Gujarat High Court
Ramkumar Chandansindh Since Deceased ... vs Dy. Comissioner Of Police on 14 November, 2000
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard Mr.B.I. Mehta, learned advocate appearing on behalf of the petitioner and Mr.I.M. Pandya, learned AGP on behalf of the respondents.
2. In the present petition, wherein RULE has been issued by this Court and the earlier ad-interim relief has been directed to be continued till final disposal of this petition by order dated 18th December, 1990.
3. The brief facts of the present petition are as under:-
The petitioner was appointed on the post of Armed Police Constable on 25th November, 1978 . On 27th June, 1984, the chargesheet was served to the petitioner wherein, allegations were made that the petitioner was found in drunken condition on 5th July, 1983 and at the same time, one another armed police constable Hiraji Nathaji was also found in drunken condition together with the petitioner and a common chargesheet was also issued to the co-delinquent namely Hiraji Nathaji. On 9th December, 1985, a show cause notice as to why the petitioner should not be removed from service was issued to the petitioner. The petitioner had replied to the show cause notice on 3rd March, 1986. Thereafter, on 4th June, 1986, the competent authority has passed the order of punishment removing the petitioner from service. Against that appeal was preferred by the petitioner on 2nd August, 1986. The petitioner has challenged the dismissal order before this Court by filing Special Civil Application No. 2800 of 1987, wherein this Court [ Coram : R. C. Mankad, J. ] by order dated 9th September, 1987 passed order wherein, a statement was made by the learned advocate of the petitioner to the effect that the petitioner desirous to approach the Director General of Police by way of revision application and on that basis, the petition was withdrawn by the learned Advocate appearing for the petitioner but however, a request was made before the Court that to direct the Director General of Police to dispose of the revision application of the petitioner within four weeks. Accordingly, this Court had directed the Director General of Police to dispose of the revision application as expeditiously as possible preferably within eight weeks from the date of receipt of revision application and ad-interim relief granted earlier was continued for eight weeks to enable the petitioner to approach the Director General of Police. Thereafter, on 8th October, 1987, the revision application was filed by the petitioner on the ground that another constable Hiraji Nathaji who was also found in the drunken condition along with the petitioner was discharged from the charges and was reinstated in service only on the ground that the percentage of alcohol was less in comparison to the percentage found in case of the petitioner and punishment which was imposed upon the petitioner was disproportionate. However, the authority has rejected the revision application on 7th December, 1990. Thereafter, the present petition has been filed by the petitioner. During the pendency of the petition, the petitioner has expired and his heirs were brought on record. The petitioner has expired on 28th September, 1999. In light of above set of facts and circumstances, Mr.Mehta, learned advocate for the petitioner has raised the following submissions.
[a] The petitioner and the another constable Shri Hiraji Nathaji were found in drunken condition and therefore, they were chargesheted. The petitioner was removed from service while Shri Hiraji was reinstated in service only on the ground that the percentage of alcohol in the blood of Hiraji was less than that of the petitioner.
The authorities have not applied their mind while passing the order of removal against the petitioner.
[b] Punishment imposed upon the petitioner is disproportionate looking to the charges levelled against him and the same is violative of Article 14 of the Constitution of India.
[c] That mere smell of alcohol from one's mouth is a case of no misconduct. For many reasons, such smell emanates from one's mouth.
[d] It is also submitted that no charges were proved against him during the inquiry, however, extreme punishment of removal was imposed on the petitioner.
[e] It is also submitted that inquiry proceedings which were initiated against the petitioner was malafide exercise of powers. The records of the case will prove that there was no evidence against the petitioner. It is also submitted that while passing the extreme penalty, the authorities have not taken into consideration the defence submitted by the petitioner. Lastly, it is submitted that in the order passed by the authorities have not dealt with the submissions and grounds submitted by the petitioner before the authorities.
