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1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India with the following reliefs.

A. Your lordships be pleased to admit and allow the present Petition.

1. Your lordship may be pleased to issue appropriate writ, order or direction quashing and setting aside the vide dated 18.12.2013 and order passed by the Commandant, C.R.P.F. dated 23.03.2011 as well as order passed by the Deputy Inspector General of Police, C.r.P.F dated 12.07.2011 and order dated 27.02.2012 passed by the Inspector General of Police, West Zone, C.R.P.F., New Mumbai and the Petitioner may be allowed to join his duty forthwith. By setting aside the order of dismissal.

Or in the alternative Your lordship may be pleased to direct the respondents authorities that the case of the Petitioner may be considered for the less grave punishment and same minor punishment may be awarded on the ground of parity and be taken back in service.

B. The Petitioner may be granted the monetary benefits for his service for which otherwise he is entitled.

C. Pending admission and final disposal of the petition, your Lordships may be pleased to stay implementation, execution and the operation of the said judgment and order passed by the Commandant, C.R.P.F. dated 23.03.2011 as well as order passed by the Deputy Inspector General of Police, C.R.P.F. dated 12.07.2011 and order dated 27.02.2012 passed by the Inspector General of Police, West Zone, C.R.P.F., New Mumbai and/or be pleased to grant the status quo ante and the Petitioner may be allowed to join service on such conditions as deemed fit.

D. Your Lordship be pleased to grant in other and further relief in the interest of justice.

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2. It is the case of the petitioner that the petitioner was service as Sipahi bearing No.015121261 and posted at Bandaval, Udaipur (South Tripura) as a constable general duty. That while the petitioner was on duty, he was found for the alleged misconduct and for that respondents have issued charge-sheet on 15.12.2010. After considering the submissions made on behalf of the petitioner and the relevant documents, the petitioner came to be dismissed from the services on 23.03.2011 by the Disciplinary Authority.

2.1 Being aggrieved and dissatisfied with the order, the petitioner had preferred departmental appeal before the Appellate Authority i.e. Director General, C.R.P.F., which came to be dismissed vide order dated 18.12.2013.

2.2 The petitioner preferred the present petition challenging the said orders passed by the Disciplinary Authority and confirmed by the Appellate Authority.

3. Heard Mr.Yogin Bhambhani, learned counsel appearing for Page 3 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined the petitioner and Mrs.Krisha Rawal, learned counsel appearing for the respondents.

4. Mr.Yogin Bhambhani, learned counsel appearing for the petitioner has submitted that the impugned order of punishment is disproportionate to the charge levelled against the petitioner.

He has submitted that the petitioner who is serving as constable general duty in C.R.P.F. and from the date of joining his service, there is no other disciplinary inquiry against the petitioner or no any show-cause notice was issued against him and considering his career, the impugned order of punishment is very harsh. He has submitted that the both the authorities have not considered the submissions made on behalf of the petitioner and without considering the documentary evidence, without application of mind, the impugned order came to be passed. He has submitted that the petition be allowed.

5. Per contra, Mrs.Krishna Rawal, learned counsel appearing for the respondents has opposed the petition and the charge against the petitioner is serious in nature considering the fact that he was serving in arm forced and being a disciplinary force, the petitioner has committed breach and, therefore, no leniency Page 4 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined be shown in favour of the petitioner. She has submitted that the petition has been filed after almost two years from the date of the order passed by the Appellate Authority. Mrs.Rawal, learned counsel has referred to and relied upon the affidavit-in- reply filed on behalf of the respondents. The relevant paragraphs of affidavit-in-reply are as under:-

"6.1 The petitioner along with other two were served with a memorandum of charges dated 16.12.2010 under the provisions of section 11(i) of the CRPF Act, 1949 and the charges were framed as per Article 1 , II, II and IV separately provided during the departmental inquiry held on 3.1.2011.

6.2 The regular leave is sanctioned to all as and when they applied for the same. It is further stated that the witnesses to the inquiry proceedings have confirmed the damage caused to the government properties as well as indiscipline in the Coy Location at Tripura State.

6.3 It is further submitted that it has been clearly proved in the departmental inquiry and from the statements of the prosecution witnesses of Assistant Commandant and HC/GD Rampratap Singh (CHM) that these personnel created tense situation and provocation. All these personnel committed serious misconduct more particularly by the petitioner and others who are members of disciplined force during the active duty with Arms in disturbed area of Tripura State.

6.4 It is further submitted that charges were framed against the petitioner on the bases of court inquiry and there is no provision to provide copy of the report of the court inquiry to the delinquent. However, the delinquent never asked for any copy of the departmental inquiry.

