ANIL KUMAR UPADHYAY versus THE DIRECTOR GENERAL, SSB AND OTHERS on 20 April 2022

SUPREME COURT REPORTS

[2022] 2 S.C.R.

ANIL KUMAR UPADHYAY

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THE DIRECTOR GENERAL, SSB AND OTHERS

(Civil Appeal No. 2707 of 2022)

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APRIL 20, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law: Indiscipline and misconduct – Removal fromservice – Appellant was serving as a Head Constable in SashastraCSeema Bal – He was charged with violation of good order anddiscipline u/s. 43 of 2007 Act for having entered the Mahila Barrackat mid-night to meet his alleged female friend – Appellant was heldguilty of the charges and order of removal from service was passedagainst him – Appellant filed writ petition – Plea of appellant wasDthat much lesser punishment was imposed against a female constablewho allowed the entry of the appellant and same was discriminatory – On this ground, single judge set aside punishment of ‘removalfrom service’ and remitted the matter to the disciplinary authority toimpose any lesser punishment which may facilitate the appellant toretain his job – Disciplinary authority successfully challenged theEorder of single judge before Division Bench – Hence instant appealby the delinquent – Held: The nature of misconduct committed bythe appellant was grave in nature and unpardonable – Misconductcommitted by a male Head Constable cannot be equated with themisconduct committed by female constable – Single judgeFcommitted grave error in comparing the case of female constablewith that of the appellant male Head Constable – Merely becauseone of the employees was inflicted with a lesser punishment cannotbe a ground to hold the punishment imposed on another employeeas disproportionate – Imposition of punishment/penalty on aparticular employee depends upon various factors, like theGposition of the employee in the department, role attributed to himand the nature of allegations against him – Punishment of removalfrom service cannot be said to be disproportionate at all to themisconduct held to be proved against the appellant – Sashatra SeemaBal Act, 2007 – s. 43.

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Dismissing the appeal, the Court

HELD: 1. The appellant was imposed the penalty of‘removal from service’ after the charges levelled against himstood proved by the disciplinary authority in an enquiry heldagainst him after following the procedure prescribed under theSSB Rules. The nature of allegations against the appellant aregrave in nature. He entered the Mahila Barrack in the midnightat around 00:15 hours, may be to meet his alleged friend RupasiBarman, but such an indisciplined conduct leading tocompromising the security of the occupants of the Mahila Barrackcannot be tolerated. The nature of misconduct which has beencommitted by the appellant stands proved and is unpardonable.Therefore, when the disciplinary authority considered itappropriate to punish him with the penalty of ‘removal fromservice’, which is confirmed by the appellate authority, thereafterit was not open for the learned Single Judge to interfere withthe order of punishment imposed by the disciplinary authority.[Para 9][1117-G-H; 1118-B-C]

2. The Single Judge did not appreciate that the misconductcommitted by the delinquent official, being a male Head Constablecannot be equated with the misconduct committed by the femaleconstable. The misconduct of entering the Mahila Barrack of theBattalion in the midnight is more serious when committed by amale Head Constable. Therefore, the Single Judge committed agrave error in comparing the case of female constable with thatof the appellant – delinquent, male Head Constable. [Para10][1118-E-F]

3. Merely because one of the employees was inflicted witha lesser punishment cannot be a ground to hold the punishmentimposed on another employee as disproportionate, if in case ofanother employee higher punishment is warranted and inflictedby the disciplinary authority after due application of mind. Therecannot be any negative discrimination. The punishment/penaltyto be imposed on a particular employee depends upon variousfactors, like the position of the employee in the department, roleattributed to him and the nature of allegations against him.Therefore, the Division Bench of the High Court is absolutely A

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[2022] 2 S.C.R.

