Meghalaya High Court
Shri Puran Singh vs The Union Of India And Ors on 13 June, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C)No.121/2013
Shri. Puran Singh (No.810060086 HC/GD),
S/o Ram Singh, R/o Chinki Farm,
P.O. - Bigarabagh, Khatima,
District: Udham Singh Nagar,
Uttarakhand. :::: Petitioner
-Vs-
1. The Union of India,
represented by the Secretary to the
Govt. of India, Ministry of Home Affairs,
New Delhi-110001.
2. The Director General,
Central Reserve Police Force,
New Delhi.
3. Inspector General, NES, C.R.P.F.,
Bishop Cotton Road, Shillong,
(Meghalaya) Pin-793001.
4. The Deputy Inspector General of Police,
C.R.P.F., Kohima (Nagaland).
5. Commandant of 35th Battalion,
C.R.P.F., Thoubal (Manipur). :::: Respondents.
BEFORE
THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. BK Deb Roy, Adv
For the Respondents : Mr. R Deb Nath, CGC
Date of hearing : 13.06.2014
Date of Judgment & Order : 13.06.2014
JUDGMENT AND ORDER(ORAL)
By this writ petition, the petitioner is praying for quashing the
order dated 06.08.1998 issued by the respondent No.5, Commandant 35th
Battalion CRPF Thoubal, Manipur and also the order dated 01.09.2000
issued by the respondent No.3, Inspector General NES, CRPF, Bishop
Page 1 of 21
Cotton Road, Shillong for dismissing the revision petition filed by the
petitioner against the order dated 23.09.2009 passed by the DIG-P CRPF,
Kohima for rejecting the appeal filed by the petitioner against the dismissal
order dated 06.08.1998 as well as the said order dated 23.09.2009 issued by
the DIG-P, CRPF, Kohimna.
2. Heard Mr. BK Deb Roy, learned counsel for the petitioner and
Mr. R Deb Nath, learned CGC appearing for the respondents.
3. The reasons for the delay in approaching this Court by filing the
present writ petition are that the petitioner had earlier filed a writ petition
being WP(C)No.1300(S/S) of 2006 in the High Court of Uttarakhand at
Nainital for challenging the impugned orders and the said writ petition i.e.
WP(C)No.1300(S/S) of 2006 had been finally disposed of by the Uttarakhand
High Court vide order dated 09.04.2013 with the observations that the
petitioner would be at liberty to assail the impugned orders before the
appropriate forum, if so advised. Accordingly, the petitioner filed the present
writ petition in the month of May, 2013.
4. The fact sufficient for deciding the present writ petition is briefly
noted.
5. The petitioner was recruited on 26.03.1981 as a Constable in
the Central Reserve Police Force (for short „CRPF‟) and had done duty at
several border areas of India more than 16 years without any complaint. On
21.05.1998, the petitioner was supposed to do sentry duty from 2030 hrs.
One of his colleagues namely, Govinda Barman came to remind him of his
duty. It is also stated that the petitioner was not able to get up from the bed
due to serious pain of his body and requested him to do the needful.
Page 2 of 21
Thereafter, Havildar Radhey Shyam Pandey came to meet the petitioner and
the petitioner explained to him his physical condition and requested him to
help. Havildar Radhey Shyam Pandey, performed his duty in the night. For
that incident, the respondent No.5, Commandant 35th Battalion CRPF,
Thoubal, Manipur drawn up a departmental enquiry against the petitioner
under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF
Rules, 1955 for the two articles of charges, which read as follows:-
"ARTICLE -I
"That the said No.810060086 HC Puran Singh of E/35 Bn
CRPF was detailed for patrolling duty on 21/5/98 from 2030
hours but he did not turn up for his duty, but was sleeping in his
charpoy in an intoxicated state. He was medically examined
and the intoxication was confirmed by the report of the medical
officer. Thus, he was guilty of neglect/remissness in the
discharge of duty in his capacity as a member of the Force
under Section 11(1) of the CRPF Act, 1949".
