Punjab-Haryana High Court
Shiv Raj Singh Sidhu vs Union Of India And Others on 9 November, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.W.P. No. 16078-CAT of 2006
Date of Decision: November 9, 2010
Shiv Raj Singh Sidhu
...Petitioner
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR.
HON'BLE MS. JUSTICE RITU BAHRI.
Present: Mr. S.D. Sharma, Senior Advocate, with
Mr. Neeraj Sharma, Advocate, and
Ms. Bindu Goel, Advocate,
for the petitioner.
Ms. Lisa Gill, Advocate,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
M.M. KUMAR, J.
1. This petition filed under Article 226 of the Constitution challenges order dated 1.9.2006 (P-19), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal) dismissing the Original Applications being O.A. No. 926-CH of 2005 and O.A. No. 31-CH of 2006 filed by the applicant-petitioner. The applicant- petitioner has also challenged the order(s) passed by the departmental authorities initiating departmental inquiry, charge sheet, inquiry report and show cause notice (Annexures P-11, P-14, P-15 and P-16 respectively) which led to passing of dismissal order dated 18.5.2006 (P-18) as well as order dated C.W.P. No. 16078-CAT of 2006 2 21.8.2006 (P-28) cancelling the allotment of Government accommodation allotted to him.
2. The facts relevant for adjudication of the instant petition are that the applicant-petitioner was appointed as an Assistant Sub-Inspector in Chandigarh Police on 21.5.1973. During the course of his employment he was promoted to the next higher ranks of Sub-Inspector and Inspector on 3.12.1981 and 16.9.1987 respectively. In September 2003, he was assigned the duties of Traffic Inspector. On 8.2.2005, in order to discharge his duties as Traffic Inspector, at about 4.45 p.m. he set up a Checking Point at Tribune Chowk, Chandigarh, along with one Constable Maan Singh. It is claimed that Constable Maan Singh was standing on the main road with a view to stop traffic violators whereas due to pain in his knee, the applicant-petitioner arranged a chair for himself and was sitting near the gate of a nearby Gurdwara. The distance from the main road and the place where the applicant- petitioner was sitting, was 40-45 yards. He challaned five trucks on that day for the offence of entering in the 'No Entry Zone' during prohibited hours from 4.50 p.m. to 5.50 p.m.
3. On 12.3.2005, a video clipping was aired on the Zee T.V. News showing that on 8.2.2005 Constable Maan Singh had accepted ` 100/- from a truck driver who violated the traffic rule by coming into the 'No Entry Zone'. The applicant-petitioner and Constable Maan Singh were summoned by the S.P. Traffic. In his confessional statement, dated 12.3.2005, tendered before the S.P. Traffic, Chandigarh, Constable Mann Singh admitted the factum of having accepted gratification of ` 200/- from two trucks. It was also disclosed by him that out of ` 200/-, ` 50/- were donated to the Gurdwara, ` 100/- were given to the applicant-petitioner and remaining ` 50/- were kept by him (P-6). C.W.P. No. 16078-CAT of 2006 3 He was placed under suspension. The applicant-petitioner was also directed to give his statement in writing. In his written reply dated 12.3.2005, the applicant-petitioner submitted that on the date of incident some TV personnel reported to him that Constable Maan Singh was taking bribe of ` 100/- from truck driver and they would display on TV some news in that regard. But Constable Maan Singh denied having taken any money from any truck driver (P-7).
4. The applicant-petitioner has placed on record an affidavit of Constable Maan Singh, dated 14.3.2005 and the application dated 16.3.2005 for revocation of his suspension, perusal of which shows that Constable Maan Singh in his confessional statement made before the S.P. Traffic, Chandigarh, involved the applicant-petitioner under fear, pressure and promise of pardon by S.P./Security and Traffic (P-8 & P-9). Paras 5 and 7 of the affidavit, dated 14.3.2005, reads thus:
"5. That vide confessional statement dated 12.3.2005 of the deponent the name of Inspector Sidhu was wrongly mentioned and any act attributed to him wrongly under fear, pressure and promise of pardon by S.P./Security and Traffic, otherwise Inspector Sidhu did not have knowledge or any way involved in the episode under reference which occurred probably in the end of January, 2005 near Tribune Chowk.
