Supreme Court - Daily Orders
Union Of India vs Pradeep Sharma on 22 November, 2017
Bench: Arun Mishra, Mohan M. Shantanagoudar
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s).8353-8354 OF 2013
UNION OF INDIA & ORS. APPELLANT(S)
VERSUS
PRADEEP SHARMA RESPONDENT(S)
O R D E R
1. The Union of India has come up in the appeals aggrieved by the judgment and order passed by the High court on 3.9.2012 thereby allowing the writ petition filed by respondent-Pradeep Sharma. Respondent was appointed as Intelligence Officer, Grade II, in the Intelligence Bureau, Department of Government of India, Ministry of Home Affairs on 13.6.1986. He was promoted to the post of Assistant Central Intelligence Officer, Grade I, on 15.1.1996 and was holding the said Grade. Thereafter, he was posted from one office to another office at Jammu Signature Not Verified itself, vide order dated 28th August 1998, bearing Digitally signed by ASHWANI KUMAR Date: 2017.12.09 12:03:06 IST Reason: No.95. He was transferred, from ACIO-I(G) in Int-Field unit of SIB, Jammu to NCO-Central 2 Intelligence Branch of SIB, and was relieved of his duties on 1.9.1998. He was required to join the office to which he had been transferred. Admittedly, he did not join in the office of NCO, Central Intelligence Branch of SIB, purportedly on the ground that the Assistant Director, who was, at the time, the head of the said office, was inimically disposed against the appellant, and had threatened him with the removal from service in case he joined in the said office.
2. Since the respondent did not join pursuant to the order dated 28.8.1998, a memo was issued to him on 8.9.1998, cautioning him that the period of absence would be liable to be treated as one of unauthorized absence, since he was at fault in not complying with the order of transfer dated 28.08.1998. Thereafter, the respondent was transferred from Jammu to Amritsar, vide Transfer Order dated 15.10.1998. There again, he did not join. He had failed to join in the office of NCO Central Intelligence branch pursuant to the order dated 28.8.1998, so also he did not join at Amritsar 3 and did not comply with the later order of transfer as well.
3. Ultimately, due to failure on the respondents' part in complying with the order of transfer dated 15.10.1998 from Jammu to Amritsar, the office memo dated 29.10.1998 was issued to the respondent, directing him to report to the duty at Amritsar, failing which action would be initiated against him as per rules. Another memo was issued on 12.11.1998; the last opportunity was granted to resume the duty by 20.11.1998, otherwise the departmental enquiry would be initiated in case of his failure to join his duties, in compliance with the order of transfer.
4. The respondent did not comply with the said memo as well; and, did not join at Amritsar. As such, after four months, on 15.03.1999, a charge sheet was issued to him under Rule 14 of Classification, Control & Appeal Rules, 1965 (in short 'the CCS (CCA) Rules'). Respondent filed his statement of defence on 22.03.1999; he denied the charges levelled against him on 7.6.1999. 4 Disciplinary Authority appointed an enquiry officer to enquire into the charges framed against the respondent.
5. The respondent questioned the initiation of departmental enquiry by way of filing W.P., bearing No. 355 of 2000, in the High Court of Jammu and Kashmir at Jammu and prayed to quash the departmental enquiry that had been initiated against him. The High Court, in the said writ petition, passed an order on 13.3.2000 to release his salary within one month and to finalize the departmental enquiry within a period of four months. The Union of India preferred a Letters Patent Appeal against the said decision passed by the Single Bench; in the meantime, as per the order passed by the High Court, the respondent submitted his joining at Jammu on 3.4.2000, not at Amritsar. Prior to that, he did not submit his joining. Even during the course of the enquiry, he had not joined his duties at Amritsar.
6. On 5th April, 2004, the Division Bench of the High Court of Jammu and Kashmir disposed of the appeal. The Division Bench directed the Authorities 5 to take the final decision, on the findings recorded in the departmental enquiry, in accordance with law; and, the Interim order dated 8.5.2000 was vacated. Thereafter, the Intelligence Bureau, Ministry of Home Affairs, Government of India, passed a final order in the departmental proceedings on 29.6.2004 under Rule 14 of the CCA (CCS) Rules; the punishment of compulsory retirement (with immediate effect), due to his unauthorized absence with effect from 2.9.1998, was imposed. Further, a direction was issued that the period of unauthorized absence, from 2.9.1998 to the date of issuance of the order, shall be treated as dies non.
