Rajasthan High Court - Jaipur
Prabhu Dayal vs State Of Rajasthan And Ors. on 4 November, 1993
Equivalent citations: 1993WLN(UC)366
JUDGMENT G.S. Singhvi, J.
1. Facts of the case He in a very narrow compass. Petitioner was appointed as a Constable in the Police Department with effect from 12.2.82 and he was last posted in District Nagaur at Police Lines. In the month of September 1990 the petitioner's wife got seriously ill. He received a telegram about the illness of his wife, on 18.9.90. He sought casual leave for seven days with permission to avail three gazetted holidays and this leave was sanctioned. Petitioner's wife continued to remain ill as an indoor patient at Government Hospital, Tehsil Baswa District Dausa and since the petitioner had no one else to look after her, he had to stay back at Baswa to look after his wife. He, therefore, sent a telegram to the Superintendent of Police, Nagaur for extension of his leave. The telegram was addressed to the Resident Inspector of Police Lines, Nagaur on 26.9.90. During the period of illness of his wife, petitioner's elder brother's daughter, who had been married recently, expired. Thereafter petitioner's elder brother also died in December 1990 and his wife (petitioner's Bhabhi) died in March 1991. According to the petitioner, he remained under serious mental and physical shock on account of the three consecutive deaths in his family and he could not report for duty. He submitted his joining report on 14.9.91 and also submitted medical certificate of his wife's illness which covered 239 days.
2. An enquiry was initiated against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 vide memo dated 14.8.91. Petitioner submitted his reply to the charge sheet and denied the allegations. He gave out details of his absence and reasons for his alleged absence, In his reply the petitioner clearly indicated that three members of his family had died in quick succession and his wife was seriously ill and that was the reason for his absence from duty. Shri Ravi Gaur, a member of the Rajasthan Police Service, was appointed to hold enquiry into the allegations levelled against the petitioner. Shri Gaur submitted his report Annexure-2 wherein he recorded a conclusion that although the petitioner had not reported for duty after expiry of the leave sanctioned to him, his absence was on account of serious ailment of his wife and successive deaths of the members of his family. He expressed opinion that the absence cannot be treated to be a wilful absence. At the same time the Enquiry Officer recommended that a sympathetic consideration may be made in the case of petitioner.
3. Completely ignoring the findings recorded by the Enquiry Officer and the recommendation made by him, the Superintendent of Police held that the Enquiry Officer has found the petitioner guilty on all the four charges. He then proceeded to observe that the petitioner has not produced any evidence regarding the deaths of three members of his family and, therefore, the petitioner, who is guilty of habitual absence from duty, deserves to be removed from service. Accordingly, the Superintendent of Police, Nagaur passed the impugned order dated 31.12.91.
4. Petitioner has assailed this order on various grounds set out in the writ petition, the most important of them is that a copy of enquiry report was not made available to the petitioner before the Superintendent of Police passed the order of punishment and no opportunity was given to the petitioner to submit his representation in respect of the findings recorded by the Enquiry Officer. The petitioner had also claimed that the punishment imposed on his is highly excessive and arbitrary and that the disciplinary authority has completely ignored the most important fact relating to the deaths of three members of his family.
5. Respondents have in their reply raised a preliminary objection to the maintainability of the writ petition by stating that the matter can be agitated only at the principal seat of this Court at Jodhpur. Another objection raised by them is that the petitioner has failed to avail alternative remedy under Rule 23 of 1958 Rules by way of appeal. The respondents have pleaded that the petitioner has failed to attend his duty after expiry of the leave sanctioned in his favour and he remained absent for almost one year. The petitioner did not inform about the illness of his wife, the marriage of daughter of his elder brother and about the death of his elder brother as also about the death of his brother's wife. According to the respondents, departmental enquiry was held in accordance with the Rules. It was not necessary to give a copy of enquiry report to the petitioner because of the amendment made in Rule 16(10) of 1958 Rules by Notification dated 21.6.83. Further case of the respondents is that the petitioner has been penalised for his wilful absence from duty and no interference should be made by the Court with the order of punishment in exercise of jurisdiction under Article 226 of the Constitution.
