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CIVIL APPEAL NO(S). 6723 OF 2021 (Arising out of SLP(Civil) No(s). 34160 of 2016)
UNION OF INDIA & ORS. …..APPELLANT(S)
JUDGMENT
1. Leave granted.
2. Union of India, in the instant appeal, has challenged the judgment and order passed by the Division Bench of the High Court of Delhi substituting the penalty of removal from service inflicted on the respondent after holding disciplinary inquiry as provided under Rule 27 of The Central Reserve Police Force Rules, 1955 (hereinafter being referred to as the “Rules 1955”) with confinement of respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail without noticing the mandate of the nature of punishments indicated under Section 11(1) of The Central Reserve Police Force Act, 1949 (hereinafter being referred to as the “Act 1949”).
3. The brief facts of the case culled out from the record are that the respondent joined service with the Central Reserve Police Force in the year 1983 and was on attachment duty at Group Centre, CRPF. In 2003, his wife was under treatment of Dr. Nazir, Gynaecologist (complainant). On 12th September 2003, the respondent accompanied with his wife forcibly entered into the chamber of the Dr. Nazircomplainant and asked him to attest the reimbursement of medical claims and upon his refusal, the respondent verbally abused and physically struck the DoctorComplainant, resulting in injuries. He was escorted out by the Constable Suresh, who also happened to see the conduct of the respondent and his wife. Respondent not only misbehaved and abused the Doctorcomplainant while on duty in which he sustained injuries on his face but to conceal his misconduct, he made a false allegation of sexual harassment on his wife against the Doctorcomplainant. For such a gross misconduct, which he had committed while in service, he was placed under suspension and a Charge Memo dated 29th October, 2003 for holding disciplinary inquiry under Rule 27 of the Rules 1955 came to be served upon him for (i) violation of Section 11(1) of the Rules 1955, for misbehaving and abusing and injuring the Doctorcomplainant while on official duty; and (ii) for instituting false criminal charges of sexual harassment against the Doctorcomplainant. Article of Charge 1 and Charge 2 of the Charge Memo along with the details are reproduced hereunder: “ARTICLE I Constable Driver No.961340413 Ram Karan of 120BN while being at the post of Constable have violated rule 11(1) being the member of the force on 12.9.03 around 12.00 senior medical officer who was on official duty Const. Ram Karan misbehaved and abused due to which received injuries near bus left eye which is punishable under the act.
ARTICLE II Constable Driver Ram Karan 120 BN while being posted in Pinjore as Const/Driver in the Month of September 2003 has violated CRPF rules 1949 rule 11(1) being the member of the force misbehaved with doctor Abdul Nair abused him that the doctor had misbehaved with his wife Savita Devi who has visited the doctor along with her husband who had violated the said rules.” Details “The said Const/Driver Rain Karan did 10.3.03 to 26.9.03 was posted in Pinjore. Wife of Const/Driver were under treatment of senior medical officer Dr. Nazir on 11.9.03 has set her case for consideration. Smt. Savita dated 12.9.03 around 11.15 has visited Dr. Nazir with Cash memo No.2137 dated 11.9.03 she left the room that her husband is going to teach him a lesson. Around 12.00 driver Ram Karan visited the office saying to authorize the cash memo in which medicine prescribed by the doctor were not mentioned when refused he misbehaved and abused the doctor. The said, misbehaviour was reported by Dr. Abdul Nazir to the senior official Pinjore on the complaint of Abdul Nazir action was taken against Cont. Ram Karan and suspended on the same day. In order to gain sympathy of the general public he falsely made allegation against Dr. Nazir of sexual abuse of his wife. According to const. Ram Karan his wife Savita was under treatment of Dr. Abdul Nazir and had gone for a checkup. During check up Dr. Nazir sexually abused her and on calling her husband for help and when his husband entered the room he was beaten by the doctor. Hence Cont./Driver Ram Karan has made false allegations against Dr. Nazir of sexual abuse of his wife Savita. His only purpose of doing so was to save himself from injury and gain sympathy of public although according to witnesses on 12.9.03 around 12.00 he along with his wife has entered the room of the doctor.”
