# Rambir Mishra v. Union of India and others

- **Citation:** (2004) 2 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-19
- **Case number:** Civil Misc. Writ Petition No. 40907 of 2001
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rambir-mishra-v-union-of-india-and-others-40380
- **Pages:** 20

## Headnote

Constitution of India-Article 226 and 14Railway Protection Force Rules, 1987Removal from Service-Disproportionate
punishment-Assistant
Security
Commissioner, RPF heading raiding party
himself because enquiry and disciplinary
authority-held to be unfair-but this
cannot be only a ground for dismissal
brushing aside the finding of disciplinary
authority-However, petitioner was never
asked to be a member of raiding partyPetitioner while discharging his original
assigned duty could never suo moto
expected to participate in activity of
apprehending
the
criminals-Moreover
charges,
held
to
be
vague-Further,
similar charges
against
three other
constables who were exonerated by
revisional authority, but petitioner has
only been singled out-cannot be held
guilty
of
charge
of
not
rendering
assistance to raiding party-Removal from
service-held harsh and disproportionate.

The review of above legal position would
establish that Sri S.N. Singh, Assistant
Security
Commissioner,
Railway
Protection Force, heading the raiding
party himself became the inquiry and
disciplinary authority, which is not fair,
however, this aspect can not be only a
ground of dismissal brushing aside the
finding of the disciplinary authority. Mere
minor infirmities in procedure of inquiry
could not make inquiry and finding of the
disciplinary authority absurd when the
provisions of Rules, 1987 provided wide
power
to
the
Assistant
Security
Commissioner to act as an inquiry officer
and disciplinary authority also, however,
the petitioner was never taken into
confidence or asked to be a member of
raiding party or he was not invited at the
spot to become member of the raiding
party
or
to
render
assistance.
The
petitioner while discharging his original
assigned duty could never suo-moto was
expected to come forward and participate
in the activity of apprehending the
criminals and obstructing the tempos
taking away stolen coal bags. In any case,
the charges were vague, not specific.
Similar charges were against three other
constables, and they were allowed to go
Scott free in the revision by exonerating
them and the petitioner has only been
singled out, therefore, the petitioner
could not be held guilty of not rendering
assistance to the raiding party and
removal of petitioner from service is a
punishment
too
harse
and
disproportionate to the alleged charges
against him, and action and quantum of
punishing the petitioner is shockingly
disproportionate and on the reasons
stated above impugned orders dated
28.09.1999, 22.11.1999 and 29.06.2001
are not legally sustainable, therefore,
these are set aside. The Senior Security
Commissioner, RPF (NR), Allahabad is
directed to consider the case of petitioner
sympathetically and may taken decision
http://www.allahabadhighcourt.nic.in
2 All] Rambir Mishra V. Union of India and others
395
within six months of awarding minor
punishment
other
than
removal
of
petitioner from service, so that, petitioner
may be entitled to his post retiral and
other service benefits.

Para 31
Case law discussed:
AIR 1975 SC 915
(2001) 1 UPLBEC 67
AIR 1984 SC 1499
(1999) 8 SCC 90
(2001) 1 SCC 416
(1998) 2 SCC 400
(2002) 2 UPLBEC 1871
(1979) 1 LJ 339 (Guj)
1984 Lab 1 C (NOC) 73 (Bom)
(1987) 2 ATC 922 (SC)
(1992) 4 SCC 54 (1992) 21 ATC 435
AIR 1991 SC 1241: 1991 (supp.) 1 SCC 267:
1991 Lab. 1 C 1001
AIR 1991 SC 1067: (1991) 2 SCC 635: 1991
Lab.1 C 1082
(1995) 6 SCC 749
AIR 1997 SC 3387: (1997) 7 SCC 463
1994 (Supp) 2 SCC 479 ; (1994) 27 ATC 937
AIR 1994 SC 215 ; 1994 (Supp) 3 SCC 755
(1995) 5 SCC 157
(1995) 6 SCC 682
(1996) 10 sCC 371
AIR 1997 SC 2447: (1997) 5 SCC 478
JT 1991 (1) SC 77
2001 (2) AWC 983 (1985) 1 SCC 120
1994 SCC 604
(1997) 6 SCC 381
(1998) 9 SCC 220
(2000) 3 SCC 324
(1998) 3 SCC 192
AIR 1965 SC 917
2002 (2) UPLBEC 1195
AIR 1992 SC 417
1992 (2) UPLBEC 851
1998 SCC (L&S) 539
2002 (1) UOLBEC 82
2002(3) UPLBEC 2799
2003(1) UPLBEC 566 (SC)
2002(93) FLR 616 (SC)
JT 2003 (2) SC 27
JT 2003 (2) SC 78
1996 (Vol.2)ILJ (Ca