6. The first preliminary objection raised on behalf of the respondents relate to the territorial jurisdiction of the Jaipur Bench of the High Court. According to the respondents since the petitioner was posted in District Nagaur and he has been punished by the Superintendent of Police, Nagaur, Jaipur Bench of the High Court does not have territorial jurisdiction to entertain the writ petition against the order of punishment dated 31.12.91. After having given my thoughtful consideration to this preliminary objection I find myself unable to accept the same. Affidavit filed by the petitioner today shows that the order of punishment dated 31.12.91 had been served upon him at his Village Karnawar District Dausa. This Village falls within the territorial jurisdiction of Jaipur Bench of the High Court. When order of dismissal has been served on the petitioner at a place which falls within the territorial jurisdiction of the Jaipur Bench of the High Court, it can be said that part of cause of action for filing of the writ petition arose within the territorial jurisdiction of Jaipur Bench of the High Court. This being the position it is clear that Jaipur Bench of the High Court has got jurisdiction to entertain, hear and decide the writ petition of petitioner notwithstanding the fact that the order of punishment has been issued by the Superintendent of Police, Nagaur. I am fortified in taking this view by a decision of Division Bench of this Court in Prem Cables (P) Ltd. v. The Asstt. Collector, Customs, 1978 WLN 481, and also by the decision of another Division Bench in Virendra Dangi v. Union of India and Ors., 1992(1) WLC 419. In that decision the Division Bench has declared that the explanation to the Notification dated 23.12.76 as modified vide Notification dated 12.1.77 of Hon'ble Chief Justice is without jurisdiction being against the presidential order and also against Article 226(2) of the Constitution of India.
7. Coming to the second preliminary objection regarding the failure of petitioner to avail the alternative remedy of appeal, it is to be noted that the writ petition was admitted by the Court on 18.7.92. The factum of admission of the writ petition shows that this Court was prima facie satisfied that the claim made by the petitioner in the writ petition deserves to be adjudicated by this Court on merits. It will have to be presumed that at the stage of passing an order for admission of the writ petition the Court was aware of the fact that an alternative remedy of appeal was available to the petitioner under Rule 23 of 1958 Rules. Having overlooked the availability of alternative remedy at that stage it will be unjust for this Court to now non-suit the petitioner after a period of one year and almost four months. Moreover after the admission of writ petition, reply has been filed and the case has been heard on merits. Having heard the parties on merits of the case, I do not find any justification for denying relief to the petitioner on the technical ground of failure of the petitioner to avail the alternative remedy of appeal IN L. Hirday Narain v. Income-Tax Officer, Bareilly , their Lordships of the Supreme Court have unequivocally laid down a principle of law that once a court hears the petition on merits, it is unreasonable to dismiss the writ petition only on the ground that the petitioner has failed to avail an alternative remedy available to him.
8. In S.B. Civil Writ Petition No. 5147/92 Manoj Kumar Bansal v. State of Rajasthan and Anr. decided on 12.8.93, I had an occassion to examine a similar objection raised by the respondents that writ petition be not entertained by the High Court because of the availability of alternative remedy. In that case objection was in the. context of availability of remedy of appeal before the Rajasthan Civil Service Appellate Tribunal and also availability of remedy under the Industrial Disputes Act, 1947. After making reference to the decisions of this court in Vivek Prakash Mathur v. State of Rajasthan, 1988(2) RLR 428, Bhuramal Jat v. State of Rajasthan, 1991(1) RLR 755, as also an unreported judgment of the Division Bench in D.B. Civil Writ Petition No. 2330/86 Ved Prakash Khare v. State of Rajasthan decided on 31.8.87, I have held:
In my opinion when the respondents have acted in clear disregard of the provisions of Constitution, their action is per se arbitrary and unreasonable. It will be wholly unreasonable to reject the petitioner's claim merely because he has not availed remedy of appeal 'available before the Service Appellate Tribunal. The rule that the court should not entertain writ petition where equally efficacious alternative remedy is available to a party, cannot be invoked in such like matters. Application of that rule in such type of cases would result in grave injustice and it can hardly be denied that jurisdiction of this court must be used to protect the constitutional rights of the citizens and to reach wherever injustice has been done.
