Union Of India & Ors vs Dwarka Prasad Tiwari

J U D G M E N T (Arising out of SLP ) No. 23847 of 2005) With CA No. 4455 of 2006 (Arising out SLP(C) No. 15725 of 2006) ARIJIT PASAYAT, J.

Leave granted in both the Special Leave Petitions.

These two appeals are directed against a common judgment of the Madhya Pradesh High Court at Jabalpur allowing the writ petition filed by the respondentDwarka Prasad who is the appellant in the appeal relating to SLP(C) No. 15725 of 2006. The writ petition was partially allowed by a learned Single Judge of the High Court holding that the punishment of dismissal from service imposed on respondent- Dwarka Prasad was too harsh and was required to be substituted by an appropriate lesser punishment. Accordingly the order of dismissal was set aside and reinstatement with continuity of service without any back wages was directed and it was further directed that from the date of judgment the respondent-Dwarka Prasad shall be entitled for full salary.

The background facts in a nutshell are as follows:

Against the order of dismissal respondent preferred an appeal to the Deputy Inspector General of Police (in short the 'DIGP'), CRPF. During pendency of the appeal, a writ petition was filed under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') which was numbered as M.P. No. 2978 of 1990. The High Court by its order dated 26.11.1990 dismissed the petition but direction was given for disposal of the appeal pending before the DIGP, CRPF who dismissed the appeal. A revision petition before Additional Director General (in short the 'ADG'), CRPF did not bring any relief.

A review petition was filed before the Director General (in short the 'DG'), CRPF who modified the punishment of dismissal to one of removal considering the respondent- Dwarka Prasad's young age and short length of service. Against the said order a writ petition bearing number M.P. No. 2150 of 1992 was filed under Articles 226 and 227 of the Constitution. The High Court by the impugned judgment held that the defence of the respondent-Dwarka Prasad was not properly considered by any departmental authority and the punishment awarded was shockingly disproportionate. Accordingly as noted above the punishment was set aside and direction for reinstatement with certain other benefits was given.

ARTICLE -II That during the aforesaid period and while functioning in the aforesaid office the said No. 8230762299 Ct. Dwarka Prasad Tiwari was guilty of neglect of duty and remissness in his capacity as member of the Force U/s. 1191) of CRPF Act, 1949 in that he fired one round from his weapon (SLR) and sustaining bullet injury in his abdomen."

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.

Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur (1987 [4] SCC 611)".

In ultimate result the appeal filed by Union of India is allowed to the extent indicated, while the appeal filed by Dwarka Prasad is dismissed. No costs.