Madhya Pradesh High Court
Bhaskar Rawat vs The State Of Madhya Pradesh on 17 January, 2020
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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W.P. No.16966/2017
HIGH COURT OF MADHYA PRADESH
W.P. No.16966/2017
(Bhaskar Rawat Vs. State of Madhya Pradesh and another)
JABALPUR, dated : 17.01.2020
Shri Siddharth Radhelala Gupta, learned
counsel for the petitioner.
Shri Vikalp Soni, learned Government
Advocate for the respondents/State.
The matter pertains to departmental enquiry
and in pursuance to the last order-sheet, a query was
made to the counsel for the respondent, but still there is
no answer.
2. Considering the nature of dispute, the matter
is heard finally.
3. This petition is under Article 226 of the
Constitution of India seeking quashment of the orders
dated 30.07.2015 (Annexure-P/1), 11.12.2015
(Annexure-P/2) and 08.07.2016 (Annexure-P/3).
4. By order dated 30.07.2015 (Annexure-P/1)
in a regular departmental enquiry initiated against the
petitioner, the disciplinary authority inflicted the
punishment of dismissal from service upon him and
thereafter, an appeal was preferred by the petitioner,
which has also been dismissed by the DIG, Khargone
Range and thereafter a mercy appeal preferred by the
petitioner was also dismissed vide order dated
08.07.2016 (Annexure-P/3).
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W.P. No.16966/2017
5. The learned counsel for the petitioner has
assailed the orders impugned mainly on the ground that
the punishment inflicted upon the petitioner does not
commensurate with the charge levelled and it is an
excessive punishment considering the allegations made
against him. It is contended by the petitioner that the
finding of the disciplinary authority is based upon
assumption and presumption and as such, the
punishment inflicted upon him, is liable to be set aside
and it can be substituted by some lesser punishment by
the Court. The learned counsel for the petitioner in
support of his contention has relied upon the decisions
reported in AIR 1982 SC 1552 (Rama Kant Misra v.
State of U.P. and others), AIR 1983 SC 454 (Bhagat
Ram v. State of Himachal Pradesh and others), AIR
1996 SC 484 (B.C. Chaturvedi v. Union of India and
others), (1998) 3 SCC 192 (Colour-Chem Ltd. Vs. A.L.
Alaspurkar and others), AIR 2003 SC 3712 (Dev
Singh v. Punjab Tourism Development Corporation
Ltd. and another), (2012) 4 SCC 407 (Ravi Yashwant
Bhoir Vs. District Collector, Raigad and others),
[2018(3) M.P.L.J. 100] (Ajay Kumar Dohar vs. State of
M.P. and others) and (2019) 3 SCC 39 (Joseph Shine
Vs. Union of India).
6. Per contra, the learned Government Advocate
appearing for the respondents/State submits that the
finding of the disciplinary authority is based upon the
material adduced by the prosecution during the course
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W.P. No.16966/2017
of enquiry. It is contended by them that considering the
misconduct committed by the petitioner and he being a
member of disciplnary force, punishment inflicted upon
him cannot be considered to be excessive in any manner.
It is also contended by the learned Government
Advocate that in a matter of disciplinary proceedings,
scope of interference by the High Court is very limited
and considering the finding given by the authorities, the
punishment inflicted upon the petitioner cannot be
substituted by the Court. Accordingly, he has claimed
that the petition is without any substance, therefore, the
same deserves to be dismissed.
7. To resolve the controversy involved in the
case, certain necessary facts required to be discussed, in
brief, are that the petitioner was found in a company of
a lady inside the room of a government hostel, allotted
to one of his close friend. The room was in a bachelor's
hostel and it is projected that entry of any female was
not allowed, but the petitioner went with the lady in the
hostel and the Hostel Warden objected his entry with
the female, despite that, he went to room No.21 of
Nepanagar Hostel, District Burhanpur with the said
female and closed the doors from inside. On a report
made by the Hostel Warden to her officer, an intimation
was forwarded to the nearest police station and then
police reached the spot, made an enquiry, found that the
petitioner was a policeman and had come with the lady
in the hostel and despite the objection, he went into
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room No.21 and was found with that lady from the said
room.
This conduct of the petitioner was considering to
be an immoral act, which caused serious dent on the
reputation of police department and as such, charge-
sheet was issued to the petitioner with the charge that
he being a public servant had relations with a lady and
committed misconduct by taking that lady in a
bachelor's hostel and as such, the said conduct is a
misconduct as per Rule 3 (1)(iii) of the M.P. Civil
Services (Conduct) Rules, 1965 and also violative of
Police Regulation 64(3).
As many as, 12 witnesses were examined by the
prosecution and thereafter enquiry report was
submitted and the disciplinary authority considering
the enquiry report, passed final order Annexure-P/1
dated 30.07.2015, holding the petitioner guilty of charge
levelled and imposed the punishment of dismissal from
service.