6. xxx xxx xxx
7. That the affidavit is being executed, to bring on record the innocence of the deponent in the matter and to allay any misconception about Inspector S.S. Sidhu, which might have been created through confessional statement of the deponent as made C.W.P. No. 16078-CAT of 2006 4 before Shri Amitabh Singh Dhillon, S.P./Security and Traffic, U.T., Chandigarh on the evening of dated 12.3.2005 at Traffic Lines, Sector 29, Chandigarh."
4. After conducting a preliminary inquiry the D.S.P., C.I.D., Chandigarh, submitted his report on 1.4.2005 (P-10). Thereafter, the Inspector General of Police, U.T. Chandigarh, passed an order dated 25.4.2005 for holding a regular departmental inquiry under Rule 16.24 of the Punjab Police Rules, 1934 as applicable to Chandigarh (for brevity, 'the Rules') against the applicant-petitioner as well as Constable Maan Singh. Shri Om Parkash, Deputy Superintendent of Police was appointed as Enquiry Officer (P-11). On 23.5.2005, the Enquiry Officer served on the applicant-petitioner a summary of allegation along with the list of witnesses and documents (P-12 and P-13). As per the summary of allegation the charge levelled against the applicant- petitioner is that he lacked supervision being the Supervisory Officer at the time of checking, which amounted to grave misconduct, dereliction of duty and unbecoming of a good police officer being a member of the disciplined force. For ready reference, the summary of allegation is reproduced as under:-
" It is alleged that C. Mann Singh no. 3292/CP, attached as motorcycle Driver with you Inspector Shivraj Singh Sidhu, was present on the road dividing Sector 31 and Industrial area, Ph-II, Chandigarh, in the last week of January, 2005 (evening time) where it is alleged that the checking of trucks was being done under the supervision of you Inspector Shiv Raj Singh Sidhu. One truck, which had entered 'no entry zone' was stopped by the said constable, who accepted a one hundred rupee note from him as illegal gratification for letting him off without challan. It is C.W.P. No. 16078-CAT of 2006 5 further alleged that some other trucks were also stopped by the said constable and allowed to go without challan for unauthorized entry to the prohibited area after taking money from them.
The above act on the part of you both Inspector Shiv Raj Singh Sidhu (being supervisory officer at the time of checking) and Constable Maan Singh No. 3292/CP amounts to grave misconduct dereliction of duty and unbecoming of a good police officer being a member of the disciplined force."
5. On 18.11.2005, the Enquiry Officer submitted his report holding both the applicant-petitioner and Constable Maan Singh guilty of the charge levelled against them (P-15). Thereupon, while supplying a copy of the inquiry report, a show cause notice dated 21/22.12.2005 was issued by the Inspector General of Police, U.T. Chandigarh, to the applicant-petitioner as well as Constable Maan Singh to show cause as to why a punishment of dismissal from service may not be imposed upon them (P-16). On 12.1.2006, the applicant-petitioner replied to the show cause notice denying his involvement (P-17). On 18.5.2006, the Inspector General of Police, U.T. Chandigarh, passed an order of dismissal against the applicant-petitioner and Constable Maan Singh. The operative part of the order reads thus:-
" I have gone through the enquiry file, findings of the enquiry officer, relevant record relating to the enquiry vis-à-vis ground put forth by the delinquents in their reply in defence. Both the delinquent officials have been afforded ample and substantial opportunity to defend themselves during the conduct of departmental proceedings and the same have been conducted following due procedure under rules. The charges against them C.W.P. No. 16078-CAT of 2006 6 have been proved and are duly supported and substantiated by the evidence on record. It has clearly been established that they were allowing number of trucks to pass without challan on financial consideration and the proceedings were personally supervised by Inspector Shiv Raj Singh Sidhu. All this has been video recorded by the news channel. The collection of bribe under personal supervision of the officer has duly been established and the delinquent officials have not been able to satisfactorily rebut the allegation either during the enquiry proceedings or in their reply to the show cause notice nor during their personal hearing. Various grounds taken by Inspector Sidhu in his reply to show cause notice are devoid of merits. There is no contravention of rules while passing orders to initiate departmental proceedings nor during the conduct of proceedings. Due opportunity of defence has been afforded to them and examination of only those defence witnesses has been denied which were not relevant to the enquiry proceedings. The allegation of malafide against any senior police officer or T.V. channel personnel are totally vague and without any evidence. The CVO (UT) Chandigarh instructions are not relevant to the facts of the present case. The contention that CD evidence is not admissible in the departmental proceedings is also devoid of merits. I have also applied my mind to the length of service rendered by both the delinquent officials and their claim to the pension. However, keeping in view the facts and circumstances of the case and the gravest misconduct on their part, Inspector Shiv Raj Singh Sidhu and Constable Man Singh C.W.P. No. 16078-CAT of 2006 7 no. 3292/CP are hereby dismissed from service with immediate effect.