4. The departmental inquiry was conducted by the disciplinary authority in terms of the procedure prescribed under Rule 27 of Rules 1955 and after affording an opportunity of hearing, the disciplinary authority found both the charges proved against him after due compliance of the principles of natural justice and taking note of the gravity of the charges which were found proved and all other factors into consideration, punished him with the penalty of removal from service by an Order dated 14th July, 2004.
5. The Departmental Appeal preferred against the Order dated 14th July, 2004 before the Appellate Authority came to be dismissed by an Order dated 3rd January, 2006 and the revision petition also came to be rejected by the revisional authority by an Order dated 1st October, 2008. The penalty of removal from service and consequential orders passed by the appellate/revisional authority was the subject matter of challenge by filing writ petition before the High Court of Delhi under Article 226 of the Constitution at the instance of the respondent.
6. After taking note of the factual matrix on record and the submissions made, the High Court under its impugned judgment dated 11th February, 2016 upheld the charges which were found proved by the disciplinary authority during the course of inquiry. However, substituted the penalty of removal from service inflicted upon the respondent in exercise of the power of judicial review and recorded a finding that looking into the nature of allegations which stand proved, the punishment of removal from service is disproportionate to the proved misconduct to confinement of the respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail as the adequate punishment with a further direction for his reinstatement with immediate effect with entitlement of salary and other benefits admissible to him under the law for the purposes of calculating the pensionary benefits. The relevant paras of the impugned judgment dated 11th February, 2016 are as under: “19. The evidence of PW5 Suresh shows that on entering into Dr. Nazir’s room, he saw both the doctor and the appellant scuffling with each other and they were separated through his intervention. There is nothing on record to show that the appellant had acted in a pre meditated manner or had planned the whole thing. The incident appears to have occurred at the spur of the moment. Although the court cannot be certain about the circumstance, yet there can be a reasonable doubt as to whether there was anything spoken to the petitioner’s wife, by Dr. Nazir, which led to the scuffle or altercation. Whilst the version about the assault on the petitioner’s wife may be doubtful, the statement made to the police that the doctor had expressed something about her character in the context of her inability to produce the prescribed medication, for verification, is still open to judicial scrutiny in the application under Section 156(3) of Cr.P.C. of his wife.
20. Keeping in view the totality of the circumstances of this case, we are of the view that the penalty of removal from service, especially when the petitioner has clean record of 11 years of previous service, is disproportionate to the proved charges. Given the circumstances of the case, we feel that confinement of petitioner from 1.00 PM noon to
10.00 PM in quarter guard jail was sufficient punishment. We accordingly order for the reinstatement of the petitioner with immediate effect. The respondents are also directed to treat the period from the date of dismissal till the reinstatement as per the provisions of law. The petitioner is also entitled for salary and other benefits admissible in law. He shall be considered on duty during this period for the purpose of calculation of pensionary benefits. The petition is allowed in the above terms. No costs.”
7. This Court, while issuing notice by an Order dated 18th November 2016, stayed the operation of the impugned judgment dated 11th February, 2016.
8. Ms. Madhavi Divan, learned ASG appearing for the Union of India submits that the interference which has been made by the High Court under its limited scope of judicial review under Article 226 of the Constitution is a clear abuse of judicial discretion and such a gross misconduct which was committed by the respondent while serving as member of discipline force in CRPF, in no manner, was pardonable.
9. Learned counsel further submits that Section 11 of the scheme of Act 1949 has been completely overlooked by the High Court. That in terms of Section 11, the competent authority may award in lieu of or in addition to suspension or dismissal, any one or more of the punishments including confinement in quarter guard jail or removal referred to under clauses (d) and (e) of Section 11(1) of the Act, 1949.
10. Learned counsel further submits that the High Court has proceeded on its own perception as if it was a case of criminal trial where incident can be condoned if it has been committed without premeditated manner or occurred at the spur of the moment. This theory may not apply in the case of departmental enquiry and in the given circumstances, the interference made by the High Court in substituting punishment under the impugned judgment dated 11th February 2016 is unsustainable in law and deserves to be set aside.