ARTICLE-II
"That during the aforesaid period and while functioning in the
aforesaid office, the said No.810060036 HC/GD Puran Singh of
E/35 Bn CRPF, did not turn up for his duty from 1030 hrs on
21/5/98 (Patrolling duty in the night). When CHM of E/35 Bn
CRPF No.690380032 HC Radhey Shyam Pandey had asked
No.810060086 HC/GD Puran Singh as to why he did not turn
up for his duty, the said HC Puran Singh had replied using the
un-parliamentary language "Main Nahin Uthunga, Main
Tumhara naukar nahin hun" etc. On seeing that HC Puran
Singh was under the influence of liquor and was not in a
condition to perform the duties, HC Radhey Shyam Pandey
(CHM) himself performed the duties in place of HC/GD Puran
Singh. Thus, HC/GD Puran Singh is guilty of mis-conduct in his
capacity as a member of the Force U/S 11(1) of the CRPF Act,
1949".
6. The said two articles of charges against the petitioner show
very clear that the charges leveled against the petitioner are for the
misconduct of the petitioner in his capacity as a Constable under Section
11(1) of the CRPF Act, 1949. After full length departmental enquiry, the
enquiry officer submitted the report that the charges leveled against the
Page 3 of 21
petitioner had been proved and basing on the report of the enquiry officer,
the disciplinary authority i.e. the respondent No.6, Commandant 35th
Battalion CRPF Thoubal, Manipur issued the impugned order dated
06.08.1998 for removing the petitioner from service. In the impugned order
dated 06.08.1998, the disciplinary authority made findings that the petitioner
had committed the offences of serious misconduct/misbehavior in his
capacity as a member of the Force under Section 11(1) of the CRPF Act,
1949. For easy reference, the relevant portions of the impugned order dated
06.08.1998 wherein, the disciplinary authority made the said findings are
quoted hereunder:-
5. I have carefully gone through the D.E. proceedings,
report of the Enquiry Officer and other documents
available before me and found that article of charges
leveled against the delinquent No. 810060086 HC/GD
Puran Singh (Under Suspension) have been PROVED
BEYOND ANY SHADOW OF DOUBT. He has
committed the offences of serious mis-conduct/mis-
behaviour in his capacity as a member of the Force
under Section 11 (1) of the CRPF Act, 1949 and I do not
consider the delinquent No. 810060086 HC Puran
Singh, to be a fit person to be retained in service.
6. Therefore, in exercise of powers conferred on me
Under Section 11 (1) of CRPF Act, 1949 read with Rule
27 of CRPF Rules, 1955 and table there-under, the
undersigned awards No. 810060086 HC Puran Singh
(Under Suspension of E/35 Bn CRPF, the punishment of
„REMOVAL FROM SERVICE‟ w.e.f. 6/8/98 (AN). He will
stand struck off strength of this Unit from the same date.
He is released from suspension w.e.f. 6/8/98 (AN) and
the period of his suspension from 24/5/98 (FN) to 6/8/98
(AN) shall be treated „AS SUCH‟ and he will not be
entitled to any benefits other than the emoluments
already paid to him.
7. All medals and decorations, if earned by the above
delinquent during his service are also to be fore-feited
under the provisions contained in Section 12 (1) of the
CRPF Act, 1949 Govt. dues if any, outstanding against
him, will be adjusted from the payable dues of the
delinquent. His particulars are as under:-
Page 4 of 21
Father‟s name : Shri. Ram Singh
Village : Barkhaleka
Post Office : Jakhpuram
PS/Teh/Distt : Pithoragarh (UP)
Sd/-
(R.S.H.S. Sahota)
Commandant 35th Bn CRPF
Thoubal, (Manipur)
To,
No.810060086 HC/GD Puran Singh
(Through Adjutant-35 Bn CRPF)".
7. The petitioner being aggrieved by the impugned dismissal order
dated 06.08.1998 preferred an appeal under Rule 28(e) of the CRPF Rules,
1955 before the appellate authority i.e. DIG-P, Kohima. The appellate
authority dismissed the appeal vide order dated 23.09.1999. Copy of the said
order dated 23.09.1999 is available at Annexure-4 to the writ petition. It is the
case of the petitioner that the said order of the appellate authority dated
23.09.1999 is not a speaking order and the appeal was simply dismissed
only on the ground that the appellant had not brought out any new facts in his
appeal to be considered afresh except those which do not have any base or
merit. The findings of the appellate authority in the order dated 23.09.1999
reads as follows:-
"OFFICE OF THE DY. INSPECTOR GENERAL OF
POLICE, CRPF, KOHIMA
No. R.XIII-4/99-EC-III Dated, the Sept‟99
ORDER
(EOB - 225/99) A Departmental Enquiry was held against No. 810060086 HC Puran Singh of 35 Bn. CRPF, under Section 11 (1) of the CRPF Act, 1949 on the following charge:-
Page 5 of 21
***** ***** ***** ***** ***** ***** *****
3. Aggrieved with the said order of disciplinary authority, the accused has come up with an appeal dated 27/10/98, received through Col. Ashok Kumar (Retd), Counsel for the petitioner vide letter dated 31/12/98 which is received in this office on 13/5/99. On checking the appeal, it is seen that the same has been addressed to the Director General, CRPF New Delhi but as per existing instructions, appeal should have been addressed to the appellate authority (i.e. DIGP, CRPF Kohima).