6. Feeling aggrieved, the applicant-petitioner filed two Original Applications, namely O.A. No. 926-CH of 2005 and 31-CH of 2006 challenging various orders passed by the departmental authorities from time to time. The Tribunal dismissed the aforementioned OAs, vide impugned judgment dated 1.9.2006 by coming to the conclusion that it is not a case of no evidence. There is sufficient evidence for recording a finding against the applicant-petitioner. The Tribunal has also rejected the argument of the applicant-petitioner that because the impugned order of dismissal has been passed by the Inspector General of Police, U.T. Chandigarh, who is otherwise Appellate Authority under the Rules, his right of appeal has been taken away (P-19).
7. Mr. S.D. Sharma, learned senior counsel appearing for the petitioner has vehemently argued that there is a flagrant violation of Rule 16.2 of the Rules because the order of dismissal dated 18.5.2006 (P-18) has been passed by the Inspector General of Police without any regard to the length of service and the pensionary benefits which would accrue to the applicant- petitioner. According to the learned counsel, the applicant-petitioner has put in almost 33 years of service as he joined on 29.5.1973 and was dismissed on 18.5.2006. According to the learned counsel in a matter of this nature where charge leveled against the delinquent officer is lack of supervision over the subordinate, the punishment of dismissal is harsh, inasmuch as, while inflicting such a harsh punishment his total length of service and consequential pensionary benefits have not been taken into account. According to him the aforesaid rule is mandatory, as has been held by this Court in the cases of C.W.P. No. 16078-CAT of 2006 8 State of Haryana v. Lachman Singh, 1992 (2) SCT 545 and State of Punjab v. Gurdip Singh, 1994 (3) SCT 481. He has emphasised that the Rule has also been interpreted in various judgments of Hon'ble the Supreme Court as well as by this Court. In that regard learned counsel has cited the judgments of Hon'ble the Supreme Court rendered in the cases of State of Punjab v. Dharam Singh, (1997) 2 SCC 550; Harjit Singh v. State of Punjab, 2007 (4) SLR 645; and State of Punjab v. Ram Singh Ex-Constable, (1992) 4 SCC 54 as well as by this Court in the cases of Bharat Singh v. State of Haryana, 2000 (2) SCT 159; State of Punjab v. Jagtar Singh, 2000 (3) SCT 177; Randhir Singh v. Dy. Inspector General of Police, Ambala Range, Ambala Cantt., 2005 (1) SLR 259; and SI Surinder Singh v. State of Punjab, 2008 (6) SLR 556. He has also submitted that the petitioner had pain in his knee and arranged a chair for himself and, therefore, there was no lapse committed by him. He had, in fact, no knowledge that his inferior Constable Maan Singh was accepting illegal gratification nor it was ever brought to his notice. He has also drawn our attention to the averments made in para 22 of the petition and argued that the applicant-petitioner is fully eligible for grant of pension under Rule 9.18 read with Rule 9.22 of the Rules. According to the learned counsel the qualifying service under Rule 9.18 is 25 years.
8. The second submission made by the learned counsel is that the right of appeal conferred on the applicant-petitioner under Rule 16.29 has been snatched away. He has submitted that the Appointing and Punishing Authority of the applicant-petitioner under Rule 12.1 and 16.1 respectively is the Deputy Inspector General of Police. Against any punishment awarded by the Punishing Authority appeal under Rule 16.29 lies before the Appellate Authority and under Rule 16.32 of the Rules further provision has been made C.W.P. No. 16078-CAT of 2006 9 for filing of revision against the order passed by the Appellate Authority. Mr. Sharma has drawn our attention to the dismissal order dated 18.5.2006 (P-18) to show that the same has been passed by the Inspector General of Police, U.T. Chandigarh, which has deprived the applicant-petitioner of his right to file an appeal. In support of his submission, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank, AIR 1995 SC 1053.