## Text

_Characters 0–39,889 of 67,510. This is a partial read: ask again with offset=39889 for what follows._

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
394

8.
Since
the
entry
was
uncommunicated it cannot be taken into
consideration.

9. As such there is no material on
the
basis
of
which
the
order
of
compulsory retirement could have been
passed. The appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 40907 of 2001

Rambir Mishra

...Petitioner
Versus
Union of India through General Manager,
Northern Railways, Baroda House, New
Delhi and others
 ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
Sri Govind Saran
Sri Vivek Singh

Constitution of India-Article 226 and 14Railway Protection Force Rules, 1987Removal from Service-Disproportionate
punishment-Assistant
Security
Commissioner, RPF heading raiding party
himself because enquiry and disciplinary
authority-held to be unfair-but this
cannot be only a ground for dismissal
brushing aside the finding of disciplinary
authority-However, petitioner was never
asked to be a member of raiding partyPetitioner while discharging his original
assigned duty could never suo moto
expected to participate in activity of
apprehending
the
criminals-Moreover
charges,
held
to
be
vague-Further,
similar charges
against
three other
constables who were exonerated by
revisional authority, but petitioner has
only been singled out-cannot be held
guilty
of
charge
of
not
rendering
assistance to raiding party-Removal from
service-held harsh and disproportionate.

The review of above legal position would
establish that Sri S.N. Singh, Assistant
Security
Commissioner,
Railway
Protection Force, heading the raiding
party himself became the inquiry and
disciplinary authority, which is not fair,
however, this aspect can not be only a
ground of dismissal brushing aside the
finding of the disciplinary authority. Mere
minor infirmities in procedure of inquiry
could not make inquiry and finding of the
disciplinary authority absurd when the
provisions of Rules, 1987 provided wide
power
to
the
Assistant
Security
Commissioner to act as an inquiry officer
and disciplinary authority also, however,
the petitioner was never taken into
confidence or asked to be a member of
raiding party or he was not invited at the
spot to become member of the raiding
party
or
to
render
assistance.
The
petitioner while discharging his original
assigned duty could never suo-moto was
expected to come forward and participate
in the activity of apprehending the
criminals and obstructing the tempos
taking away stolen coal bags. In any case,
the charges were vague, not specific.
Similar charges were against three other
constables, and they were allowed to go
Scott free in the revision by exonerating
them and the petitioner has only been
singled out, therefore, the petitioner
could not be held guilty of not rendering
assistance to the raiding party and
removal of petitioner from service is a
punishment
too
harse
and
disproportionate to the alleged charges
against him, and action and quantum of
punishing the petitioner is shockingly
disproportionate and on the reasons
stated above impugned orders dated
28.09.1999, 22.11.1999 and 29.06.2001
are not legally sustainable, therefore,
these are set aside. The Senior Security
Commissioner, RPF (NR), Allahabad is
directed to consider the case of petitioner
sympathetically and may taken decision
http://www.allahabadhighcourt.nic.in
2 All] Rambir Mishra V. Union of India and others
395
within six months of awarding minor
punishment
other
than
removal
of
petitioner from service, so that, petitioner
may be entitled to his post retiral and
other service benefits.