7. Aggrieved by the order of compulsory retirement, and of the decision of dies non, the respondent preferred an appeal before the appellate authority i.e. before the President of India and requested for reduction of the penalty. The advice of UPSC was obtained. UPSC sent the opinion to reject the appeal on 18.11.2005; thereafter, the appellate authority rejected the appeal vide order dated 26.12.2005.
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8. In 2005, respondent filed Original Application before the Central Administrative Tribunal (in short 'the CAT') praying, inter alia, for quashing of the enquiry proceedings and of the penalty order. The CAT, vide judgment and order dated 6th September 2006, confirmed the penalty of compulsory retirement; however, set aside the order of dies non, w.e.f. 2.9.1998 to 29.6.2004, on the ground, that he was required to have been heard before treating the said period as dies non.
9. Thereafter, respondent was given the opportunity of hearing in the matter of regularizing the period on 21.12.2006. He had submitted representation on 27.12.2006 also. Thereafter, disciplinary authority passed an order on 6th February 2007 on the ground that he was not present on duty; hence, he was not entitled to any kind of leave/pay and allowance for the period of his unauthorized absence. The authority again decided to treat the period as dies non. The respondent questioned the order passed by the CAT upholding the 7 penalty of compulsory retirement before the High Court, and the same has been allowed by the impugned judgment and order dated 3.9.2012. Hence, the present appeal has been preferred by the Union of India.
10. Sh. R.Balasubramanian, learned counsel appearing on behalf of the Union of India urged, that there was no rhyme or reason for the Respondent not to join his duties, pursuant to the order dated 28.08.1998, in the office of NCO, Central Intelligence Branch of SIB, in spite of the memo dated 8th September 1998 having been issued. He had again failed to comply with the transfer order dated 15th October 1998 to Amritsar, despite Memos having been issued on 29.10.1998 and 12.11.1998. He failed to report to join at Amritsar. Even after issuance of the charge sheet on 15th March 1999, the respondent did not join at Amritsar. He has submitted joining only on 03.04.2000 at Jammu; that too, after the order was passed by the High Court; whereas, he ought to have joined at Amritsar. Thus, for more than two years, he failed to comply with 8 the transfer order. The order of compulsory retirement, passed after holding the departmental enquiry, was appropriate. No case for interference was made out in the matter of dies non also; after hearing was granted to the Respondent, decision has been taken afresh on 6th February 2007 and the period from 2.9.1998 to 29.6.2004 has been treated as dies non, i.e. the period of the date from which he remained unauthorisedly absent till the date on which punishment of compulsory retirement had been inflicted upon him. The order dated 06.02.2007 has not been questioned. Further, it was submitted, that the High Court has erred in law in quashing the order of compulsory retirement, and has also erred in directing the entire period to be treated on duty, with the direction that consequential benefits be given.
11. Mr. V.N. Sinhar, learned senior counsel appearing on behalf of the Respondent has submitted, in all fairness, that the respondent ought not to have been posted to NCO Central Intelligence Branch, he did not join due to fear, as he had been 9 threatened with the removal by the in-charge officer. Ultimately, joining had been submitted by the respondent in the office of Deputy Director at Jammu. The respondent did have a valid reason not to join in the office of NCO Central Intelligence Branch as per order dated 28.08.1998. Since he was not relieved from Jammu, as he did not join in the said office, he could not have submitted his joining at Amritsar; he ought to have been relieved from Jammu for joining at Amritsar. Thus, for non-joining at Amritsar, respondent could not have been held responsible. The punishment inflicted was uncalled for in the facts and circumstances of the case. In pursuance of the order passed by the High Court, the Respondent did submit his joining at Jammu on 3.4.2000 and was, thereafter, attending to his duties at the office at Jammu, but salary. He ought to have been relieved from Jammu, once he had submitted the joining on 3.4.2000. He could not have joined at Amritsar even after 3.4.2000, as relieving was necessary from Jammu to join at Amritsar. It was further submitted, that in the peculiar facts of the case, the penalty of compulsory retirement has been 10 rightly set aside by the High Court, and the period of absence has been rightly ordered to be treated as not being on duty. There was no rhyme and reason to deprive the respondent of salary, at least w.e.f. 3.4.2000 i.e. the date on which he had submitted his joining pursuant to the order passed by the High Court till the date of compulsory retirement. The order of dies non that had been passed on 6.2.2007 was also uncalled for.