4. Against the aforesaid submission of the learned advocate for the petitioner, Mr.I.M.Pandya, learned AGP has relied upon decision of the Apex Court reported in 1997 (2) SCC page 708 that in such circumstances, a member of police force is required to maintain discipline and if he found in drunken condition during the office hours, punishment of dismissal is considered to be just and proper by the Apex Court. Mr.Pandya, learned AGP has also submitted that being a member of disciplinary force, liquor cannot be consumed in prohibited State and if punishment is interfered with by this Court, would amount to bad impression in public mind as well as in police force. Therefore, according to the learned AGP Mr.Pandya, punishment which has been imposed upon the petitioner by the respondent authority is just, proper and reasonable and so far as the case of another co-delinquent - said Hiraji Nathaji is concerned, was differently considered by the authority because the percentage of alcohol was found less quantity in comparison with the quantity found in case of the petitioner and therefore, the case of said Hiraji Nathaji is considered by the authority on completely different footings.
5. I have considered the submissions advanced by the learned advocate on behalf of the respective parties and this Court has also perused the order passed by the revision authority on 7th December, 1990. As per the order passed by the revisional authority, the authority has considered all the submissions of the petitioner and in departmental inquiry, the report of the chemical analyzer was also considered and there was some difference in quantity of alcohol in case of the petitioner from the case of said co-delinquent Hiraji Nathaji and that aspect has been considered by the revisional authority and has ultimately come to the conclusion that punishment imposed by the competent authority upon the petitioner is quite just, proper and reasonable and accordingly the revision application was rejected by the respondent authority.
6. In the present case, the charges in respect of misconduct levelled against the petitioners are not disputed and the findings of the allegations in the departmental inquiry is not baseless and perverse. Therefore, conclusion of the inquiry is considered to be legal and proper and now considering the entire facts and circumstances of the present case, the important question requires to be examined by this Court is with regard to the quantum of punishment imposed upon the petitioner in comparison with the co-delinquent in light of similar charges levelled on both the delinquents. In light of the facts and circumstances of the present case, the petitioner and said Hiraji Nathaji both were found in drunken condition during the office hours and punishment imposed by the competent authority upon the petitioner to remove from service whereas, no punishment was imposed upon said Hiraji who was co-delinquent chargesheeted with the same allegations. Therefore, apparently different treatment given by the competent authority while imposing punishment to the petitioner in comparison with said Hiraji for the same charges and that important aspect of the matter, is now required to be examined by this Court. Said Hiraji was also found in drunken condition but the only difference is that the quantum of alcohol as per the report of the Chemical Analyzer was found less in case of Hiraji and accordingly percentage of alcohol was in case of said Hiraji was at 0.084 whereas, the same was found at 0.1334 in case of the petitioner. Therefore, the view which was taken is that the quantum of alcohol was higher in blood report in case of the petitioner in comparison with said Hiraji and accordingly, punishment of dismissal has been imposed upon the petitioner.
7. Mr.B.I.Mehta, learned advocate appearing on behalf of the petitioner has submitted that in case of JASWANT SINGH V. PEPSU ROADWAYS TRANSPORT CORPORATION reported in AIR 1984 Supreme Court 355, the Apex Court has considered the very identical case of consuming liquor by driver during working hours while performing the duty, even though, in that case also, punishment of dismissal imposed by the competent authority has been considered by the Apex Court to be harsh and disproportionate and reinstatement order has been passed by the Apex Court while denying back wages of interim period. Mr.Mehta has also cited one another decision of Madras High Court in case of S.SIVAGNANAM VS. THE ASSTT SECURITY OFFICER RAILWAYS PROTECTION FORCE SOUTHERN RLY. JOLLARPETTAI reported in 1996 (II) LLJ 206, wherein also, the case of consuming alcohol while on duty a member of the Railway protection force has been considered and termination has been considered to be harsh and termination was set aside by the Madras High Court. Mr.Mehta, learned advocate for the petitioner has also relying on the division bench decision of this Court in case of KIRITKUMAR D. VYAS VS. STATE OF GUJARAT AND ANOTHER reported in 1982 GLH page 687 wherein, conviction for prohibition offence resulted into termination, where the Division Bench of this Court considered the penalty aspect and held that in such circumstances, this cannot be considered to be an offence of moral turpitude and therefore, punishment of termination is considered harsh and disproportionate. The Division Bench has also observed that it must be realised that quantum of punishment is a delicate question which requires to be resolved by the competent authority be it a Judge presiding over Criminal Court or a disciplinary authority exercising disciplinary jurisdiction. The punishment imposed must neither to be an excessive nor too lenient. It must be just, proper and adequate at the same time not too harsh nor to lenient, it has to be either deterrent or reformative. Mr.Mehta, learned advocate for the petitioner has also relied upon the decision of this Court in case of ARJANJI MOTIJI PAGI vs. CONSERVATOR OF FOREST 1995 (1) GCD 479, wherein the petitioner who was found in drunken condition and was convicted in criminal trial which ultimately resulted into termination of service. That question was examined by this Court whether in light of these facts, termination order which was passed by the competent authority is just proper or not ? After considering the facts of that case, this Court has held that punishment in such circumstances, has been considered to be harsh and disproportionate and the same was set aside with a direction of reinstatement with continuity of service but without backwages. Therefore, submission made by the learned advocate Mr.Mehta that in light of the observations made by this Court as well as Apex Court in such circumstances, punishment of termination or dismissal is found to be disproportionate and harsh.