Para 31
Case law discussed:
AIR 1975 SC 915
(2001) 1 UPLBEC 67
AIR 1984 SC 1499
(1999) 8 SCC 90
(2001) 1 SCC 416
(1998) 2 SCC 400
(2002) 2 UPLBEC 1871
(1979) 1 LJ 339 (Guj)
1984 Lab 1 C (NOC) 73 (Bom)
(1987) 2 ATC 922 (SC)
(1992) 4 SCC 54 (1992) 21 ATC 435
AIR 1991 SC 1241: 1991 (supp.) 1 SCC 267:
1991 Lab. 1 C 1001
AIR 1991 SC 1067: (1991) 2 SCC 635: 1991
Lab.1 C 1082
(1995) 6 SCC 749
AIR 1997 SC 3387: (1997) 7 SCC 463
1994 (Supp) 2 SCC 479 ; (1994) 27 ATC 937
AIR 1994 SC 215 ; 1994 (Supp) 3 SCC 755
(1995) 5 SCC 157
(1995) 6 SCC 682
(1996) 10 sCC 371
AIR 1997 SC 2447: (1997) 5 SCC 478
JT 1991 (1) SC 77
2001 (2) AWC 983 (1985) 1 SCC 120
1994 SCC 604
(1997) 6 SCC 381
(1998) 9 SCC 220
(2000) 3 SCC 324
(1998) 3 SCC 192
AIR 1965 SC 917
2002 (2) UPLBEC 1195
AIR 1992 SC 417
1992 (2) UPLBEC 851
1998 SCC (L&S) 539
2002 (1) UOLBEC 82
2002(3) UPLBEC 2799
2003(1) UPLBEC 566 (SC)
2002(93) FLR 616 (SC)
JT 2003 (2) SC 27
JT 2003 (2) SC 78
1996 (Vol.2)ILJ (Cal)
1992 (Vol1)LLJ (Bom)
1974 (2) SCR 348
JT 1991 (1) SC 605
JT 1994 (4) SC 532
1985 (2) SCR 287
JT 1889 (3) SC 188
JT 1993 (2) SC 226
JT 1997 (7) SC 572 (1997) 7SCC 463

(Delivered by Hon'ble R. B. Misra, J.)

Heard Sri Anoop Trivedi, learned
Counsel for the petitioner and Sri Govind
Saran,
learned
Counsel
for
the
respondents. With the consent of learned
counsels for the parties this writ petition
is decided finally at this stage in view of
the Second Proviso to Rule 2 of Chapter
XXII of the Allahabad High Court Rules,
1952.

1. In this petition prayer has been
made for issuance of a writ of certiorari
for quashing the impugned orders dated
28.09.1999, 22.11.1999 and 29.06.2001
passed
by
the
Senior
Security
Commissioner, Railway Protection Force,
Northern Railways, Allahabad; Chief
Security
Commissioner,
Railway
Protection Force, Northern Railways,
Baroda House, New Delhi and Director
General,
Railway
Protection
Force,
Railway Board, New Delhi respectively,
with a further prayer for commanding the
respondents to take the petitioner back in
service and allow him all service benefits.