12. We have heard the learned counsel for the parties, and have perused the material on record. We are of the considered opinion, that in the facts of the case, there was absolutely no valid reason in the eye of law available to the respondent not to join his duties at Jammu. When he had been posted, vide order dated 28.08.1998 to the office situated at Jammu i.e. to NCO- Central Intelligence Branch of SIB; he was relieved on 01.09.1998 to join in the said office, where he was required to join on 2.9.1998. He did not join in charge of the issuance of the memo dated 8th September 1998; though he was warned that his absence would be treated as an 11 unauthorized absence. The apprehensions, on behalf of the Respondent, with regard to joining in the office of Assistant Director, who threatened him of removal from the service in case he joined in the said office, would not be a valid ground to defy the order of posting. It was open to the respondent to represent against the order of posting, but not to defy the order, in the method and manner in which it had been done.
13. As an Assistant Central Intelligence officer, Grade 1, an exemplary conduct was expected of him. In case there were any apprehensions in the mind of the appellant in joining at Jammu, those came to an end his transfer from Jammu to Amritsar vide order dated 15th October 1998. He should have then joined in the office of NCO Central Intelligence branch for getting himself relieved for joining at Amritsar but he never did so. Thus, he was responsible for not joining at Amritsar, and for his non-relieving from Jammu, since he never joined the local place of posting, i.e. Jammu, as per the order dated 28th August 1998. There was absolutely 12 no reason for the respondent for not joining his duties at Amritsar. Though he had been warned of penal action through the issuance of two memos dated 29th October 1998 and 12th October 1998, he did not join duty at Amritsar, nor did he make any effort to get relieved from Jammu office of NCO-Central Intelligence Branch. Thus, he was responsible for flouting the said order of posting dated 28th August 1998 and, thereafter, the order of posting dated 15th October 1998, inspite of the issuance of aforesaid memos to him.
14. Thereafter, the disciplinary enquiry had rightly been initiated against him. Despite initiation of the departmental enquiry, and after knowledge of what his fate was going to be, the Respondent made no attempt to join at Amritsar and to do the needful as is expected of an officer of his level. He ultimately filed a Writ Petition in the High Court in March 2000 i.e. more than one year after initiation of the departmental enquiry. It was then that there was an order passed by the High Court on 13.3.2000 to consider the grievance of the 13 respondent regarding payment of salary, and in case he had not been placed under suspension, then to release his salary within a period of one month. The following order was passed by the High Court of Jammu and Kashmir at Jammu:
"That the respondent would look into the grievance of the petitioner regarding payment of salary. If he has not been placed under suspension then his salary be released. Otherwise, subsistence allowance as per rules be given to him. Let this be released within a period of one month from the date copy of this order is made available by the petitioner to the respondents, and also to the counsel who has appeared today on behalf of the respondents. The respondents would be at liberty to seek extension of time but in that eventuality, they have to explain each and every day's delay.
(ii) Enquiry be completed within a period of four months from the date copy of this order became available to the respondents.
Disposed of accordingly.”
15. Formal joining was submitted by the appellant on 3rd April 2000 pursuant to the aforesaid order passed by the High Court. However he was required to submit his joining at Amritsar not at Jammu, in case he was seriously interested in rendering the services; but, it appears, that the respondent was 14 adamant not to join at Amritsar; that is why he has submitted his joining at Jammu only. Thus, he did not comply with the order; it could not be said to be due compliance with the order passed by the High Court. He ought to have joined at Amritsar. Thus, it was apparent that he was not interested in rendering the services at Amritsar where he had been posted; whereas, he had no right to continue at Jammu, particularly after his transfer to Amritsar as per the order dated 15th October 1998. Thus, he was responsible for the situation in which he was placed. Submitting joining report on 3rd April 2000 could not be said to be due compliance with the order passed by the High Court. High Court did not pass the order that respondent is permitted to join at Jammu. Admittedly, no work was taken from him at Jammu as he was supposed to report at Amritsar, which he had never done. In such disciplined force, such disobedience of orders, or playing as a deserter, is not permissible, as discussed by this Court in Union of India & Ors. vs. Dattalinga Toshatwad (2005(13) SCC 709) as under: 15
“5.Even if the High Court came to the conclusion that the punishment inflicted was grossly disproportionate to the misconduct alleged, it ought to have remitted the matter to the disciplinary authority to reconsider the matter as regards the punishment to be inflicted, but the High Court did not choose to do so. However, it is not necessary for us to do so since we are of the view that the punishment inflicted on the respondent is not grossly disproportionate to the misconduct alleged.