8. I have considered the various decisions cited by Mr.Mehta, learned advocate for the petitioner before this Court as well as Mr.I.M.Pandya, learned AGP. The fact remains that the petitioner as well as said Hiraji both were found in drunken condition while on duty and both were chargesheeted by the department for the same misconduct. No criminal case was lodged against the petitioner as well as said Hiraji. The blood test of both the petitioner and said Hiraji were taken up by the Chemical Analyzer. In the report of the Chemical Analyzer, degree of alcohol found in higher degree in case of the petitioner compared to said Hiraji. Therefore, on that count only the petitioner was dismissed from service and said Hiraji was not dismissed from service. Prior to the dismissal of the petitioner, he had put in more than 7 years service and there is nothing on record produced by the respondents that his past record is bad which required extreme penalty of dismissal. No affidavit-in-reply has been filed by the respondent. Therefore, presumption is that the past record of the petitioner was unblemish and clean. The another aspect is that consuming liquor while on duty by a member of the police force definitely considered to be serious misconduct, however, such misconduct cannot be considered to be a moral turpitude. If any misconduct is committed by the petitioner then, after considering the gravity of the misconduct, it is duty of the competent authority to impose punishment after taking into account all the relevant factors accordingly. Normally before passing the punishment order, the competent authority is required to take into account the gravity of misconduct, compelling circumstances to commit such misconduct, social and economical and family background of the petitioner, length of service and past record of the petitioner. Considering the facts and circumstances discussed above, it seems that these aspects have not been taken into account by the competent authority before passing the punishment order against the petitioner. The important and one more aspect in the present case is that the petitioner has now expired on 28th September, 1999 and consequently, now there is no question of granting any relief of reinstatement.
9. Now the question which arise before this Court that while exercising the powers under Article 226 of the Constitution whether this Court can interfere with the punishment imposed by the competent authority when the charge is found to be proved against the petitioner. This aspect has been discussed and settled by this Court as well as the Apex Court in number of cases.
10. The Apex Court in case of EX. NAIK SARDAR SINGH VS. UNION OF INDIA AND OTHERS repored in AIR 1992 Supreme Court 417 has made the following observations.
"5. In Council of Civil Service Unions Vs. Minister for the Civil Service, (1984) 3 All ER 935, 950 Lord Diplock said :
"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 the grounds on 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' which is recognised in the administrative law of several of fellow members of the European Economics Community."
The principle was followed in Ranjit Thakur v. Union of India, (1987), 4 SCC 611 : (AIR 1987 SC 2386) where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the Army Act and it was observed thus (at p.2392 of AIR ):
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."
In Bhagat Ram Vs. State of Himachal Pradesh (1983) 2 SCC 442 : (AIR 1983 SC 454) this Court held as under (at p.460 of AIR).
"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate tot he gravity of the misconduct would be violative of Article 14 of the Constitution."