Ajustified in interfering with the judgment and order passed by thelearned Single Judge, interfering with the order of punishmentimposed by the disciplinary authority removing the appellant fromservice. If the conduct on the part of the appellant entering theMahila Barrack of the Battalion in the midnight is approved, inthat case, it would lead to compromising the security of theBoccupants of the Mahila Barrack. Therefore, the disciplinaryauthority was absolutely justified in imposing the punishment/penalty of ‘removal from service’ by modifying the earlierpunishment of dismissal. The same cannot be said to bedisproportionate at all to the misconduct held to be proved againstCthe appellant – delinquent. The present appeal fails and the samedeserves to be dismissed and is accordingly dismissed. [Para 11and 12][1118-F-H; 1119-A-C]

Om Kumar v. Union of India (2001) 2 SCC 386 : [2000]4 Suppl. SCR 693; Union of India v. G. GanayuthamD(1997) 7 SCC 463 : [1997] 3 Suppl. SCR 549; Unionof India v. Dwarka Prasad Tiwari (2006) 10 SCC 388: [2006] 7 Suppl. SCR 217 ; Union of India v. DilerSingh (2016) 13 SCC 71 : [2016] 4 SCR 473; B.C.Chaturvedi v. Union of India (1995) 6 SCC 749 : [1995]4 Suppl. SCR 644; Lucknow Kshetriya Gramin BankE(Now Allahabd, Uttar Pradesh Gramin Bank) v.Rajendra Singh (2013) 12 SCC 372 : [2013] 17 SCR309 – relied on.

Case Law Reference

F[2000] 4 Suppl. SCR 693relied onPara 4.1[1997] 3 Suppl. SCR 549relied onPara 4.1[2006] 7 Suppl. SCR217relied onPara 4.1[2016] 4 SCR 473relied onPara 4.1G[1995] 4 Suppl. SCR 644relied onPara 4.2[2013] 17 SCR 309relied onPara 4.2

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2707of 2022.

From the Judgment and Order dated 11.04.2018 of the High Courtof Gauhati in Writ Appeal No.346 of 2017.

Ms. Ankita Patnaik, Ms. Astha Sharma, Ms. Mantika Haryani,Advs. for the Appellant.

Ms. Vaishali Verma, Ms. Rashmi Malhotra, Adit Khorana, ArvindKumar Sharma, B. V. Balaram Das, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 11.04.2018 passed by the Division Bench of the GauhatiHigh Court in Writ Appeal No. 346/2017, by which the Division Benchof the High Court has allowed the said appeal preferred by therespondents herein – Disciplinary Authority and has quashed and setaside the judgment and order 02.05.2017 passed by the learned SingleJudge of the High Court in Writ Petition No. 3576 of 2014, by which thelearned Single Judge allowed the said writ petition and interfered withthe order of punishment of ‘removal from service’ inflicted upon theoriginal writ petitioner and remitted the matter to the Disciplinary Authority,the original writ petitioner – delinquent has preferred the present appeal.

2. The appellant herein was serving as a Head Constable(Ministerial) in the 15[th] Battalion of the Sashastra Seema Bal (SSB),Bongaigaon. He was charged with violation of good order and disciplineunder Section 43 of the Shashastra Seema Bal Act, 2007 (hereinafterreferred to as the ‘SSB Act’), for having entered the Mahila Barrack ofthe Battalion at around 00:15 hours, on the intervening night of 14[th] –15[th] April, 2013. He was charged with indiscipline and misconduct leadingto compromising the security of the occupants of the Mahila Barrack.He was apprehended inside the Mahila Barrack by six female constables.The matter was reported to the superiors. He was placed undersuspension. A departmental enquiry was initiated against him. Theappellant pleaded not guilty to the charges and the Deputy Commandantof the Battalion was ordered to ensure the Record of Evidence (ROE).During the ROE, the statements of prosecution and defence witnesseswere recorded. He was afforded an opportunity to cross-examine the A

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Aprosecution witnesses. That the ROE was submitted by the DeputyAdjutant and after due consideration of the same, the BattalionCommandant heard the appellant and under the SSB Rules, the SummaryForce Court (SFC) was ordered against the delinquent – Head Constable.

2.1 Before the SFC, the appellant pleaded not guilty to both theBcharges and accordingly the evidence was recorded. Thereafter, theSFC found the appellant guilty of the charges and initially ordered for hisdismissal on 29.04.2013. But, subsequently, the penalty of dismissal wasconverted to ‘removal from service’ on 21.06.2013 by the Commandantof the Battalion. The departmental appeal filed by the delinquent – HeadConstable came to be rejected at first, as time barred on 06.12.2013, butClater on, the Appellate Authority upheld the disciplinary action under itsorder dated 24.01.2014.

