Ajay Kumar Vs Union of India Represented through Ministry of Home Affairs through Its Secretary

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 2920 of 2021

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Ajay Kumar

… … Petitioner

Versus

Union of India represented through Secretary, Ministry of Home Affairs, New Delhi

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Inspector General, Central Industrial Security Force, Ministry of Home Affairs, CISF Office Campus, Eastern Zone Headquarter, Ranchi

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The Deputy Inspector General, Central Industrial Security Force, Ministry of Home Affairs, CISF, CCL Headquarter, Ranchi

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Commandant-cum-Disciplinary Authority, Central Industrial Security Force, Ministry of Home Affairs, CISF Unit, CCL Kargali, District- Bokaro

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…. … Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner : Mr. Rohit, Advocate For the Respondents : Mrs. Nitu Sinha, C.G.C.

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Order No. 06 Dated: 05.01.2024

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The present writ petition has been filed for quashing the order as contained in letter no. 3376 dated 01.06.2019 (Annexure-4 to the writ petition) passed by the Commandantcum-Disciplinary Authority, Central Industrial Security Force (CISF) Unit, CCL Kargali, Bokaro (the respondent no. 4) whereby the petitioner has been imposed punishment of ‘removal from service’. Further prayer has been made for quashing the order as contained in letter no. 6399 dated 14.08.2019 (Annexure- 5 to the writ petition) passed by the appellate authority i.e., Deputy Inspector General, CISF, Ministry of Home Affairs, Ranchi (the respondent no. 3) whereby the appeal preferred by the petitioner against the order dated 01.06.2019 passed by the respondent no. 4 has been dismissed. The petitioner has also prayed for quashing the order as contained in letter no. 16713 dated 19.12.2019

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(Annexure-6 to the writ petition) passed by the revisional authority i.e., Inspector General, CISF (Ministry of Home Affairs), Eastern Zone Headquarter, Ranchi (the respondent no. 2) whereby the revision petition dated 25.09.2019 preferred by the petitioner against the appellate order dated 14.08.2019 passed by the respondent no. 3 has been rejected. Prayer has also been made for issuance of direction upon the respondents to reinstate the petitioner in service with all consequential benefits.

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2. Learned counsel for the petitioner submits that the petitioner was appointed on the post of Constable/GD (General Duty) under the respondent no. 2 on 22.07.2009 and was allotted CISF No. 097352994. He committed trivial mistakes while discharging his duty on different dates during the period from 5.8.2017 to 27.8.2018 for which he was saddled with six minor punishments like stoppage of one annual increment without cumulative effect on two occasions and withholding of salary on four occasions i.e., for 1 day, 7 days, 5 days and 7 days.

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3. It is further submitted that when the petitioner was posted at CISF Unit, CCL Kargali, District-Bokaro, he was put under suspension with immediate effect in contemplation of a departmental proceeding vide order as contained in letter no. 10 dated 09.01.2019 issued by the Deputy Commandant, Dhori Area of CISF Unit, CCL Kargali. Thereafter, the respondent no. 4, vide letter no. 587 dated 23.1.2019, framed following charges against the petitioner: -

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(i) The petitioner was assigned night shift duty from 9.00 p.m. of 9.1.2019 to 6.00 a.m. of 10.01.2019 but he

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reported after ten minutes of the scheduled time i.e. at 9.10 p.m. at ‘B’ Coy. Control Room of CCL Kargali in intoxicated condition. When he was asked by Shift Incharge, Head Constable/GD- Sri K. P. Chakraborty to sign in the duty register for deployment at Amlo check post, he became furious and misbehaved with Shift Incharge by abusing and slapping him. When HC/GD, Company Havaldar Major (CHM)- Uday Kumar Singh tried to calm the petitioner, he also misbehaved with him by slapping and using unparliamentary language. (ii) Further, when the petitioner was taken to Dhori Regional Hospital for his medical examination at 9.40 p.m. on 09.1.2019, he also misbehaved with QRT Incharge, Sub-Inspector Sri Awatar Singh by abusing and scuffling with him.

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(iii) Previously, the petitioner was already penalized on six occasions with minor punishments for misconducts, indiscipline, dereliction of duty and disobedience of the directions given by senior officials.

