Sant Kumar Upadhyay Vs State of U.P. and Others

R.B. Mishra, J.@mdashHeard Sri Shailendra, learned Counsel for the petitioner and Sri S.S. Sharma, learned Standing Counsel for the State.

In this writ petition the prayer has been made to quash the order dated 21.5.1998 and again order dated 28.11.1998 and the Enquiry Report enclosed as (Annexures No. 9, 11 and 6) respectively. It appears that the petitioner was initially appointed as Constable in Provincial Arms Constabulary in 15 Batallian P.A.C., Agra on 1.1.1986. The petitioner was alleged to have stolen identity card, driving licence and diary of one drawer Amar Singh. Within one day inquiry was completed and petitioner was dismissed from service. The petitioner preferred an appeal against the dismissal order which was allowed by D.I.G., P.A.C., Agra dated 30.6.1996 (Annexure-1). Fresh charge-sheet was issued on 27.12.1996 against the petitioner in reference to incident of 22.1.1996 and in reference to the allegations prior to 22.1.1996 in which enquiry was already been pending and one Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh, was the enquiry officer and the statement of Mitra Prakash Tiwari and Ravindra Yadav, both Constables and Amar Singh whose diary etc. were alleged to have been stolen, were recorded. It appears that in all the statements were some contradiction and there is no direct evidence where it could be said that the petitioner has stolen the alleged items. The enquiry officer Sri Kunwar Pal Singh has submitted the report on 23.4.1998 (Annexure-6). In reference to the show cause notice the petitioner was allowed 8 days time to give a response. The petitioner on 16.5.1998 wrote a letter seeking some more time on the ground his son is not well. Letter of request is enclosed as (Annexure-8). Petitioner was not granted time and an ex-parte decision dated 21.5.1998 was taken which is the impugned order of the present writ petition. The petitioner preferred an appeal before the Dy. Inspector General of Police who after considering the same dismissed on 22.7.1998 (Annexure-10) and appeal preferred against the above order 21.5.1998 before the D.I.G. Police which was dismissed on 28.11.1998 which is also an impugned order in the writ petition.

2. The counter and rejoinder-affidavit has been exchange.

3. The points/issued raised by the petitioner for consideration before this Court is :-

(a) As per Rule 13 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, which provides that in case the enquiry officer has done a preliminary enquiry in a case, he shall not conduct the subsequent or main enquiry under the aforesaid Rule. In the present case, the preliminary enquiry was done by Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh. The fact can be con- firmed by letter Annexures No. 1, 2 and 3 annexed to the supplementary-affidavit. All these letters were issued by Kunwar Pal Singh who was the enquiry officer in the preliminary enquiry which concluded and the petitioner''s services were dismissed on 23.1.1996. Fresh enquiry was initiated by the charge-sheet dated 27.12.1996 in which the enquiry officer submitted the report on 23.4.1998, (Annexxure-6). The name of the enquiry officer mentioned in the concluding page 6, the enquiry officer was Kunwar Pal Singh, Assistant Commandant. Therefore, it is clear that the enquiry officer in the preliminary enquiry as well as in the main enquiry was the same Kunwar Pal Singh, therefore, the enquiry is vitiated in view of the provisions of Rule 13 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991.

(b) The main enquiry is also vitiated on the ground that the provisions of Regulations 486(1), (5) and (6) of the Police Regulations were completely violated by the authority concerned including the Appointing Authority as they failed to observe the process contemplated in the said regulation. They also violated the Government Order dated 29.1.1992, Annexure-12 which also reiterates the stand taken by the petitioner. The allegation against the petitioner is that he is guilty of theft. In such circumstances, it is an offence cognizable under the Indian Penal Code, therefore, the authorities are bound to follow the provisions of Regulation 486 and the First Information Report is required to be lodged against the petitioner. No such step was taken by the authority competent, therefore, entire enquiry and the order impugned against the petitioner deserves to be set-aside. It is further necessary to mention here that this question was rejected by the Appellate Authority where they say that since the charge was petty, no First Information Report was lodged and the provisions of Regulations 486(1), (5) and (6) were not required to be followed. This finding is recorded in Para 4 of the Appellate Authority Order, (Annexure No. 11). The finding recorded in Para 4 by the Appellate Authority confirms that the Act was not of such a nature so that even any First Information Report should be registered. If the fact is admitted and taken as such, there was no case, in any manner granting the punishment of dismissal against the petitioner.

(c) The order of dismissal passed on 21.5.1998 was ex-parte as show cause notice was issued on 6.5.1998. Deliberately 8 days time was granted. When the petitioner moved the application for 8 days more time on account of his and his son''s illness, time was not allowed and within 5 days the petitioner was dismissed from service, therefore, the order impugned of dismissal was passed ex-parte and in utter violation of the principles of natural justice. The issue of no opportunity to the petitioner was also raised in the appeal and the Appellate Authority dealt with the issue in Para 3 of the decision (Annexure No. 11) in which they admitted the moving of the application by the petitioner for 8 days more time but the finding recorded was that the petitioner had not filed any Medical Certificate along with the application, therefore, he was not allowed further time. In view of the fact that the petitioner was not in a position to attend the proceeding, he moved the application. Medical Certificate as required to be submitted after completion of the leave period on medical ground and not prior to that. In such circumstances, it is a clear case of admission of the authorities that they deliberately passed the order for no reason without permitted further time to the petitioner.