8. From the perusal of the order passed by the
disciplinary authority, it is not impossible to gather that
the said authority acted on the basis of surmises and
conjunctures and presumed so many things to arrive at
the conclusion that the petitioner's conduct is causing
damage to the police department. The relevant portion
of the order of the disciplinary authority indicating that
the disciplinary authority has formed its opinion on the
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W.P. No.16966/2017
basis of assumption and presumption, which are as
follows:-
"---- foHkkxh; tkap esa vk, lk{; ,oa lsok iqfLrdk ds voyksdu
ls ;g HkfyHkkafr mtkxj gksrk gS fd fnukad 11-11-14 dks vipkjh
ftl efgyk gkWLVy ds dejk uacj 21 esa ys x;k Fkk] og efgyk
vipkjh dh iRuh vaxwjhckbZ u gksdj HkkX;Jh uke dh efgyk FkhA
,slh voLFkk esa vipkjh ds fdlh vU; efgyk ds lkFk njoktk can
djus dh ckr ls ;g ,dek= fu"d"kZ fudkyk tk ldrk gS fd
vipkjh cSpyj gkWLVy ds dejk uacj 21 esa dksbZ v'kksHkuh; d`R; ds
vykok dksbZ 'kkldh; dk;Z ugha dj jgk gksxkA ,sls v'kksHkuh; d`R;ksa
ds p{kqn'khZ dh miyC/krk vlaHkoizk; gSA
foHkkxh; tkap esa ;g rF; Hkh mtkxj gqvk gS fd vipkjh vkj-
iwoZ esa Hkh efgyk ds lkFk rhu&pkj ckj gkWLVy ifjlj esa vk;k FkkA
tcfd vipkjh dks gkWLVy esa dksbZ dejk vkoafVr ughsa gSA vipkjh
vkj- dks rRle; Hkh usik fyfeVsM ds laink dk;kZy; ds vf/kdkfj;ksa
}kjk le>kbl nh xbZ FkhA vipkjh ds iq:"k gkWLVy esa efgyk ykus
dh ckr dks usik fyfeVsM ds laink dk;kZy; ds vf/kdkfj;ksa ,oa
deZpkfj;ksa }kjk vkil esa t:j dh gksxhA vFkkZr ;g ckr turk ds
e/; vo"'; izlkfjr gqbZ gksxhA vipkjh ds bl v'kksHkuh; d`R; ds
dkj.k iqfyl foHkkx dh Nfo /kwfey gqbZ gSA"
9. Neither the lady, who accompanied the
petitioner, has made any complaint nor it is found that
the petitioner forcibly took her into the said room. It has
also been noted in the evidence that the room was of his
friend and the lady, namely, Pushpa Bai, sitting at the
entrance of the hostel, stopped the petitioner saying
that the hostel was a bachelor's hostel and the entry of
ladies were strictly prohibited. But ignoring the
warning, the petitioner entered into the hostel with that
lady and spent some time in room No.21 behind the
locked doors.
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10. In my opinion, this charge is not so serious in
the present scenario for which the maximum
punishment can be inflicted because visiting in the
room of his friend in a hostel with a lady is not a crime
especially when there was no written notice anywhere
that the entry of females is strictly prohibited. The lady
sitting at the entrance objected, but being a policeman,
the petitioner did not care to follow the said command
as in a general parlance, it was insulting for him and,
therefore, he committed misconduct to that extent only.
From the record, it can be gathered that in the hostel,
where this incident occurred, no scene was created and
as such, it did not come to the notice of general public
that a policeman has committed such type of arbitrary
and illegal conduct.
11. From the order of the disciplinary authority,
it can also be gathered that it took note of the earlier
penalties levied on the petitioner, whereas no such
charge was levelled against him in the charge-sheet.
Thus, I can visualize that the earlier penalties must have
influenced the disciplinary authority adversely which
made to misconduct of the petitioner appear grave.
12. Considering the law laid down by the
Supreme Court in Case of Rama Kant Misra (supra), in
which, the Supreme Court, considering the misconduct
alleged, has observed that the punishment of dismissal
from service was too excessive and substituted the
same. The observation made by the Supreme Court is as
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under:-
"8. What has happened here? The appellant was
employed since 1957. The alleged misconduct
consisting of use of indiscreet or abusive or
threatening language occurred on Nov. 18, 1971,
meaning thereby that he had put in 14 years of
service. Appellant was Secretary of the Workmen's
Union. The respondent management has not
shown that there was any blameworthy conduct of
the appellant during the period of 14 years'
service he rendered prior to the date of
misconduct and the misconduct consists of
language indiscreet, improper or disclosing a
threatening posture. When it is said that the
language discloses a threatening posture it is
subjective conclusion of the person who hears the
language because voice modulation of each person
in the society differs and indiscreet, improper,
abusive language may show lack of culture but
merely the use of such language on one occasion
unconnected with any subsequent positive action
and not preceded by any blameworthy conduct
cannot permit an extreme penalty of dismissal
from service. Therefore, we are satisfied that the
order of dismissal was not justified in the facts and
circumstances of the case and the Court must
interfere. Unfortunately, the Labour Court has
completely misdirected itself by looking at the
dates contrary to record and has landed itself in an
unsustainable order. Therefore, we are required to
interfere."