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4. Learned counsel for the petitioner also submits that the petitioner was medically examined on 9.1.2019 at 10.25 P.M. by the Medical Officer, Dhori Regional Hospital and the medical report did not support the allegation of intoxication as levelled in the memo of charge since the doctor had diagnosed the case as "pain in abdomen" with "aberrant behaviour". The petitioner filed written statement of defence on 27.1.2019 tendering apology with a request to consider his case sympathetically but the same was not considered in its true perspective. Thereafter, departmental proceeding was initiated against the petitioner and Sri O. P. Gupta, Inspector/Executive, CISF Unit, CCL, Kargali was appointed as enquiry officer whereas Sri Anand Singh, Sub-Inspector/Executive was appointed as

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Presenting Officer to conduct the inquiry against the petitioner. The Enquiry Officer submitted the inquiry report to the disciplinary authority i.e., the respondent no. 4 on 11.04.2019 finding the allegations levelled against the petitioner as proved, however he did not follow the principles of natural justice by not examining the doctor who was a vital witness to prove the alleged misconduct of intoxication leading to slapping the officers on duty. After submission of the inquiry report, the respondent no. 4, vide impugned order as contained in letter no. 3376 dated 01.06.2019, imposed punishment of ‘removal from service’ upon the petitioner.

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5. It is further submitted that the disciplinary authority clubbed the previous minor punishments awarded to the petitioner on petty matters and as such, the present punishment is vitiated by the principle of double jeopardy. Being aggrieved with order dated 01.06.2019, the petitioner preferred appeal before the respondent no. 3, however the same was dismissed vide order as contained in letter no. 6399 dated 14.8.2019. Thereafter, the revision preferred by the petitioner against the appellate order was also dismissed by the respondent no. 2 vide order as contained in letter no. 16713 dated 19.12.2019.

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6. Learned counsel for the petitioner also submits that the punishment of ‘removal from service’ is an extreme punishment causing economic death of the petitioner and his family members as well as the same does not commensurate with the gravity of misconduct i.e. reporting to the duty ten minutes late. The allegation of intoxication has not been proved

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medically and therefore, the consequent allegation of slapping the officers on duty in intoxicated condition is not applicable in this case. The charge against the petitioner was that he slapped Sri K. P. Chakraborty, Shift-Incharge and another officer Sri Uday Kumar Singh and during the departmental proceeding, K.P. Chakraborty stated that Deo Prasad, Arup Burman and Amrik Singh were also present on the spot besides Uday Kumar Singh, who had seen the petitioner slapping him, but Deo Prasad and Arup Burman categorically stated during their deposition that they were not present at the place of occurrence at the relevant point of time, which suggested that they were hearsay witnesses. So far as examination of Amrik Singh was concerned, he admitted that his duty was from 9.00 p.m. of 09.01.2019 to 6.00 a.m. of 10.01.2019, therefore as per his own admission, his presence in the control room at 9:10 p.m. of 09.01.2019 was doubtful and unreliable. Thus, their evidences should not have been relied upon by the enquiry officer as well as the disciplinary authority.

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7. It is further submitted that similar discrepancy occurred with regard to other witnesses examined in course of inquiry, but these aspects of the matter were not properly considered by the enquiry officer, disciplinary authority, appellate authority and even by the revisional authority which renders the punishment order void. The impugned order of punishment passed by the respondent no. 4 is also violative of the principles of natural justice.

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8. Per contra, learned counsel appearing on behalf of the respondents submits that on 09.01.2019, the petitioner was

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assigned night shift duty from 9.00 p.m. but at the time of briefing the duty at about 08:45 hrs., he was found absent. The petitioner reported in the ‘B’ Coy. (company) Control Room at 9:10 p.m. and started abusing the shift in-charge and also slapped him as well as Head Constable/General Duty, Unit CHMUday Kumar Singh. A preliminary enquiry was conducted and prima facie case of misbehaving with superior officials was established.