9. In the context of availability of the remedy under the Industrial Disputes Act, reference has been made to Full Bench decision in Bhanwar lal v. RSRTC, 1984 RLR 619, Smt. Indu v. Municipal Council, Jodhpur, 1991(1) WLR 245, Rajasthan Pul Nigam Workers Union and Anr. v. Rajasthan State Bridge Construction Corporation Ltd. and Anr. 1991(2) RLR 188 and haste of other decisions and it has been held that mere availability of alternative remedy cannot be a ground for refusing relief where the illegality is patent or the action is wholly unjust and arbitrary. In that case I have also taken note of the fact that right to livelihood has to be recognised as a part of right to life guaranteed under Article 21 of the Constitution. After making reference to the decisions of Supreme Court in Delhi Transport Corporation v. DTC Mazdoor Congress and Ors. (1991) Supp (1) SCC 600, D.K. Yadav v. J.M.A. Industries Ltd. , Olga Tells v. Bombay Municipal Corporation , and State of Maharashtra v. Chandrabhan Tale , it has been held:
Having given wider meaning to the term 'life' the courts cannot now shirk from their responsibility to protect the right to livelihood of the individuals. The Court cannot shut its eyes from the reality that public employment in all country is an important source of livelihood of individuals and the service jurisprudence which has developed in this country during last three decades is unique in the world. It has perhaps no parallel. If the courts have safeguarded the right to speech and expression, right to business, right to property, right to form association, it cannot be oblivious and ignorant of the rights of millions who are deprived of the source of livelihood by arbitrary, capricious and whimsical actions of State and its agencies. The Court cannot throw out a petition merely because it has been filed by a small man by declaring that he has an alternative remedy. So-called sacrosanct rights which are treated as basic rights even by Universal Declaration of Human Rights of 1948, will remain mere paper rights if the man is not in a position to sustain himself and his family. It is, therefore, of vital importance for the court as well as to the citizens that right to livelihood has to be protected.
In the same very judgment I have observed:
Even on the general principles, the Court has to remember that the rule of not entertaining the writ petition or not exercising the extra ordinary jurisdiction under Articles 226 of the Constitution in a case where alternative remedy is available, is a ruling of self imposed restraint, rule of caution and not a rule of law. Therefore, in all cases where the court finds that there is a patent violation of the legal or constitutional rights of an individual or where action of the State or its agency is wholly arbitrary or any subordinate court or authority has acted without jurisdiction, the court must do justice by invoking its extraordinary jurisdiction. That is the approach which the Court has to adopt in order to fulfil its constitutional obligation towards the citizens of this country. We people of this country feel that they have been let down by the Legislature and the Executive and the only hope Is the intervention of Judiciary against the invasion of fundamental and legal rights and when citizens approach the Court complaining against the arbitrary State action, the High Court will have to be liberal in exercising its jurisdiction and unless there are very sound reasons like bad conduct of the party or where seriously controversial questions of fact are required to be determined, the claim of aggrieved party will not be thrown out. The Court has to be more vigilant in safeguarding the rights of individuals affecting their life and livelihood. The degree of anxious ness shown by the Court to protect the right to property, right to freedom of speech and expression, right to business will have to be reflected in guarding and protecting the right to life and livelihood and other constitutional and legal rights of the individuals. The proliferation of the State activities during last four decades has affected the life of individuals and citizens in a more larger volume that it used to be in the pre-independence era or just after the independence. Arbitrariness of the State action has also increased during last few years. The administrative authorities have become insensitive to the needs of the people and, therefore, the people look upon the courts for solace and remedy of their grievances. This has led to the increase of volume of litigation but mere increase in litigation must not overawe or threaten the courts and there is no need or justification for evolving methodologies to avoid dispensation of justice. The courts cannot ignore their constitutional obligation reaching injustices perpetuated on the people.... (emphasis supplied)
10. In view of the above, I am clearly of the opinion that the writ petition cannot be dismissed only on the ground that the petitioner has remedy available under Rule 23 of 1958 Rules.