2.2 Feeling aggrieved and dissatisfied with the order of removalfrom service passed by the disciplinary authority, the appellant –delinquent preferred a writ petition before the High Court. Number ofDsubmissions were made before the learned Single Judge on the legalityand validity of the ROE and the SFC procedures. It was also submittedon behalf of the appellant that a female constable, Rupasi Barman, whowas on sentry duty and who allowed entry of the delinquent during hersentry duty and against whom parallel proceedings were drawn up wasEalso found guilty, she was inflicted the penalty of forfeiture of two yearsseniority in the rank of constable and also forfeiture of two years’ servicefor the purpose of promotion only. Therefore, it was submitted that whena much lesser punishment was imposed against a female constablewhereas her partner in crime (the appellant herein) was given thepunishment of ‘removal from service’, the same can be said to beFdiscriminatory and disproportionate punishment.

2.3 The learned Single Judge specifically observed and held thatall due opportunities were afforded to the delinquent and the finding ofguilt is found to have been based on cogent material and the evidence ofboth sides received due consideration and hence under the test ofGpreponderance of probability, the delinquent has been held guilty.Therefore, the learned Single Judge opined that no prejudice was causedand it cannot be described a case of unreasonable procedure as therewas due adherence to the SSB Rules. However, thereafter the learnedSingle Judge interfered with the order of punishment imposed by theHdisciplinary authority of ‘removal from service’ solely on the ground that

female constable, Rupasi Barman, who allowed the entry of thedelinquent during her sentry duty, after holding her guilty, was inflicted alesser penalty, whereas the appellant herein was inflicted the punishmentof ‘removal from service’, which can be said to be disproportionate andtherefore the learned Single Judge set aside the order of punishmentimposed by the disciplinary authority of ‘removal from service’ andremitted the matter to the disciplinary authority to impose any lesserpunishment which may facilitate the appellant herein - Head Constable(Ministerial) to retain his job.

2.4 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the disciplinary authority preferredwrit appeal before the Division Bench. By the impugned judgment andorder, the Division Bench of the High Court has set aside the judgmentand order passed by the learned Single Judge.

2.5 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court in quashingand setting aside the judgment and order passed by the learned SingleJudge interfering with the order of punishment imposed by the disciplinaryauthority and remanding the matter back to the disciplinary authority toimpose the lesser punishment, the delinquent has preferred the presentappeal.

3. Ms. Ankita Patnaik, learned counsel has appeared on behalf ofthe appellant and Ms. Vaishali Verma, learned counsel has appeared onbehalf of the respondents – disciplinary authority.

3.1 Ms. Ankita Patnaik, learned counsel appearing on behalf ofthe delinquent has made submissions on merits of the disciplinaryproceedings and on the order of Summary Force Court (SFC) and hassubmitted that the convening order of SFC records no reasons/basis forconducting SFC. She has also submitted that no proper procedure wasfollowed by conducting the SFC against the appellant and that the samewas in breach of principle of natural justice. However, even the learnedSingle Judge had held against the appellant on the disciplinary proceedings.In paragraph 8, the learned Single Judge had specifically observed thatall due opportunities were afforded to the delinquent; the finding of guiltis found to have been based on cogent material and the evidence of bothsides received due consideration. The findings recorded by the learnedSingle Judge on the disciplinary proceedings had attained finality. Even A

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Aotherwise, the findings recorded by the learned Single Judge as well asDivision Bench of the High Court on the disciplinary proceedings are onappreciation of evidence on record which are not required to be re-appreciated by this Court in exercise of powers under Article 136 of theConstitution of India.B3.2 It is then submitted by the learned counsel appearing on behalfof the appellant that the learned Single Judge, while allowing the writpetition, had rightly held that all the attending circumstances includingthe evidence on record and the fact that a lesser punishment was inflictedupon the female constable Rupasi Barman, while the appellant’s serviceswere terminated, was grossly disproportionate and therefore the learnedCSingle Judge had rightly remitted the matter back to the disciplinaryauthority to impose a lesser punishment which will enable the delinquentto retain his job.

3.3 It is submitted that the charges inflicted upon the appellant –delinquent as well as the female constable – Rupasi Barman were identicalDin nature and warranted similar punishments. It is submitted that thepunishment of ‘removal from service’ awarded by the Commandant inthe same facts and circumstances of the instant case is disproportionateto the charges levelled against the appellant. It is submitted that thefemale constable – Rupasi Barman has been awarded punishment ofEforfeiture of two years’ seniority in the rank of constable and forfeitureof two years’ service for the purpose of promotion. She was also triedby the SFC for an offence under Section 43 of the SSB Act. It is submittedthat therefore the learned Single Judge rightly interfered with thepunishment of ‘removal from service’ awarded by the disciplinaryauthority – Commandant holding that the same was disproportionate toFthe charges levelled against the appellant.