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9. It is further submitted that the petitioner was issued memo of charge on 23.01.2019 by the respondent no. 4 framing charges against him under rule 36 of CISF Rules, 2001. The petitioner submitted reply on 27.01.2019 wherein he accepted the charges levelled against him and apologized for the act committed by him. Thereafter, the disciplinary authority appointed Inspector/Executive of CISF Unit, CCL Kargali- O.P Gupta as enquiry officer and Sub Inspector/Executive Anand Singh as presenting officer to conduct the regular departmental inquiry. During inquiry, ample opportunity was given to the petitioner to defend his case and also to cross-examine all the prosecution witnesses. The inquiry officer submitted the inquiry report to the disciplinary authority on 11.04.2019 stating that the charges levelled against the petitioner were found proved. Thereafter, the disciplinary authority served a copy of the inquiry report to the petitioner on 16.04.2019 with a direction to submit his representation against the enquiry report within 15 days from the date of receipt of the same. The petitioner submitted his representation against the enquiry report on 03.05.2019 and the

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disciplinary authority, after taking into consideration his representation as well as going through the enquiry report with all documentary evidences, found the petitioner guilty of charges levelled against him and vide order dated 01.06.2019, imposed punishment of ‘removal from service’ upon him. The appeal and revision preferred by the petitioner have also been dismissed by the concerned authorities finding the same devoid of any merit.

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10. It is also submitted that charge no. (iii) levelled against the petitioner itself shows his previous conduct. Moreover, other charges levelled against him were found proved during the departmental enquiry. The punishment of ‘removal from service’ was awarded after considering the oral and documentary evidences adduced during the said inquiry. Hence, the punishment does not at all amount to double jeopardy, rather it commensurates with the gravity of offence committed by the petitioner who being a member of a disciplined force, set a bad example among the other personnel posted in the unit by committing grave misconduct which is against the rule of Para Military Forces.

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11 Heard learned counsel for the parties and perused the materials available on record.

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12. The petitioner is aggrieved with the order of punishment of ‘removal from service’ passed by the respondent no. 4 which has been affirmed by the appellate as well as revisional authorities i.e., the respondent no. 3 and 2 respectively. 13. Thrust of the argument of learned counsel for the petitioner is that the impugned order of punishment passed

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against the petitioner is highly disproportionate to the charges levelled against him as he has been dismissed from service for the petty charge of reporting to the duty ten minutes late. It has further been contended that the allegation of intoxication against the petitioner has not been medically proved, moreover the persons, who claimed to have seen the petitioner abusing and slapping the shift incharge as well as CHM, stated during their examination that they were not present at the place of occurrence at the relevant point of time and thus, were merely the hearsay witnesses.

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14. I have gone through a judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka & Another Vs. N. Gangaraj reported in (2020) 3 SCC 423 wherein it has been held as under:-

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“9. In [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723], a three-Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under : (AIR pp. 1726-27, para 7)

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“7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the

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delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.”

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10. In [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749] , again a three-Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under : (SCC pp. 759-60, paras 12-13)

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“ 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or

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finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

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13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In [Union of India v. H.C. Goel, (1964) 4 SCR 718] , this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

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11. In [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416], this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under : (SCC p. 423, para 16)

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“16. The Division Bench [Shashikant S. Patil v. High Court of Bombay, 1998 SCC OnLine Bom 97: (2000) 1 LLN 160] of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But

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we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.”

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12. In [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584] , this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under : (SCC pp. 587-88, paras 7 & 10)

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**“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749], [Union of India v. G. Ganayutham, (1997) 7 SCC 463] and [Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762], [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416].) *****

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10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.”

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13. In another judgment reported as [Union of India v. P. Gunasekaran, (2015) 2 SCC 610] , this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings : (SCC p.

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617, para 13)

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“13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

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(i) reappreciate the evidence;

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(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence on which findings can be based.

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(vi) correct the error of fact however grave it may appear to be;

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(vii) go into the proportionality of punishment unless it shocks its conscience.”

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14. On the other hand the learned counsel for the respondent relies upon the judgment reported as [Allahabad Bank v. Krishna Narayan Tewari,

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(2017) 2 SCC 308] , wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.

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15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] and [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749] as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law.”

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15. The Hon’ble Supreme Court in the case of Pravin

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Kumar Vs. Union of India & Others reported in (2020) 9 SCC 471 has held that a constitutional court while exercising its powers of judicial review should not assume the role of an appellate authority. Its jurisdiction is circumscribed by the limits of correcting errors of law, procedural errors leading to manifest injustice or violation of the principles of natural justice.

