Calcutta High Court (Appellete Side)
Dd vs Union Of India & Ors on 11 March, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
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WP 22734 (W) 2010
18 11.03.2016 Asgar Ali Mirdha
dd Vs
Union of India & Ors.
Ms. Debjani Sengupta
Mr. Amal Kr. Banerjee
... ... For the petitioner
Mr. Ranjon Kr. Roy
... ... For the UOI
The hearing of the writ petition stood concluded on 18th February,
2016. However, this Court then felt further hearing was necessary
regarding award of punishment to the effect that the constable loses his
job for having been found in possession of Rs. 210/- as illegal
gratification. The writ petition was listed to give notice to learned
advocates after which it was called on for hearing today and heard on that
point.
So far as the hearing regarding other points is concerned the view of
the Court is as under :-
The petitioner was serving as a member of the Central Industrial
Security Force (CISF) as a constable. He was deployed on Pass Section of
CISF Unit in Farakka. He suffered issuance of charge sheet containing two
Articles of Charge. Article of Charge no. 1 was that when he was deployed
at Pass Section of CISF Unit for issue of passes to contractors/contract
labourers, vehicle passes etc, on 21st May, 2009 he collected illegal
gratification from those seeking passes from Pass Section. A Vigilance
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Team from Force Headquarters, New Delhi during surprise checking of
Pass Section on that day at about 10:30 hrs. recovered Rs. 210/- from the
custody/table drawer of the petitioner. The second Article of Charge was
that on that day he made entry and signed in the Duty Deployment Register
maintained at main gate no. 1, Control Room that he was having Rs. 10/- in
his possession. After surprise checking of Pass Section he erased and
overwrote the said Register to show he had Rs. 240/- in stead of Rs.
10/-. Both the acts on the part of the constable were alleged to tantamount
to gross misconduct, highly prejudicial to the discipline of the Force,
violation of the rules and regulations and implied orders, thereby
unbecoming of a member of the Force.
Mr. Banerjee, learned advocate appearing on behalf of the petitioner
submitted the charges were not proved. His client was awarded punishment
of removal from service with immediate effect which was shockingly
disproportionate to the charges levelled against him. His client having had
preferred an appeal before the Appellate Authority and thereafter applied
to the Revisional Authority, had then came up to this Court by this writ
petition challenging the orders of the Disciplinary, Appellate and
Revisional Authorities.
Mr. Banerjee, submitted there was no evidence adduced by the
prosecution to show that of the persons seeking entry at the gate on that
day someone had alleged to have tendered illegal gratification to his client
for obtaining pass. His client did not have any prior record of having
received illegal gratification. His client had also taken the defence that if
his client had been observed to have been taking illegal gratification, he
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should have been apprehended then and there. The money that was
recovered was found in the drawer in a room which other members of the
Force also used. The money was found inside a magazine and it was not
conclusively proved in the inquiry proceedings nor found by the
Disciplinary Authority that his client had kept the money there. So far as
the second charge is concerned, Mr. Banerjee submitted there was
insufficient evidence for the Disciplinary Authority to have found even that
charge was proved. He submitted the findings of the Disciplinary
Authority, of guilt, against his client on the evidence and materials on
record were thus perverse and likely to be set aside with the consequence
of the orders of the higher Authorities passed thereafter, also set aside.
Mr. Roy, learned advocate appearing on behalf of the Union of India
submitted there was no allegation or submission made regarding lapse of
procedure. The order of the Disciplinary Authority and the Authorities
thereafter were well-reasoned orders. There was no perversity in the
findings made by the Disciplinary Authority and confirmed thereafter. The
punishment awarded was in accordance with the Central Industrial Security
Force Rules, 2001. He submitted no interference was warranted.
This Court has perused the final order. Certain portions thereof
regarding the findings on the two charges are required to be reproduced
herein :-
"ARTICLE OF CHARGE -I
... .... .... .... .... ....The PW-I stated that on 21.05.2009 at
about 0900 hrs he along with team reached the Pass Section of
CISF Unit, NTPC Farakka. Next SI/Exe S.S. Yadav, ( PW-IV),
Ct. V.S. Rai proceeded to the two counters of the pass section
pretending to be those who were seeking passes and started
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observing the activities at the counter. After watching activities
for some time, both came back and reported that the Constable
on duty at the Pass Section (No.944521528 Const Asgar
Ali Mirdha) was collecting money as illegal gratification from
the contractors/transporters who were seeking pass from the
pass section.)
..... ...... ....... ... ....