(d) It is further necessary to mention here that while reading (Annexure-1) this can be found that while allowing the appeal of the petitioner the Appellate Authority recorded the finding that this is a clear case of misuse of legal process. The finding was recorded at internal page 4 in the following manner :-

"IS PRAKARAN KO MAIN SENANAYAK 45 WAHINI PAC ALIGARH DWARA DAND WA APPEAL NIYAMAWALI, 1991 KE NIYAM 8(2) KHA KA DURPAYOG HI MANTA HOON."

English Transaction is as under :

I find this case, is a misuse of Rule 8(2) Kha of Punishment and Appeal Rules, 1991 by the Commandant, 45 Bn PAC, Aligarh.

(e) Another issue is that the authorities were acting throughout with malafide and the oblique motive. This fact can be confirmed by the reason that the date of incident relating to theft was 22.1.1996 and within one day the enquire enquiry was completed and the petitioner was dismissed from service on 23.1.1996 and when the petitioner filed the appeal, the authorities became prejudiced being the Police establishment, where they cannot expect raising of head by a Constable. Once, the appeal was allowed in favour of the petitioner, the authorities became prejudiced and the same enquiry officer Kunwar Pal Singh, who did the enquiry from 1995 to 1996 in other allegations, was taken together in the fresh charge-sheet and was enquired by the same enquiry officer, deliberately without providing any opportunity as such the petitioner was punished and dismissed from service without dealing with the issue raised by the petitioner.

(f) Another issue is that the entire allegations which allegedly found proved against the petitioner, are on the basis of the three statements of Mitra Prakash Tiwari, Ravindra Yadav and Amar Singh (Annexure No. 3). These statements are inter se contrary. According to the statements of Mitra Prakash Tiwari, he found the stolen things on road from which the petitioner returned after the natural call few minutes back while the statement of Ravindra Yadav who was accompanying Mitra Prakash Tiwari was contrary. According to his statement, he has been the petitioner throwing identity card, driving licence and diary in the night i.e., about 8 p.m., from the considerable distance. So far the third statement of Amar Singh is concerned, he was not present there, therefore, he only recorded statement that he got the information that stolen material was found from the possession of the petitioner. In such circumstances, all the three statements are contrary and in any circum- stance, cannot be relied, upon for awarding the punishment of dismissal.

(g) The punishment is harsh and disproportionate to the charges made against the petitioner. The allegation against the petitioner as admitted by the Appellate Authority is of petty nature and not of even such a nature that a First Information Report could be registered on its basis. In such circumstances, the petitioner cannot be punished from dismissal of service. Case relied Union of India and others Vs. Giriraj Sharma, Punishment must commensurate with gravity of misconduct.

(h) Remedy of revision/alternate remedy before the Tribunal in the case, where counter-affidavit and rejoinder-affidavit filed, the question of alternative remedy cannot be permitted to be raised. Case referred (2001) 1 UPLBEC 109 . In the cases, where legal issue is involved it will not serve any purpose to send the matter to the Tribunal as the matter will come back to the High Court. Since, counter-affidavit and rejoinder-affidavit have been exchanged, this can be decided by the High Court itself. Dr Bal Krishna Agarwal Vs. State of U.P. and Others,

The Uttar Pradesh Police Officers of the Sub-ordinate Ranks (Punishment and Appeal) Rules, 1991 Rule 4 reads as below :-

Punishment.-(1) The following punishment may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officers, namely :-

(a) Major Penalties :-

(i) Dismissal from service;

(ii) Removal from service;

(iii) Reduction in Rank including reduction to a lower-scale or to a lower 1 stage in a time scale.

(b) Minor Penalties :-

(i) With-holding of promotion;

(ii) Fine not exceeding one month''s pay;

(iii) With-holding of increment, including stoppage at an efficiency bar; and

(iv) Cansure.

(2) In addition to the punishments mentioned in Sub-rule (1) Head Constable and Constables may also be inflicted with the following punishment:-

(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty);

(ii) Punishment Drill not exceeding fifteen days;

(iii) Extra guard duty not exceeding seven days; and

(iv) Deprivation of good conduct pay.

4. In addition to the punishments mentioned in Sub-rules (1) and (2) Constables may also be punished with Fatique duty, which shall be restricted to the following tasks :

(i) Tent pitching;

(ii) Drain digging;

(iii) Cutting grass, cleaning jungle and picking stones from parade grounds;

(iv) Repairing huts and butts and similar work in the lines; and

(v) Cleaning Arms.

Rule 13 of U.P. Police Officer of the Sub-ordinate Ranks (Punishment and Appeal) Rules, 1991, which provides as below :-

Officer and competent to conduct disciplinary proceedings :-

A Gazetted Officer of the Police Force who is either a prosecution witness in the case or has earlier conducted a preliminary enquiry in that case, shall not conduct inquiry in that case under these Rules. In the said Gazetted Officer is the Superintendent of Police himself, the Deputy Inspector General concerned shall be moved to transfer the case to some other district or unit as the case may be.