2.
The
facts
necessary
for
adjudication of the case, as stated by the
petitioner,
are
that
he
was
'Head
Constable' in Railway Protection Force
(hereinafter in short called as 'RPF'). The
petitioner had initially joined the service
as a 'Constable' in the year 1967 and his
service was to be governed by the
Railway Protection Force Rules, 1987
(hereinafter in short called as 'Rules,
1987'). On 25.01.1999 an incident of coal
theft was noticed. Sri S.N. Singh,
Assistant
Security
Commissioner,
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
396
Railway
Protection
Force,
Northern
Railways, Kanpur (in short A.C.S., RPF,
NR) assisted by the Assistant Sub
Inspector R. S. Misra of Kanpur Central
Post, Assistant Sub Inspector Ram Adhar
Rai of Cash Guard Kanpur and constable
Satbir Singh arranged night checking of
RPF Post "Goods Marshalling Yard"
(GMC Post) and they reached in GMC
post at about 1.40 hours and noticed that
15 anti-social elements were engaged in
unloading and loading of coal bags in two
tempos installed at RPF Post GMC. At the
time
of
alleged
incident
of
theft
constables Girja Shankar Dubey, Satpal
Singh and Bachchi Lal were deployed in
beat no. 4 and 5, where the said incident
of theft alleged to have taken place. The
petitioner was posted on Roznamcha duty
and was having the charge of lock-up.
The coal was being stolen from Wagon
No. SE 27118 Bankola Siding to Bharoli
Pathankot and was being taken by a
tempo
No.
U.P./78N-
9418,
was
apprehended near RPF post GMC loaded
with 45 bags of coal and another 47 bags
of coal was also being taken away, where
the petitioner a Head Constable was
available near RPF Office Gate along
with Bachchi Lal Yadav, however, he did
not make efforts to apprehend the antisocial elements and the tempo and failed
to assist the officers in chasing the
criminals as well as tempo and as a result
of which one tempo with coals managed
to escape from in front of RPF Post.
However, similar charges were served to
all the four constables by Sri S.N. Singh,
ASC. The charges are read as follows: -
"(i) Serious misconduct and neglect of
duty in that Head Constable Rambir
Mishra while he was on roznamcha duty
from 02 hours to 04 hours on 25.1.1999 at
GMC post, did not make any efforts to
apprehend the criminals and tempo
No.U.P.-78N-9418 loaded with coal in
front of RPF post GMC at 02-04 hours.
(ii) He also failed to assist the Railway
Protection Force Officers during chasing
of criminals."

Sri S. N. Singh, ASC, RPF being
head of the raiding party acted as
disciplinary authority and conducted
inquiry and passed the removal order
dated 28.09.1999. Being aggrieved with
the order dated 28.09.1999, the petitioner
along with other three constables (alleged
accused) preferred appeals, which was
rejected by order dated 22.12.1999.
Against the above order dated 22.12.1999
the revision of three others accused
constables was allowed, whereas, the
revision of petitioner was dismissed by
the Director General, RPF by its order
dated 29.06.2001.

3. According to the petitioner, the
revision of three other constables for the
same charges was allowed on the ground
that Sri S.N. Singh, ASC being head of
the raiding party and also reporting officer
should not have acted as disciplinary
authority and by virtue of the relief
granted to other three constables, namely,
Bachchi Lal, Girja Shankar Dubey and
Satpal Singh, they were reinstated,
whereas, for the same charges in similar
circumstances, the petitioner's revision
was dismissed, as such dismissal of
petitioner's revision and affirmation by
the appellate authority and rejection by
the revisional authority are illegal and the
petitioner has been singled out for
imposition
of
penalty,
which
is
shockingly disproportionate.

4. It has been contended on behalf of
respondents that the provisions of Rules
151.1, 152.2 and 153.1 & 2 of 'Rules,
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2 All] Rambir Mishra V. Union of India and others
397
1987' are relevant for the case of present
petitioner. The rules 151, 152 and 153 of
'Rules, 1987' are quoted as below: -
"151. Disciplinary Authority:
151.1 The disciplinary authority in respect
of any enrolled member of the Force for
the purpose of imposing any particular
punishment or the passing of any
disciplinary order shall be the authority
specified in this behalf in Schedule III in
whose administrative control the member
is serving and shall include any authority
superior to such authority.
151.2 The disciplinary authority, in the
case of an enrolled member of the Force
officiating in a higher rank, shall be
determined
with
reference
to
the
officiating post held by him at the time of
taking action.
152. Authority to institute proceedings:
152.1 The appointing authority or any
authority
otherwise
empowered
by
general or special order, may--
(a) institute
disciplinary
proceedings
against any enrolled member; or
(b) direct a disciplinary authority to
institute disciplinary proceedings against
any enrolled member of the Force on
whom
the
disciplinary
authority
is
competent to impose, under these rules,
any of the punishments specified in rules
148 and 149.
152.2 A disciplinary authority competent
under these rules to impose any of the
minor
punishments
may
institute
disciplinary
proceedings
for
the
imposition
of
any
of
the
major
punishments notwithstanding that such
disciplinary authority is not competent,
under these rules, to impose any of the
latter punishments.
153. Procedure for imposing major
punishments:
153.1 Without prejudice to the provisions
of the Public Servants Inquiries Act,
1850, no order of dismissal, removal,
compulsory retirement or reduction in
rank shall be passed on any enrolled
member of the Force (save as mentioned
in rule 161) without holding an inquiry, as
far as may be in the manner provided
hereinafter, in which he has been
informed in writing of the grounds on
which it is proposed to take action, and
has
been
afforded
a
reasonable
opportunity of defending himself.
153.2.1
Whenever
the
disciplinary
authority is of the opinion that there are
grounds for inquiring into the truth of any
imputation
of
misconduct
or
misbehaviour against an enrolled member
of the Force, it may itself inquire into or
appoint an Inquiry Officer higher in rank
to the enrolled member charged but no
below the rank of Inspector, or institute a
Court of Inquiry to inquire into the truth
thereof."

