Calcutta High Court (Appellete Side)
Md. Nazrul Islam Gazi vs Union Of India & Ors on 5 May, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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016 W.P. 6023 (W) of 2016
Md. Nazrul Islam Gazi
-Vs-
Union of India & Ors.
Mr. Pradip Kumar Roy,
Ms. Shraboni Sarkar,
Mr. Debasish Karmakar
... for the Petitioner.
Mr. Ujjal Roy
... for the UOI.
The petitioner complains of a harsh punishment of compulsory retirement
passed by the revisional authority on February 4, 2016 despite a previous order
of this court categorically observing that the doctrine of proportionality had not
been taken into account in previously removing the petitioner from service.
The petitioner is a constable in the Central Industrial Security Force. A charge for a minor penalty was brought
against the petitioner for the petitioner relying on forged bills to claim daily allowance or the like during the
petitioner's deployment in Kolkata at a time when the petitioner was posted in Guwahati. On such charge-sheet, the
petitioner was awarded a minor penalty of three days' pay being deducted. However, the petitioner felt aggrieved by
such punishment and pursued his appellate remedy in accordance with the rules applicable to the employment.
The appellate authority took notice of the poor track record of the petitioner and the fact that he had been punished
on 16 previous occasions. The appellate authority required such aspect of the matter to be considered by the
disciplinary authority in the light of the previous punishments that had been awarded to the petitioner. Not only did the
minor penalty get upheld in the ill-advised appeal, but the appellate order opened up a can of worms that the petitioner
could not shut.
The action on the part of the appellate authority may have been harsh or oppressive, considering that the
punishment challenged before him was of a forfeiture of three days' salary. However, it does not appear that such
decision of the appellate authority was immediately challenged.
The fresh disciplinary proceedings concluded with an order of the petitioner's removal from service. The petitioner
carried the order in appeal without success. The revisional authority, too, did not interfere with the punishment.
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WP 26688(W) of 2015 was filed by the petitioner, challenging the shocking punishment that had been awarded to
the petitioner following a minor charge of manipulation or forgery of bills. Such petition was taken up and disposed of
by an order of December 15, 2015. The court noticed that though the petitioner may have been punished on 16
previous occasions, it could not be lost sight of that the charge that acted as a catalyst culminating in his removal, was
one of forging some documents for a small daily allowance. It is necessary that the key observations in the order dated
December 15, 2015 and the operative part thereof be seen:
"True, that the petitioner had been inflicted sixteen punishments
previously, but such infliction of punishment should not have caused
prejudice in the minds of the authorities concerned to such an extent that
the initial order passed by the Deputy Commandant inflicting the petitioner
with a penalty of fine equivalent to three days' pay would be completely un-
noticed or forgotten. Had the petitioner not approached the appellate
authority against such imposition of minor penalty, his fate, perhaps, would
have been quite different. The doctrine of proportionality of punishment to
be inflicted, ought to have been taken into account if not by the disciplinary
authority or statutory appellate augthority, certainly by the revisional
authority.
In such facts and circumstances, the writ petition is disposed of with a
direction upon the respondent no.3, being the revisional authority, to revisit
the order dated 7th June, 2012, in the light of the observations made hereinabove. It is, however, made clear that the observations made hereinbefore cannot be construed in any manner as a direction upon the concerned respondent authority to consider the matter de novo."
The revisional authority has passed a fresh order on February 4, 2016 by modifying the punishment without, however, affording the petitioner any opportunity of hearing. The petitioner refers to a recent unreported order of April 20, 2016 in WP 6930(W) of 2016 (Khagendra Barik v. Union of India). In that case, it was the disciplinary authority who had been required to revisit the inquiry report. There is a huge distinction between a disciplinary authority being required to revisit an inquiry report and a revisional authority being required to revisit the order passed on revision. When a disciplinary authority is required to revisit the inquiry report, he is called upon to appreciate the same and, to the extent he agrees with the findings adverse to the delinquent contained in the report, he would call for an explanation and, to the extent that he finds that the findings rendered in favour of the delinquent ought to be reversed, he will also call for an explanation. The disciplinary authority, in such a situation, cannot proceed to the order of punishment without reference to the delinquent. On the other hand, when a departmental appeal or revision is considered - in most cases the rules do not provide for any formal hearing - the cold facts on 3 paper are considered by the appropriate authority and an order communicated to the delinquent. If the revisional authority's brief, in the first place, did not warrant a hearing or any notice to be issued to the delinquent, the order dated December 15, 2015 did not oblige him to adopt any different procedure. The principle enunciated in Khagendra Barik is completely irrelevant in the present context.
However, notwithstanding the complete waste of time and the inappropriate citing of an inapposite precedent, the petitioner cannot be penalised therefor.
It is evident from the order dated December 15, 2015 and the reference to the doctrine of proportionality regarding punishment, that the court found the punishment of removal from service shockingly disproportionate to the minor charge which triggered off the further serious action. It is true that the ultimate punishment was not passed on the minor charge, but on the general conduct of the petitioner as to the desirability of his continuance in service. However, the court felt in the order dated December 15, 2015, that the minor transgression that later blew up on the face of the petitioner could not be lost sight of.
In the light of the observations in the order dated December 15, 2015, it may have been expected that the revisional authority would reduce the punishment and would direct any punishment other than the petitioner's severance from service. Accordingly, WP 6023(W) of 2016 is allowed to a limited extent by setting aside the order of punishment of February 4, 2016 in so far as it provides for the compulsory retirement of the petitioner from service. The revisional authority is now requested to pass a lesser punishment against the petitioner, such that the petitioner's services are not terminated in any manner or form. It will be open to the revisional authority to issue a warning to the petitioner in the relevant order that any further transgression on the part of the petitioner would make him liable to be removed from service in the light of his previous dismal conduct in the disciplined force.
The revisional authority's fresh order should be passed within four weeks of the receipt of a copy of this order. The petitioner will not be entitled to the back wages or salary for the period till December 15, 2015, but upon the petitioner's reinstatement, the petitioner will be entitled to the salary and emoluments with effect from December 16, 2015 subject to such penalty as may be awarded by the revisional authority in terms of this order. There will be no order as to costs.
( Sanjib Banerjee, J.)