Punjab-Haryana High Court
Harjit Singh, Ex. Constable vs State Of Haryana And Ors. on 12 March, 1998
Equivalent citations: (1998)119PLR341
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Ex-Constables Harjit Singh and Gurmeet Singh were placed under suspension on 5.12.1986 and a common departmental inquiry was conducted against both these police officials. On conclusion of the departmental inquiry. Harjit Singh stood transferred to 6th Batallion and the findings of the inquiry report were forwarded to S.P. Hisar for passing the appropriate order. The Commandant, 1st Battalion, Haryana Armed Police, Ambala City dismissed Harjit Singh from service with effect from 10.5.1988 and also directed that the suspension period shall not be counted towards duty period and he would be entitled to suspension allowances for the period of suspension. While Constable Gurmeet Singh was awarded the punishment of censure only.
2. On the above premises, the basic contention of the learned counsel for the appellant is that the punishment imposed upon the appellant is not only disproportionate to the offence allegedly committed by the appellant but is totally arbitrary in face of the punishment awarded to Constable Gurmeet Singh. In order to appreciate this contention raised on behalf of the appellant, it will be relevant to note here that the suit for declaration filed by the appellant to the effect the order of punishment dated 12.5.1988 is void, inoperative and against the principles of natural justice was dismissed by the judgment and decree dated 20.1.1996.
3. On various pleas taken in the plaint by the present appellant, which were obviously contested by the defendant in the suit claiming that the order of dismissal was passed in consonance with the Punjab Police Rules as applicable to Haryana, principles of natural justice, legal and valid, the learned trial court framed the following issues :-
"1. Whether the impugned order of dismissal No. 7732/16 dated 12.5.1988 passed by the defendants is void and illegal? OPP.
2. Whether the suit is not maintainable in its present form? OPD.
3. Whether the suit is not valued properly for the purpose of court fee and jurisdiction? OPD.
4. Relief."
Issues No. 2 and 3 the onus to prove of which was on the defendants were not pressed during the course of hearing and therefore, decided against the defendants and in favour of the appellants. Further, issue No. 1, the main issue, onus of which was on the plaintiff was decided in his favour and the suit of the plaintiff was decreed and the order of punishment was set aside and the plaintiff was given full backwages and continuity of service. This judgment and decree was challenged by the defendants in appeal before the learned Additional District Judge, Ambala in Appeal No. 43 dated 8.3.1996. Learned Additional District Judge accepted the appeal and set aside the judgment and decree of the learned trial court vide its judgment and decree dated 19.12.1996.
4. Learned Counsel for the appellant-plaintiff has raised various contention including that there was violation of principles of natural justice, denial of fair opportunities and arbitrariness on the part of the department. Further, it was contended that the pre-requisite for imposition of major penalty as postulated under 16.2 of the Punjab Police Rules as applicable to the State of Haryana was not satisfied in the present case. Having gone through the record of the courts below and the relevant Rules, 1 am of the view that the contentions raised on behalf of the appellant do not have much substance. To say that the alleged misconduct on the part of the appellant is not of a grave nature would be unsustainable at the face of it. It has also come on record that due opportunity was granted to the appellant. Notice to show cause was duly served upon the appellant to which he had replied to at the initial stage as well as prior to the imposition of the impugned penalty. In the departmental inquiry, he had cross-examined the departmental witnesses. A detailed order was passed by the disciplinary authority imposing penalty in question; but still the question that deserves consideration is whether this Court in Regular Second Appeal should go to the question of quantum of punishment imposed upon the appellant. In fact that is the main plank of the submissions of the learned counsel for the appellant. As already noticed, according to him the punishment is disproportionate to the nature of the offence alleged to have been committed by the appellant and secondly there is complete arbitrariness on the part of the department in imposing the severest punishment against the appellant. For proper appreciation of these contentions, it may be appropriate to reproduce the relevant extract of the main order exhibit PW. 3/33.
"........Brief facts giving rise to this enquiry are that while posted at HAP Guard, Railway Bridge, Ghaggar, District Ambala on the night intervening 2/3.12.1986, Const. Baljit Singh was on sentry duty from 11.00 P.M. to 2.00 A.M. At about 12.45 A.M. defaulter Constable Gurmeet Singh went to him and both of them started abusing their Senior Officers viz. Sh. Darshan Singh Brar, D.S.P. and S.I. Gurdev Singh Gandhi, O.S.I. In the meantime, S.I. Ajaib Singh, Incharge guard and Head Constable Dyal Chand No. 1/33 came out and forbade them to do so. Instead of adopting silence, they began to misbehave with S.I. Ajaib Singh and Head Constable Dyal Chand and also threatened to shoot at them. At that time the defaulters were allegedly under the influence of liquor, but due to non-availability of proper means of communication and conveyance and there being no registered medical practitioner nearby they could not be got medically examined. On receipt of the report of above misconduct on the part of defaulters both of them were placed under suspension w.e.f. 5.12.1986 and Sh. Ajmer Singh D.S.P. was appointed as the Enquiry Officer vide order referred to above."
