Madhya Pradesh High Court
The State Of Madhya Pradesh Thr vs Rajendra Singh Kushwah on 14 February, 2017
1 WA 118/17
State of M.P & others Vs. Rajendra Singh Kushwah
14/2/17
Shri Praveen Newaskar, Govt. Advocate for the
appellants/State.
Shri D.P.Singh, Advocate for the respondent.
I.A.No. 1057/17, an application filed under Section 5 of the Limitation Act for condonation of delay of 47 days in preferring this appeal is taken up considered and allowed for the reasons mentioned therein.
This Intra Court Appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated22/9/2016 passed in W.P.No. 110/16 whereby the petition in question assailing major penalty of compulsory retirement inflicted upon the respondent, the Head Constable has been partly allowed to the extent of interfering with the quantum of punishment by holding that the penalty is so incommensurate to the gravity of the misconduct found to be proved that it shocks the conscience of the court.
The writ court has remanded the matter to the Appellate Authority for imposing lesser penalty.
The sole contention raised by the learned counsel for the State is that once having declined interference on the question of procedural aspect of the enquiry and also justification of imposing penalty of compulsory retirement, it was not open to the writ court to have interfered with the quantum of punishment and to have directed the Appellate Authority to impose lesser punishment.
We have perused the findings recorded by the learned single Judge.
After perusing the findings recorded by the writ court on the question of legality and validity of the procedure adopted in the enquiry and the justification of the impugned order, this court does 2 WA 118/17 State of M.P & others Vs. Rajendra Singh Kushwah not deem it appropriate to interfere with the just and proper findings recorded. Moreover, there is no need to go into the said aspect as the learned counsel for the State has not attacked the findings of the writ court on the said point.
As enumerated above, the sole objection of the learned counsel for the State is in regard to the direction to the Appellate Authority for imposing lesser penalty while remanding the matter.
It is settled principle of law in service jurisprudence that if the court finds punishment to be disproportionate to the gravity of the misconduct found to be proved, it is well within the power of the court to remand the matter to the competent Authority to apply it's mind on the question of quantum of penalty. One thing which stands out herein is that the writ court was of the firm view that looking to the gravity of the misconduct found to be proved any punishment lesser than compulsory retirement can be imposed.
Which among the lesser punishments is to be imposed is for the competent administrative authority to decide and the writ court ought not to perform this function or else it may be blamed of usurping the power of administrative authority. By directing that any lesser penalty may be imposed upon the petitioner, this court is of the affirmed view that no illegality or irregularity has been committed by the writ court as the power of the competent authority has not been fettered. The competent authority is free to impose any punishment lesser than compulsory retirement.
If the writ court would have specified any of the lesser penalties, then the State may have had a case, not otherwise.
No other ground has been raised by the counsel for the State in the present writ appeal.
In view of the above discussions, the order of the writ court does not deserve any interference and is accordingly upheld.
3 WA 118/17State of M.P & others Vs. Rajendra Singh Kushwah As a necessary consequence, the writ appeal fails and is dismissed.
(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
(Bu)