5. In Mirza Barket Ali v. Inspector General of Police, Allahabad and Ors. (2002) 2 UPLBEC 1871. The Police Constable was dismissed for absent in duty of 109 days on the ground of illness. The Inquiry Officer recommended for minors punishment however, S.P. disagreed and imposed punishment of dismissal. High Court found that the punishment is too harsh and severe/disproportionate allegations and directed for awarding lessor punishment.

Punishment to be imposed-discretion of the Disciplinary Authority :-

(A) The punishment to be imposed by the Disciplinary Authority is the discretion of the authority concerned and unless such penalty grossly disproportionate there can be no occasion for the Court or Tribunal to interfere with the punishment. However, penalty should be commensurate with the magnitude of the misconduct committed. If a lessor penalty can be imposed without jeopardising the interest of the administration, then the Disciplinary Authority/Punishing Authority, should not impose the maximum penalty of dismissal from service. When the Rules require that the Disciplinary Authority will determine the penalty after applying its mind to the enquiry Report, then this shows that he has to pass a reasoned order. However, taking an overall and cumulative view the Disciplinary Authority may impose maximum penalty but, after considering all aspects of the case. H.P. Thakore Vs. State of Gujarat and Others, . When an authority proceeds to impose a penalty, the only question which is ordinarily to be kept in mind is to impose adequate penalty; then punishment shall be neither too lenient nor to harsh. [Ansarali Prakashak v. Union of India, 1984 Lab IC 73 (Bom.) Punishment not to be disproportionate to the gravity of the charge established.

(B) Ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The Railway Employee on being charged with negligence in not reporting to the Railway Hospital for treatment was removed from service. The Supreme Court has thought it fit to interfere with the punishment of removal from service and modify it to withholding of two increments [Alexander Pal Singh v. Divisional Operating Superintendent (1987) 2 ATC 922 (SC).

But, when the Police Constable working as Gunman of Deputy Commissioner of Police while on duty was wandering near the bus stand with service revolver in a heavily drunken condition and when he was brought to Hospital he began abusing the Doctor on duty, the imposition of penalty of dismissal of service cannot be held to be disproportionate because the Constable was guilty of gravest misconduct. State of Punjab and Others Vs. Ram Singh Ex. Constable,

(C) When the charge of misconduct against the Civil Judge in disposing of the Land Acquisition Reference cases have been proved partially and for fixing higher valuation of land than was legitimate in L.A. Reference was not proved for which he can be given benefit of doubt, the Supreme Court has modified the penalty, of dismissal to compulsory retirement. V.R. Katarki Vs. State of Karnataka and others, In another case, when the employee had 29 years of unblemished record and PSC on consultation had not agreed to the proposal of dismissal, but he was dismissed, the Supreme Court, after the death of employee, held that the evidence in support of the charges which led to dismissal was not very strong and in order to grant relief to poor widow, the punishment of dismissal should be converted to compulsory retirement so that the widow will get the appropriate financial benefit. Kartar Singh Gerwal Vs. State of Punjab,

However, even though, the Supreme Court has power to modify the penalty imposed by the Disciplinary Authority in exercise of equitable jurisdiction under Article 136 of the Constitution, but the High Court or the Administrative Tribunal has no such jurisdiction to interfere with the punishment imposed by the Disciplinary Authority. This is the view of the Supreme Court in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, It is held that the High Court/Administrative Tribunal cannot interfere with the punishment if imposed after holding enquiry and if it is considered that the punishment imposed is harsh, the proper course is not to modify the penalty but to remit the matter to the Appellate or Disciplinary Authority. The Supreme Court has observed as follows :

"Imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the Appellate Authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of High Court under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of the judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of law Bhagat Ram Vs. State of Himachal Pradesh and Others, for the proposition that the High Court or Tribunal has jurisdiction to impose any punishment to meet the ends of justice. The Supreme Court in Bhagat Ram''s case, exercised the jurisdiction under Article 136 of the Constitution. The High Court or the Tribunal has no such power" State Bank of India and Others Vs. Samarendra Kishore Endow and Another,

Samarendra Kishore Endow case is the authoritative pronouncement of the Supreme Court in the matter of jurisdiction of the High Court or the Administrative Tribunal by way of judicial review of the penalty. It does not ordinarily have power to interfere with the penalty if there is no infirmity in the enquiry but if the punishment impose is harsh the proper course for the High Court/Tribunal is to refer the matter to the Appellate Authority or the Disciplinary Authority for reconsideration of the penalty imposed. But, in the instant case, when on a proper departmental enquiry the respondent was removed from service on the basis of the charges of falsely claiming reimbursement of travel expenses on his transfer and there was also another charge of release of construction loan of Rs. 1,00,000/-, in one case to a co-employee without verifying the progress of construction, the Supreme Court on taking the view that the punishment was harsh directed the Appellate Authority to consider whether a lesser punishment is not called for in the facts and circumstances of the case.

(D) The three Bench judgment of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others, has to some extent modified the view expressed in Samarendra Kishore Endow''s case, by holding that even though, the High Court/Tribunal, while exercising the power of judicial review cannot normally substitute their own conclusive on penalty and impose some other penalty, if the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court or the Tribunal it would be appropriate to grant the relief either directing the disciplinary, or the Appellate Authority to reconsider the penalty or to shorten the litigation, it may itself, in exceptional and rare cases, imposed appropriate punishment with reasons in support thereof.