In reference to these provisions of
Rules, 1987, it has been submitted on
behalf of respondents that Rule 151 deals
with the disciplinary authority and Sri
S.N. Singh, ASC being a disciplinary
authority could initiate the disciplinary
proceedings against the petitioner in view
of Rule 152.2 and could also inquire into
the matter in reference to Rule 153.2.1.

5. According to the respondents, though
other three constables of RPF were also
charge-sheeted with same charges for
same incident, but the role in the said
incident was different, therefore, the
petitioner has rightly been singled out for
imposition of penalty as there was
slackness on the part of the petitioner.

6. Endeavourance has been made on
behalf of petitioner to controvert that Sri
S.N. Singh, ASC assisted by senior police
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
398
officials was chasing the party, where the
petitioner was not even taken into
confidence and asked to participate in the
team, as the petitioner was not supposed
to leave the duty as he was on guard duty,
where arms, ammunitions, cash property
were in his custody at relevant time. The
petitioner was neither informed with prior
intimation regarding the raid nor was
asked for becoming a member of raiding
party to apprehend the criminals. It has
further been submitted on behalf of
petitioner that he was in bounded duty to
discharge the work and could not leave
the duty without orders of the superior
officers or without being relieved by
another guard from his duty. Suo-moto
participation and leaving the roznamcha
duty as a guard could have amounted the
offence and despite the endeavourance by
large number of members of the raiding
party if something was desired to be done,
for such lapse not only the petitioner, but
other three above named constables and
the members participating in the raiding
party were to be held responsible.

7. The respondents on the other hand
contended that the petitioner did not act
bonafidely in discharge of duty, which he
was expected to perform and role of the
petitioner was in derogation to the
observations made by the Supreme Court
in AIR 1975 SC 915 (Ram Chandra
Keshav Adke Vs. Govind Joti Chavare
and others), where the Supreme Court has
observed as under: -

"Where a power is given to do a
certain thing in a certain way, the thing
must be done in that way or not at all and
other
methods
of
performance
are
necessarily forbidden. This rule squarely
applies where the whole aim and object of
the legislature would be plainly defeated
if the command to do the thing in a
particular manner did not imply a
prohibition to do it in any other."

8. However, according to Sri Anoop
Trivedi, learned counsel for the petitioner,
when the petitioner was not assigned and
trusted any duty, in that case nothing was
expected from him otherwise it could
have amounted unnecessary interference
in the functioning of others. In order to
substantiate and strengthen the stand of
the petitioner it has been submitted by Sri
Anoop Trivedi that the Supreme Court did
not interfere in the finding of the High
Court as well as of the labour court when
three workmen charged for same offence,
i.e,
in
the
incident
of
involving
drunkenness fighting, riotous, disorderly
and indecent behaviour out of which one
punished out of disciplinary inquiry with
one
month's
suspension,
out
of
disciplinary
inquiry
another
was
reinstated but third was punished with the
order of dismissal, such punishment was
held to be unjustified. The Supreme Court
in
(2001)
1
UPLBEC
67
(Tata
Engineering and Locomotive Co. Ltd. Vs.
Jitendra Prasad Singh and another) has
observed as below: -

