L / Nk Prithvi Singh Bishnoi vs Union Of India And Ors ... on 25 September, 2024

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Rajasthan High Court - Jodhpur

L / Nk Prithvi Singh Bishnoi vs Union Of India And Ors ... on 25 September, 2024

These intra-Court appeals are directed against the order dated 15.02.2011 passed by learned Single Judge of this Court, whereby the writ petition preferred by the writ petitioner- L/NK Prithvi Singh Bishnoi assailing the correctness of the order dated 03.10.2001 passed by the Disciplinary Authority dismissing him from service has been partly allowed and the matter has been remanded back to the disciplinary authority i.e. Commandant 23 Battalion, Border Security Force to reconsider the question regarding imposition of the penalty as per section 48 of the Border Security Force Act, 1968 (for short 'the Act of 1968' hereinafter). Learned Single Judge further directed that the Disciplinary Authority shall be at liberty to impose any penalty upon the writ petitioner- L/NK Prithvi Singh Bishnoi except the punishments prescribed under section 48(1)(a),(b),(c) & (d) of the Act of 1968.

2. In D.B. Special Appeal Writ No.972/2011, the employer (Union of India) has prayed that the order under appeal dated 15.02.2011 passed by the learned Single Judge may be quashed and set aside as the order of punishment dated 03.10.2001 has been passed by the Disciplinary Authority looking to the gravity of the offence committed by the writ petitioner- L/NK Prithvi Singh Bishnoi. The writ petitioner- L/NK Prithvi Singh Bishnoi has also assailed the order dated 15.02.2011 passed by the learned Single Judge on the ground that the learned Single Judge on reaching to (Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (3 of 8) [SAW-972/2011] a definite conclusion that the punishment imposed upon writ petitioner is shockingly unjust and arbitrary should not have remanded the matter to the Disciplinary Authority for imposing punishment and, instead, a minor punishment as mentioned under section 48 of the Act of 1968 could have been imposed upon him by the learned Single Judge.

3. Before proceeding further it would be pertinent to note here that a co-ordinate Bench of this Court on 04.11.2024 while disposing of the stay application preferred by the employer- Union of India with SAW No.972/2011 pleased to pass following order:-

"Heard on the question of grant of stay.

By impugned order under appeal, the learned Single Judge has partly allowed the respondent's writ petition and in consequence thereof has set aside the termination order of the respondent and in so doing, learned Single Judge has remanded the case to the appointing authority for deciding the issue with regard to imposition of fresh punishment on the respondent other than the punishment of dismissal/termination as prescribed under the Rules. In other words, in the opinion of the learned Single Judge, the punishment originally inflicted upon the respondent (delinquent employee) appeared to be harsh and excessive being not commensurate with the gravity of charge levelled against him, and therefore, the extreme punishment of dismissal was set aside and the matter was remanded to the appointing authority to impose any other punishment other than dismissal/termination in its discretion as prescribed under the Rules.

It is against this order, the employer (Union of India) has come up in appeal and has sought stay of these directions pending appeal.

In our view, let the appointing authority take a decision in the matter as directed by the learned Single Judge in the impugned order in its discretion as per the rules. However such decision shall not be given effect to nor it will in any way take away the right of the appellant to prosecute this appeal on merits only because impugned direction was not stayed. Let the decision be placed before this Court after it is taken for our perusal. It be done within three months.

(Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (4 of 8) [SAW-972/2011] We, however, make it clear that implementation of the impugned order would not in any way be construed as disposal of this appeal on merits and appeal will be heard independent to that of decision on merits."

4. Learned counsel for the parties jointly submitted that during pendency of the present writ petitions, the Disciplinary Authority of the respondent- writ petitioner has reconsidered the question regarding the imposition of penalty upon writ petitioner- L/NK Prithvi Singh Bishnoi in conformity with the directions issued by this Court vide orders dated 15.02.2011 and 04.11.2011. Thereupon, the punishment of 'dismissal from service' has been substituted to that of 'forfeit of two years of service for the purpose of promotion and to forfeit 01 year of service for the purpose of pension'. The writ petitioner- L/NK Prithvi Singh Bishnoi after passing of the order dated 11.08.2012 by the Disciplinary Authority has already been reinstated in service.

5. Learned counsel for the employer- Union of India vehemently and fervently submitted that the respondent- writ petitioner who joined Border Security Force on 24.12.1984, and was promoted as L/Nayak on 15.03.1993 during his posting at "A" Coy 23 Battalion, BSF was charged as per section 20(b) of the Act of 1968. It was alleged that he used abusive and threatening language to his superior officer Subedar Hardev Singh. During disciplinary proceedings conducted against respondent- writ petitioner by adhering to the Border Security Force Rules, he pleaded guilty of the charge upto the extent that he did abuse Subedar Hardev Singh. Thus having found him guilty, a punishment of dismissal from service was awarded to him. It was urged that the misconduct as accepted is of insubordination which is a (Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (5 of 8) [SAW-972/2011] misconduct as per section 20(c) of the Act of 1968. Learned counsel submitted that any act of indiscipline is required to be dealt with stringently in a disciplined force like Border Security Force.