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16. Thus, it is well settled that the High Court exercising power of judicial review under Article 226 of the Constitution of India is neither a court of appeal over the decision of the authorities holding departmental enquiry against a public servant and to reassess the evidence led in the domestic enquiry, nor can interfere on the ground that another view is possible on the basis of material on record. The High Court is primarily concerned with determining whether the enquiry has been held by an authority competent in that behalf, and as per the procedure prescribed as well as whether the rules of natural justice have been followed. If the enquiry has fairly and properly been held and the findings are based on evidence, the question of adequacy of evidence or the reliable nature of the same will not be the ground for interfering with the findings in departmental inquiries. If the disciplinary authority records a finding which is not supported by any evidence whatsoever or a finding has unreasonably been arrived at, the writ court may interfere with the finding of the disciplinary proceeding, however the discrepancies in the evidence will not make it a case of no evidence.

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17. On perusal of the record, it appears that the chargesheet was issued to the petitioner specifying the details of the charges levelled against him and the petitioner replied the same on 27.01.2019 tendering apology and requesting to consider his case sympathetically. Thereafter, departmental proceeding was initiated against the petitioner and due opportunity of hearing was given to him in the inquiry proceeding. The petitioner was given opportunity to explain the charges

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levelled against him and was afforded due opportunity to crossexamine the witnesses produced by the department. He also participated in the inquiry and cross- examined all the witnesses. The disciplinary authority agreeing with the inquiry report, served a second show cause notice to the petitioner along with a copy of inquiry report and provided him opportunity to respond to the observation made in the enquiry report. The petitioner replied the same stating that he did not want to give any explanation on the observation made in the enquiry report since he had already tendered apology and had requested to treat his case sympathetically. Thereafter, the disciplinary authority passed the order of dismissal from service against the petitioner.

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18. Thus, it appears that the principles of natural justice have been duly complied in the present case and the petitioner was given due opportunity of hearing before passing the order of punishment by the respondent no. 4.

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19. Admittedly, the petitioner did not controvert the charges levelled against him, rather he tendered his apology and requested to treat his case sympathetically.

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20. Now, the question before this Court is as to whether the quantum of punishment imposed by the disciplinary authority and affirmed by the appellate as well as revisional authority is required to be interfered by this Court under extraordinary writ jurisdiction?

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21. Before coming to the said question, it would be appropriate to refer a judgment of the Hon’ble Supreme Court rendered in the case of State of Meghalaya Vs. Mecken Singh

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N. Marak reported in (2008) 7 SCC 580 wherein it has been

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held as under: -

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“14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.

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15. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental enquiry, the court should also take into consideration, the mental set-up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision-making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands.

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16. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only did he flout the instructions, but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a

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decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society.”

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22. In the case of UT of Dadra & Nagar Haveli Vs. Gulabhia M. Lad reported in (2010) 5 SCC 775 , the Hon’ble Supreme Court held as under: -

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“14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.

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23. It may thus be construed that the High Courts, in exercise of powers under Article 226, are not supposed to interfere with the quantum of punishment unless the same appears to be shocking to the conscience of the court and is disproportionate to the alleged charges. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the

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delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. A person who belongs to a disciplined force is supposed to diligently carry out the instructions given to him by his superior.

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24. In the present case, the charges levelled against the petitioner relate to indiscipline as well as fighting with the senior colleagues using abusive language which were found proved. Earlier also, the petitioner was punished on six occasions for different cases of misconduct, indiscipline and dereliction of duty. He was serving in a disciplined force where the cases of indiscipline and misconduct are dealt with strictly. Thus, I am of the view that the order of punishment passed against the petitioner does not appear to be shockingly disproportionate so as to exercise the power of judicial review under Article 226 of the Constitution of India.

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25. Another limb of argument of learned counsel for the petitioner is that charge no. (iii) of the chargesheet is about the previous punishments inflicted upon the petitioner and thus the same amounts to double jeopardy. I do not find any substance in the said argument of learned counsel for the petitioner as while imposing the punishment, the disciplinary authority, apart from other factors, can also take into consideration the previous punishment, if any, that has been imposed upon the delinquent employee. In the present case also, the disciplinary authority while imposing the punishment of ‘removal from service’ upon the petitioner, has taken into consideration the earlier punishments

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awarded to him and thus the same cannot be said to be double

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jeopardy.

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26. In view of the aforesaid discussions, I do not find any merit in the present writ petition and the same is accordingly dismissed.

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(Rajesh Shankar, J.)

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Ritesh/AFR

Ajay Kumar v. Union of India Represented through Ministry of Home Affairs through Its Secretary

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Ajay Kumar v. Union of India Represented through Ministry of Home Affairs through Its Secretary

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