13. Further, the Supreme Court in case of Bhagat
Ram (supra), considering the punishment inflicted
upon the employee disproportionate and observed as to
why the same is required to be substituted by the Court
and observed as under:-
"15. The question is once we quash the order, is it
open to us to give any direction which would not
permit a fresh inquiry to be held? After all what is
the purpose of holding a fresh inquiry? Obviously,
it must be to impose some penalty. It is equally
true that the penalty imposed must be
commensurate with the gravity of the misconduct,
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W.P. No.16966/2017
and that any penalty disproportionate to the
gravity of the misconduct would be violative of
Article 14 of the Constitution. Having been
influenced by all these relevant considerations, we
are of the opinion that no useful purpose would be
served by a fresh inquiry. What option is open to
us in exercise of our jurisdiction under Art. 136 to
make an appropriate order. We believe that justice
and fair play demand that we make an order of
minor penalty here and now without being unduly
technical apart jurisdiction, we are fortified in this
view by the decision of this Court in Hindustan
Steels Ltd., Rourkela v. A. K. Roy, (1970) 3 SCR 343:
(AIR 1970 SC 1401) where this Court after
quashing the order of reinstatement proceeded to
examine whether the party should be left to
pursue further remedy. Other alternative was to
remand the matter that being a case of an
industrial dispute to the Tribunal. It is possible
that on such a remand this Court further observed,
that the Tribunal may pass an appropriate order
but that would mean prolonging the dispute which
would hardly be fair or conducive to the interest of
the parties. This Court in such circumstances
proceeded to make an appropriate order by
awarding compensation. We may adopt the same
approach. Keeping in view, the nature of
misconduct, gravity of charge and no
consequential loss, a penalty of withholding his
increments with future effect will meet the ends of
justice. Accordingly, two increments with future
effect of the appellant be withheld and he must be
paid 50% of the arrears from the date of
termination till the date of reinstatement."
14. The Supreme Court in case of B.C.
Chaturvedi (supra) has also observed as to when the
High Court, while exercising the power of judicial
review, substituted its own conclusion on penalty and
imposed some other penalty. Relevant observation
made by the Supreme Court is as follows:-
"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
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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."
15. Further, the Supreme Court in Colour-Chem
Ltd. (supra), dealing with the charge levelled against the
employee, who finally suffered punishment of dismissal,
not only arrived at conclusion that the said punishment
is excessive, as not commensurate with the charges
levelled, but has also observed as to why the said
punishment can be substituted by the Court with some
other punishment. The relevant paragraphs of the order
are as under:-
"12. However this is not the end of the matter.
Looking to the nature of the charges levelled
against the delinquent-respondents it has to be
appreciated that all that was alleged against them
was that they were found sleeping in the wee
hours of the night shift almost near dawn at 03.30
a.m., having kept the machine in a running
condition without seeing to it that proper raw
material was inserted therein. Even on the basis
that it was a major misconduct which was alleged
and proved, looking to the past record of the
service of the delinquents no reasonable employer
could have imposed punishment of dismissal. The
past record was to the effect that respondent no.3
was once found allegedly gambling in the factory
premises but was in fact found to be playing cards
on a Diwali day which was a public holiday, while
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the only past misconduct alleged against
respondent no.4 was that on one occasion he was
warned for negligent discharge of duty. Looking to
the nature of the charges levelled against them,
therefore, and even in the light of their past
service record it could not be said that for such
misconduct they were liable to be dismissed from
service. Such punishments patently appear to be
grossly disproportionate to the nature of the
charges held proved against them. That finding
reached by the Labour Court on facts remains
unassailable. Once that conclusion is reached even
apart from non-application of Clause (g) of Item 1
of Schedule IV of the Act, clause (a) of Item 1 of the
said Schedule of the Act gets squarely attracted as
it would amount to victimisation on the part of the
management which can be said to have imposed a
most unreasonable punishment on these
employees. In this connection learned senior
counsel for the respondent-workmen has rightly
pressed in service a decision of a Bench of three
learned Judges of this Court in the case of Hind
Construction AIR 1965 SC 917. In that case this
Court was considering the jurisdiction and power
of the Industrial Court during the time when
Section 11-A of the Industrial Disputes Act, 1947
was not on the statute-book. Considering the
nature of the punishment imposed on the
workmen, who had gone on strike, because they
had not reported for duty on a day which
otherwise was a holiday but which was declared
by the management to be a working day, this Court
speaking through Hidayatullah, J., made the
following pertinent observations at p. 88 of the
Report :
"...But where the punishment is
shockingly disproportionate, regard being
had to the particular conduct and the past
record or is such, as no reasonable employer
would ever impose in like circumstances, the
Tribunal may treat the imposition of such
punishment as itself showing victimization or
unfair labour practice."
It has to be kept in view that these observations
were made by this Court at a time when unfair
labour practices were not codified either by the
Industrial Disputes Act or even by the present Act.
The present Act tried to codify unfair labour
practices on the part of the employer by enacting
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the Act in 1972 and even the Industrial Disputes
Act being the Central Act also followed the
Maharashtra Act and taking a leaf from the book of
Maharashtra Legislature, Parliament introduced
the concept of unfair labour practices by inserting
Chapter V-C by Act No. 46 of 1982 w.e.f. 21st
August 1984. Sections 25-T and 25-U of the
Industrial Disputed Act deal with "Prohibition of
unfair labour practice" and "Penalty for
committing unfair labour practices" respectively.