9. Another submission made by the learned counsel is that in the charge sheet the expression used is that the applicant-petitioner has committed a 'grave misconduct', dereliction of duty unbecoming of a good police officer (P-14). Likewise, similar expression 'grave misconduct' has been used in the summary of allegations (P-12). However, in order to fulfill the requirement of Rule 16.2 the word 'gravest' has been added in the order of dismissal which is wholly unwarranted. Learned counsel has then submitted that the service record of the applicant-petitioner from 1987 to 2004 has been rated as Grade- A or Grade-B. He has explained that under Rule 13.17, Grade-A report is given to those who are recommended for promotion for special reasons irrespective of their seniority and Grade-B report is given to those who are recommended for promotion in ordinary course of seniority. In that regard he has drawn our attention to the averments made in para 32(v) of the petition and also to the corresponding reply. Mr. Sharma also submitted that the work of the applicant-petitioner has been highly appreciated as he was instrumental in unearthing fake stamp papers of different denominations, worth ` 2, 91,00,000/- from four accused and an FIR No. 125, dated 28.7.2002 was registered in the said incident. In that regard he has invited our attention to the C.W.P. No. 16078-CAT of 2006 10 averments made in para 27 of the petition.
10. Mr. Sharma has lastly submitted that in the present case the punishment of dismissal from service for lack of supervision has been inflicted upon an officer who has rendered 33 years of service and was left with only about six months service to retirement, which is extremely harsh and disproportionate of the alleged misconduct.
11. Ms. Lisa Gill, learned counsel for the respondents has vehemently opposed the submissions made on behalf of the petitioner. Her first submission is that Rule 16.2 of the Rules has been religiously complied with, inasmuch as, the Punishing Authority in his order dated 18.5.2006 (P-18) has expressly observed that "I have also applied my mind to the length of service rendered by both the delinquent officials and their claim to the pension", but they deserved to be dismissed from service. She has further submitted that once the findings are well based and are sustainable in the eyes of law then the Courts are not to tinker with the quantum of punishment awarded by the authorities. In support of her submission, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Union of India v. Narain Singh, AIR 2002 SC 2102. Her submission seems to be that the inquiry has been conducted by granting full opportunity to the petitioner and the Tribunal examined the evidence on which the inquiry report is based. Referring to para 17 of the judgment of the Tribunal, learned counsel submits that the Tribunal has recorded categorical finding to the effect that it was not a case of no evidence. On the contrary, the Tribunal has found that there was sufficient evidence against the petitioner as well as his associate Constable Maan Singh.
12. The last submission made by Ms. Gill is that even if the punishment of dismissal has been ordered by the Inspector General of Police C.W.P. No. 16078-CAT of 2006 11 but that would not vitiate the order because the superior authority can always pass an order, which is required to be passed under the rules by a lower authority. In support of her argument, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Government of Andhra Pradesh v. N. Ramanaiah, (2009) 7 SCC 165. In reply to the argument of the learned counsel for the petitioner that right of appeal of the petitioner has been taken away, Ms. Gill has invited our attention to the observations made by the Tribunal in paras 14 and 15 wherein the Tribunal has recorded that the applicant-petitioner could exercise his right of appeal because there was no post or officer of the rank of Deputy Inspector General of Police, therefore, the Inspector General of Police has to assume the power of Appointing and Punishing Authority. According to the learned counsel, the appeal could have been filed before the Home Secretary, U.T. Chandigarh, and despite suggestion made by the Tribunal, no appeal was preferred and it was insisted that the order of punishment has been passed by an incompetent authority.
13. After hearing learned counsel for the parties, perusing the record including memorandum of charges, inquiry report and judgment of the Tribunal, we feel that it would be first necessary to focus our attention on the charges levelled against the applicant-petitioner. As per the charge served on the applicant-petitioner (P-14) there is no allegation of demanding or accepting illegal gratification, which charge in fact is confined to Constable Maan Singh. It would, thus, be necessary to peruse the charge against the applicant-petitioner, which reads as under:-
" I, Om Parkash, Dy. Superintendent of Police, Crime U.T., Chandigarh, Enquiry Officer, charge you Inspr. Shiv Raj Singh C.W.P. No. 16078-CAT of 2006 12 Sidhu that C. Maan Singh no. 3292/CP, attached as motorcycle driver with you Inspector Shiv Raj Singh Sidhu, was present on the road dividing Sector 31 and Industrial Ph-II, Chandigarh, in the last week of January, 2005 (evening time) where the checking of trucks was being done under the supervision of you Inspector Shiv Raj singh Sidhu. One truck, which had entered 'no entry zone' was stopped by the said constable, who accepted a one hundred rupee note from him as illegal gratification for letting him off without challan. It is further alleged that some other trucks were also stopped by the said constable and allowed to go without challan for unauthorised entry to the prohibited area after taking money from them.