"Since as many as three workmen on
almost identical charges were found
guilty of misconduct in connection with
the same incident, though in separate
proceedings, and one was punished with
only one month's suspension, and the
other was ultimately reinstated in view of
the findings recorded by the Labour Court
and affirmed by the High Court and the
Supreme Court, it would be denial of
justice to the appellant if he alone is
singled out for punishment by way of
dismissal from service."
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9. In AIR 1984 SC 1499 (Singara
Singh and others Vs. The State of Punjab
and others) the Supreme Court has
observed that the dismissal of several
members of police force for participation
in agitation, but reinstatement of large
number
of
personnel
denying
the
reinstatement of writ petitioners for
involvement
in
similarly
situated
activities was held to be discriminatory
and in derogation to the provisions of
Article 14 of the Constitution. The
Supreme
Court
has
observed
that
logically the writ petitioners were to
receive the same benefits like those, who
were
reinstated
and
without
any
justification treating the writ petitioners
differently without pointing out how the
writ petitioners were guilty for more
serious
misconduct
or
degree
of
indiscipline, in such circumstances the
discrimination was held to be not
justifiable.

10. According to the respondents in
view of (1999) 8 SCC 90 (R.S. Saini Vs.
State of Punjab and others), the claim of
the writ petitioner assailing his removal
on the ground of perversity of the inquiry
based on no evidence, non-application of
mind and malafide, the Supreme Court
did not find any scope of judicial review
in the finding of the disciplinary inquiry
as the same did not suffer from
infirmities. The Supreme Court further
observed that the inquiring authority is the
sole judge of the fact so long as there is
some legal evidence to substantiate its
findings and adequacy or reliability,
which
cannot
be
permitted
to
be
canvassed in the writ proceedings. If the
conclusions have been drawn in a
reasonable manner and objectively, such
conclusions cannot be termed as perverse
or not based on any material. The
Supreme Court has also held that the High
Court as well as the Supreme Court
within limited scope of their jurisdiction
could hold that the disciplinary inquiry
against the delinquent did not suffer from
infirmities.

11. According to the respondents in
(2001) 1 SCC 416 (High Court of
Judicature at Bombay Vs. Shashi Kand S.
Patil and another) the Supreme Court has
observed that the findings of the Inquiry
Officer are not binding on the disciplinary
authority and final decision rests with the
disciplinary authority, which can come to
its own conclusions, bearing in mind the
views expressed by the Inquiry Officer,
and judicial interference is permissible if
there is violation of the natural justice and
statutory regulations and the decision of
the disciplinary authority is also vitiated
by considerations extraneous to the
evidences and merits of the case or if the
conclusion made by the authority on the
very face of it is wholly arbitrary or
capricious and no reasonable person could
have arrived at such a conclusion on
similar grounds.

12. According to the respondents in
(1998) 2 SCC 400 (Nagar Palika Nataur
Vs.
U.P.
Public
Services
Tribunal,
Lucknow and others) the Supreme Court
has held that the principle of natural
justice could not be said to be violated
where opportunity was afforded but not
utilised by the delinquent employee,
despite repeated reminders reply was not
given to the charge-sheet nor appearance
was shown by the delinquent employee
before the Inquiry Officer, and despite
being permitted to inspect the records and
opportunities were not availed of to
inspect
the
records.
In
these
circumstances, the conclusion reached by
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
400
the Inquiry Officer on the basis of
available material that the charges were
proved, can not be said to be violative of
principle of natural justice and hence
dismissal was upheld.