11. In support of her submission, learned counsel has placed reliance on the judgment of this Court in Union of India and Others Vs. Ghulam Mohd. Bhat.[1]
12. On the other hand, Mr. Ashok Agrwaal, learned counsel for the respondent, while supporting the finding recorded by the High Court in the impugned judgment submits that the respondent had rendered, by that time, 11 years of unblemished service and he had full respect and regard to Dr. Nazircomplainant but the circumstances created at the given time were such that were beyond his control and the High Court has taken note of not only the unblemished service of 11 years but in totality of the facts under consideration while holding the punishment of removal from service, to be disproportionate to the charges proved against him 1 2005(13) SCC 228. and what has been considered by the High Court in the impugned judgment is not only substituting the punishment but protecting the rights of the respondent and his family and to save his livelihood and submits that a justice has been done by the High Court under the impugned judgment which may not require any interference by this Court.
13. We have heard learned counsel for the parties and with their assistance perused the material available on record.
14. The service conditions of member of the force are governed in accordance with provisions of the Act 1949. Section 9 and Section 10 provides the nature of “more heinous offences/less heinous offences”. The nature of punishments have also been provided for more heinous offences/less heinous offences, if found proved against member of the force are in the form of imprisonment for a term provided under scheme of the Act. At the same time, the nature of minor punishments are provided under Section 11 of the Act 1949 and the procedure to be followed by the disciplinary authority has been prescribed under Rule 27 of the Rules 1955. The relevant paras are as under: “Section 11. Minor punishments. – (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say, (a) reduction in rank; (b) fine of any amount not exceeding one month’s pay and allowances;
(c) confinement to quarters, lines or camp for a term not exceeding one month;
(d) confinement in the quarterguard for not more than twenty eight days, with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the Force.......”. “Rule 27. Procedure for the Award of Punishments. (a) The Punishments shown as items 1 to 11 in column 2 of the table below may he inflicted or nonGazetted Officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column
7. TABLE
┌───────────────────────────────────────────────────────────────────────────────────────────────────┐ │ TABLE │ │ Sl. Punishment Subedar Sub- Others except Consts & Remarks │ │ No. (Inspector) Inspector Const & enrolled │ │ enrolled followers │ │ followers │ ├───────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1 2 3 4 5 6 7 │ │ 1. Dismissal or DIGP DIGP Comdt. Comdt. To be inflicted │ │ removal from the after formal │ │ Force departmental │ │ enquiry. │ │ 2. … … … … … … │ │ 3. … … … … … … │ │ 4. … … … … … … │ │ 5. … … … … … … │ │ 6. Confinement in the - - - Comdt. To be inflicted │ │ Quarter Guard after formal │ │ exceeding seven departmental │ │ days but not more enquiry. │ │ than twenty-eight │ │ days with or │ │ without punishment │ │ drill or extra guard │ │ fatigue or other │ │ duty. │ │ 7. … … … … … … │ │ 8. Removal from any DIGP DIGP Comdt. Comdt. May be │ │ office of distinction inflicted │ │ or special without a │ │ emolument in the formal │ │ Force. departmental │ │ enquiry. │ │ 9. … │ │ 10. Confinement to - - - Comdt. - │ │ Quarter Guard for │ │ not more than │ │ seven days with or │ │ without punishment │ │ or extra guard │ │ fatigue or other │ │ duty. │ │ 11. … … … … … … │ │ Note. 1. When the post of Deputy Inspector General remains unfilled │ │ for a period of over one month at a time the Commandant shall │ │ exercise the powers of punishing the Subedars (Inspectors) and Sub │ │ Inspectors except the powers of ordering dismissal or removal from │ │ the Force. │ │ Note. 2. When the post of Commandant remains unfilled for a │ │ period of over one month at a time consequent on the incumbent │ │ proceeding on leave or otherwise, the Assistant Commandant shall │ │ exercise the powers of punishment vested in the Commandant, │ │ except the powers of ordering dismissal or removal from the Force. │ │ Explanation: (a) Dismissal of member of the Force precludes him │ │ from being reemployed in Government service while removal of any │ │ such member from the Force shall not be disqualification for any │ │ future employment (other than an employment in the Central │ │ Reserve Police Force) under the Government. │ │ (b) When nongazetted officers or men of the various ranks are to be │ │ punished for any offence; a departmental enquiry, if necessary under │ │ clause (a) shall be held by the Commandant or other superior officer │ │ under the orders of the Commandant, provided that when the charge │ │ is against an officer of the rank of Subedar (Inspector) or Sub │ │ Inspector the enquiry shall be held by an authority to be designated │ │ for the purpose by the Deputy Inspector General. Where the officer │ │ conducting the enquiry in the case of a Subedar (Inspector) or a Sub │ │ Inspector considers that a punishment under items (1) to (5) and (7) │ │ of the Table is called for, he shall complete the departmental │ │ proceedings and forward the same to the Deputy Inspector General │ │ for orders.