3.4 It is further submitted by the learned counsel appearing onbehalf of the delinquent that during the service period up to 2013, thedelinquent has received three cash rewards from the senior officers forgood conduct. It is submitted that therefore to remove the appellantGfrom service for a single delinquency would be too harsh and/ordisproportionate to the charges and the misconduct held to be proved.

3.5 Learned counsel appearing on behalf of the appellant hassubmitted that as such the female constable – Rupasi Barman was thefriend of the delinquent and the delinquent went to meet her in order toHoffer her a gift on New Year eve and therefore he entered the Mahila Barrack and she herself unlocked the barrack gate. It is thereforesubmitted that the intention of the appellant was not bad. It is submittedthat therefore the order of punishment of ‘removal from service’ can besaid to be disproportionate to the misconduct proved.

3.6 Making the above submissions and relying upon the decisionof this Court in the case of Ranjit Thakur v. Union of India, AIR 1987SC 2386, it is prayed to allow the present appeal and quash and setaside the impugned judgment and order passed by the Division Bench ofthe High Court and restore the well-reasoned judgment of the learnedSingle Judge, remitting the matter to the disciplinary authority for imposinga lesser punishment.

4. Ms. Vaishali Verma, learned counsel appearing on behalf ofthe respondents, while supporting the impugned judgment and orderpassed by the Division Bench of the High Court, has vehementlysubmitted that in the present case, even the learned Single Judge heldthat the disciplinary proceedings were conducted after following the dueprocedure as required under the law. It is submitted that in the disciplinaryproceedings, a very serious charge and misconduct committed by theappellant entering into the Mahila Barrack in the midnight has beenestablished and proved. It is submitted that only thereafter the disciplinaryauthority after considering the seriousness of the misconduct passed anorder removing the appellant from service, which was not required to beinterfered with by the learned Single Judge.

4.1 It is further submitted that the learned Single Judge interferedwith the order of punishment imposed by the disciplinary authority ofremoving the appellant from service solely on the ground that in the caseof female constable – Rupasi Barman who allowed the entry of thedelinquent during her sentry duty, parallel proceedings were drawn upand she was also found guilty of both the charges, however, she wasinflicted a lesser punishment and therefore the punishment of ‘removalfrom service’ imposed on the delinquent can be said to be disproportionate.It is submitted that the misconduct committed by the appellant by enteringthe Mahila Barrack in the midnight cannot be equated with the misconductcommitted by the female constable. It is submitted that the appellantwas serving as a Head Constable in the disciplined force in the SSB.Therefore, his indisciplined conduct leading to compromising the securityof the occupants of the Mahila Barrack cannot be tolerated. It is submittedthat when a conscious decision was taken by the disciplinary authority A

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Ato impose the punishment of ‘removal from service’, which was afterthe charges and misconduct held to be proved against him, thereafter itwas not open for the learned Single Judge of the High Court to interferewith the same in exercise of powers under Article 226 of the Constitutionof India. Reliance is placed on the decisions of this Court in the cases ofOm Kumar v. Union of India, (2001) 2 SCC 386; Union of India v.BG. Ganayutham, (1997) 7 SCC 463; Union of India v. DwarkaPrasad Tiwari, (2006) 10 SCC 388; and Union of India v. DilerSingh, (2016) 13 SCC 71, on the test of proportionality.

4.2 Learned counsel appearing on behalf of the disciplinaryauthority has also relied upon the decisions of this Court in the cases ofCB.C. Chaturvedi v. Union of India, (1995) 6 SCC 749; and LucknowKshetriya Gramin Bank (Now Allahabd, Uttar Pradesh GraminBank) v. Rajendra Singh, (2013) 12 SCC 372, on the jurisdiction ofthe courts interfering with the order of punishment imposed by thedisciplinary authority.D4.3 It is further submitted that, apart from the fact that the case of 4.3 It is further submitted that, apart from the fact that the case ofthe appellant cannot be compared with the misconduct committed bythe female constable – Rupasi Barman, even otherwise merely becausethe female constable, who allowed the entry of the delinquent in theMahila Barrack, was inflicted with the lesser punishment, cannot be aEground to impose a lesser punishment on the delinquent. The misconductconducted by the appellant, being a member of the disciplined force, byentering the Mahila Barrack in the midnight and such an indisciplinedconduct leading to compromising the security of the occupants of theMahila Barrack can be said to be a grave and serious misconduct andtherefore the disciplinary authority was absolutely justified in imposingFthe punishment of ‘removal from service’. It is therefore submitted thatthe learned Single Judge erred in interfering with the order of punishmentimposed by the disciplinary authority, which is rightly set aside by theDivision Bench of the High Court.