6. Lastly, learned counsel submitted that the learned Single Judge has seriously erred in remanding the matter to the Disciplinary Authority to reconsider the question regarding the imposition of punishment particularly when the disciplinary inquiry has been fairly and properly held and the findings recorded by the Disciplinary Authority are based on evidence. It is a settled law that the power of High Court to interfere with the quantum of punishment imposed by the Disciplinary Authority is very limited.

7. Per contra, the learned counsel appearing on behalf of the writ petitioner reiterated the same contentions which were submitted by him before the learned Single Judge. It was submitted that the punishment imposed by the Disciplinary Authority is shockingly disproportionate to the gravity of misconduct proved and therefore, the same has rightly been interfered with by the learned Single Judge.

7. We have heard the submissions of the learned counsels appearing for the parties and perused the material available on record.

8. The observations made by the learned Single Judge in the impugned order dated 05.02.2011 while remanding the matter to the Disciplinary Authority read as under:-

"In the present case, the position is quite different. The petitioner herein used abusive language and this was his first misconduct in seventeen years of service. There is no allegation against the petitioner for assaulting the superior officer, the allegation of giving threatening has not been (Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (6 of 8) [SAW-972/2011] proved, as such, the total allegation is with regard to use of abusive language. The disciplinary authority is equipped with several penalties and those too should have been considered before inflicting the severest penalty of dismissal. The dismissal from service in the instant case is quite harsh and shockingly disproportionate to the guilty established.

Looking to all the facts and circumstances of the case, I deem it appropriate to dispose of this petition for writ by quashing the order impugned dated 3.10.2001 and remanding the matter to the Commandant 23 Battalion, Border Security Force to reconsider the question regarding imposition of penalty as per Section 48 of the Act of 1968 The Commandant shall be at liberty to impose any punishment upon the petitioner except the punishments prescribed under Section 48 (1)(a),(b), (c) and (d)."

9. Indisputably, the respondent- writ petitioner had served the appellant- Union of India for 40 years and apart from the alleged misconduct there is no allegation that he had indulged himself in any other illegality or misconduct. There is no quarrel on the issue that after reinstatement in service pursuant to the order dated 11.08.2012 passed by the Disciplinary Authority substituting the punishment of 'dismissal from service' to that of 'forfeit of two years of service for the purpose of promotion and to forfeit 01 year service for the purpose of pension', the writ petitioner is discharging satisfactory duties with the employer.

10. It is true that the Disciplinary Authority has discretion to impose appropriate punishment for the misconduct proved but if the decision of the Disciplinary Authority is an outrageous defiance of logic, then the punishment would not be immune from correction (refer, "Ranjit Singh v. Union of India & Ors.": (2006)4 SCC 153). In the present case, use of inappropriate/abusive language has been considered to be serious misconduct warranting dismissal from service ignoring the unblemished service career of the service for 17 years and the punishment of (Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (7 of 8) [SAW-972/2011] dismissal imposed being shockingly disproportionate to the gravity of misconduct proved has been rightly interfered by the learned Single Judge.

11. The question of interference on the quantum of punishment has been considered by the Hon'ble Supreme Court of India in a number of cases, and it was held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary, and thus would violate the mandate of Article 14 of the Constitution of India.

12. In "V. Ramana v. A.P.S.R.T.C.": (2005) 7 SCC 338 Hon'ble Supreme Court observed that unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscious of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, imposed appropriate punishment by recording cogent reasons in support thereof. In a 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. Similarly, in "Prem Nath Baili v. Registrar, High Court of Delhi & Ors.": AIR 2016 SC 101, the Supreme Court observed:

"24. It is a settled principle of law that once the charges leveled against the delinquent employee are proved then it is for the appointing authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The appointing authority, keeping in view the nature and gravity of the charges, findings of the inquiry officer, entire service record of the delinquent employee and all relevant factors relating to the delinquent, exercise its discretion and then imposed the punishment as provided in the Rules.

25. Once such discretion is exercised by the appointing authority in inflicting the punishment (whether minor or major) then the Courts are slow to interfere in the (Downloaded on 01/10/2024 at 09:49:25 PM) [2024:RJ-JD:40578-DB] (8 of 8) [SAW-972/2011] quantum of punishment and only in rare and appropriate case substitutes the punishment.

26. Such power is exercised when the Court finds that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscious of the Court or when it is found to be in contravention of the Rules. The Court may, in such case, remit the case to the appointing authority for imposing any other punishment as against what was originally awarded to the delinquent employee by the appointing authority as per the Rules or may substitute the punishment by itself instead of remitting to the appointing authority. ""

14. In the present case, in the opinion of this Court, the alleged misconduct committed by the respondent- writ petitioner after putting 17 years of untainted service career does not warrant the penalty from dismissal from service and the same was certainly excessive, unjust, arbitrary and shockingly disproportionate. This Court is in agreement with the view taken by the learned Single Judge. The order impugned dated 05.02.2011 does not warrant any interference by this Court in exercise of intra Court appeal jurisdiction.

15. The present Special Appeals are therefore, dismissed.

16. No order as to costs.

17. A copy of this order be placed in each file.

(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J 12-13-himanshu/-

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Rajasthan High Court - Jodhpur