The term "unfair labour practice" was defined by
the Industrial Disputes Act by inserting Section
2(ra) with effect from the very same date i.e. 21-8-
1984 by the very same Act, i.e. Act No. 46 of 1982
to mean, "any of the practices specified in the Fifth
Schedule". The Fifth Schedule of the Industrial
Disputes Act, which saw the light of day pursuant
the very same Amending Act, deals with "unfair
labour practices" which are a mirror image and
replica of the unfair labour practices contemplated
and codified by the present Maharashtra Act. But
apart from these subsequent statutory provisions
which tried to codify unfair labour practices on the
part of the employers, the basic concept of
victimisation as laid down by this Court in Hind
Construction's case (supra) holds the field and is
not whittled down by any subsequent statutory
enactments. Not only it is not given a go-by but it is
reiterated by the present Act by enacting Clause
(a) of Item 1 of Schedule IV of the Act meaning
thereby any discharge or dismissal of an employee
by way of victimisation would be unfair labour
practice.
13. x x x
14. So far as this point is concerned it has to be
held that when the punishment of dismissal was
shockingly disproportionate to the charges held
proved against them reinstatement with
continuity of service was the least that could have
been ordered in their favour. There is no question
of appellant losing confidence in them. In this
connection learned senior counsel for the
appellant tried to submit that apart from going to
sleep in the early hours of the morning when the
night shift was coming to a close the machine was
kept working and that would have created a
hazard for the working of the plant and the
possibility of an explosion was likely to arise. So
far as this contension is concerned it must be
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stated that this was not the case of the
management while framing the charge-sheets
against the workmen. Not only that, there is not a
whisper about the said eventuality and possibility
in the evidence led by the management before the
Labour Court. But that apart no such contention,
even though mentioned in the written objections
before the Labour Court, was ever pressed in
service for consideration before the Labour Court
at the stage of arguments, nor any decision was
invited on this aspect. No such contention was also
canvassed by the appellant in revision before the
industrial Court or before the High Court. This
contention, therefore, must be treated to be clearly
an afterthought and appears to have been rightly
given up in subsequent stages of the trial by the
management itself. All that was alleged by its
witness before the Court was that because of the
respondents going to sleep and allowing the
machine to work without pouring raw material
therein the production went down to some extent.
That has nothing to do with the working of the
unattended machine becoming a hazard or inviting
the possibility of any explosion. Under these
circumstances and especially looking to the past
service record of the respondents it could not be
said that the management would lose confidence
in these workmen. The work which they were
doing was not of any confidential nature which an
operator has to carry out in the plant. It was a
manual work which could be entrusted to anyone.
Consequently the submission of learned Senior
Counsel for the appellant, that in lieu of
reinstatement compensation may be awarded to
the respondents, cannot be countenanced. It must,
therefore, be held that the Labour Court was quite
justified in ordering reinstatement of the
respondent-workmen with continuity of service.
However because of the misconduct committed by
them, of sleeping while on duty in the night shift
the Labour court has imposed the penalty of
depriving the workmen, respondent nos. 3 and 4
respectively, of 60% and 50% of the back wages.
After the award they have been granted 100%
back wages till reinstatement. But, in our view, as
respondent nos.3 and 4 went to sleep while on
duty and that too not alone but in company of the
entire staff of 10 mazdoors, they deserve to be
further punished by being deprived of at least
some part of back wages even after the award of
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the Labour Court till actual reinstatement. Interest
of justice would be served, in our view, if
respondent no.3 is directed to be paid only 40% of
the back wages even after the award of the Labour
Court till actual reinstatement pursuant to our
present order. Similarly respondent no.4 will be
entitled to only 50% back wages even after the
date of the Labour Court's award till actual
reinstatement as per the present order. In addition
thereto the appellant-management will be entitled
to give written warnings to both these
respondents when they are reinstated in service
not to repeat such misconduct in future. The
imposition of this type of additional penalty, in our
view, would be sufficient in the facts and
circumstances of the case and will operate as a
suitable corrective for the respondent-employees.
They have suffered enough since more than 14
years. They are out of service for all these 14
years. At the time when they went to sleep in the
night shift they were pretty young. Now they have
naturally grown up in age and with the passage of
years more maturity must have dawned on them.
Under these circumstances the cut in the back
wages as imposed by the Labour Court and as
further imposed by us would be quite sufficient to
act as deterrent for them so that such misconduct
may not be committed by them in future. The third
point is answered as aforesaid by holding that the
order of reinstatement is justified but the order of
back wages as ordered by the Labour Court
requires to be modified to the aforesaid extent.
15. In the result this appeal is dismissed subject
to the slight modification that respondent nos. 3
and 4 will be entitled to reinstatement and
continuity of service but so far as back wages are
concerned, even after the order of the Labour
Court instead of 100% of back wages, respondent
no.3 will be entitled to 40% back wages till
reinstatement and respondent no.4 will be entitled
to 50% back wages till actual reinstatement
pursuant to the present order. They will also be
suitably warned in writing by the appellant as
aforesaid. We direct the appellant to reinstate the
respondents concerned within four weeks from
the date of receipt of a copy of this order at its end.
The office shall send a copy of this order to the
appellant for information and necessary action.