However, the appeal has been entertained in the larger interest of natural justice under Rule 28 (e) of CRPF Rules, 1955 for consideration, though it can be barred by limitation of time.
4. I have gone through the appeal alongwith D.E. proceedings and comments offered by the disciplinary authority. The E.O. has conducted the D.E. in accordance with the Rules and strictly as per guidelines on the subject and no procedural error has been noticed. The delinquent was given sufficient/ample opportunity to defend his case and copy of report of the enquiry officer was also provided, to the delinquent by the disciplinary authority to make representation, if any, if he wished to do so in writing within the prescribed time. Accordingly the delinquent submitted representation/application dated Nil, which has also been duly considered by the disciplinary authority before passing final order dated 6/8/98.
5. The appellant has not brought out any new facts in his appeal to be considered afresh except those which do not have any base or merit. The charges leveled against him have been proved duly substantiated with evidence on record adduced during the enquiry. Hence there is no valid grounds to interfere with the orders passed by the commandant and to set aside the punishment awarded to him.
6. I, therefore, feel that it is a clear case of violation of service conduct Rules and the punishment awarded to the appellant by the disciplinary authority is not only justified but appropriate too. The appeal is therefore rejected being time barred and devoid or merit."
8. The appellant also filed a revision petition against the said order of the appellate authority i.e. 23.09.1999 before the Inspector General, NES, CRPF, Shillong (respondent No.3). The respondent No.3 also again dismissed the revision petition vide order dated 01.09.2000. The appellate authority as well as the revisional authority had upheld the findings of the disciplinary authority i.e. the respondent No.6 that the petitioner had Page 6 of 21 committed misconduct/neglected duty in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949. The main grounds taken in the present writ petition for assailing the impugned orders aforesaid are that Section 11(1) of the CRPF Act, 1949 deals with minor punishments. The punishment of removal from service is not provided under Section 11(1) of the CRPF Act, 1949, but the Commandant under Section 11(1) of the CRPF Act, 1949 imposed the punishment of removal from service to the petitioner by passing the impugned order dated 06.08.1998. The disciplinary authority is not authorized to impose any penalty according to his convenience, whims, and fancies with malicious intentions. This ground is taken in Para 15 of the writ petition.
9. The respondents filed joint affidavit-in-opposition wherein, their replies to Para 15 of the writ petition are that the offences committed by the writ petitioner are serious in nature. The disciplinary authority taking lenient view had awarded „Removal from service‟ and not „Dismissal from service‟ which would thereby only barred the petitioner from being re-employed in the Force again leaving him scope to seek employment in other organization. The Commandant being the disciplinary authority is fully empowered to award either of a penalty of removal/dismissal from service under Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules, 1955.
10. In the present case, this Court is called for decision as to whether the major penalty of dismissal/removal from service can be imposed to the petitioner by the disciplinary authority in exercise of the powers under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955 for neglect of duty or remissness in the discharge of any duty or of other misconduct in his capacity as member of the Force. As the said issue is required to be decided by looking into Section 11(1) of the CRPF Act, 1949 Page 7 of 21 and Rule 27 of the CRPF Rules, 1955, it would be more profitable to quote Section 11(1) of the CRPF Act, 1949 hereunder:-
"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 considered 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 quarter-guard 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."