6.5 It is further submitted that as per medical report and statements of Dr. D. S. Mohan, it is abundantly proved that the petitioner had consumed liquor during active- duty hours which is serious misconduct in the discipline force.

NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 6.6 It is further submitted that all the charges levelled against the petitioner have been proved in the departmental inquiry. It is further submitted that the petitioner had used unparliamentary language and manhandled with OC Coy which is also a grave offending act committed by the petitioner. It is further submitted that while OC Coy was in talks with these personnel on the day of incident, suddenly electricity of the camp was cut down and whole camp was in plunged into darkness. The petitioner and others took the disadvantage of the darkness and damaged the residence of Coy Commander as well as government properties and that too of a senior officer. It is further stated that on the bases of the findings of the Court of Inquiry, CT/GD Harpal Singh dealt in orderly room and awarded 14 days confinement to line with forfeiture of pay and allowances and also one hour pack drill in the morning and evening by the Commandant 37 BN according to the offence committed by the petitioner.

6.7 It is further submitted that the departmental inquiry was conducted in fair and just manner and according to the prescribed procedure and rules. While conducting the departmental inquiry, the principle of natural justice was kept in mind and was given the reasonable opportunity to cross examine the witnesses and were given further opportunity to submit the defense. After giving the sufficient opportunities, the Appellate and the Revisioning authorities have passed the orders. Even, the mercy petition as per direction of this Hon'ble court is also heard again after giving opportunity of being heard by the DG, CRPF (Ministry of Home Affairs) and has upheld the decision of the Appellate and the Revisional Authorities.

7. It is further submitted that the disciplinary authority has imposed the penalty of dismissal from the service since, the charges against the petitioner have been proved during the inquiry beyond reasonable doubt. It is further stated that the petitioner has committed such a misconduct which can not be pardoned.

8. It is further submitted that the petitioner and other delinquents have committed serious misconduct by way of gross insubordination, Intoxication as well as damaged to the government properties along with highly insurgent, infested area of Tripura. The petitioner has committed serious offence, which cannot be expected from a disciplinary force like CRPF. Under the circumstances, the Page 6 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined charges levelled against the petitioner have been proved beyond the doubt and the offence so committed by the petitioner is unpardonable.

9. It is further submitted that considering the gravity of the misconduct of the petitioner and the charges levelled against him have been completely proved and the decision of dismissal from the service (Major Penalty) was taken by the Disciplinary Authority vide order dated 23.3.2011 which was confirmed by the Appellate authority vide order dated 12.7.2011 and further confirmed by the Revisioning authority on 22.2.2012. Even, the revision petition has been dismissed by order dated 19.11.2012 (upon remand now 18.12.2013).

10. The Apex court has held in number of cases that power of judicial review in the matters of disciplinary inquiries exercised by the departmental/appellate authorities discharged by constitutional courts under article 226 or 136 of the constitution is well circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of case on merits as an Appellate authority.

5.1 Mrs.Rawal, learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Dalbir Singh reported in (2021) 11 SCC 321 and emphasized upon the fact that so far as the interference is concerned, while exercising the jurisdiction under Article 226 , the judicial review of the decision taken by the Disciplinary Authority and confirmed by the Appellate Authority, this Court has very limited scope to interfere and, therefore, this Court may not entertain the present petition. She has submitted that the Page 7 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined petition being meritless deserves to be dismissed.

6. The issue involved in the present petition is that whether the punishment imposed by the respondent - authority is disproportionate or not and whether the Court can interfere in the order of punishment only on the ground of quantum of punishment imposed by the Disciplinary Authority while exercising the jurisdiction under Article 226 of the Constitution of India or not.

7. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.

8. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-

(1) To judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.

(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Page 9 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(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."

In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-

In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham 's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

"67. But where, an administrative action is challenged as 'arbitrary' under Art. 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p. 111 :

In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."

9. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-

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(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i). the finding of fact is based on no evidence.

13 Under Article 226/227 of the Constitution of India, the High Court shall not:

14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1 , many of the above principles have been discussed and it has been concluded thus:

15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:

16 These principles have been succinctly summedup by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.

18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India. 20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

10. It is also worthwhile to refer to the decisions of the Hon'ble Page 20 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Supreme Court in the case of Union Of India Versus P.Gunasekaran reported in (2015) 2 SCC 610 and in the case of State of Punjab and others Vs. Jaswant Singh reported in 2013 (3) Indian Service Law Journal 242.

11. The Hon'ble Supreme Court has considered the fact that the High Court, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, has very limited scope to interfere with the findings recorded by the Inquiry Officer and confirmed by the Disciplinary Authority.

12. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasized that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate Page 21 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

13. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant facts including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service.

14. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be Page 22 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined dismissed.

15. For the foregoing reasons, this petition fails and is hereby dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 23 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024