(E) The decision of B.C. Chaturvedi''s case has also been reitrerated by the Supreme Court in Union of India and another Vs. G. Ganayutham (Dead) by LRs., In that case, the Government employee whose Disciplinary Enquiry was continued even after retirement was imposed penalty of 50% pension and gratuity and he moved the Central Administrative Tribunal against such order. The Tribunal held that gratuity not being part of pension cannot be curtailed and modified the deduction of pension for a limited period. In appeal by special leave, the Supreme Court has held that the Tribunal had no jurisdiction to interfere with the penalty when there is no contention that the punishment imposed is illegal or vitiated by procedural irregularity and there is no finding that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there is a finding, based on material that the punishment is an outrageous defiance of logic.

(F) When the Appointing Authority disagree with the findings of the enquiry officer in respect of Charges 1 and 2 and found those charges also proved even though the Disciplinary Authority approved the report of enquiry officer and recommended a particular penalty, it is held by the Supreme Court that when the Regulation 68(3)(iii) of the Bank Regulation clearly stipulates, that the Appointing Authority is not bound by the recommendation of the Disciplinary Authority relating to penalty of compulsory retirement being quite valid and legal, it cannot be subjected to judicial review on the ground that the Appointing Authority while imposing penalty cannot differ with the recommendation of the Disciplinary Authority. State Bank of Hyderabad and Others Vs. Rangachary,

(G) A Member of Central Reserve Police who only because he overstayed the leave for twelve years for which had sufficient reason and had no intention to wilfully disobey the order was dismissed from service, the High Court on the interpretation of Section 11(1) of the Central Reserve Police Force Act, 1949, quashed the dismissal order and reinstated him with all consequential benefit. The Central Government moved the Supreme Court in appeal by special leave. The Supreme Court in the facts of the case has held the dismissal to be harsh, upheld the order of reinstatement of service but gave liberty to the Government to impose any minor penalty for such misconduct. Union of India and others Vs. Giriraj Sharma,

(H) When the Police Constable was dismissed from service for using abusive language, but what the abusive words used were not disclosed in the enquiry, then only because a Police Constable used abusive language there can be no straight jacket formula that in all such cases, the Constable should be dismissed from service. So, the Supreme Court has considered the punishment to be harsh and disproportionate to the gravity of the charge and modified the penalty to stoppage of two increments with cumulative effect. Ram Kishan Vs. Union of India and others, When subsequent to promotion as Inspector the Police Officer failed to deposit his service revolver and six live centisides, the Supreme Court has held that penalty of dismissal is too harsh when the previous record was unblemished and at the relevant time he was sharing a room with two colleagues. So, the Supreme Court, substituted the penalty compulsory retirement. Mehnga Singh, Ex-Sub Inspector Vs. Inspector General of Police, PAP, Jalandhar Cantt. and Others,

(I) On finding delinquent guilty of demanding and accepting illegal gratification, the order of dismissal has been passed against the delinquent. The same has been challenged on the ground that the penalty is harsh and that there is only one witness to prove the charge and that there was no earlier charge of misconduct against him. The Supreme Court has held that it is for the Disciplinary Authority to decide about the punishment and merely because, there was solitary evidence to prove the charge the finding of the guilt by the enquiry officer and Disciplinary Authority is not illegal. It is also observed that merely because, there was no allegation of misconduct, against the delinquent employee earlier is inconsequential. Even the recommendation of the Public Service Commission to take a lenient view is not binding on the Government. It was held that the interference with the penalty on the facts of the case is not called for. N. Rajarathinam Vs. State of T.N. and Another,

The Police Constable who was dismissed on account of absence without leave from 7th November, 1986 to 1st March, 1988 on holding the departmental enquiry filed civil suit challenging such punishment on the ground that the disciplinary rules, applicable to his provided that the dismissal could be resorted to if there was a gravest Act of misconduct. The trial Court dismissed the suit on the ground that it could not interfere with the order of punishment imposed in a disciplinary proceedings. But, the Appellate Court remanded the matter for reconsideration of the trial Court on the point of punishment. The Supreme Court has disapproved the order passed by the Appellate Court. It is held that it is for the Disciplinary Authority to pass appropriate punishment and the Civil Court cannot substitute its own view to that of disciplinary as well as that the Appellate Authority on the nature of punishment to be imposed upon the delinquent, as he was absent without any leave for over one and half years it ought to not to have interfered with the degree passed by the trial Court dismissing the suit. State of Punjab and others Vs. Bakhshish Singh, The Supreme Court has also held that when on the charge of demand and acceptance of illegal gratification by the Inspector of Police, the Inspector has been dismissed from service, then the Police Officer being guilty of grave misconduct resorting the corruption, there is no occasion for interference with the order of punishment imposed by the Disciplinary Authority. The Government of Andhra Pradesh Vs. B. Ashok Kumar,