11. Rule 27 of the CRPF Rules, 1955 is not quoted inasmuch as, it is clear from the Rules that the Commandant is the competent authority for dismissal or removal of a Constable from the Force. The question in the present case is that can a Commandant imposed major penalty of dismissal or removal from service in exercising his powers under Section 11(1) of the CRPF Act, 1949. The purpose of Section 11 of the CRPF Act, 1949 is also clear from the caption itself "minor punishments" and the purpose is to provide the cases where minor punishments could be imposed. Section 11(1) of the CRPF Act, 1949 itself shows that what are the minor punishments i.e. minor penalties are:-
Page 8 of 21
"(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 quarter-guard 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."
12. On bare perusal of Section 11(1) of the CRPF Act, 1949, it is clear that dismissal or removal from service are not the type of minor penalties mentioned in Section 11(1) of the CRPF Act, 1949. Minor penalty under Section 11(1)(e) i.e. "removal from any office of distinction or special emolument in the Force" should not be understood as removal from service inasmuch as, the said minor penalty is only removal from any office of distinction hold by the delinquent or special emolument in the Force enjoyed by the delinquent. It is, no doubt, well settled that it is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or in-consistency therein and not otherwise. An effort should be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered superfluous or redundant. True meaning of a provision of law is to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. (Reference may be made to Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors, reported in (2003) 2 SCC 111. It is cardinal rule of construction that no word should be construed redundant or surplus in interpreting the provision of a statute or rule (Ref: Dinesh Chandra Sangma Vs. State of Assam & Ors: Page 9 of 21
AIR 1978 SC 17). The Apex Court in State of Maharashtra & Ors. Vs. Santosh Shanker Acharya: (2000) 7 SCC 463 held that it is too well known principle of construction of statute that the legislature engrafted every part of the statue for a purpose. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. The Apex Court in Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors.:
(2003) 2 SCC 111 held that it is the basic principle of construction of statute that statutory enactment must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.
13. The Apex Court in State of Gujrat & Anr v. Justice R.A. Mehta (Retired) & Ors: (2013) 3 SCC 1 held that:
"96. In the process of statutory construction, the court must construe the Act before it, bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void, i.e., a statute must be construed in such a manner, so as to make it workable. Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd.: 1940 AC 1014: (1940) 3 All ER 549 (HL) stated as follows: (AC p.1022) "......if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result."
97. Similarly in Whitney v. IRC: 1926 AC 37 (HL), it was observed as under: (AC p.52) Page 10 of 21 "...... A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable."
98. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction, which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred, looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. "The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed so as to make it effective and operative." The court must take a pragmatic view and must keep in mind the purpose for which the statute was enacted, as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus, legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure that the Act itself does not become a dead letter, and the obvious intention of the legislature does not stand defeated, unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy and "to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico". The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute. (Vide: M. Pentiah v. Muddala Veeramallappa: AIR 1961 SC 1107, S.P. Jain v. Krishna Mohan Gupta: (1987) 1 SCC 191: AIR 1987 SC 222, RBI v. Peerless General Finance and Investment Co. Ltd.: (1987) 1 SCC 424: AIR 1987 SC 1023, Tinsukhia Electric Supply Co. Ltd. v. State of Assam: (1989) 3 SCC 709: AIR 1990 SC 123 SCC p.754 para 118, UCO Bank v. Rajinder Lal Capoor:
(2008) 5 SCC 257: (2008) 2 SCC (L&S) 263 and Grid Corpn.
of Orissa Ltd. v. Eastern Metals and Ferro Alloys: (2011) 11 SCC 334)."
14. The Apex Court in Raghunath Rai Bareja & Anr v. Punjab National Bank & Ors: (2007) 2 SCC 230 held that:
Page 11 of 21
"40. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board of India: (2004) 11 SCC 641: AIR 2004 SC 4219. As held in Prakash Nath Khanna v. C.I.T.: (2004) 9 SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corpn. v. Rajiv Anand: (2004) 11 SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of A.P. v. Road Rollers Owners Welfare Assn.: (2004) 6 SCC 210 and the Court should not seek to amend the law in the garb of interpretation.
46. The rules of interpretation other than the literal rule would come into play it there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. v. CIT: (2003) 5 SCC 590.
47. It is only where the provisions of a statue are ambiguous that the court can depart from a literal or strict construction vide Nasiruddin v. Sita Ram Agarwal: (2003) 2 SCC 577: AIR 2003 SC 1543. Where the words of a statue are plain and unambiguous effect must be given to them vide Bhaiji v. Sub- Divisional Officer: (2003) 1 SCC 692."