Subsequently they conducted surprise checking of the pass
section and recovered the collected money from charged
official's table drawer. PW-I, PW-II, PW-III, PW-IV and PW-V
stated that Constable Asgar Ali Mirdha (Charged Official)
admitted in their presence after recovery of Rs. 210/- from his
table that he collected the money from the
contractors/transporters who approached to him for passes. All
these points clearly established the fact that the charged official
collected the money from the contractors/transporters. It is
mentioned herein that the version of eye witness (PW-IV)
supported by the statements of PWs is sufficient enough to
prove that the charged official was collecting illegal money as
gratification for issue of passes, as such the statement of
Constable V.S. Rai was not necessitated.
..... ...... ....... ... ....
PW-I along with Inspector/Exe J.K. Bolia (PW-III) reached the
pass section through Main Gate and found the door was locked
from inside. This aspect of locking the door from inside was
already observed and known to them. When the door was
knocked twice, there was no response from inside. Again the
door was knocked after a pause, but nobody responded. PW-I
then asked PW-III to call out the name of 1/C Pass Section,
SI/Exe P.S. Roychoudhury (PW-V) in a loud voice. The door
was then opened and they entered in the pass section and
introduced themselves also explained the purpose of their
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coming and authority for the same. Shri M. Doimary, Asstt.
Comdt. (PW-II) of the Unit who was, by co-incidence sitting in
the Control room was called upon and requested to assist them
as a witness of surprise checking. The team introduced
themselves to Shri Doimary (PW-II) also and explained
purpose and authority for the visit. In the presence of Shri
Doimary, AC (PW-II) of the Unit, surprise checking of the
drawers of the table on which CISF No. 944521528 Constable
Asgar Ali Mirdha was working, was carried out. During the
search of drawers on the right side of the table a Bengali
Magazine "Sanonda" (Dec'08) was found in the lowest of the
table drawer. On opening/searching the pages of the Magazine,
it was found that currency notes of Rs. 10/-, 20/- and 50/-
denominations amounting to Rs. 210/- were kept concealed in
between the pages of the Magazine. Constable Asgar Ali
Mirdha turned very tense and nervous and it appeared as if he
would faint. He was offered to drink and the then asked to
explain the presence of concealed currency notes inside the
Bengali Magazine which was found in his drawer of the table
on which he was working on. Charged Official in presence of
Sri Doimary, AC (PW-II) and the vigilance team admitted that
he had collected the money from the contractors/transporters
from 9 A.M. onwards on 21.05.2009 seeking issue of passes.
Immediately after admitting the same Constable Asgar Ali
Mirdha fell down on his knees and touched his feet again and
again and begged for pardon and requested to give him a
chance.
..... ...... ....... ...
The above facts were supported by the corroborative
statements of P.W-II, P.W.-III, P.W.-IV and P.W.-V. The
version of the charged official that there was no standard
proofs of collection of money from Contractors/Transporters
and no contractor/transporters complained that he had taken
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money from them. The statement of P.W-IV who was an prime
eye witness while collecting money by the charged official is
also corroborated by the statements of P.W.-I and P.W.-II.
Further, S.I/Exe. S.S. Yadav (P.W.-IV) with his assistant
Constable V. S. Rai were also watching from the two counters
of pass section pretending to be those who were seeking passes.
..... ...... ....... ...
ARTICLE OF CHARGE -II
From the records, it is seen that Prosecution presented the
case through the deposition of P.W.-I, P.W.-V and PW-VI and
Exhibits produced by P.W.-VI (P.W.-VI, Exhibit P.1)
corroborating the fact that the charged official erased and
overwrote the General shift duty deployment register
maintained at Control Room Gate 1 in the specific column
pertaining to pocket money on 21-05-2009.
..... ...... ....... ... ....
On verification of general shift duty deployment register record
pertaining to pocket money in respect of Const. Asgar Ali
Mirdha (Charged Official), on the dates 18-05-2009 (Exhibit
No. 16, P.W.-VI, Exhibit P-3), 19-05-2009 (Exhibit No. 17,
P.W. -VI, Exhibit P-4), 20-05-2009 (Exhibit NO. 18, PW-VI,
Exhibit P-5) and 21-05-2009 (Exhibit No. 19, P.W.- I, Exhibit
P-6), it was found that the entries were erased and overwritten.
It was found that on 21-05-2009, the same record was
overwritten as Rs. 240/-.
..... ...... ....... ... ....