(J) When a Bus Conductor was charged for taking certain passengers without tickets and on holding departmental enquiry he was found guilty and the Disciplinary Authority removed the respondent from the post of the Conductor, he moved the High Court challenging the order of removal. The High Court while concurring with the finding of the Authority that the charges, levelled against the respondent were proved held that the punishment awarded did not commensurate with the gravity of the charge. On that basis the High Court set-aside the punishment and directed the reinstatement of the respondent. Being aggrieved an appeal by special leave has been filed by the Corporation before Supreme Court. The Supreme Court has held that it has consistently taken the view that under the judicial review the Court shall not normally interfere with the punishment imposed by the Authority and this will be more so when the Court found the charges were proved and interference with the punishment on the factors of the case cannot be sustained. [U.P. Road Transport Corporation v. A.K. Parul 1999 (1) CLT 77 SC . When the respondent, a Police Constable was dismissed from service on the ground that he illegally extracted money from the Autorickshaw Driver by misusing his official position then the interference by the Administrative Tribunal with the penalty imposed by the Departmental Authority is not warranted in this case, because, it is only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standard that a Court or Tribunal can interfere with the punishment imposed by the Administrative Authority. As in this case, the Police Constable was guilty of grave misconduct, there was no reason as to why the Tribunal should interfere with the punishment imposed by the Disciplinary Authority. State of Karnataka and Others Vs. H. Nagaraj,

6. In 2001 (2) AWC 983, Sahdev Singh v. U.P Public Service Tribunal, Lucknow and Ors. This Court Hon''ble M. Katju and Onkareshwar Bhatt, JJ., decided on 19th February, 2001, the Writ Petition No. 1722/99, where the petitioner a confirmed Police Constable hand consumed liquor in the night, was charge sheeted and after inquiry was dismissed from service. His appeal was rejected and his claim petition before U.P. Public Service Tribunal was also dismissed. In writ petition this Court has observed that before the Tribunal neither the petitioner has said anything in his defence nor produce any witness but prayed for forgiveness and assured that he will not commit such Act again in future. In these circumstances, this Court had indicated that a lenient view should be taken against the petitioner and for awarding some lesser punishment taking view the sense of Shakspeares Merchant of venice, justice should be tempered with mercy. In these circumstances, the Court has found the punishment of dismissal is too harsh and set-aside the order of dismissal and directed the petitioner to be reinstated in service with 25% of the back wages from the date of the dismissal to the date of reinstatement.

7. In (1985) 1 SCC 120, Hussaini v. Chief Justice of High Court of Judicature at Allahabad and Ors., the appellant was working as a Sweeper and was placed under suspension for derogation of duty and was dismissed from service after enquiry. At the time of dismissal he had rendered service over 20 years and was denied retirement benefits such as pension, provident fund and gratuity to which he would have been entitled if he was compulsorily retired from service. The Supreme Court has observed that the appellant was a lowpaid Government servant, therefore, the order of punishment of dismissal might have been converted into compulsory retirement on compassionate ground so, that the appellant may get retiral benefits and the Supreme Court observed that the appellant was a lowpaid safai jamadar. We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. Without in any manner detracting from the view taken by the High Court we are of the opinion that there is some scope for taking a little lenient view in the matter of punishment awarded to the appellant. The lenience if at all would render the post-dismissal life of the lowpaid employee a little tolerable and keep him away from the penury destitution.

8. In AIR 1994 SC 604, Union of India and Ors. v. Giriraj Sharma. It was held that the punishment of dismissal for over-staying the period of 12 days, on account of unexpected circumstances which have not been controverted in the counter in harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances forced him to do so. It was open to the authority to visit him with a minor penalty, but the major penalty of dismissal from service was not called for.

9. In Union of India and others Vs. Giriraj Sharma, In this case, the respondent who was deputed to undergo a course as an electrician sought leave for 10 days which he was granted and while on leave he sent a Telegram for extension of leave for 12 days which request was rejected, however, the respondent joined duty after over staying period of 12 days and for this misdemeanour his services came to be terminated and his departmental appeal and revision were also rejected, whereupon he filed a writ petition in the High Court challenging the order of termination and the writ petition was allowed with a direction to reinstate his service with all monetary and other service benefits. The Supreme Court did not find merit in the appeal preferred by Union of India but has been pleased to modify the order of the High Court by stating that as there was no wilful intention to flout the order on the part of the respondent and punishment was treated to be harsh and disproportionate, therefore, relief with monetary benefits was granted to the minor punishment.

10. In State of Punjab and others Vs. Bakhshish Singh, , where the respondent a Police Constable was dismissed on account of absence without leave from 7.11.1986 to 1.3.1988. The disciplinary rules applicable to him provided that dismissal could be resorted to, if there was a "gravest Act of misconduct". The trial Court dismissed the suit but the Appellate Court remanded the matter for reconsideration by the trial Court on the point of punishment. It was held by the Supreme Court that it is for the Disciplinary Authority pass appropriate punishment; the Civil Court cannot substitute its own view to that of the disciplinary as well as the Appellate Authority On the nature of the punishment to be imposed upon the Delinquent Officer. The Appellate Court, in view of its own findings, that the respondent''s conduct was grave, ought not have interfered with the decree of trial Court.