It is now well settled principle of construction of statute that statutory enactment must ordinarily be construe according to their plain meaning and also not make the statutory enactment unintelligible, absurd, unreasonable and unworkable.
15. Mr. R Deb Nath, learned CGC appearing for the respondents contended that the Commandant in exercise of his powers under Section Page 12 of 21 11(1) of the CRPF Act, 1949, has the power to dismiss or remove the petitioner from service. If the said submission of Mr. R Deb Nath, learned CGC is to be accepted, Section 11(1) of the CRPF Act, 1949 would be unworkable or totally irreconcilable with the statute inasmuch as, the minor penalty cannot be imposed to the delinquent, who had already been removed from service and minor penalty could be imposed only to the delinquent who is in service. Therefore, the question of imposing minor penalty under Section 11(1) of the CRPF Act, 1949 would not be arisen in case the delinquent who had been removed from service. In the present case, it is clear from the impugned orders that the petitioner is found guilty for neglecting of duty or remission in the discharge of any duty in his capacity as a member of the Police Force and for that type of misconduct, only minor penalty contemplated under Section 11(1) of the CRPF Act, 1949 is to be imposed to the petitioner.
16. Mr. BK Deb Roy, learned counsel for the petitioner strenuously contended that imposing of major penalty i.e. removal from service for misconduct committed by the petitioner in an inebriated condition in the discharge of his sentry duty is wholly disproportionate. Ordinarily the High Court should not interfere with the quantum of punishment imposed by the disciplinary authority. However, the High Court interferes with the punishment imposed upon the delinquent if impermissible in law or wholly disproportionate to the misconduct found to have been committed by the delinquent officer. The Apex Court in Ramesh Chandra Sharma v. Punjab National Bank & Anr: (2007) 9 SCC 15 held that:
"29. Moreover, it now a trite law that ordinarily the High Court should not interfere with the quantum of punishment imposed by the Disciplinary Authority. (See U.P.S.R.T.C. v. Ram Kishan Arora: (2007) 4 SCC 627: (2007) 6 Scale 721). It has not been found by the High Court that the punishment imposed Page 13 of 21 upon the appellant was impermissible in law or wholly disproportionate to the misconduct found to have been committed by the delinquent officer.
30. Our attention has been drawn to a decision of this Court in S.P. Badrinath vs. Govt. of A.P : (2003) 8 SCC 1: 2003 SCC (L&S)1196. This decision has no application in this case, as we have noticed in the present case that the acts of misconduct proved against the appellant were of grave nature.
31. The High Court itself has noticed a large number of decisions and formed the opinion that the charges levelled against the delinquent officer were of grave nature. A major punishment may be inflicted even where no pecuniary loss was caused to the Bank by reason of the act of the delinquent officer. In support of the aforementioned proposition of law, the High Court opined:
"The charges leveled against the petitioner, which were found proved upon enquiry, are quite serious in nature. The petitioner had engaged himself in reckless lending causing huge financial loss to the Bank to the extent of Rs. 1,14,87,164.76. It also shows that the petitioner had disbursed loan through middlemen and demanded and received illegal gratification from a borrower. We are of the considered opinion that in such cases, the officers of the Bank should not be permitted to continue in service at all.
Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity. A necessary implication which must be engrafted on the contract of service is that the servant must undertake to serve his master with good faith and fidelity. In a case of loss of confidence, reinstatement cannot be directed. Granting such an employee the relief of reinstatement would be "an act of misplaced sympathy which can find no foundation in law or in equity.‟ [Vide Air India Corporation Vs. V.A. Ravellow: (1972) 1 SCC 814: AIR 1972 SC 1343; Binny Ltd. Vs. Workmen: (1974) 3 SCC 152: 1973 SCC (L&S) 444: AIR 1973 SC 1403; Kamal Kishore Lakshman Vs. Pan American World Airways: (1987) 1 SCC 146: 1987 SCC (L&S) 25: AIR 1987 SC 229; Francis Klein & Co.(P) Ltd. Vs. Workmen: (1972) 4 SCC 569: AIR 1971 SC 2414; Regional Manager, Rajasthan SRTC Vs. Sohan Lal: (2004) 8 SCC 218: 2004 SCC (L&S)1078 and Bharat Heavy Electricals Ltd. Vs. M. Chandrashekhar Reddy: (2005) 2 SCC 481: 2005 SCC (L&S) 282: 2005 AIR SCW 1232].