Pursuant to the interim order of this Court
pending this appeal the appellant was directed to
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deposit Rs.78.000/- for being paid to the
respondent- workmen towards their claim of back
wages as awarded by the Labour Court and as
confirmed by higher courts. Deducting the said
amount the balance of back wages as payable to
the respondents concerned pursuant to the
present order shall be worked out and this amount
of back wages with all other consequential
monetary benefits flowing from the order of
reinstatement shall be made available by the
appellant to the respondents concerned within a
period of eight weeks from the receipt of a copy of
this order at its end. It is also made clear that
because of the grant of continuity of service to the
respondents all other future benefits like
promotion, retiral benefits etc. according to rules
and regulations of appellant-management will also
be made available to the respondent-workmen.
Orders accordingly. In the facts and circumstances
of the case there will be no order as to costs."
16. The Supreme Court in case of Dev Singh
(supra), has also dealt with the situation as to when the
High Court can substitute the punishment imposed by
the disciplinary authority. It is observed by the Supreme
Court that when the punishment is totally
disproportionate to the misconduct proved, the Court
can substitute the punishment exercising the power of
judicial review. The relevant paragraphs of the said
judgment are as follows:-
"6. A perusal of the above judgments clearly
shows that a court sitting in appeal against a
punishment imposed in the disciplinary
proceedings will not normally substitute its own
conclusion on penalty, however, if the punishment
imposed by the disciplinary authority or the
appellate authority shocks the conscience of the
court, then the court would appropriately mould
the relief either by directing the
disciplinary/appropriate authority to reconsider
the penalty imposed or to shorten the litigation its
may make an exception in rare cases and impose
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appropriate punishment with cogent reasons in
support thereof. It is also clear from the above
noted judgments of this Court, if the punishment
imposed by the disciplinary authority is totally
disproportionate to the misconduct proved against
the delinquent officer, then the court would
interfere in such a case.
7. Applying the said principles laid down by this
Court in the cases noted herein above, we see that
in this case the appellant has been serving the
respondent-Corporation for nearly 20 years with
unblemished service, before the present charge of
misconduct was levelled against him. The charge
itself shows that what was alleged against the
appellant was of a misplacement of a file and there
is no allegation whatsoever that this file was either
misplaced by the appellant deliberately or for any
collateral consideration. A reading of the charge
sheet shows that the misplacement alleged was
not motivated by any ulterior consideration and at
the most could be an act of negligence, consequent
to which the appellant was unable to trace the file
again. The disciplinary authority while considering
the quantum of punishment came to the
conclusion that the misconduct of the nature
alleged against the appellant should be viewed
very seriously to prevent such actions in future
whereby important and sensitive records could be
lost or removed or destroyed by the employee
under whose custody the records are kept.
Therefore, he was of the opinion a deterrent
punishment was called for. Forgetting for a
moment that no such allegation of misplacing of
important or sensitive record was made in the
instant case against the appellant and what he was
charged of was misplacement of a file importance
or sensitiveness of which was not mentioned in
the charge sheet. Therefore, in our opinion, the
disciplinary authority was guided by certain facts
which were not on record, even otherwise, we are
of the opinion that when the Service By-Laws
applicable to the Corporation under Service By-
Laws 17 provides various minor punishments, we
fail to appreciate why only maximum punishment
available under the said By-laws should be
awarded on the facts of the present case. We think
the punishment of dismissal for mere
misplacement of a file without any ulterior motive
is too harsh a punishment which is totally
disproportionate to the misconduct alleged and
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the same certainly shocks our judicial conscience.
Hence, having considered the basis on which the
punishment of dismissal was imposed on the
appellant and the facts and circumstances of this
case, we think to avoid further prolonged litigation
it would be appropriate if we modify the
punishment ourselves. On the said basis, while
upholding the finding of misconduct against the
appellant, we think it appropriate that the
appellant be imposed a punishment of withholding
of one increment including stoppage at the
efficiency bar in substitution of the punishment of
dismissal awarded by the disciplinary authority.
We further direct that the appellant will not be
entitled to any back wages for the period of
suspension. However, he will be entitled to the
subsistence allowance payable upto the date of the
dismissal order.
8. With the above modifications, this appeal is
allowed, the impugned order of the disciplinary
authority in so far as it directs the dismissal of the
appellant, stands substituted as ordered by us
herein above."
17. The Supreme Court in case of Ravi Yashwant
Bhoir (supra), has very elaborately dealt with the term
'misconduct' and further interpreted the 'disgraceful
conduct'. The relevant observation of the Supreme Court
regarding 'misconduct' and 'disgraceful conduct', are as
follows:-
"11. "Misconduct" has been defined in Black's Law
Dictionary, 6th Edn. as:
"A transgression of some established and
definite rule of action, a forbidden act, a
dereliction of duty, unlawful behavior, wilful
in character, improper or wrong behavior, its
synonyms are misdemeanor, misdeed,
misbehavior, delinquency, impropriety,
mismanagement offense, but not negligence
or carelessness."