6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e on 2-11-1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered.
8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed.
Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes 16 unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged.”
16. In S.C. Saxena v. Union of India & Ors. (2006) 9 SCC 583, this Court considered a case of unauthorized absence from work in relation to an Upper Division Clerk, working in the Intelligence Bureau. Various leave applications, purporting to be on medical grounds, had been filed by the delinquent employee; This Court in S.C. Saxena (supra) repelled the delinquent employee’s challenge to the punishment that had been imposed 17 i.e. of compulsory retirement and of dies non with respect to the period of unauthorized absence. This court depreciated the disobedience of the transfer order, and the consequent non-reporting to duty, in the following words:
"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred. This tendency of not reporting at the place of posting and indulging in some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion ant the appellant was guilty of misconduct of unauthorisedly remaining absent from duty.”
17. In Govt. of A.P. and Ors. v. Mohd. Taher Ali (2007) 8 SCC 656, authorized absence of 21 days, by a member of a disciplined force (a police constable in that case), was held to be sufficient 18 to justify the order of compulsory retirement.
18. Similarly, challenge against punishment of removal from service, on the ground of abandoning the duties in disregard of instructions by superiors, and despite rejection of leave application, imposed upon a constable of the Railway Protection Special Force who, at the time had been posted the time in a terrorist affected area, was rejected in Mithilesh Singh v. Union of India & Ors., (2003) 3 SCC 309.
19. The scope of interference in punishment by Court in such cases is extremely narrow. In Union of India and Ors. vs. Narain Singh (2002(5) SCC
11) this court observed :
“7. This Court has, in the case of Union of India v. Sardar Bahadur, (1972) 4 SCC 618, held that there are limits to the powers which can be exercised by a Single Judge under Article 226 of the Constitution and, similarly, there are limits to the powers of a Division Bench while sitting in appeal over the judgment of a Single Judge. This Court has held that where there are relevant materials which support the conclusion that the officer is guilty, it is not the function of the High Court to arrive at an independent finding. It has been held that if an enquiry has been properly held the question of adequacy or reliability of 19 evidence cannot be canvassed before the High Court.
8) In the case of Apparel Export Promotion Council v. A. K. Chopra, (1999) 1 SCC 759, it has been held by this Court that it is within the jurisdiction of the competent authority to decide what punishment is to be imposed and the question of punishment is outside the purview of High Court’s interference unless it is so disproportionate to the proved misconduct as to shock the conscious of the Court. It has been held that reduction of sentence by the High Court would have a demoralising effect and would be a retrograde step. It has been held that repentance/unqualified apology at the last appellate stage does not call for any sympathy or mercy.
9) As seen above, the Division Bench notes that the charges against the Respondent are proved and that the charges are of serious nature. Once the Court came to the conclusion that the charges were proved and that the charges were of the serious nature, it was not the function of the Court to interfere with the quantum of punishment.
The Division Bench was wrong in holding that factors viz. a) the person is coming from which place, b) his family background and
(c) his service record etc. were to be kept in mind. In our view, the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view, a Court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence, particularly in military, para-military or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of 20 a serious nature the penalty was commensurate with the charges.
Further the Division Bench has itself noted that this was the third time the Respondent was punished.”
20. In Director General RPF & Ors. vs. Ch. Sai Babu (2003(4) SCC 331) as to quantum of punishment this court held as under:
"6 As is evident from the order of the learned Single Judge there has been no consideration of the facts and circumstances of the case including as to the nature of charged held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of the charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a high court can modify such merely saying that it is shockingly disproportionate. Normally, the punishment imposed by disciplinary authority should not be disturbed by high court or tribunal except in appropriate cases that too only after reaching a conclusion that the imposed is grossly of shockingly disproportionate, after examining all the relevant factors including nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and 21 discipline required to be maintained, and the department/establishment in which the concerned delinquent person works.