In Kanhaiyalal Agrawal & Ors. Vs. Factory Manager, Gwalior Sugar Co. Ltd.: (2001) 9 SCC 609: 2002 SCC (L&S) 257, the Hon'ble Supreme Court laid down the Page 14 of 21 test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (i) the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved."
Reliance in this regard has also been placed by the High Court on the decision of State Bank of India v. Bela Bagchi: (2005) 7 SCC 435: 2005 SCC (L&S) 940: AIR 2005 SC 3272."
17. Lord Diplock in Counsil of Civil Service Unions -Vrs- Minister for Civil Service (called CCSU case) summarize the principle of judicial review of administrative action as based upon one or the other of the following, viz. legality, procedural, irregularity, and irrationality. He, however, opined that "proportionality" was as "future possibility". According to my opinion (this Court), Lord Diplock for the first time opened the window of "proportionality" in the judicial review of administrative action. Now, the Apex Court in a catena of cases held that "proportionality" is one of the basis for judicial review of the quantum of punishment imposed on the delinquent/employee by the disciplinary authority. While exercising the power of judicial review of the quantum of punishment basing on "proportionality" the court is applying Wednesbury Principle as secondary reviewing authority and also the court will not apply "proportionality" as a primary reviewing court. Therefore, the court could exercise right of secondary review based only on Wednesbury Principle. Lord Bridge explained the primary and secondary review in Brind Case [(1991) 1 AC 969: (1991) 1 All ER 720:
(1991) 2 WLR 588 (HL) as follows:Page 15 of 21
"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonable make the primary judgment."
The Constitution Bench E.P. Royappa -vrs- State of Tamil Nadu, (1974) 4 SCC 3: 1974 SCC (L&S) 165 held that where a punishments in disciplinary cases are challenged, question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury Test. The Apex Court in Union of India - vrs - G.Ganayutham: (1997) SCC (L&S) 1806 had summed up position relating to "proportionality" in paras - 31 and 32 which read as follows:
"31.The current position of proportionality in administrative law in England and India can be summarized as follows:
(1)To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was done on which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go to the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator‟s decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374 principles.
(3) (a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material Page 16 of 21 before him, arrived at the primary judgment in the manner he has done.
(3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4) (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4) (b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of „proportionality‟ and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19,21, etc. are involved and not for Article 14.
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of „proportionality‟. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to „irrationality‟, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in „outrageous‟ defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain „Ranjit Thakur‟."
18. The Apex court in Chairman and Managing Director, United Commercial Bank & Ors - vrs - P.C.Kakkar: (2003) 4 SCC 364 held that unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and Page 17 of 21 rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed. Para- 12 of the judgment in Chairman and Managing Director, United Commercial Bank & Ors -vrs - P.C.Kakkar: (2003) 4 SCC 364 (Supra) is quoted as under:
"12. To put it differently, unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed."
19. The Apex Court in State of Rajasthan & Anr. Vs. Mohd, Ayub Naz: (2006) 1 SCC reiterated that the scope of judicial review of the quantum of punishment is circumscribed and also that the role of administrative authority is primary and that of court is secondary, to be exercised only on well settled Wednesbury principles. Further the Apex Court in para 10 of the SCC in State of Rajasthan & Anr. Vs. Mohd. Ayub Naz : (2006) 1 SCC 589 held that:
10. This Court in Om Kumar v. Union of India: (2001) 2 SCC 386 : 2001 SCC (L&S) 1039 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor has any irrelevant fact been taken into account nor any illegality committed by the authority nor was the punishment awarded shockingly disproportionate. The punishment was awarded in the instant case after considering all the relevant materials, and, therefore, in our view, interference by the by the High Page 18 of 21 Court on reduction of punishment of removal was not called for."
20. The Apex Court in Canara Bank v. V.K. Awasthy: (2005) 6 SCC 321 held that the interference with the quantum of punishment cannot be a routine matter. Paras 21, 22 and 23 of the SCC in Canara Bank‟s case (Supra) read as follows:
"21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the departmental proceedings reveal that several acts of misconduct unbecoming of a bank official were committed by the respondent.
22. It is to be noted that the detailed charge-sheets were served on the participated in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the disciplinary authority. The proved charges clearly established that the respondent employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank. In the appeal before the prescribed Appellate Authority, the findings of the inquiry officer were challenged. The Appellate Authority after analyzing the materials on record found no substance in the appeal.
23. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of this court. Such interference cannot be a routine matter."
21. Mr. R Deb Nath, learned CGC appearing for the respondents placed heavy reliance on the decision of the Apex Court in Dalbir Singh v. Director General, CRPF, New Delhi: 1987 (Supp) SCC 466 and contended that the dismissal from service to the petitioner, who is found guilty for remissness of his duty as a member of the Force in an inebriated state is proportionate in a proceeding for the minor penalties under Section 11(1) of the CRPF Act, 1949. However, on perusal of the judgment and order of the Apex Court in Dalbir Singh‟s case (Supra), it is clear that an omission committed by Shri. Dalbir Singh on his part was an act of negligence Page 19 of 21 attributable to his being in an inebriated state and the Apex Court reduced the punishment of dismissal from service by awarding a lesser punishment of withholding of four increments with cumulative effect and consequent loss in seniority. Paras 3, 4 & 5 of the SCC in Dalbir Singh‟s case (Supra) read as follows:-
3. At the resumed hearing today, we are informed by learned counsel for the respondent that looking to the seriousness of the charge the authorities are not inclined to interfere with the punishment. We however feel that for the solitary lapse on the part of the appellant the punishment of dismissal from service is rather severe although the appellant was also found guilty of an additional charge, namely, act of remissness of his duty as a member of the force under Section 11 (1) of the Central Reserve Police Force Act, 1949 in that he did not uncharged the magazine of his rifle after completion of sentry duty and thus violated the Jail Post Standing Order. In fact, he did not uncharged the magazine of the rifle due to his intoxicated state.
4. Ordinarily, in a case of this nature, this Court would not under Article 136 of the Constitution interfere with the measure of punishment. It cannot also be doubted that the charge of being found in a state of intoxication while on duty for a member of the Force is serious enough to warrant dismissal from service as the authorities cannot permit indiscipline in the service. Such an act of misconduct must be dealt with severely.
However, the authorities having awarded lesser punishment of reversion and withholding of increments to the two delinquent officers holding a higher rank to the appellant, namely, Rajpal Singh, Sub-Inspector and Sheel Kumar, Head Constable for the selfsame charge, we find no justification for the differential treatment meted out to the appellant. It is true that he was also found guilty of the other act of remissness under Section 11 (1) of the Act in that he did not uncharged the magazine of the rifle after completion of the sentry duty, but that act or omission on his part was an act of negligence attributable to his being in an inebriated state.
5. In view of this, learned counsel for the appellant states before us that the appellant is prepared to forego his arrears of salary and allowances in the event of his reinstatement in service. Looking to all the circumstances, we feel that reinstatement of the appellant in service with the award of a lesser punishment of withholding of four increments with cumulative effect and consequent loss in seniority would meet with the ends of justice. There shall however be continuity of service for purposes of pension. (Emphasis supplied) Page 20 of 21
22. For the foregoing discussions, this Court is of the considered view that the Commandant 35th Battalion, CRPF, Thoubal, Manipur (respondent No.5) in exercise of powers under Section 11(1) of the CRPF Act, 1949 which provides only minor punishments mentioned therein, cannot impose major penalty of removal or dismissal from service to the petitioner. Over and above, this Court is of the considered view that major penalty of removal or dismissal from service imposed to the petitioner for his solety incident of misconduct or negligence in the discharge of sentry duty in an inebriated state is wholly disproportionate as held by the Apex Court in Dalbir Singh‟s case (Supra) and other cases discussed above.
23. In the result, the impugned orders dated 06.08.1998, 23.09.1999 and 01.09.2000 are hereby set aside and quashed and the respondents No.5 & 6 may impose any of the minor penalties mentioned in Section 11(1) of the CRPF Act, 1949 to the petitioner. The respondents are further directed to reinstate the petitioner in service subject to medical fitness without any arrear pay and allowances within a period of three months from the date of receipt of a certified copy of this judgment and order.
24. Even, if the petitioner is found not medically fit for reinstatement in service, he should get the pensionary benefits taking that he had completed qualifying service for pension and received minor penalty which deems fit and appropriate according to the disciplinary authority.
25. Writ petition is allowed to the extent indicated above.
JUDGE Lam Page 21 of 21