11. Coming to the merits of the case, I must straight away observe that failure of respondent No. 2 to furnish a copy of enquiry report to the petitioner is by itself sufficient to declare the order of punishment as void. In Union of India v. Mohd. Ramzan Khan , their Lordships examined the provision of Article 311 of the Constitution, as it stands after 42nd Amendment of the Constitution. Their Lordships held that notwithstanding deletion of the requirement of second show cause notice about the proposed punishment to a delinquent employee, supply of copy of enquiry report is sine qua non for imposing penalty of any of the major penalties on a delinquent government servant. There was some controversy regarding the applicability of law in Mohd. Ramzan Khan's case. In subsequent decisions the Supreme Court has taken the view that the principles laid down in Mohd. Ramzan Khan's case can be applied in cases where order of punishment has been passed after 20.11.90 i.e. the date on which Mohd. Ramzan Khan's case was decided by the Supreme Court. That controversy is in my opinion, irrelevant for the purposes of this case. The order of punishment, in the present case, has been issued on 31.12.91 i.e., more than one year and one month after the pronouncement of the verdict of the Supreme Court in Mohd. Ramzan Khan's case. Therefore, in the light of the principle laid down in Mohd. Ramzan Khan's case, I have no hesitation in declaring the order of removal from service passed by respondent No. 2 on 31.12.91 void ab initio.
12. Even if the order of punishment is not treated as vitiated on account of non-supply of the copy of enquiry report, I am of the opinion that the impugned order is unsustainable because it is wholly arbitrary and perverse. A bare look at the findings recorded by the Enquiry Officer show that he has found the charge No. 1 as proved. In respect of charges No. 2, 3 and 4 the Enquiry Officer has while recording a finding that the charges are proved, has further observed that absence of the petitioner was on account of his wife's illness, death of his brother and death of his sister-in-law and death of his niece. The Enquiry Officer is unequivocal in declaring that the petitioner's absence from duty is not a wilful absence. Precisely for this reason he recommended that the case of petitioner should be dealt with a sympathetic manner. The following portion of the report of Enquiry Officer is extracted below to demonstrate the considerate approach of the Enquiry Officer:
vkjksi la- 1 nks"kh deZpkjh Jh izHkqn;ky dkfu- 728 ij yxk;k x;k A vkjksi fd blds }kjk vodk'k es tkdj ckn lekfIr vodk'k ds fnukad 24-9-90 dks mifLFkr ugh gksuk fjdkMZ ,Dl 3 ls izekf.kr gsSA vkjski la- 2 nsk"kh deZpkjh Jh izHkqn;ky ,Q-lh- 728 ij vkjksi la[;k 2 fjdkMZ ls izekf.kr ik;k x;k gS A exj dkfu- dks viuh M~;wVh ij mifLFkr gksus es mldh vkSjr dh chekjh o vius HkkbZ ds nsgkUr gksus dh ifjfLFkfr es mldh etcwjh jgh gS A vkjski la- 3 nks"kh deZpkjh Jh izHkqn;ky dkfu- 728 ij vkjksi la[;k 3 fjdkMZ ls izekf.kr ik;k x;k gS A ijUrq dkfu- ds ifjokj es mlds HkkbZ] HkkStkbZ] Hkrhth rhuks dk nsgkUr gksuk o mldh Loa; dh ifRu dk tsj bykt vLirky es gksus ls mifLFkr gksus es etcwjh jgh gS A vkjksi la- 4 nks"kh deZpkjh Jh izHkqn;ky ,Q-lh- 728 ij vkjksi la- izekf.kr ik;k x;k gS A fdUrq mlds }kjk vuqifLFkr gksus dh vof/k dk fu.kZ; fy;k tk pqdk gS A ftles vuqifLFkfr dk dkj.k Loa; dh o viuh vkSjr dh chekjh dk gksuk ik;k x;k gS A vr% tkap fjiksZV e; foHkkxh; tkap i=koyh ds izsf"kr dj fuosnu gS fd nks"kh deZpkjh ds fo:) yxk;s x;s vkjksi izekf.kr ik;s x;s gS A exj dkfu- dks viuh M;wVh ij mifLFkr ugh gksus dh mldh xaHkhj etcwjh jgh gSSA fd mldh vkSjr dk tsj bykt vLirky es gksuk o yxkrkj mlds ifjokj es cM+s HkkbZ] viuh HkkHkh ,oa Hkrhth dk FkksM+h vof/k es nsgkUr gksus es mldh etcwjh jgh gSA tks mldh LosPN;kiwoZd vuqifLFkfr ugh ekuh tk ldrh A vr% nsk"kh deZpkjh ds fo:) fu.kZ; es jge fny Qjekus gsrq i=koyh&fu.kZ; gsrq izsf"kr gS A However, the disciplinary authority clearly overlooked these vital findings recorded by the Enquiry Officer and held that all the charges have been found proved by the Enquiry Officer. This is evident from the following observations of the disciplinary authority:
