynishment that requires to be awarded in the instant case, was dismissal from sen'ioe in view ofthe fact that the applioant was in the habit of remaining absent from duty without prior permission of the superior authority and on all those occasions he was admonished and warned and therefore, the Tribunal was not justified in interfering w!th the order of punishment imposed by the disciplinary'authority. Learned Government Advocate would further submit that it is for the applicant to show how the punishment imposed by the disciplinary authority could be characterized as disproportionate to the charges alleged in the charge memo and since the applicant had failed to demonstrate the same before the Tribuna!, the Tribunai ought not to have interi'ered with the order passed by the disciplinary authority. In aid of his submission, learned Government Advocate w6u!d rely upon the decision of the Apex Court in the case of MithiSesh Singh vs. Union of tndia and others, reported in (2003) 3 SCC 399; State of Punjab and others vs. Bakhshish Smgh, reported in $1997) 6 SCC 381 and State of Rajasthan and another vs. MohammMl Ayub Naz, reported in 2<»S AIR (5) Per contra, Smt. Hamida Siddique, learned counsel appearing for respondent H6.1 wou!d submit that the discjplinary authority while imposing punishment of dismissai from service had hot taken into consideration, the medioal certificate that was produced by respondent No.1 and, therefore, the Trrbunal was justified in modifying the punishment imposed by disciplinary authority. Apart from this, learned counsel would contend that the aliegation s 1 1 / 1 ^,- made against respondent No.1 v/as not so serious and therefore, the Tr'bunal was justified in modifying the order passed by the disciplinary authority. Lasily, iearned counsel would submit that thejudicial review ofthe order passed by the Tribunal in exereise ofthis Court's power underArtide 227 otthe Constitution js imited and, therefore, this Court should not interfere with the order passed by the Tribunal. In support of her contention, the learned counse! relies on certain obsewations made by the Apex Gourt in the case of Bhagat Ram Vs. State of Himachal Pradesh and others, reported in (1983)2 SGC -442, wherein the Court has obsen/ed that the punishment must be proportionate to the gravity of misoonduct and dismissal on trivial charge of no loss to the revenue is disproportionate and excessive. (6) The iearned counse! further relies on theobservations made by the Apex Court in the oase of Malkiat Singh Vs. State of Punjab and others, reported in 1S9S $2) SLR-17, wherein the Court taklng into consideration the facts and circumstances pleaded in the case has set aside the order of dismissal from service imposed by the disciplinary authority, however with a caveat that if the delinquent employee absents himself for two consecutive days within one year without permission, he would be dismissed from service. (7) Reference is made to the deoision of the A^iex Court in the case of Union of India and others vs. R.K. Sharma, reported in AIR 2001 SC 3053, wherein the Court has obsen/ed that once a army personnel is found to be }uilty of the charges made against him it is not open to the Court to interfere y./ith the sentence a>ivarded by the Court Martial. The awarding of sentencs is within the powers of the Court Martial. These are not matters in which Court should interfere. Whiie exercising powers' under Artjcle 226 or 227 and/or under Article 32 ofthe Constitution of India, the Court cannot interfere with the punishment merely because it considersthe punishment to be disproportjonate. It is only in exceptional oases, which on their face show peroersity or ^-' irrationality that there oan be judicial review. Merely on compassionate grounds Courts should not interfere. (8) in the present case, the disciplinary authority had issued a charge memo dated 13-9-1989. In that, he had alleged that the applioanVrespondent No.1 herein had remained absent from 3-5-1989 to 24-5-1989. The other charge was that he was habitual for such unauthorized absence and, therefore, he was admonished earlier on three occaslons. in the enquiry proceedings held before the enquiry officer, he had stated that he had remained absent due to his i!!