"Misconduct in office" has been defined as:
"Any unlawful behavior by a public officer
in relation to the duties of his office, wilful in
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character. Term embraces acts which the
office-holder had no right to perform, acts
performed improperly, and failure to act in
the face of an affirmative duty to act."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint
Edn. 1987 at p. 821 defines "misconduct" thus:
"The term 'misconduct' implies a wrongful
intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as
conduct involving moral turpitude. The word
'misconduct' is a relative term, and has to be
construed with reference to the subject-matter and
the context wherein the term occurs, having regard
to the scope of the Act or statute which is being
construed. Misconduct literally means wrong
conduct or improper conduct. In usual parlance,
misconduct means a transgression of some
established and definite rule of action, where no
discretion is left, except what necessity may
demand and carelessness, negligence and
unskilfulness are transgressions of some
established, but indefinite, rule of action, where
some discretion is necessarily left to the actor.
Misconduct is a violation of definite law;
carelessness or abuse of discretion under an
indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is
necessarily indefinite. Misconduct in office may be
defined as unlawful behaviour or neglect by a
public officer, by which the rights of a party have
been affected.
Thus it could be seen that the word 'misconduct'
though not capable of precise definition, on
reflection receives its connotation from the
context, the delinquency in its performance and its
effect on the discipline and the nature of the duty.
It may involve moral turpitude, it must be
improper or wrong behaviour; unlawful behaviour,
wilful in character; forbidden act, a transgression
of established and definite rule of action or code of
conduct but not mere error of judgment,
carelessness or negligence in performance of the
duty; the act complained of bears forbidden
quality or character. Its ambit has to be construed
with reference to the subject-matter and the
context wherein the term occurs, regard being had
to the scope of the statute and the public purpose
it seeks to serve....". (emphasis supplied)
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(See also: State of Punjab v. Ram Singh, AIR 1992 SC
2188).
13. Mere error of judgment resulting in doing of
negligent act does not amount to misconduct.
However, in exceptional circumstances, not
working diligently may be a misconduct. An action
which is detrimental to the prestige of the
institution may also amount to misconduct. Acting
beyond authority may be a misconduct. When the
office-bearer is expected to act with absolute
integrity and honesty in handling the work, any
misappropriation, even temporary, of the funds,
etc. constitutes a serious misconduct, inviting
severe punishment. (Vide: Disciplinary Authority-
cum-Regl. Manager v. Nikunja Bihari Patnaik,
(1996) 9 SCC 69, Government of T. N. v. K.N.
Ramamurthy, AIR 1997 SC 3571, Inspector Prem
Chand v. Govt. of NCT of Delhi, (2007) 4 SCC 566,
and SBI v. S.N. Goyal, AIR 2008 SC 2594).
14. In Govt. of A.P. v. P. Posetty, (2000) 2 SCC 220,
this Court held that since acting in derogation to
the prestige of the institution/body and placing his
present position in any kind of embarrassment
may amount to misconduct, for the reason, that
such conduct may ultimately lead that the
delinquent had behaved in a manner which is
unbecoming of an incumbent of the post.
15. In M.M. Malhotra v. Union of India, AIR 2006
SC 80, this Court explained as under:
(SCC p. 362, para 17)
"17....... It has, therefore, to be noted that
the word 'misconduct' is not capable of
precise definition. But at the same time
though incapable of precise definition, the
word 'misconduct' on reflection receives its
connotation from the context, the
delinquency in performance and its effect on
the discipline and the nature of the duty. The
act complained of must bear a forbidden
quality or character and its ambit has to be
construed with reference to the subject-
matter and the context wherein the terms
occurs, having regard to the scope of the
statute and the public purpose it seeks to
serve."
A similar view has been reiterated in Baldev Singh
Gandhi v. State of Punjab, AIR 2002 SC 1124.
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16. Conclusions about the absence or lack of
personal qualities in the incumbent do not amount
to misconduct holding the person concerned liable
for punishment. (See: Union of India v. J. Ahmed,
AIR 1979 SC 1022).
17. It is also a settled legal proposition that
misconduct must necessarily be measured in
terms of the nature of the misconduct and the
court must examine as to whether misconduct has
been detrimental to the public interest. (Vide
Bank of India v. Mohd. Nizamuddin, AIR 2006 SC
3290).
18. The expression "misconduct" has to be
understood as a transgression of some established
and definite rule of action, a forbidden act,
unlawful behaviour, wilful in character. It may be
synonymous as mis-demeanour in propriety and
mismanagement. In a particular case, negligence
or carelessness may also be a misconduct for
example, when a watchman leaves his duty and
goes to watch cinema, though there may be no
theft or loss to the institution but leaving the place
of duty itself amounts to misconduct. It may be
more serious in case of disciplinary forces.
19. Further, the expression "misconduct" has to
be construed and understood in reference to the
subject-matter and context wherein the term
occurs taking into consideration the scope and
object of the statute which is being construed.
Misconduct is to be measured in the terms of the
nature of misconduct and it should be viewed with
the consequences of misconduct as to whether it
has been detrimental to the public interest.
Disgraceful conduct
20. The expression "disgraceful conduct" is not
defined in the statute. Therefore, the same has to
be understood in given dictionary meaning. The
term "disgrace" signifies loss of honor, respect, or
reputation, shame or bring disfavour or discredit.
"Disgraceful" means giving offence to moral
sensibilities and injurious to reputation or conduct
or character deserving or bringing disgrace or
shame. Disgraceful conduct is also to be examined
from the context in which the term has been
employed under the statute. Disgraceful conduct
need not necessarily be connected with the official
(sic duties) of the office-bearer. Therefore, it may
be outside the ambit of discharge of his official
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duty."
