IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.689 of 2009 MAHANAND MISHRA . Versus THE STATE OF BIHAR & ORS . ----------- 2. 27.06.2011 Heard learned counsel for the petitioner and the State. The petitioner, an Assistant Sub-Inspector was the team leader of a Train escort party consisting of other constables. Allegedly, in that capacity, while on duty in Train No. 5324 Down Gandak Express from Gorakhpur to Sitamarhi on 5/6.6.1997, he abused the passengers travelling in the guard compartment and while forcing them to go into a regular coach extracted Rs. 20 per head as illegal gratification including from a government functionary. He further took illegal gratification of Rs. 300 each from two other passengers. He threatened certain passengers coming from Amritsar to lock them up in custody at Sitamarhi and released them only after obtaining Rs. 150/- each from all the four persons. A departmental proceeding followed and after considering his defence an order of punishment dated 7.3.1998 reverting him to the post of a Constable for 5 years was passed. The quantum of punishment was determined observing that reversion in lieu of dismissal was being imposed as the money received by way of illegal gratification could not be recovered. After due 2 opportunity to the petitioner, the punishment was enhanced to dismissal by the Appellate authority on 27.3.2000. The petitioner questioned the same in C.W.J.C. No. 12009 of 2000. The challenge to the absence of power for enhancement of punishment by the appellate authority was rejected by the Court relying on Rule 853 (A) of the Bihar Police Manual. The Court left open the question that the punishment of reversion had already been operational for two years. It was however observed that earlier also the disciplinary authority had observed that the allegations were serious. Thus there had to be some justification in the enhancement of the punishment as dismissal was a severe punishment. Fresh orders dated 16.12.2008, has then been passed upholding the order of dismissal. Learned counsel submits that there is no indication of the reason for enhancement of the punishment as directed by the Court. The order is therefore arbitrary liable to be set aside. An additional ground has been raised that other Constables who were a part of the escort party have been visited with a lesser punishment of reversion to the basic of their pay scale. There had thus been hostile discrimination against the petitioner. It appears that this 3 ground was neither raised in the earlier writ petition nor before the authorities by the petitioner, but is being raised before this Court for the first time. Nonetheless the Court, will deal with the issue. The petitioner was a member of a uniformed disciplined force holding the responsible position of an Assistant Sub-Inspector of Police. His status, role and responsibility were not the same as the Constables whom he was commanding. The onus to enforce discipline on the raiding party rested with him. If he was slack his subordinate were bound to be slacked. If he acting illegally, the subordinate were bound to be emboldened. The petitioner donning the uniform was the protector. He turned the situation to his advantage by misusing the uniform and the powers vested thereby. From the protector he turned into the predator. The yardstick which shall apply with regard to his conduct in uniform as a member of a disciplined force shall be entirely distinct, different and more rigorous from that that of the holder of a civilian post. Discipline was the very foundation of and hallmark of his service. If discipline was a dirty word for him he has no place in the service. In (2010) 11 SCC 314 (Charanjit Lamba v. Commanding Officer, Army Southern Command ) the 4 Supreme Court at Paragraph-22 and 23 reads as follows:- “22.…..As an officer of a disciplined force like the Army he was expected to maintain the highest standard of honesty and conduct and forebear from doing anything that could be termed as unbecoming of anyone holding that rank and office. Making a false claim for payment of transport charges of household luggage and car to Chandigarh was a serious matter bordering on moral turpitude. Breach of the rule requiring him to clear his electricity dues upon his transfer from the place of his posting was also not creditworthy for an officer. The competent authority was therefore justified in taking the view that the nature of the misconduct proved against the appellant called for a suitable punishment. 23. Inasmuch as the punishment chosen was dismissal from service, the competent authority, did not in our opinion, take an outrageously absurd view of the matter. We need to remember that the higher the public office held by a person the greater is the demand for rectitude on his part. An officer holding the rank of Major has to lead by example not only in the matter of his readiness to make the supreme sacrifice required of him in war or internal strife but even in adherence to the principles of honesty, loyalty and commitment. An officer cannot inspire those under his command to maintain the values of rectitude and to remain committed to duty if he himself is found lacking in that quality.” The charges were proved in the departmental proceeding. The original order of punishment observes that it warranted dismissal. The indulgence of a lesser punishment was granted only because the amount of illegal gratification received could not actually be 5 recovered. That was an irrelevant issue and did not wipe out the allegations and findings with regard to the conduct of the petitioner highly unbecoming of his service status. The petitioner has not questioned the order of the Court in C.W.J.C. No. 12009 of 2000. The power to enhance the punishment being there in the Appellate authority, the Court shall not sit as a super Appellate authority to decide that if another conclusion commensurate with a lesser punishment was possible or not. That is the domain of the administrator. The Court while examining the fresh administrative order will only consider whether it contains reasons. It shall not go into the sufficiency of the reasons. The limits of judicial review shall be bound by the principle that if the grounds and materials mentioned in the order are germane and relevant or whether they are arbitrary or fanciful. The former will require no interference while the latter will. There can be no doubt that dismissal is a serious punishment. But if the administrator has opined in his appellate powers that merely because the amount was not recovered when the allegations have otherwise been proved, reversion to the post of Constable was not a sufficient punishment but that a more deterrent punishment was required, can the Court re-scrutinize the 6 administrative discretion to supplant its own opinion that dismissal was harsh punishment shocking to the conscious of the Court. To the contrary, the Court holds that in the nature of the proved allegations the petitioner had been granted an undeserved indulgence The fresh impugned order dated 16.12.2008 reasonably and adequately states that the conduct of the petitioner was not only unbecoming of a Constable, but extorting money from a citizen was a criminal act on his part. The Court finds no reason to interfere with the impugned order dated 16.12.2008. That leaves the question of discrimination in punishment urged on behalf of the petitioner. It has already been noticed that he was an Assistant Sub Inspector leading a group of Constables. The duty to enforce discipline and command all his subordinate officials was in him. The issue of parity in punishment and the manner in which it has to be considered has been well explained by the Supreme Court in (2010)5 SCC 775 (Administrator, Union Territory of Dadra and Nagar Haveli v. Gulabhia M. Lad,at paragraph 15 and 18 as follows:- “15. In a matter of imposition of punishment where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision 7 making. A single distinguishing feature in the nature of duties or degree of responsibility may make a difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co-delinquents differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination. 18. Secondly, the Tribunal failed to notice that the respondent was holding an important position as Land Reforms Officer during the relevant period having been conferred with various powers and duties under the Regulations. As a Land Reforms Officer, the respondent possessed the official authority for grant of occupancy rights under the Regulations. The co-delinquents were only his subordinates and they carried out his instructions. In the facts and circumstances, therefore, the respondent and the two co-delinquents cannot be said to have been similarly placed.” There is no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J)