13. In {(2002) 2 U.P.L.B.E.C.
1871)} Mirza Barket Ali v, Inspector
General of Police, Allahabad and others,
the police constable was dismissed for
absent from duty of 109 days on the
ground of illness. The Inquiry Officer
recommended for minor punishment,
however, S. P. disagreed and imposed
punishment of dismissal. High Court
found 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 Gujrat (1979) I L.L.J.339 (Guj).
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 Rakshak Vs. Union of India,
1984 Lab. I. C. (NOC) 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 Vs.
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 Vs. Ex. Constable Ram Singh
(1992) 4 SCC 54; (1992) 21 ATC 435.

(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
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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.P. Katarki Vs. State of
Karnataka, AIR 1991 SC 1241; 1991
Supp (1) SCC 267; 1991 Lab. IC 1001. 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 Grewal
Vs. State of Punjab, AIR 1991 SC 1067;
(1991) 2 SCC 635; 1991 Lab. IC 1082].

However, even though the Supreme
Court has power to modify the penalty
imposed by the disciplinary authority in
exercise of equitable jurisdiction under
Art.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 Samarendra Kishore Endow's
case.
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 the High Court
under Art.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 H.P. is
no authority, (1983) 2 SCC 442; 1983
SCC (L&S) 454 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
Art.136
of
the
Constitution. The High Court or the
Tribunal has no such power" Bank of
India Vs. Samarendra Kishore Endow
(1994) 2 SCC 537= 1994 SCC (L&S)
687= (1994) I L.L.J. 872= 1994 (1) SLR
516."

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 imposed is
harsh the proper course for the High
Court/Tribunal is to refer the matter to the
appellate authority or the disciplinary
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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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, then 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 (1995) 6 SCC 749 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 reiterated by the
Supreme Court in Union of India Vs. G.
Ganayuthan, AIR 1997 SC 3387; (1997) 7
SCC 463. 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 Vs.
Rangachary, 1994 Supp (2) SCC 479;
(1994) 27 ATC 937.

(G) A member of the Central Reserve
Police who only because he overstayed
the leave for twelve years for which had
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403
sufficient reason and had no intention to
wilfully disobey the order was dismissed
from service, the High Court on the
interpretation of s.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 Vs. Giriraj Sharma AIR 1994 SC
215; 1994 Supp (3) SCC 755.

(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 (1995) 6 SCC 157. 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 his previous
record was unblemished and at the
relevant time he was sharing a room with
two colleagues. So, the Supreme Court
substituted the penalty to compulsory
retirement. Mehonga Singh Vs. I. G. of
Police (1995) 5 SCC 682.

(I) On the 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.,
(1996) 10 SCC 371}.

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 him
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 proceeding. 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
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
404
the
disciplinary
authority
to
pass
appropriate punishment and the civil court
cannot substitute its own view to that of
the 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. Sate of Punjab Vs. Bakshi Singh,
AIR 1997 SC 2696; (1997) 6 SCC 381.
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 to corruption, there is no
occasion for interference with the order of
punishment imposed by the disciplinary
authority. Government of A. P. Vs B.
Ashok Kumar, AIR 1997 SC 2447;
(1997) 5 SCC 478.

(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 facts of the
case cannot be sustained. U. P. Road
Transport Corporation Vs. A.K. Parul,
Cal. JT 1999 (1) SC 77. When the
respondent, a police constable was
dismissed from service on the ground that
he illegally extracted money from the
auto-rickshaw 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 Vs. H. Nagraj, (1998) 9 SCC
671.

14. In 2001 (2) A.W.C. 983
(Sahdev Singh vs. U.P.Public Service
Tribunal, Lucknow and others), 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 had 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
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405
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 Shakespeares Merchant
of vcnice that 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.

15. In (1985) I Supreme Court
Cases 120 (Hussaini Vs. Chief Justice of
high court of Judicature at Allahabad
and others), 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 found 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 low paid 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 Low paid 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 low paid employee a little tolerable
and keep him away from the penury
destitution.

16. In 1994 S.C.C. 604 (Union of
India and other Vs. 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 is harsh since the circumstances
show that it was not his intention to
wilfully
flout
the
order,
but
the
circumstances forced him to do so.