geus tkap vf/kdkjh }kjk lapkfyr tkap fjiksZV] lEcfU/kr vfHkys[kks o lEiw.kZ izdj.k dk xgurkiwoZd v/;;u fd;k A tkap vf/kdkjh us vius tkap izfrosnu es pkjks vkjksiks dks izekf.kr ekuk gS A ijUrq lkFk gh tkap vf/kdkjh us ;g Hkh vafdr fd;k gS Afd vkjksfir vf/kdkjh dh ikfjokfjd ifjfLFkfr;sk ds dkj.k mifLFkr gksus es mldh etcwjh lgh gS A vkjksfir vf/kdkjh us vius tckc es viuh ifRu dh yEch chekjh o ifjokj es rhu O;fDr;ks dh e`R;q gksus ds dkj.k vuqifLFkr jguk vafdr fd;k gS A bl izdj.k es fopkj.kh; fcUnq ;g gS fd D;k mlus viuh ikfjokfjd ifjfLFkfr;ks dk mYys[k djrs gq, le; le; vodk'k o`f) gsrq vkosnu izLrqr djk\ okLro es mlus ,slk dqN ugh fd;kA ifjokj ds rhu lnL;ks dh e`R;q dks lkfcr djus ds fy, muds e`R;q izek.k i= ;k vU; dksbZ izek.ki= izzLrqr ugh fd;k x;k A blh izdkj vkjksi la0 4 ds fo"k; es ;g dFku fd;k gS fd mDr vuqifLFkfr;ks dk fu.kZ; iwoZ es rS gks pqdk gS rFkk ml le; gh Loa; o ifRu dh chekj ds dkj.k etcwjh es vuqifLFkr gqvk A ;gka ;g rF; egRoiw.kZ ugh gS fd vuqifLFkfr le; dk fu.kZ; D;k gqvk oju~ og vkjksi ;g Li"Vr;k izekf.kr djrk gS fd vkjksfir vf/kdkjh lsok ls ckj ckj LosPNkiwoZd vuqifLFkr jgus dh vknh gS bl izdkj pkjks vkjskiks iw.kZr;k izekf.kr gS A fnukad 24-9-90 ls 13-9-91 rd LosPNk ls vuqifLFkr ekurs gq, iwoZ lsok okn tIr ¼Qksj fQV½ fd;k tkrk gS A vr% vkjksfir vf/kdkjh Jh izHkqn;ky dkfu- 728 dks jktdh; lsok ls P;qr djus ds n.M+ ls nf.Mr fd;k tkrk gS A This clearly shows total non-application of mind by the disciplinary authority or at-least shows that the disciplinary authority considered the matter with a closed mind. The casualness of the approach of disciplinary authority can more appropriately be appreciated by his observation that the petitioner has not produced any death certificate or other evidence regarding the death of his brother, brother's wife and his niece. It is surprising that the disciplinary authority has become totally oblivious of the categorical finding recorded by the Enquiry Officer that the petitioner's brother, his brother's wife and niece had died in quick succession and the petitioner was under severe mental and physical strain and shock. If the disciplinary authority was little sensitive towards the grief of the petitioner and had applied its mind to the facts available on record, there may have been no ground for it to award one of the most stringent penalties to the petitioner. Clearly the disciplinary authority has exhibited total lack of humanism in its approach. It has mechanically dealt with the case of petitioner without applying its mind to the record of the case as required by Rule 16(9). The then Superintendent of Police, Nagaur was totally insensitive towards the sufferings of petitioner and has clearly ignored the material which was available before him, before he passed the order of punishment. The disciplinary authority has held that the petitioner is habitual of remaining wilfully absent from duty and that all the four charges are proved against the petitioner. While recording this finding it has completely lost sight of the findings recorded by the Enquiry Officer which clearly establish that absence of the petitioner was not wilful. The world "wilful" has not been defined under the Rules of 1958 or the Rajasthan Civil Service (Conduct) Rules, 1971. In Black's Law Dictionary (Revised IV Edition), the word "wilful" has been defined as:
Proceeding from a conscious motion of the will; voluntary; designed; Intentional; not accidental or Involuntary. A willful act may be described as one done Intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or Inadvertently.