11. In U.P. S.R.T.C. and Others Vs. Har Narain Singh and Others, ., where a disciplinary enquiry was held against the respondent who was a Bus Conductor in the Appellant''s Corporation. The Assistant Regional Manager of the appellant himself conducted the enquiry and found that the charges against the respondent are proved and issued a show cause notice on the punishment and after considering the reply of the respondent imposed a punishment from dismissal of service on the respondent who preferred an appeal before the Regional Manager which too was dismissed. In claim before the Lahore Tribunal held that it had no jurisdiction in the matter. Thereafter, the respondent preferred a writ petition before the U.P. Public Services Tribunal at Lucknow, and the Tribunal dismissed the writ petition and held that there is no illegality in the conduct of the enquiry and the enquiry officer cannot be said to be perverse or against merit on the record. Against this judgment of the Tribunal the respondent filed writ petition before High Court where a Single Judge of the High Court re-appreciated the evidence led in the enquiry and quashed the order passed by the Tribunal as also the order passed by the Disciplinary Authority. The Supreme Court has held that because the High Court was not- sitting in appeal over the findings given by the Disciplinary Authority as such the re-examination of the evidence led in the disciplinary proceedings was not warranted. The impugned judgment and order of the High Court were set-aside and the order of the Tribunal was restored.

12. In U.P. State Road Transport Corporation Vs. Subhash Chandra Sharma and Others, , that the delinquent Driver respondent of Corporation went in a drunken State to the Assistant Cashier in the cash room, demanded money from him and on his refusal abused and threatened to assault him held was a serious charges of misconduct and the punishment of removal awarded after the said charge was found proved in a Departmental Enquiry. The said punishment by stopping and payment of 50% back weages. High Court found that the judgment of Allahabad High Court was arbitrary and was not justified. The Supreme Court found that the opinion of the High Court was erroneous in exercise of jurisdiction under Article 226 to correct the erroneous order of Labour Court as the punishment of removal was not stood as disproportionate and in order to arrive at such decision the Supreme Court consider the following judgment of the High Court in B.C. Chaturvedi Vs. Union of India and others, and Colour-Chem Limited Vs. A.L. Alaspurkar and Others, and Hind Construction and Engineering Co. Ltd. Vs. Their Workmen,

13. However, the Supreme Court in U.P. State Road Transport Corporation and Others Vs. Mahesh Kumar Mishra and Others, in another case of U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors., while considering the B.C. Chaturvedi''s case, (supra) and Colour- Chem Ltd., (supra) and also in reference to the Civil Appeal No. 9754 of 1995, Arising out of SLP (C) No. 1960 of 1994, UP. State Road Transport Corpn. and another v. Om Prakash Pandey, in which the order of High Court by which interference was made with the punishment inflicted upon the delinquent employee of the Corporation was set-aside. In Mahesh Kumar Mishra the Supreme Court has interfered with the quantum of punishment inflicted the Disciplinary Authority. The Conductor of Local City Bus was dismissed from service on the allegations that all passengers were without tickets and on the dispute whether the passengers boarded a High Court on Zero Road and what tickets should charged and what rate. In domestic enquiry no passenger examined. In these condition the punishment on the face of highly and interference of the High Court in the quantum of punishment of dismissal was found to be justified.

14. It was held by the Supreme Court that the punishment must be commensurate to the offence, vide Sardar Singh v. Union AIR 1992 SC 417. In (1992) 2 UPLBEC 851, Girja Shanker Singh v. General Manager, U.P.S.R.T.C- II, Varanasi and another, this Court (Hon''ble M. Katju, J.) has interfered in the quantum of punishment of termination and directed for reinstatement of petitioner on the charge of coming late while deployed on to operate the Bus and refusing to operate the Bus and using insulting language to the ARM. and the punishment was concurrently approved by the enquiry officer, Disciplinary Authority and Appellate Authority. The finding the punishment is not consonance to the allegations and charges, the same was directed and the authorities were directed to pass lessor punishment.

15. In 1998 SCC 15, U.P.S.R.T.C. v. Basudev Chaudhary and Anr., where the Conductor worked in the Corporation recovered fair at higher rate and entered in the Bills at lower rate per head passenger and the manipulation in the fair for such misconduct and attempt to cause loss of money to the Corporation. The offence was treated to be in serious nature and punishment of removal held to be justified and not disproportionate. The Supreme Court in Basudev Chaudhary has distinguished, the case of Bhagat Ram 1983 (sic) 442 and Gulzar v. State of Punjab 1986 Suppl. SCC 738. In 1996 SCC 539, Municipal Committee Bahadurgarh v. Krishna Bihari and Ors., where the respondent was convicted u/s 468 IPC by Criminal Court for committing forgery and the Municipal Committee imposed punishment of dismissal which was reduced to stoppage of four increments by Director of Local Bodies and appeal to the Commissioner preferred by Municipal Committee the same was dismissed and writ petition filed by the Municipal Committee. In these circumstances civil appeal preferred by the Municipal Committee before the Supreme Court while uphold the punishment of dismissal has observed that the amount misappropriate may be small or large, it is the Act misappropriation i.e., relevant, therefore, the punishment was not to be interfered, with (2002) 1 UPLBEC 82, Sri Bhagwan Krishna Pandey, Meerut v. U.P.S.RT.C, Meerut, where dismissal of Bus Conductor for carrying eight passengers without tickets in a Bus and for not collecting proper fair from the passenger, the punishment of dismissal indicated by the enquiry officer and affirmed by the Disciplinary Authority was found to be disproportionate directing the authorities replacing the punishment by a minor punishment, however, this case cannot be applied. In the facts of the case, as the High Court in Bhagwan Krishna Pandey has failed to receive proposed punishment was under challenged shockingly disproportionate.