5. We have heard learned counsel for the respective parties atGlength.

6. The appellant herein, who at the relevant time was serving as aHead Constable, was subjected to disciplinary proceedings for havingentered the Mahila Barrack of the Battalion at around 00:15 hours onthe intervening night of 14-15[th] April, 2013. He was charged with anHindisciplined conduct relating to compromising the security of the

occupants of the Mahila Barrack. He was apprehended inside the MahilaBarrack by six female constables. Thereafter he was subjected to thedisciplinary proceedings. All due opportunities were afforded to him. Hewas found guilty based on cogent material and evidence and onappreciation of evidence led by both the sides. Only thereafter, thedisciplinary authority initially imposed the punishment of dismissal,however, subsequently, the penalty of dismissal was converted to‘removal from service’. The punishment of ‘removal from service’ waschallenged by the delinquent before the High Court. The learned SingleJudge, though held that the disciplinary proceedings were conductedafter following due procedure under the SSB Rules and due opportunitieswere afforded to him, thereafter interfered with the order of punishmentimposed by the disciplinary authority by observing that as the femaleconstable who allowed the appellant – Head Constable to enter theMahila Barrack and who was also found guilty of both the charges wasinflicted with the lesser punishment and the appellant was inflicted thepunishment of ‘removal from service’, which can be said to bedisproportionate and thereby the learned Single Judge interfered withthe order of punishment imposed by the disciplinary authority and setaside the punishment of ‘removal from service’ and remitted the matterback to the disciplinary authority to impose a lesser punishment. Thesame has been interfered with by the Division Bench of the High Courtand the order of punishment imposed by the disciplinary authority hasbeen restored.

7. Therefore, the short question which is posed for theconsideration of this Court is, “whether the learned Single Judge wasjustified in interfering with the order of punishment imposed by thedisciplinary authority on the ground that the same was disproportionateas the female constable against whom also the disciplinary proceedingswere initiated and the two charges were held to be proved against her,was inflicted with the lesser punishment?”

8. On the judicial review and interference of the courts in thematter of disciplinary proceedings and on the test of proportionality, fewdecisions of this Court are required to be referred to:

i) In the case of Om Kumar (supra), this Court, after consideringthe Wednesbury principles and the doctrine of proportionality,has observed and held that the question of quantum of punishmentin disciplinary matters is primarily for the disciplinary authority AB

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and the jurisdiction of the High Courts under Article 226 of theConstitution or of the Administrative Tribunals is limited and isconfined to the applicability of one or other of the well-knownprinciples known as ‘Wednesbury principles’.

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In the Wednesbury case, (1948) 1 KB 223, it was observedthat when a statute gave discretion to an administrator to take adecision, the scope of judicial review would remain limited. LordGreene further said that interference was not permissible unlessone or the other of the following conditions was satisfied, namely,the order was contrary to law, or relevant factors were notconsidered, or irrelevant factors were considered, or the decisionwas one which no reasonable person could have taken.

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ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, thisCourt observed and held as under:

“18. A review of the above legal position would establish thatDthe disciplinary authority, and on appeal the appellate authority,being fact-finding authorities have exclusive power to considerthe evidence with a view to maintain discipline. They areinvested with the discretion to impose appropriate punishmentkeeping in view the magnitude or gravity of the misconduct.The High Court/Tribunal, while exercising the power of judicialEreview, cannot normally substitute its own conclusion on penaltyand impose some other penalty. If the punishment imposed bythe disciplinary authority or the appellate authority shocks theconscience of the High Court/Tribunal, it would appropriatelymould the relief, either directing the disciplinary/appellateFauthority to reconsider the penalty imposed, or to shorten thelitigation, it may itself, in exceptional and rare cases, imposeappropriate punishment with cogent reasons in supportthereof.”