18. The Division Bench of this Court in case of
Ajay Kumar Dohar (supra), has dealt with the situation
and observed that when the penalty is not based on the
doctrine of proportionality and is so disproportionate
that it shocks the judicial conscience, then the Court
would interfere. The relevant observations made by the
Division Bench of this Court are in the following
paragraphs:-
"31. In respect of the third question, we find that
order passed under Section 32-C is a
disqualification of a candidate in terms of Section
35 of the Act. Still further, in terms of provisions of
Section 35(r), the disqualification of a candidate
for five years is a disqualification for future
elections as well. Though, Section 35 of the Act
empowers the Commission to disqualify a
candidate for a period not exceeding five years
from the date of the order, but to pass an order of
disqualification for five years, which may
disqualify him to contest the next election as well
requires to be supported by cogent reasons and
not merely on the basis of technicality of not
furnishing of bank account. Therefore, though the
appellant could be disqualified for a period up to
five years, but we find that such period of
disqualification is disproportionate even on the
touch stone of Wednesbury principle of
reasonableness. The disqualification of five years
is wholly disproportionate to the alleged
misconduct. In a judgment reported as Chief
Executive Officer, Krishna District Co-op. Central
Bank Ltd. v. K. Hanumantha Rao, (2017) 2 SCC 528,
the Court held that the limited power of judicial
review to interfere with the penalty is based on
the doctrine of proportionality which is a \
concept of judicial review. If the punishment is so
disproportionate that it shocks the judicial
conscience, the Court would interfere. The
relevant extract read as under:-
"7.1. The observation of the High Court that
accusation of lack of proper supervision holds
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good against the top administration as well is
without any basis. The High Court did not
appreciate that Respondent 1 was the
Supervisor and it was his specific duty, in that
capacity, to check the accounts, etc. and
supervise the work of subordinates.
Respondent 1, in fact, admitted this fact. Also,
there is an admission to the effect that his
proper supervision would have prevented the
persons named from defrauding the Bank. The
High Court failed to appreciate that the duties
of the Supervisor are not identical and similar
to that of the top management of the Bank. No
such duty by top management of the Bank is
spelled out to show that it was similar to the
duty of Respondent 1.
7.2. Even otherwise, the aforesaid reason
could not be a valid reason for interfering with
the punishment imposed. It is trite that Courts,
while exercising their power of judicial review
over such matters, do not sit as the appellate
authority. Decision qua the nature and
quantum is the prerogative of the disciplinary
authority. It is not the function of the High
Court to decide the same. It is only in
exceptional circumstances, where it is found
that the punishment/penalty awarded by the
disciplinary authority/employer is wholly
disproportionate, that too to an extent that it
shakes the conscience of the Court, that the
Court steps in and interferes.
7.2.1. No doubt, the award of punishment,
which is grossly in excess to the allegations,
cannot claim immunity and remains open for
interference under limited scope for judicial
review. This limited power of judicial review
to interfere with the penalty is based on the
doctrine of proportionality which is a well-
recognised concept of judicial review in our
jurisprudence. The punishment should appear
to be so disproportionate that it shocks the
judicial conscience. [See State of Jharkhand v.
Kamal Prasad, (2014) 7 SCC 223]. It would also
be apt to extract the following observations in
this behalf from the judgment of this Court in
Kendriya Vidyalaya Sangthan v. J. Hussain,
(2013) 10 SCC 106: (SCC pp. 110-12, paras 8-
10)
"8. The order of the appellate authority
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while having a relook at the case would,
obviously, examine as to whether the
punishment imposed by the disciplinary
authority is reasonable or not. If the
appellate authority is of the opinion that
the case warrants lesser penalty, it can
reduce the penalty so imposed by the
disciplinary authority. Such a power
which vests with the appellate authority
departmentally is ordinarily not available
to the Court or a tribunal. The Court
while undertaking judicial review of the
matter is not supposed to substitute its
own opinion on reappraisal of facts. (See
UT of Dadra & Nagar Haveli v. Gulabhia M.
Lad, (2010) 5 SCC 775). In exercise of
power of judicial review, however, the
Court can interfere with the punishment
imposed when it is found to be totally
irrational or is outrageous in defiance of
logic. This limited scope of judicial review
is permissible and interference is
available only when the punishment is
shockingly disproportionate, suggesting
lack of good faith. Otherwise, merely
because in the opinion of the Court lesser
punishment would have been more
appropriate, cannot be a ground to
interfere with the discretion of the
departmental authorities.
9. When the punishment is found to be
outrageously disproportionate to the
nature of charge, principle of
proportionality comes into play. It is,
however, to be borne in mind that this
principle would be attracted, which is in
tune with the doctrine of Wednesbury
(Associated Provincial Picture Houses Ltd.
v. Wednesbury Corpn., (1948) 1 KB
223=(1947) 2 All ER 680 (CA) rule of
reasonableness, only when in the facts
and circumstances of the case, penalty
imposed is so disproportionate to the
nature of charge that it shocks the
conscience of the Court and the Court is
forced to believe that it is totally
unreasonable and arbitrary. This
principle of proportionality was
propounded by Lord Diplock in Council of
Civil Service Unions v. Minister for the Civil
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Service - 1985 AC 374 = (1984) 3 All ER
935 (HL) in the following words: (AC p.