16. In State of U.P. and Others Vs. Rama Kant Yadav, (Hon''ble G.B. Pattanayak and H.K. Sema, JJ.), the view of the High Court in not interfering the punishment was an error whether the Constable for the alleged charge of sleeping in duty to guard armoury was on an inquiry was found to be guilty and dismissed by the Disciplinary Authority and affirmed by the U.P. Public Services Tribunal such dismissal was interfered on preferring the writ petition. The High Court had interfered in the said punishment of dismissal with an observation that the finding of guilt is not a finding of fact and High Court has no jurisdiction to interfere in the finding and indicated that the punishment was disproportionate and was set-aside the dismissal of the order with direction to reinstatement of the petitioner with a payment of 50% back wages.

17. In (2003) 1 UPLBEC 566 , Director General, R.P.F. v. Ch. Sai Babu (Hon''ble Shivaraj V. Patil and Arijit Pasayat, JJ), where quantum of punishment from removal from service imposed for the alleged charges under Rule 153 Railway Protection Force Rules, 1987, was found proved by the Enquiry Report and affirmed by the Disciplinary Authority as well as Appellate/Revisional Authority and the same was interfered with by the High Court by substituting dismissal from stoppage of increment with cumulative effect and reinstatement of the petitioner the decision of the High Court interfering in the punishment of removal on the ground of shockingly disproportionate was not found justifiable by the Supreme Court as it was not supported by recording of reasons.

18. In State of Rajasthan and Others Vs. Sujata Malhotra, , where the respondent absented from 1983 to 1987 and Departmental Inquiry was initiated and termination order was passed. The High Court found the punishment was grossly disproportionate and set-aside the termination and re-instated the writ petition with 50% of back wages, in these circumstances, the Supreme Court has observed that the High Court should not have interfered with the punishment however since the reinstatement had taken place that order was not touched and the respondent employee did not get back wages and the period of absence were treated for retirement benefits but, not for pecuniary benefits.

19. In Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, . (Hon''ble Shivaraj V. Patil and Arijit Pasayat, JJ.), where the respondent employee Conductor for dereliction of duty, for violation of employment code and misappropriation and extraction of money from the passenger for not issuing the tickets was enquired into by a retired District Judge and was found guilty and was termination, which was affirmed by Appellate Authority, the punishment too was affirmed by Single Judge of High Court, however, Division Bench of the High Court set-aside the order of termination leaving it open to the employer to award other punishment except termination or compulsory retirement while allowing the appeal of U.P.S.R.T.C. in those circumstances the Supreme Court held that High Court Division Bench has not recorded any reason for consideration of disproportionate punishment and as such there was denial of justice and mere statement that the punishment is disproportionate was not sufficient in cases where the persons deals with the public money or is engaged in financial transaction Acts in fiduciary capacity as such are to be dealt with by an iron hands. As such, the order of High Court (DB) was set-aside and the dismissal order of the High Court (DB) was upheld.

20. In Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, , the Supreme Court (Hon''ble Shivaraj V. Patil and Arijit Pasayat, JJ.), has analysed, in the matter of quantum of punishment in respect of respondent Bank Officer when he was found to be involved in financial irregularities, dereliction of duty, misappropriation of fund and whose service was dispensed with, however, the High Court found the charges proved, nevertheless accepted the plea of the respondent employee and directed the respondent Bank to impose lessor punishment without recording any reason as to why it considered the punishment to be disproportionate. The Supreme Court held that when the High Court finds that the punishment is shockingly disproportionate and could not meet the requirement of law, therefore, in the facts of the case since the charges against the respondent employee were not in casual nature and was serious nature, therefore, the High Court was not justified in interfering the quantum of punishment and the matter was remitted to the High Court for fresh consideration only with regard to the quantum of punishment.

21. In 1996 II LLJ (sic), Shri Panchaman Manna v. Indian Oil Corporation, Haldia, Madinapur and Ors., the Calcutta High Court has found the scope of judicial review in analysing the disproportionate aspect of punishment inflicted upon the writ petitioner for the misconduct and the High Court, indicating the punishment should be commensurate with the nature of misconduct alleged upon. Similar view was taken by the High Court, Bombay in 1992 I LLJ (sic), Abdullah A. Latif Shah v. Bombay Port Trust.

22. In Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, (Hon''ble Shivaraj V. Patil and Arijit Pasayat, JJ.), the observations made in Paragraphs 7, 8, 10, 11, 12, 13 and 14 read as below :-

"7. Lord Greene said in 1048 in the famous Wednesbury 1948 (1) KB 223, case, that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He 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 the decision was one which no reasonable persons could have taken. These principles were consistently followed in the UP. and in India to Judge the validity of administrative action. It is equally well known that in 1983. Lord Diplock in Council for Civil Services Union v. Minister of Civil Service (1983) I AC 768, (called the CCSU case), summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality procedural irregularity and irrationality. He however, opined that "proportionality" was a "future possibility".