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iii) In the case of Lucknow Kshetriya Gramin Bank (supra), inparagraph 19, it is observed and held as under:

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“19. The principles discussed above can be summed up andsummarised as follows:

19.1. When charge(s) of misconduct is proved in an enquirythe quantum of punishment to be imposed in a particularcase is essentially the domain of the departmental authorities.

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19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum ofpunishment and nature of penalty to be awarded, as thisfunction is exclusively within the jurisdiction of the competentauthority.

19.3. Limited judicial review is available to interfere withthe punishment imposed by the disciplinary authority, onlyin cases where such penalty is found to be shocking to theconscience of the court.

19.4. Even in such a case when the punishment is set asideas shockingly disproportionate to the nature of chargesframed against the delinquent employee, the appropriatecourse of action is to remit the matter back to the disciplinaryauthority or the appellate authority with direction to passappropriate order of penalty. The court by itself cannotmandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4above, would be in those cases where the co-delinquent isawarded lesser punishment by the disciplinary authority evenwhen the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. Thiswould be on the doctrine of equality when it is found thatthe employee concerned and the co-delinquent are equallyplaced. However, there has to be a complete parity betweenthe two, not only in respect of nature of charge butsubsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts thecharges, indicating remorse with unqualified apology, lesserpunishment to him would be justifiable.”

9. In the present case, the appellant was imposed the penalty of‘removal from service’ after the charges levelled against him stood provedby the disciplinary authority in an enquiry held against him after followingthe procedure prescribed under the SSB Rules. The nature of allegationsagainst the appellant are grave in nature. He entered the Mahila Barrackin the midnight at around 00:15 hours, may be to meet his alleged friendRupasi Barman, but such an indisciplined conduct leading to compromisingthe security of the occupants of the Mahila Barrack cannot be tolerated.

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AAs a member of the disciplined force – SSB, he was expected to followthe rules. He was apprehended inside the Mahila Barrack by six femaleconstables. As observed by this Court in the case of Diler Singh (supra),a member of the disciplined force is expected to follow the rules, havecontrol over his mind and passion, guard his instincts and feelings andnot allow his feelings to fly in a fancy. The nature of misconduct whichBhas been committed by the appellant stands proved and is unpardonable.Therefore, when the disciplinary authority considered it appropriate topunish him with the penalty of ‘removal from service’, which is confirmedby the appellate authority, thereafter it was not open for the learnedSingle Judge to interfere with the order of punishment imposed by theCdisciplinary authority.

10. From the judgment and order passed by the learned SingleJudge, which has been interfered with by the Division Bench, it appearsthat what weighed with the learned Single Judge was that the femaleconstable – Rupasi Barman, who allowed the entry of the delinquentDand who was also subjected to disciplinary proceedings and was foundguilty of both the charges, was inflicted with a lesser punishment andtherefore punishment of ‘removal from service’ imposed on the delinquentofficial was disproportionate. However, the learned Single Judge did notappreciate that the misconduct committed by the delinquent official, beinga male Head Constable cannot be equated with the misconduct committedEby the female constable. The misconduct of entering the Mahila Barrackof the Battalion in the midnight is more serious when committed by amale Head Constable. Therefore, the learned Single Judge committed agrave error in comparing the case of female constable with that of theappellant – delinquent, male Head Constable.F

11. Even otherwise, merely because one of the employees wasinflicted with a lesser punishment cannot be a ground to hold thepunishment imposed on another employee as disproportionate, if in caseof another employee higher punishment is warranted and inflicted by thedisciplinary authority after due application of mind. There cannot be anyGnegative discrimination. The punishment/penalty to be imposed on aparticular employee depends upon various factors, like the position ofthe employee in the department, role attributed to him and the nature ofallegations against him. Therefore, the Division Bench of the High Courtis absolutely justified in interfering with the judgment and order passedby the learned Single Judge, interfering with the order of punishmentH

imposed by the disciplinary authority removing the appellant from service.If the conduct on the part of the appellant entering the Mahila Barrackof the Battalion in the midnight is approved, in that case, it would lead tocompromising the security of the occupants of the Mahila Barrack.Therefore, the disciplinary authority was absolutely justified in imposingthe punishment/penalty of ‘removal from service’ by modifying the earlierpunishment of dismissal. The same cannot be said to be disproportionateat all to the misconduct held to be proved against the appellant –delinquent.

12. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

Devika Gujral

Appeal dismissed.

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