A common and combined statement of allegations were served upon both the police officials vide exhibit D.1. Common inquiry was conducted and both of them were found to be guilty of the misconduct. In this back ground, it is difficult for this Court to appreciate that how could one person be left with imposition of penalty of Censure while other is dismissed from service with denial of other benefits. Fairness in departmental action is the very route of service jurisprudence. The disciplinary authority is required to act in a manner which at the face of it does not appear to be unjust and unfair. Normally, the punishment is a matter which would fall primarily in the domain of the department/disciplinary authority and the Courts would rarely interfere in any orders of punishment. But where orders of punishment ex-facie appears to be unreasonable and not in commensurate to the guilt of the delinquent official, the Court must come to the rescue of the delinquent official and interfere in the quantum of punishment. Still, the Colt would not form its opinion as to what punishment should be awarded to a delinquent official. These arc the settled principles which would consequently apply to the facts of the present case.
5. Learned trial Court rightly relied upon the case of Darshan Singh v. State of Punjab and Ors., S.L.R. 1991(4) 102; but it had fallen in error in not affording an opportunity to the department to pass afresh order in accordance with law because the Court did not find that there was any violation of the prescribed procedure, though it also noticed the fact that no second opportunity of personal hearing was given to the appellant by the disciplinary authority before imposing the punishment. Learned first Appellate Authority on the contrary completely fell in error in ignoring this aspect totally and holding that the order of the dismissal was correct one. A Division Bench of this Court, in the case of Constable Kushal Singh v. Union of India and Ors., R.S.J. 1997(3) 357, held that in a given case the court would not justify in interfering with the quantum of punishment. The following observations can be appropriately reproduced:-
"......However, if the order of punishment ex-facie is so unreasonable or totally disproportionate to the proved misconduct of the employee that it pricks the judicial conscious of the Court, is based upon an enquiry which is vitiated for violation of rules and principles of natural justice, is itself an order violative of rules or/and is an order which no person of common prudence on any reasonable basis could arrive at, would be open to interference by Courts in judicial review. This analysis is based upon the recent judgment of the Supreme Court in the case of Rai Bareli Kshetriay Gramin Banks v. Bhola Nath Singh and Ors., 1997(2) R.S.J. 525 S.C. : J.T. 1997(3) S.C. 717; Indian Oil Corporation Ltd. and Anr. v. Ashok Kumar Arora, 1992(2) Recent Services Judgments page 249, and N. Rajarathinam v. State of Tamil Nadu and Anr., 1996(4) R.S.J. 338 (S.C.) = J.T. 1996(8) S.C. 447."
At this stage, it may be appropriate to refer to the case of K.M. Agar Hari v. Delhi Administration, 1980(3) S.L.R. 555, where a Division Bench of Delhi High Court interferred in the quantum of punishment following the principles enunciated by the Hon'ble Apex Court in various cases.
6. The cumulative effect of the above discussion is that the punishment imposed upon the appellant appears to be disproportionate to the proved misconduct and in any case the respondents cannot justify the discriminatory attitude adopted by them in imposing punishment of dismissal on Harjit Singh and that of Censure on Grumeet Singh. This unexplained discriminatory notices the element of bias in the mind of the disciplinary authority and brings to the impugned order of punishment under mischief of arbitrariness. Another factor which must be construed in favour of the appellant is that second personal hearing was not afforded to the appellant by the disciplinary authority as has been held by the learned trial court. Thus, I do not consider any need to discuss this issue any further in view of the fact that the court finds the punishment imposed upon the appellant to be totally arbitrary.
7. For the reasons aforestated, this Regular Second Appeal is allowed, the judgment and decree of the first Appellate Court dated 19.12.1996, is set aside. Consequently, the impugned order of dismissal dated 10.12.1988 is hereby set aside.
8. However, liberty is granted to the department to pass a fresh order of punishment after hearing the appellant within a period of one month from the date of pronouncement of this judgment.