Further, all the personnel including Constable Asgar Ali
Mirdha (Charge Official) were directed not to keep more that
Rs. 10/- during the duty hours and entries to be made by all in
the duty deployment register. During the course of re-
examination of P.W.-V by the Presenting Officer, P.W.-V
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replied that as per the existing practice the personnel of
general shift duty should keep Rs. 10/- in their possession and
in case more than Rs. 10/-, the actual amount should be
mentioned in the General Shift duty register and also in the
General diary. But, the charged officials did not take any
cognizance on this issue. He firstly made entries in pocket
money column correctly but soon after recovery of Rs. 210/- by
the vigilance team on 21-05-2009 from the table drawer of
Charged Official, erasing and overwriting was made by himself
hurriedly on the same day to cover up his grave offence."
The above are findings of facts in a proceeding against which the
petitioner was unable to bring an allegation of procedural lapse. Such
findings are based on reasons given emanating from the materials and
evidence considered by the Disciplinary Authority. They cannot be said to
be findings which a prudent person would not make on the materials and
evidence relied upon. The charges found proved, no infringement of the
said Rules was shown in the matter of award of punishment.
On the point of proportionality of punishment Ms. Sengupta, learned
advocate appearing today on behalf of the petitioner submits, the petitioner
had put in 16 years of service and there was no prior blemish in his service
record. There was discrepancy in the allegation of overwriting as had been
held proved against the petitioner to the extent that he had declared to have
Rs. 10/- on his person at the commencement of his duty hours and
thereafter alleged to have overwritten the register to show he had Rs. 240/-.
The inconsistency, according to Ms. Sengupta, points to lack of proof of
that charge where the aggregate of Rs. 10/- and Rs. 210/- allegedly found
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in the possession of the petitioner would be the aggregate amount of money
of Rs. 220/-.
She relies on a judgment of the Supreme Court in the case of Ishwar
Chandra Jayaswal vs. Union of India reported in (2014) 2 SCC 748 in
particular to the following paragraphs which are set out below :-
"2. The Division Bench was confronted with the dismissal
from service of the Appellant Dr. Ishwar Chandra Jayaswal
against whom three Articles of Charges had been framed.
Article-I was that he demanded and accepted a sum of Rs.
26/- from Shri Pyare Ram, Khalasi for issuing in his favour a Fit
Certificate. Article-II, in similar vein was that the Appellant
demanded and accepted a sum of Rs. 34/- from Shri Nandlal,
Semi-skilled Revetter for issuing him a Fit Certificate. Article-III
was that the Appellant had demanded and accepted Rs. 18/- from
Shri Balroop, Semi-skilled Revetter for issuing of Fit Certificate.
The Inquiry Officer, after duly perusing the entire evidence,
returned a finding that Charge 1 and 3 had been proved. The
Disciplinary Authority, after considering the response of the
Appellant, by its Order dated 22.1.1991 imposed the penalty of
removal of the Appellant from Service.
... ... ... ... ... ....
5. It is now well settled that it is open to the Court, in all
circumstances, to consider whether the punishment imposed on
the delinquent workman or officer, as the case may be, is
commensurate with the Articles of Charge levelled against him.
There is deluge of decisions on this question and we do not
propose to travel beyond Union of India v. S.S. Ahluwalia (2007)
7 SCC 257 in which this Court had held that if the conscience of
the Court is shocked as to the severity or inappropriateness of the
punishment imposed it can remand the matter back for fresh
consideration to the Disciplinary Authority concerned. In that
case, the punishment that had been imposed was the deduction of
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10% from the person for a period of one year. The High Court
had set aside that order. In those premises, this Court did not
think it expedient to remand the matter back to the Disciplinary
Authority and instead approved the decision of the High Court.
6. The Appellant before us is presently 75 years of age. At the
time when the Articles of Charge had been served upon him, he
had already given the best part of his life to the service of the
Respondent-Indian Railways. It has been contended before us
that the three charges that have been sustained against the Appellant reflected only the tip of the iceberg; however, there is no material on record to substantiate this argument of Respondents. In the present case the Appellant has served the Respondents for a period of twenty three years and removal from service for the two charges levelled against him shocks our judicial conscience. Part III of the Railways Servants (Discipline & Appeal) Rules, 1968 contains the penalties that can be imposed against a Railway servant, both Minor Penalties as well as Major Penalties. We have already noted that it has not been established that the appellant had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate. However, since two of the three charges have been proved, we are of the considered opinion that the imposition of compulsory retirement i.e. Penalty 6(vii) would have better and more appropriately met the ends of justice. While this would have instilled sufficient degree of fear in the mind of the employees, it would also not have set at naught several years of service which the Appellant had already given to the Respondent-Indian Railways. We think that deprivation of retiral benefits in addition to loss of service is entirely incommensurate with the charge of the Appellant having taken very small sums of money for the issuance of Fit Certificate to other Railway employees.