In Bouvier's Law Dictionary III Edition page 3454, reference has been made to State v. Swaim, 97 N.C. 465, where the word "wilful" has been given the following meaning:
It Implies that the act is done knowingly and of stubborn purpose, but not with malice. In the Shorter Oxford English Dictionary, 1977 Edition, the word "wilful" has been given the following meaning:
Proceeding from the will; done or suffered on one's own free will or choice; voluntary.
13. In the light of these dictionary meaning of the word "wilful" if the facts of the case are again looked into, it is absolutely clear that absence of the petitioner from duty was not wilful. It was not a voluntary act on the part of petitioner. It was not a matter of choice of the petitioner. The petitioner did not purposely absented from duty, rather he was compelled to stay away from duty on account of unfortunate events which had happened in his family, namely, deaths of three close relatives and his wife remaining as an indoor patient on account of illness. That apart, it is clear from the order of disciplinary authority that it has held the petitioner to be habitual guilty of wilful absence. While doing so, the disciplinary authority has totally ignored the fact that past absence of the petitioner has been regularised and as per the report of Enquiry Officer, absence of the petitioner on various dates was due to illness of his wife or his own illness. Indeed it may be unfortunate that the petitioner had to remain away from duty for different periods but once the competent authority has taken a decision in regard to the period of absence of the petitioner, which was due to his illness or his wife's illness, it was not permissible for the disciplinary authority to have concluded that the petitioner is habitual of remaining wilfully absent from duty.
14. Yet another important aspect of the matter, which has been completely lost sight by the disciplinary authority, is that it was its duty to record good and sufficient reasons for imposing the impugned penalty on the petitioner. Rule 14 of 1958 Rules, which confers jurisdiction on the competent authority to impose any of the penalties specified in that Rule, begins with the following words:
...May, for Good and Sufficient Reasons, Which Shall be Recorded, and....
These opening words of Rule 14 clearly imposes a mandatory duty on the competent authority to record reasons and above all, such reasons must be good and sufficient. There can be no manner of doubt that the action of the disciplinary authority under the Rules of 19.58 is quasi judicial and the order passed by it is also quasi judicial. Therefore, even in the absence of a requirement by the statute, it would have been imperative for the disciplinary authority to record reasons. Fulfillment of this requirement of recording of reasons in support of the order, is a part and parcel of the requirement of following the principles of natural justice. Passing of reasoned order has been treated as an obligatory duty of every quasi judicial authority except in cases where there is an express exclusion of the requirement of recording of reasons. The law on the subject has been lucidly discussed in Tasteels Ltd. V.N.M. Desai , by a Full Bench of Gujarat High Court headed by P.N. Bhagwati, J. (as he then was). In S.N. Mukherjee v. Union of India , a constitution Bench of the Supreme Court has referred to the legal position regarding the requirement of passing of a speaking orders as obtaining in Australia, England, United States of America as also in India and after making reference to almost all other decided cases on the subject, the Supreme Court has held that quasi judicial authority is duty bound to record reasons in support of its order as a part of its obligation to follow the principles of natural justice. The matter has been examined by this Court also in a recent decision in Vijay Singh V.R.S.R.T.C. 1993 (1) WLC 577, and it has been held that a mandatory duty is cast on the competent authority to record reasons in support of its order. The scheme of the Rules of 1958 reinforces the necessity of giving of good and sufficient reasons which is certainly over and above the basic requirement of passing of a speaking order. The rule making authority has designedly thought it proper to incorporate the requirement of recording good and sufficient reasons. This requirement, contained in Rule 14, carries with it another requirement of communicating those reasons to the affected person. Requirement of communication of reasons can be read as implicit in the Rule from the fact that an aggrieved government servant not only has a right to file appeal or review under the Rules of 1958 but has a constitutional right to challenge the order of punishment before the High Court by way of writ under Article 226 of the Constitution. Neither the appellate authority nor the reviewing authority nor the High Court will be in a position to make an adjudication on the merits of the punishment awarded to a delinquent employee if it was not in a position to know as to what are the reasons for imposition of a penalty. When the rule requires that reasons to be recorded in support of an order of punishment must be good and sufficient, it is open to the court to examine those reasons and consider for itself whether the reasons are good and sufficient. Thus, even the sufficiency of reasons is open to scrutiny not only by the appellate and reviewing authorities but also by the courts of law. The order passed by the disciplinary authority is, however, singularly laconic. In this respect there is a total absence of reasons as to why the disciplinary authority has chosen to impose the extreme penalty of removal from service on the petitioner. The order passed by the disciplinary authority does not make any reference to the service record of the petitioner, entries in his service roll etc. It has not been shown that the petitioner has been punished in the past for an act of delinquency. Thus, the order of the disciplinary authority depicts a total non-application of mind on this aspect of the matter.