(GSR 631 dated 27.8.1983) │ │ (c) The procedure for conducting a departmental enquiry shall be as │ │ follows: │ │ (1) The substance of the accusation shall be reduced to the form of a │ │ written charge, which should be as precise as possible. The │ │ charge shall be read out to the accused and a copy of it given to │ │ him at least 48 hrs. before the commencement of the enquiry. │ │ (2) At the commencement of the enquiry the accused shall be asked │ │ to enter a plea of “Guilty” or “Not Guilty” after which evidence │ │ necessary to establish the charge shall be let in. The evidence │ │ shall be material to the charge and may either be oral or │ │ documentary, if oral: │ │ (i) it shall be direct: │ │ (ii) it shall be recorded by the Officer conducting, the enquiry │ │ himself in the presence of the accused: │ │ (iii) the accused shall be allowed to cross examine the │ │ witnesses. │ │ ……..” │ └───────────────────────────────────────────────────────────────────────────────────────────────────┘
26. Adverting to the facts of the instant case, the High Court, in our considered view, fell in error in interfering with the punishment, which could lawfully be imposed by the departmental authorities for his proven misconduct. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and the interference made by the High Court is in a cavalier manner while recording the finding of penalty to be disproportionate without taking into consideration the seriousness of the misconduct committed by the respondent which is unpardonable and not sustainable in law.
27. Before we may conclude, we would like to observe that the employees who are in civil services, their disciplinary matters are being governed by their respective services (classification, control and appeal) rules and for the sake of instance, we take note of the Central Civil Services (Classification, Control and Appeal) Rules, 1965(hereinafter being referred to as the “Rules 1965”). The nature of penalties has been provided under Part V and removal and dismissal from service are in the category of “Major penalties”. If the misconduct is found proved, looking into the gravity and the nature of misconduct, either of the punishment, i.e., removal or dismissal from service, could be inflicted upon the civil servant after holding disciplinary enquiry for imposing major penalties if held guilty as provided under Part IV of the Rules 1965 and this what being ordinarily understood. The following penalties under scheme of Rules 1965 may, for good and sufficient reasons and as hereinafter provided can be imposed on a Government servant namely: “Minor penalties
(i) Censure;
(iv) withholding of increments of pay;
(vii) Compulsory retirement;
(viii) Removal from service, which shall not be a disqualification for future employment under the Government;
(ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government. ….”
28. In the instant case, the disciplinary matters of members of the force for minor punishments are being governed under Section 11 of the Act 1949 and if any nature of more heinous offence/less heinous offence being committed, if found proved, member of the force shall be punishable for imprisonment for a specified term as being referred to under Section 9 and Section 10 of the Act 1949 and at the same time, dismissal and removal from service are being considered to be the minor punishments as reflected from Section 11(1) of the Act 1949. If the allegation is found proved, the competent authority may award in lieu of, or in addition to, suspension or dismissal any one or more of punishments to a member of the force whom he considers to be guilty of disobedience, neglect or duty, or remissness in the discharge of any duty or of other misconduct with confinement in the quarterguard or removal as indicated under clauses (d) and (e) of Section 11(1) of the Act
1949.
29. The scheme of the Act 1949 of which reference has been made was completely overlooked by the High Court of Delhi and while keeping in mind the standards of examining the misconduct of a civil servant, interference has been made in the quantum of punishment which may not apply to member of the discipline force and, in our considered view, the interference made by the High Court in substituting punishment in the instant case is unsustainable and deserves to be set aside.
30. Consequently, the appeal succeeds and is allowed. The impugned judgment of the High Court of Delhi dated 11th February 2016 is quashed and set aside. No costs.
31. Pending application(s), if any, stand disposed of. ………………………J. (AJAY RASTOGI) ……………………….J. (ABHAY S. OKA)
NEW DELHI NOVEMBER 11, 2021