7. It is in these premises that the Appeals are accepted and the impugned Order dated 11.10.2010 is set aside. The Appellant 10 shall be deemed to have compulsorily retired under Part-III Penalty 6(vii) of the aforementioned Railway Rules with effect from 22.1.1991. If he is entitled to retiral or other benefits on the said date, the Respondents shall make necessary payment within three months from today. This decision is restricted to the facts of the present case."
Mr. Roy, learned advocate appearing on behalf of the Union of India also relies on two judgments of the Supreme Court. The first is a judgment dated 5th January, 2015 in Civil Appeal no.3655 of 2010 [Diwan Singh vs. Life Insurance Corporation of India & Ors.]. The second judgment is the case of Deputy Commissioner, KVS & Ors. v. J. Hussain reported in AIR 2014 SC 766.
In Diwan Singh (supra) he relies on paragraph 11 as is set out below :-
"11. In Rajasthan State Road Transport Corporation and another v. Bajrang Lal [(2014) 4 SCC 693] this Court, following the case of Municipal Committee, Bahadurgarh v. Krishnan Behari and others [(1996) 2 SCC 714], has opined that in cases involving corruption there cannot be any other punishment than dismissal. It has been further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. In said case (Rajasthan SRTC), the respondent/employee was awarded punishment of removal from service. In the present case it is compulsory retirement. Learned counsel for the respondents submitted that on earlier occasion, appellant was awarded minor punishment, for his misconduct, regarding defalcation of stamps. And now he is found guilty for the second time."11
In J. Hussain (supra) he relies on the following portions which are set out below :-
"6. When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See: Union of Dadra and Nagar Haveli v. Gulabhia M Lad (2010) 5 SCC 755 : (2010) AIR SCW 3785)... ...... ...... ...
7. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in 12 the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service in the following words:
"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds on which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality."
This Court notices that by Ishwar Chandra Jayaswal (supra) the Supreme Court in adjudicating the question of proportionality of the punishment awarded in the facts of that case held that the delinquent having served the respondent for a period of 23 years, removal from service for the two charges of three found proved levelled against him shocked the judicial conscience. The charges amounted to illegal gratification and the sums involved were small. The said Court was of the view that the penalty of compulsory retirement would more appropriately meet the ends of justice as it would have instilled sufficient degree of fear in the minds of the employees and also not have set at naught several 13 years of service that the delinquent had put in.
The facts in the Diwan Singh (supra) appear to be that the order of removal from service was set aside in a writ petition. On appeal preferred the appeal was partly allowed by substituting the punishment of removal from service with compulsory retirement. The appeal preferred before the Supreme Court was on the ground of proportionality of such punishment of compulsory retirement. The said Court while dealing with the appeal took note of the submission of learned counsel for the respondents that on earlier occasion the appellant was awarded minor punishment for his misconduct regarding defalcation of stamps and he had been found guilty for the second time. On those facts the said Court was of the following view taken in paragraph 7 of the said judgment.:-
"7. As far as argument relating to quantum of punishment, as modified by the High Court, which results in consequential forfeiture of pensionary benefits in view of Rule 23, quoted above, is concerned, we do not find the punishment to be harsh or disproportionate to the guilt, in view of the nature of the charge of which the appellant is found guilty in the present case. Time and again, this Court has consistently held that in such matters no sympathy should be shown by the Courts."
In adjudicating this point of proportionality of punishment this Court has before it the parameters for the exercise of power of judicial review as declared in J. Hussain (supra). In exercising such power of judicial review the consideration of the facts and circumstances is to be made as in Ishwar Chandra Jayaswal (supra). While so considering this Court must keep in mind that the adjudication of proportionality of punishment award on a charge of corruption, no sympathy should be shown as held in 14 Diwan Singh (supra).
This Court finds the petitioner does not have any record of misconduct apart from the charges brought against him and proved. The sums found to have been accepted by him as illegal gratification was pursuant to observation made by Vigilance Personnel as recovered from a magazine in the room occupied by the petitioner while on duty. While the facts in Ishwar Chandra Jayaswal (supra) were that charges regarding demand and acceptance of money were found to have been proved, the facts in the case at hand are a little different. Keeping in mind the declarations of law made by the Supreme Court in the cases cited and referred to above, this Court is of the view that the punishment of removal of service, in the facts and circumstances, is shockingly disproportionate. The Disciplinary Authority's order and those consequent regarding award of punishment are set aside to that extent. The award of punishment is to be revisited by the Disciplinary Authority.
The question of the award of punishment should be decided within a period of four weeks from the date of communication of a copy of this order to be made by the petitioner upon the respondent no. 6, as has been submitted at the Bar to be, the appropriate Authority.
The writ petition is disposed of.
Urgent certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Arindam Sinha, J.) 15 16