15. Ordinarily I would have left the matter regarding quantum of punishment to be decided afresh by the disciplinary authority, in the light of the findings that the order of punishment is vitiated for the various reasons set out here in above but having regard to the peculiar facts of this case, I have considered it appropriate to examine the quantum of punishment myself. The principle of proportionality has been recognised in this country in the matter of disciplinary actions. In Bhagat Ram v. State of Himachal Pradesh , their Lordships of the Supreme Court for the first time invoked the aforesaid principle in relation to a government servant when they observed:
It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The same very principle has been followed in Shankar Das v. Union of India , wherein the Supreme Court has set aside the order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical. In a Constitution Bench decision, Union of India v. Tulsiram Patel , their Lordships of the Supreme Court held that in an order of punishment passed under Article 311(2)(a), the Court can interfere with the order of punishment on various grounds and one of those grounds is where the penalty is arbitrary. The observation made by the Supreme Court in para 127 of that judgment contain the following portion:
...Where the court finds that the penalty Imposed by the impugned order Is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the Impugned order....
16. Not only in civil services, even in respect of the members of armed forces their Lordships of the Supreme Court have applied the principle of proportionality. In Ranjit Thakur v. Union of India , and Sardar Singh v. Union of India AIR 1992 SC 417, this doctrine has been invoked. In Ranjit Thakur's case, the Supreme Court has observed:
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 he 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.
17. The facts which have come on record in this case cannot but shock the conscience of any man of reasonable prudence. A person whose three close relatives, namely, brother, brother's wife and niece had died in quick succession and whose wife had been suffering with serious ailment and who was an indoor patient, could not have kept his mental equilibrium to discharge has duties as a police-man. If in this factual situation the petitioner could not report for duty after expiry of sanctioned leave, there could be little justification for holding him guilty of wilful absence from service. It is shockingly unfortunate that the then Superintendent of Police, Nagaur had acted in a most arbitrary and whimsical manner in ordering removal of the petitioner from service and thus added insult to the injury which the petitioner had already suffered on account of the deaths in his family. The Superintendent of Police, Nagaur has altogether ignored the duty imposed on him.
18. Taking into consideration all the facts, I am of the considered opinion that the ends of justice would be met if instead of impugned penalty the petitioner is made to suffer a penalty of stoppage of two grade increments without cumulative effect from the date of reinstatement and denial of wages for the, period between 1.1.92 to the date of this order.
19. For the reasons mentioned above, the writ petition succeeds and it is hereby allowed. Order date 31.12.91 passed by the Superintendent of Police, Nagaur is declared illegal and is quashed. The respondents are directed to reinstate the petitioner in service forthwith. The petitioner shall suffer a penalty of stoppage of two grade increments without cumulative effect from the date of reinstatement. He shall be entitled to other service benefits. Since it is a case in which the then Superintendent of Police has exhibited total lack of sensitiveness and has completely ignored the statutory provisions contained in the Rules of 1958 and has failed to discharge his duty under the Rules, it is a fit case in which he should pay cost of this petition to the petitioner which is assessed as Rs. 1000/-. The Government should realise this cost from the officer who held the post of Superintendent of Police, Nagaur on 31.12.91 and pay it to the petitioner.