-health on 3-5-1989 till 24.5.1989, but has produced the medicai certificate issued by the doctor dated 8.5.1989 and that only means that for his so called serious ailment he had not visited the doctor prior to 8.5.1989. Therefore, his vereion that he was prevented from serious aiiment from attending to his duty on 3 of May,1989 and subsequent days was rightly not believed by the enquiry officer. It is not for the first time the applicant had remained unauthorizedly absent and even earlier he had remained absent unauthorizedly ahd for that act of misconduct hs was warned by his superior officers. Taking into consideration his previous conduct and the present conduct of unauthorized absence the disciplinary authority had imposed a punishment of remoVal from sen/ice. , (9) The principie of proportionatity of the punishment' ordains that administrative measures must not be more drastic than are necessary for attaining. the desired results. "Proportionality" it is held requires the Court to judge whether the aotion taken was really needed as well as whether it was within the range of courses of action that could reasonabiy be followed. Proportionaiity js therefore a more exacting test in some situations and is then to be as requiring the Court to sufcstitute its own judgment for that of proper authority. The doctrine of proportionality may require a review Court to assess the balance which the decision-makerhas struck not merely whether it|is within ssji)} psuiiuexs pey A}uo4}ne AjBuiidiosip 9111 'ioej u| •SOIA.ISS LUOJJ lessjujsip p ^usiuqsiund jofeuj e ssodiui o) lusioiyns lou si LUIL) }suie6e souspiAS SL)t }Bqt4Ueo!ldciB 341 ^Q leunqui st|t sjojsq }no epeiu sseo aLj} pu si i| (3 i.) 'A}uoL|ine AiEUiidiosip sq} Aq suop ussq seq iey} pue SOIAJSS LUO^ lessiLusip si pspje/AB ussq SASLI pinoM }B4} lusujqsiund Aiuo SL<) SQJOJ 341 ui suiidiosip sq} uiBtuieai 0} jspjo ui 'ejn^BU si4t 10 SSEO s u| 'ssiiuoqine jousdns sq} jo uoissiiujsd joud inoL|}!m jo A|pszuoq}neun luesqe uieujej 0} psnujiuoo pue }onpuoo siq SAOJdui! lou p!p eiqeisuoo eoiiodflueoitdde st)i •IUILI PSUJBM peii pue luii) psqsiUOLupe A|UO pey jsfteuj SL!} ^o /WSIA siEuoissediuoo B 6ui>iEt Aiuoqine AjeuHdjostp 3lj} 'SUOISBOOO J9![JB3 8L|) UQ 'SUOISEOOO |BJ8A9S UO tna, 'SOUO )ussqe psuieiusj A]LiO 10U pBLj SOJOi pSU!|dlQS!p B U! 6U!>|JOA-l UOSjad E 'sseo tue}sui 34} ui (1.1.) •ssAo[dtU9 9L|} p pnpuoosiuj psAOjd SL|I 0} 3ieuo!]jodojds!p A||OL|M si tusiuijsiund 94) jo souspiAS ou uo psseq eje L|OIL|M sSuipuy 'AiiuniJoddo siqeuosBej p feiusp 'soitsnf lejnieu io ssidiouud 40 uoijEAJssqo -uou io esneoaq psieitiA si Ajinbus oiissuuop 3Ljt }BL)} punoi si 11 ejeyM 'soue+sui jo^ 'pSiiiU!! Ljoniu AJSA si uoiioipsunf jiSL|j. 'unoo 3}B||9ddB sq} ,o sjeMod SL,'} ssiojsxs }ou ssop 'uiajsyi pspjooej s6u!pui( 341 pue Ajinbus |e}usuu}jed8p p SSSBO ui iBunqui 34} )BL|} psuietuiEuj sq o} spssu 11 ')ss}no eq} }v (O 1-) •A}3ydojduj! |Bjnpeoojd (iii) pue A(!|s6e||! (i!) 'AI!|BUO!}EJJ! psiieo sq A|S}Eudojdde SJOLU ueo LIOILJM sssusiqeuoseejun (i) sje ASLII •60Z OOS fe)968i. ui ps^Jodgj 'sjsqio pUB/'oo s ^BAftOaOW •SA swqio pue •d"¥jo atBts P sseo 34} ui tjnoo xsdy 34} Aq psuiBidxe se spunojB SSJL)) 0} p3)!LUi| si sieunqui 34} pue synoo 94} ^o MSIASJ leioipnf 84} IBL|I psAjssqo seq IJnoo auisjdnssMl' (.1.9 008 i? (^SBi) 'sseo s,jn}jeqj. lifuBy u| •uo!}Bjapisuoo pue issjsiui SL|} o} papjoooe iiiSia/A eAiieisj ay} Q) pstosjip sq 01 uoiiusue sjinbsj ABUI }i se LjoniiisBU! 