410 D-E)
'... Judicial review has, I think,
developed to a stage today when
without reiterating any analysis of the
steps by which the development has
come about, one can conveniently
classify under three heads, grounds
upon which administrative action is
subject to control by judicial review.
The first ground I would call
"illegality", the second "irrationality"
and the third "procedural
impropriety". This is not to say that
further development on a case by case
basis may not in course of time add
further grounds. I have in mind
particularly the possible adoption in
the future of the principle of
"proportionality"....'
10. An imprimatur to the aforesaid
principle was accorded by this Court as well in
Ranjit Thakur v. Union of India, (1987) 4 SCC
611. Speaking for the Court, Venkatachaliah, J.
(as he then was) emphasising that "all powers have legal limits" invoked the aforesaid doctrine in the following words: (SCC p. 620, para 25) '25. ... The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
-: 24 :- W.P. No.16966/201732. Therefore, the disqualification of a candidate for a period of five years for not opening a bank account for the purpose of election expenses is wholly disproportionate to the alleged misconduct. The removal or disqualification of an elected representative has serious repercussion, therefore, elected representative must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office and discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. Disqualification of a candidate only for the reason that he has not incurred the election expenses through the bank account is wholly unjustified and is a case of overkill. Therefore, we find that the order passed by the Election Commission for disqualifying an elected candidate solely for that reason is not justified. Consequently, the same is set aside."
19. Accordingly, the considerations made hereinabove and further taking note of the law laid down by the Supreme Court in case of Joseph Shine (supra), the Supreme Court in the instant matter has struck down Section 497 of the Indian Penal Code pertaining to adultery and in paragraph 152 and 155 has observed as under:-
"152. The decisions of the US Supreme Court bearing on the issue of privacy have been analysed in an incisive article, titled "For Better or for Worse: Adultery, Crime and The Constitution"
Martin J. Siegel, "For Better or for Worse: Adultery, Crime and The Constitution", Journal of Family Law, Vol. 30, (1991) 45., by Martin Siegel. He presents three ways in which adultery implicates the right to privacy. The first is that adultery must be viewed as a constitutionally protected marital choice. Second, that certain adulterous relationships are protected by the freedom of association and finally, that adultery constitutes an action which is protected by sexual privacy. Martin Siegel, "For Better or for Worse: Adultery, Crime & the Constitution", Vol 30, Journal of Family Law (1991), p. 46. A brief study is also undertaken -: 25 :- W.P. No.16966/2017 on whether action penalizing adultery constitutes a legitimate interest of the State.
153. x x x
154. x x x
155. Siegel then proceeds to examine the next privacy interest in adultery, that of the right to association. The right to freedom of association he states is "a close constitutional relative of privacy"
Id, p.77, and they often interact in an intertwined manner. Siegel proceeds to explain that adultery must not simply be looked at as an act of consensual adult sexual activity, as sexual activity may simply be one element in a continuum of interactions between people:
"Sexual activity may be preliminary or incidental to a developing association, or it may be its final culmination and solidification. In either case, it is simply one more element of the relationship. Two people may have sex upon first meeting. In this case, associational interests seem less important, although 'loveless encounters are sometimes prerequisites for genuine love relationships; to forbid the former is, therefore, to inhibit the latter'." Id, p.78. Next, Siegel examines the plausible protection of adultery through the lens of the freedom of expression. Since the act of engaging in sexual activity can be interpreted as being expressive, Siegel claims adultery might also implicate First Amendment rights. In support he cites a body of case law, Roberts v. United States, 1984 SCC OnLine US SC 182: 82L Ed 2d 462: 468 US 609, 6018 (1984), where courts have held that First Amendment rights are not limited to merely verbal expression but also encompass the right to "expressive association". In concluding his section on the right to associate, Siegel warns against the dangers of classifying adultery solely as a sexual activity, as doing so would be akin to protecting a part of the relationship and criminalising the other. This would be manifestly unjust:
"It is difficult, both theoretically and practically, to single out the sexual contacts two people may have from the rest of their relationship- to criminalize the one and constitutionally protect as fundamental the -: 26 :- W.P. No.16966/2017 other." Martin J. Siegel, "For Better or For Worse: Adultery, Crime & the Constitution", Journal of Family Law, Vol. 30, (1991) 78.
20. Now, it is clear that the alleged misconduct against the petitioner is not of that degree, for which, the maximum punishment i.e. dismissal from service should have been imposed. In my opinion, the said punishment in the facts and circumstances of the case, is not sustainable and accordingly, it deserves to be set aside and can be substituted.
21. Accordingly, in view of the aforesaid discussion and taking note of the law laid down by the Supreme Court in various occasions in the judgments quoted hereinabove, it is indispensable to substitute the punishment of dismissal from service.
22. Thus, it is directed that the punishment of dismissal be substituted by the punishment stoppage of two increments with cumulative effect and the petitioner be reinstated in service with all consequential benefits.
23. The petition filed by the petitioner stands allowed to the above extent. No order as to cost.
(SANJAY DWIVEDI) JUDGE ac/-Digitally signed by ANIL CHOUDHARY Date: 2020.02.11 10:23:35 +05'30'