Case: Anil Kumar Upadhyay Vs. The Director General, SSB and Others

2. The appellant herein was serving as a Head Constable (Ministerial) in the 15th Battalion of the Sashastra Seema Bal (SSB), Bongaigaon. He was charged with violation of good order and discipline under Section 43 of the Shashastra Seema Bal Act, 2007 (hereinafter referred to as the SSB Act), for having entered the Mahila Barrack of the Battalion at around 00:15 hours, on the intervening night of 14th – 15th April, 2013. He was charged with indiscipline and misconduct leading to compromising the security of the occupants of the Mahila Barrack. He was apprehended inside the Mahila Barrack by six female constables. The matter was reported to the superiors. He was placed under suspension. A departmental enquiry was initiated against him. The appellant pleaded not guilty to the charges and the Deputy Commandant of the Battalion was ordered to ensure the Record of Evidence (ROE). During the ROE, the statements of prosecution and defence witnesses were recorded. He was afforded an opportunity to cross-examine the prosecution witnesses. That the ROE was submitted by the Deputy Adjutant and after due consideration of the same, the Battalion Commandant heard the appellant and under the SSB Rules, the Summary Force Court (SFC) was ordered against the delinquent – Head Constable.2.1 Before the SFC, the appellant pleaded not guilty to both the charges and accordingly the evidence was recorded. Thereafter, the SFC found the appellant guilty of the charges and initially ordered for his dismissal on 29.04.2013. But, subsequently, the penalty of dismissal was converted to removal from service on 21.06.2013 by the Commandant of the Battalion. The departmental appeal filed by the delinquent – Head Constable came to be rejected at first, as time barred on 06.12.2013, but later on, the Appellate Authority upheld the disciplinary action under its order dated 24.01.2014.2.2 Feeling aggrieved and dissatisfied with the order of removal from service passed by the disciplinary authority, the appellant – delinquent preferred a writ petition before the High Court. Number of submissions were made before the learned Single Judge on the legality and validity of the ROE and the SFC procedures. It was also submitted on behalf of the appellant that a female constable, Rupasi Barman, who was on sentry duty and who allowed entry of the delinquent during her sentry duty and against whom parallel proceedings were drawn up was also found guilty, she was inflicted the penalty of forfeiture of two years seniority in the rank of constable and also forfeiture of two years service for the purpose of promotion only. Therefore, it was submitted that when a much lesser punishment was imposed against a female constable whereas her partner in crime (the appellant herein) was given the punishment of removal from service, the same can be said to be discriminatory and disproportionate punishment.2.3 The learned Single Judge specifically observed and held that all due opportunities were afforded to the delinquent and the finding of guilt is found to have been based on cogent material and the evidence of both sides received due consideration and hence under the test of preponderance of probability, the delinquent has been held guilty. Therefore, the learned Single Judge opined that no prejudice was caused and it cannot be described a case of unreasonable procedure as there was due adherence to the SSB Rules. However, thereafter the learned Single Judge interfered with the order of punishment imposed by the disciplinary authority of removal from service solely on the ground that female constable, Rupasi Barman, who allowed the entry of the delinquent during her sentry duty, after holding her guilty, was inflicted a lesser penalty, whereas the appellant herein was inflicted the punishment of removal from service, which can be said to be disproportionate and therefore the learned Single Judge set aside the order of punishment imposed by the disciplinary authority of removal from service and remitted the matter to the disciplinary authority to impose any lesser punishment which may facilitate the appellant herein - Head Constable (Ministerial) to retain his job.2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the disciplinary authority preferred writ appeal before the Division Bench. By the impugned judgment and order, the Division Bench of the High Court has set aside the judgment and order passed by the learned Single Judge.2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court in quashing and setting aside the judgment and order passed by the learned Single Judge interfering with the order of punishment imposed by the disciplinary authority and remanding the matter back to the disciplinary authority to impose the lesser punishment, the delinquent has preferred the present appeal.

Reasoning:
6. The appellant herein, who at the relevant time was serving as a Head Constable, was subjected to disciplinary proceedings for having entered the Mahila Barrack of the Battalion at around 00:15 hours on the intervening night of 14-15th April, 2013. He was charged with an indisciplined conduct relating to compromising the security of the occupants of the Mahila Barrack. He was apprehended inside the Mahila Barrack by six female constables. Thereafter he was subjected to the disciplinary proceedings. All due opportunities were afforded to him. He was found guilty based on cogent material and evidence and on appreciation of evidence led by both the sides. Only thereafter, the disciplinary authority initially imposed the punishment of dismissal, however, subsequently, the penalty of dismissal was converted to removal from service. The punishment of removal from service was challenged by the delinquent before the High Court. The learned Single Judge, though held that the disciplinary proceedings were conducted after following due procedure under the SSB Rules and due opportunities were afforded to him, thereafter interfered with the order of punishment imposed by the disciplinary authority by observing that as the female constable who allowed the appellant – Head Constable to enter the Mahila Barrack and who was also found guilty of both the charges was inflicted with the lesser punishment and the appellant was inflicted the punishment of removal from service, which can be said to be disproportionate and thereby the learned Single Judge interfered with the order of punishment imposed by the disciplinary authority and set aside the punishment of removal from service and remitted the matter back to the disciplinary authority to impose a lesser punishment. The same has been interfered with by the Division Bench of the High Court and the order of punishment imposed by the disciplinary authority has been restored.8. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to:i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as Wednesbury principles.In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:19. The principles discussed above can be summed up and summarised as follows:19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.9. In the present case, the appellant was imposed the penalty of removal from service after the charges levelled against him stood proved by the disciplinary authority in an enquiry held against him after following the procedure prescribed under the SSB Rules. The nature of allegations against the appellant are grave in nature. He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated. As a member of the disciplined force – SSB, he was expected to follow the rules. He was apprehended inside the Mahila Barrack by six female constables. As observed by this Court in the case of Diler Singh (supra), a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of removal from service, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority.10. From the judgment and order passed by the learned Single Judge, which has been interfered with by the Division Bench, it appears that what weighed with the learned Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and who was also subjected to disciplinary proceedings and was found guilty of both the charges, was inflicted with a lesser punishment and therefore punishment of removal from service imposed on the delinquent official was disproportionate. However, the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of removal from service by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant – delinquent.