'MSIASJ 10 punoj6 leuoitpBJi ai)} ueqi jsyvni 06 ABLU isa} AiiiBUOiyodojd SL|} 'Aipuooas 'uoisioap 3|qeuose9j jo IBUOIIBJ 40 e6uej 341 K^ witnesses and had also marked five doouments to prove that the detinquent empioyee had remained absent on earlier occasions and also with effeot from 3-5-1989 to 24-5-1989. Taking into consideration the gravity of the misconduot committed by a person working in a discipiined force, the disciplinary authority had imposed a punishment of removal from sewice and that punishment couid not have been lightly be interfered by the Tribunal on the ground that the punishment so imposed is disproportionate and would shock the conscience of the Tribunal. In fact, the Tribunal while addressing itself for modify'ng the penaity imposed by the disciplinary authority, had not even taken into consideration the misoonduot committed by the appticant on eariier three occasions. In fact, it was one of the allegations made in the charge-memo against the deiinquent employee and those charges were proved by the disciplinary authority before the enquiry officer. The Tribunal shoutd have also taken into consideration the award of punishment of removal from service by the dlsciplinary authority from the point of view of maintaining the discipline in the police force. Fiea-bite penalties against the employees in a disciplined force do not seem to accord with the call of times. (13) The Supreme Court in the oase of P.D. Agrawal Vs. State Bank of indsa and others, reported in (200S) 8 SCC 776 has obsen/ed the question as regards the jurisdiotion of the Court to interfere with the quantum of punishment, it is well known is limited and while exercising the said jurisdiction the Court only in very exceptlonal oases interferes therewith. (14) The Supreme Court in the case of A. SudhaRar Vs. Postmastsr Generai, Hydecabad and another, reported in (2006) 4 SCC 348, after referring to the obsen/ations made by the'Apex Court in Hombe Gowda Educational Trust Vs. State of KarnataRa, has stated that the Tribunal's iurisdiction is akin to one under Section 11-A of the Industrial Dispytes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribuna! to substitute one punishment by another, but it is atso trite ithatthe M^ i L. % Tribunal exeroises a limite'd jurisdiction in this behalf. The jurisdiotion to interferewith the quantum of punishment oould be exereised only when, inter alia, it is found to begrossly disproportionate. (15) In North East Kamalaka RT Corpn. Vs. Ashappa, reported in (2006)S SCC 137 the Supreme Court has stated as under: "8. Remaining absent for a iong time, in our opinion, cannot be said tcfbe a minor misconduct, The appellant runs a fleet of buses. It is a statutory organization. It has to provide publio utility se'vices. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses oan allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, . he remained absent. He was found not oniy to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorizediy absent on several occasions. In this viev/ of the matter, it cannot be said that the misconduot oommitted by the respondent herein has to be treated lightly." (16) In Mithilesh Singh Vs. Union of India and others, reported in (2003) 3 SCG309, the Supreme Court has obsen/ed that unauthorized absence wlthout prior intimation of leave to the higher authorities would amount to misconduct and in the cases ofthat nature, the scope ofjudicial review with regard to the penalty or punishment is very limited and that can only be done if the punishment appears to be shockingly disproportionate. (17) In view of the above discussion, we are of the view that the Tribunal on mere compassion could not have inteitered with the order of punishment imposed by the disciplinary authority and further coutd not have direoted the dlsciplinary authority to impose any other punishment other than dismissa!, removal or compulsory retirement from service. Therefore, the order passed by the Tribunal requires to be interfered with. Aocordingly, the order passed by the Tribunal is set aside and the order passed by_the discipiinary authority is confirmed. Ordered aocordingly. ' Sdt- ChiefJustice Sd//- V.K.Shrivastava Judge li:; n .]-f