The above act on the part of you both Inspr. Shiv Raj Singh Sidhu (being supervisory officer at the time of checking) and Constable Maan Singh No. 3292/CP amounts to grave misconduct dereliction of duty and unbecoming of a good police officer being a member of the disciplined force."
14. The aforesaid charge is identical to the summary of allegation, dated 23.5.2005 (P-12), which was served on the applicant-petitioner along with the list of witnesses and list of documents (P-13). It is patent that there was no allegation of accepting illegal gratification by the applicant-petitioner. However, an allegation against Constable Maan Singh of accepting illegal gratification has been made. The allegation against the applicant-petitioner is that checking of trucks was being done under his supervision and illegal gratification was being accepted by Constable Maan Singh on account of lack of supervision. The Enquiry Officer, however, has concluded that the C.W.P. No. 16078-CAT of 2006 13 applicant-petitioner was observing the activities of the Constable closely and everything was being done under his close supervision. It has further been found that otherwise he would not have allowed the Constable to check the vehicles independently because the Constable was not authorised to do so. The finding recorded by the Enquiry Officer envelops the applicant-petitioner in respect of the charge levelled against Constable Maan Singh, namely, that he was accepting illegal gratification. At the cost of repetition we may state that against the applicant-petitioner no such charge was levelled and, therefore, the Enquiry Officer could not have returned any such finding. It would amount to traveling beyond the charge and any finding to that effect are without jurisdiction.
15. It is true that if the applicant-petitioner is guilty of accepting illegal gratification then there was no room to spare him from the severest punishment of dismissal. But in the present case that is not even the charge levelled against him. Moreover, the mandatory provisions of Rule 16.2(1) of the Rules have not been properly considered and applied. Ms. Gill has submitted that the Punishing Authority in his order dated 18.5.2006 (P-18) has expressly observed that it has applied its mind to the length of service rendered by both the delinquent officials and their claim to the pension. However, it has failed to take into account that the applicant-petitioner had rendered 33 years of service and was left with only six months service to retire. It is pertinent to mention that mere repetition of the language of the Rule would not prove application of mind by the authority. For application of the Rule to the facts of the case it was required to refer to the length of service and the nature of record earned by the officer. It has not been controverted that the applicant- petitioner has rendered about 33 years of service by the time the order of C.W.P. No. 16078-CAT of 2006 14 dismissal was passed. Accordingly, recording of one line in the order to the effect that "I have also applied my mind to the length of service rendered by both the delinquent officials and their claim to the pension", would not be sufficient to satisfy the requirement of Rule 16.2(1) of the Rules, which reads thus:-
"16.2. Dismissal.- (1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension."
16. The aforesaid Rule has been subject matter of interpretation by Hon'ble the Supreme Court in the case of Ram Singh (supra). In para 7 of the judgment, Rule 16.2(1) has been interpreted as under:-
"7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, "act" includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the C.W.P. No. 16078-CAT of 2006 15 repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct."
17. The aforesaid interpretation has also been adopted in a recent judgment of Hon'ble the Supreme Court in the case of Harjit Singh (supra), which was a case of absence from duty. The aforesaid judgment has also been followed by a Division Bench of this Court (of which one of us, M.M. Kumar, J. was a member) in the case of SI Surinder Singh (supra).
18. The aforesaid statement of law recorded in para 7 of the judgment of Hon'ble the Supreme Court in Ram Singh's case (supra) would help the applicant-petitioner only to the extent that in the departmental inquiry no finding has been recorded against him to the effect that his misconduct is gravest in terms of Rule 16.2(1) of the Rules and it has been erroneously found that he is guilty of accepting illegal gratification. It appears to us that the Rule making authorities have intentionally used the expression 'gravest acts of misconduct' to constitute a basis to order for dismissal because such order C.W.P. No. 16078-CAT of 2006 16 impinges upon the pensionary rights of a delinquent who may have put in a long years of service. Therefore, the first part of Rule 16.2(1) of the Rules, as interpreted in para 7 of the judgment in Ram Singh's case (supra), would not apply to the case of the applicant-petitioner because there is no finding recorded that lack of supervision on the part of the applicant-petitioner while his Constable was checking the trucks was such a gravest act of misconduct which proves incorrigibility.