7. In the present case, we do not find that there has been a consideration of all the relevant facts and the learned Single Judge has not recorded reasons in order to modify the punishment imposed. The Division Bench of the High Court also did not examine the matter in proper perspective but simply concurred with the order passed by the learned Single Judge. Normally in cases where it is found that the punishment imposed is shockingly disproportionate, high courts or tribunals may remit the cases to the disciplinary authority for reconsideration on the quantum of punishment. In this case the disciplinary proceedings were initiated in the year 1989 and to shorten the litigation we think it appropriate to set aside the impugned order and remit the writ appeal No. 952 of 1998 to the Division Bench of the High Court to reconsider the case only on the quantum of punishment imposed on the respondent having regard to all relevant factors including the facts that the respondent was a member of Railway Protection Force and in the light of the observations made above. Since the proceedings are pending for quite some time, we request the High Court to dispose of the writ appeal expeditiously. The impugned order is set aside and the appeal is ordered in the above terms. No costs."
21. Maintenance of discipline is necessary. Unless punishment shocks the conscience, courts should be loath to interfere. In Administrator, Union Territory of Dadra and Nagar haveli (2010(5) SCC 775), it was 22 observed:
“9. The scope of judicial review in disciplinary matters has come up for consideration before this Court time and again. It is worthwhile to refer to some of these decisions. In the case of B.C. Chaturvedi v. Union of India and Others this Court held:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal, the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof".
10. In Director General, RPF and Others v. Ch. Sai Babu, (2003) 4 SCC 331 this Court stated the legal position thus :
"6. ....Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after 23 examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works."
11. In the case of Chairman and Managing Director, United Commercial Bank & Ors. v. P.C. Kakkar, (2003) 4 SCC 364 this Court on review of a long line of cases and the principles of judicial review of administrative action under English law summarized the legal position in the following words :
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. what has been stated in Wednesbury case [(1947) 2 All ER 680 (CA)] the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the 24 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.
13. In the case at hand, the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani case. As was observed by this Court in Balbir Chand v. Food Corpn. of India Ltd. [(1997) 3 SCC 371] even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different".
12. In Union of India and Another v. S.S. Ahluwalia, this Court reiterated the legal position as follows :
"8. .......The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved.....".
13.In State of Meghalaya and Others v. 25 Mecken Singh N. Marak this Court stated : "14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give amounts to denial of justice. The mere statement that it is disproportionate would not suffice.
14.The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position 26 that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily, the Court or a Tribunal would not substitute its opinion on reappraisal of facts."
22. In view of the aforesaid discussion, it is apparent that the order of compulsory retirement was appropriate in the peculiar facts and circumstances of the case. The order of punishment of compulsory retirement could not be said to be unwarranted, or such which could have been interfered with by the High Court on judicial parameters. The High Court has not assigned any valid reason so as to interfere with the order of compulsory retirement since the respondent was not interested in rendering the duty; he did not comply with the two orders. Thus, the respondent cannot be said to be entitled to any relief. He had not questioned the order of treating the period as dies non, passed on 6th February 2007, before the CAT or before the High Court. He was not entitled to any relief whatsoever in that regard.
23. The Appeals filed by the Union of India are hereby allowed. The impugned judgment and order 27 passed by the High Court is set aside, and the order passed by the Central Administrative Tribunal is restored.
No order as to costs.
................J. (ARUN MISHRA) ................J. (MOHAN M. SHANTANAGOUDAR) NEW DELHI;
NOVEMBER 22, 2017
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ITEM NO.113 COURT NO.10 SECTION XVI -A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8353-8354/2013 UNION OF INDIA & ORS. Appellant(s) VERSUS PRADEEP SHARMA Respondent(s) Date : 22-11-2017 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Appellant(s) Mr. R. Balasubramaniam, Adv.
Ms. Kiran Bhardwaj, Adv.
Ms. Aarti Sharma, Adv.
Mr. Santosh Kr. Vishwakarma, Adv. Mr. Santosh Kumar Pandey, Adv.
Mr. Mukesh Kumar Maroria, AOR For Respondent(s) Mr. V.N. Sinhar, Sr. Adv.
Mr. Lokesh Kumar, Adv.
Mr. Kuldip Singh, AOR UPON hearing the counsel the Court made the following O R D E R The Appeals filed by the Union of India are allowed in terms of the signed order. The impugned judgment and order passed by the High Court is set aside and the order passed by the CAT is restored.
Pending application, if any shall stand disposed of.
(NEELAM GULATI) (JAGDISH CHANDER)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)