11. I have also considered the law laid down by the Hon'ble apex court in case of U.P. State Road Transport Corporation and others versus A.K. Parul reported in (1998) 9 SCC 416. However, recently, in case of U.P. State Road Transport Corporation and others versus Mahesh Kumar Mishra and others reported in AIR 2000 SC 1151, the apex court has held that the High Court can interfere if the penalty shocks conscience of the Court. In the said decision, the apex court has held as under in para 7,8 and 9 of the reports :
"7. A Three Judge Bench of this Court in B.C.Chaturvedi v. Union of India (1995) 6 SCC 749 : (1995 AIR SCW 4375 : AIR 1996 SC 484:1996 Lab IC 462) laid down as under (para 18 of AIR, Lab IC)-
'A review of the above legal position would establish that the disciplinary authority and on appeal the appellate authority, being fact finding authority have exclusive power to consider the 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, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof. '
8. This will show that not only this court but also the High Court can interfere with the punishment imposed upon the delinquent employee if that penalty shocks the conscience of the court. The law, therefore, is not as contended by the learned counsel for the appellants, that the high court can in no circumstances, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.
9. Another Three Judge Bench of this court in Colour Chem Ltd. V. A.L.Alaspurkar, (1998) 3 SCC 192 : (1998 AIR SW 709:AIR 1998 SC 948:1998 Lab IC 974) has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the court to interfere.
10. As pointed out earlier, the order of the High Court though extremely brief, must have been based on overall consideration of the facts of the case and it must have exercised its jurisdiction only when it was shocked to notice that though all the passengers had been issued tickets, the only dispute was with regard to the point at which they had boarded the bus for which the punishment of dismissal from service was highly disproportionate."
Thus, the High Court can interfere with the punishment imposed by the Disciplinary Authority if it is shocking the conscience of the Court and if it is disproportionate to the charge levelled against the delinquent employee.
12. In light of these observations made by the Apex Court and considering the facts of the present case and especially the petitioner before this Court, has expired on 28th September, 1999, punishment of removal from service imposed by the competent authority against the petitioner is grossly disproportionate to the gravity of the misconduct and it is harsh, unjustified and arbitrary order of punishment passed by the competent authority. Such punishment definitely shock the conscience of the Court because the co-delinquent Hiraji has been treated differently only on the ground of having found with less degree of alcohol in comparison with the petitioner. This cannot be considered to be appropriate justification on the part of the competent authority for adopting different quantum of punishment for one delinquent and to impose severe punishment or extreme penalty of economic death to the petitioner. Therefore, considering unblemish past record of the petitioner and seven years' service of the petitioner, according to my opinion, punishment of dismissal or removal from service passed by the competent authority is required to be quashed and set aside.
13. The punishment of removal from service is hereby quashed and set aside and since the petitioner has already expired, now the question of about consequential benefits remains to be awarded to the heirs of the petitioner. The misconduct has been committed by the petitioner. The finding has been held to be legal and valid and the charge levelled against the petitioner is found to be proved and therefore the some punishment must have to be imposed upon the petitioner. Therefore, according to my opinion, denial of full backwages will be considered to be sufficient punishment to the petitioner. Therefore, the petitioner is not entitled to any amount of backwages for the period from date of dismissal till the date the petitioner expired i.e. upto 28th September, 1999. However, service of the petitioner must have to be considered continuous notionally upto the date on which the petitioner expired i.e. 28th September, 1999 and salary of the petitioner will have to be fixed by the respondent authority notionally while considering continuity of service upto the date on which the petitioner was expired and accordingly, if the widow or legal heirs of the petitioner is entitled to any benefit of pension or any other benefits of companionate appointment as per the service rules or policy of the respondents, then same shall have to be considered by the respondent authority in accordance with law. Therefore, in the result, present petition is allowed. Order of dismissal from service - Annexure-D dated 4th May / June, 1986 is hereby quashed and set aside with direction to consider the services of the petitioner as continuous for all purposes till the date on which the petitioner expired i.e. till 28th September, 1999 and the respondents are directed to fix the salary of the petitioner notionally upto the date on which the petitioner expired and if widow or legal heir, if entitled to any benefit on account of continued service, the same shall have to be considered and the same is directed to be paid accordingly. The respondents are also directed to consider the case of companionate appointment as per the policy of the respondents in light of the observations made by this Court hereinabove and shall pass appropriate order to that effect within period of two months from the date on which the certified copy of this order. Rule is made absolute tothe aforesaid extent with no order as to costs.