19. It is further worthwhile to notice that the Punishing Authority has violated the mandatory provisions of Rule 16.2(1) by refusing to consider length of service of the applicant-petitioner, who had rendered about 33 years of service. A mere reproduction of the Rule is not sufficient compliance requiring examination of the case of the applicant-petitioner. There is nothing on record to conclude that he had earlier committed misconduct of such a nature. On the contrary he has continuously earned promotions. He entered service of the U.T. Administration on 21.5.1973 as Assistant Sub-Inspector and was promoted as Sub-Inspector on 3.12.1981. He was further promoted to the rank of Inspector on 16.9.1987 and was assigned the duties of Traffic Inspector in September 2003. He has earned appreciation while he was posted as Station House Officer in Police Station, Industrial Area, Chandigarh, in the year 2002. He was Investigating Officer in case FIR No. 125, dated 28.7.2002, registered under Sections 420, 467, 468, 473, 474, 258, 259, 263 and 120-B IPC. The case related to the recovery of fake stamps of different denominations worth ` 2,91,00,000/-and ` 31,731/- from four accused persons. The applicant-petitioner was awarded commendation by the Chandigarh Police and the accused were convicted in that case. The aforesaid averments have been made in para 27 of the petition. In reply to the aforesaid C.W.P. No. 16078-CAT of 2006 17 para, the averments have not been controverted. Therefore, we are of the view that the Punishing Authority has ignored the mandatory requirement of Rule 16.2(1) of the Rules.
20. Although it is well settled that the order of punishment passed by the competent authorities should not ordinarily be interfered with, as has been held in the case of Union of India v. Parma Nanda, (1989) 2 SCC 177. It has been observed that ordinarily the Courts or the Tribunal has no power to interfere with the punishment awarded by the competent authority in departmental proceedings on the ground of the penalty being excessive or disproportionate to the misconduct proved, provided the punishment is based on evidence and is not arbitrary, malafide or perverse. The aforesaid view has been following in the case of State of Karnataka v. H. Nagaraj, (1998) 9 SCC 671. Yet, it is equally settled that such orders can be interfered with if 'Wednesbury' principles are applicable. In a 7-Judge Bench judgment of Hon'ble the Supreme Court in the case of Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1, a statement of Wednesbury principle has been made in para 242, which reads thus:-
"242. The Wednesbury [Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn., (1948) 1 KB 223] principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no C.W.P. No. 16078-CAT of 2006 18 sensible person could ever have reached it."
21. The case of the applicant-petitioner would be covered by the aforementioned principle, inasmuch as, the Enquiry Officer has traveled beyond the charge by imputing the applicant-petitioner with the charge of accepting illegal gratification. Moreover, the Punishing Authority has not properly considerated the case of the applicant-petitioner in the light of the mandatory requirement of Rule 16.2(1) of the Rules while passing the order of dismissal. Therefore, only charge of lack of exercise of supervision could be deemed to have proved.
22. The argument of Mr. Sharma with regard to snatching of a right of the applicant-petitioner of filing appeal is rendered academic and we are not inclined to deal with the same in view of the finding that the Enquiry Officer has traveled beyond the charge and that the mandatory provision of Rule 16.2 (1) of the Rules has been violated.
23. In view of the above discussion and keeping in view the peculiar facts of this case where the nature of charge is lack of supervision in performing duty, we are of the view that ends of justice would be met by setting aside order of dismissal, dated 18.5.2006 (P-18) and judgment dated 1.9.2006 (P-19) passed by the Tribunal. The applicant-petitioner has completed about 33 years of service till the date of his dismissal as he had joined as Assistant Sub-Inspector on 21.5.1973 and he was to retire on 30.11.2006. However, he was dismissed from service on 18.5.2006. Accordingly, we are of the view that ends of justice would be met if the applicant-petitioner is visited with the punishment of forfeiture of two years of service as per Item No. 3 of the table incorporated by Rule 16.1(2) of the Rules. Accordingly, he would be deemed to have retired on 30.11.2004. As a consequence he would become entitled to pension and other benefits. The C.W.P. No. 16078-CAT of 2006 19 pensionary benefits of the applicant-petitioner be released within three months from today.
24. The writ petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(RITU BAHRI)
November 9, 2010 JUDGE
Pkapoor