8. In Om Kumar and Ors. v. Union of India JT 2000 (3) SC 92 : 2001 (2) SCC 386, this Court observed, inter alia, as follows :

"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European Countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Stasbourg have applied the principle while judging the validity of administrative action. But, even long before the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below.

By "proportionality," we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive, choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order as the case may be. Under the principle the Court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve." The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.

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The development of the principle of "strict scrutiny" or "proportionality" in administrative law in England is, however, recent Administrative action was traditionally being tested on Wednesbury grounds. But, in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionately in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny text. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No. 2) (1990) 1 AC 109 , Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire Country Council v. Times Newspapers Ltd., 1993 AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy, of State for Home Deptt., Ex. P. Simms (1999) 3 AER 4000 , the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engaged fundamental human rights was re-emphasised in R. v. Lord Servilie ex p. (1999) 4 AER 860 (Cal). In all these case, the English Courts applied the "strict scrutiny" test rather than describe the test as one of "proportionality". But, in any event, in respect of these rights "Wednesbury" rules has ceased to apply. However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R. v. Secy, of State for the Home Deptt. Ex. p. Brind (1991) 1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981,requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organisations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the director statement made by the members of the organisation. It did not however, for example, preclude the broadcasting by such persons through the medium of a firm provided there was a ''voice-over'' account, paraphrasing what they said. The appellant''s claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English law, but stated that freedom of expression was basic to the Common Law and that even in the absence of the Convention. English Courts could go into the question (see pp. 748-49):

"......Whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations" and that the Court were "not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it."

Lord Templeman also said in the above case that the Courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention" any such interference must be both necessary and proportionate (ibid pp. 750-51).

In the famous passage, the seeds of the principle of primary and secondary review by Courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696. Where Convention rights were in question the Courts could exercise, a right of primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury. principles in case not affecting the rights under the . Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the Courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows :

"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment."

But, when an administrative action is challenged "arbitrary" under Article 14 on the basis of E.P. Royappa Vs. State of Tamil Nadu and Another, (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 into consideration or whether his view is one which 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 and others Vs. The Jalgaon Municipal Council and others, Venkatachalian, J., (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury Rules. In Tata Cellular v. Union of India JT 1994 (4) SC 532; Indian Express Newspapers Bombay (P) Ltd. v. Union of India 1985 (2) SCR 287 , Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, and U.P. Financial Corporation Vs. Gem Cap (India) Pvt. Ltd. and Others, while judging whether the administrative action is "arbitrary" under Article 14 {i.e., otherwise then being discriminary), this Court has confined itself to a Wednesbury review always.

The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.

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Thus, from the above principles and decided cases, it must be held that whether an administrative decision relating to punishment in disciplinary cases in questioned as "arbitrary" under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, in has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases, where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rate cases can by the Court substitute its own view as to the quantum of punishment."

"10. In Union of India and another Vs. G. Ganayutham (Dead) by LRs., This Court summed up the position relating to proportionality in Paragraphs 31 and 32 which reads as follows :

"The current position of proportionality in administrative law in England and India can be summarised as follows :

(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 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 in to 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, 1948 (1) KB 223, 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 1985 AC 374, principles.

(3)(a) As per Bugdayeay 1987 AC 514, Brind 1991 (1) AC 696 and Smith 1996 (1) AER 257, as long as the Convention is not incorporated into English law, the English Courts merely exercise a secondary judgment 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 principles of proportionality, then the English Courts will render primary judgment 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."

"11. The common thread running through in all these decision is that the Court should not interfere with the administrator''s decision unless, it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense, that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury''s case (supra), the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."

"12. To put difference unless, the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to certain litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course, it the punishment imposed is chockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."

"13. In the case at hand the High Court did not record any reason as to who and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani''s case. As was observed by this Court in Balbir Chand Vs. Food Corporation of India Ltd. and others, even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence, as the allegations were contextually different."

"14. A Bank Officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every Officer/Employee of the Bank is required to all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are inseparable from the functioning of every Officer/Employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, , it is no defence available to say, that there was no loss of profit resulted in case, when the Officer/Employee acted without authority. The very discipline of an organisation more particularly a Bank is dependent upon each of its Officers and Officers acting and operating within their allotted sphere. Acting beyond one''s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court."

23. I have heard learned Counsel for the parties, I find that that some deficiency in the part shall not vitiate the entire proceedings in totality of the procedure and for the endeavourance on the part of the respondent enquiry has been concluded. The petitioner was charged for alleged theft of identity card, diary and licence, which could have been re-coconstituted and for much to be said on the enquiry, the manner of enquiry and for such allegations the dismissal is not proper and for these reasons the punishment appears to be shockingly disproportionate. Therefore, keeping in view the charge and allegations it appears that the punishment awarded is disproportionate to the petitioner. In these circumstances, the order of punishment is set-aside and the matter is relegated back to the authority concerned to consider the lessor punishment.

24. In view of the above observation the writ petition is disposed of.