UNION OF INDIA & ORS. versus EX. CONSTABLE RAM KARAN on 11 November 2021

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SUPREME COURT REPORTS

[2021] 7 S.C.R.

UNION OF INDIA & ORS.

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EX. CONSTABLE RAM KARAN

(Civil Appeal No(s). 6723 of 2021)

BNOVEMBER 11, 2021

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Service law: Departmental inquiries – Quantum of punishment– Judicial review of – On facts, allegations against constable ofCRPF that he threatened the Doctor-complainant, misbehaved andCabused and injured him and made false allegations against him ofsexual harassment to his wife – Disciplinary inquiry against theConstable – Imposition of penalty of removal from service confirmedby the appellate/revisional authority – However , the High Courtsubstituted the penalty of removal from service with confinement ofDthe constable from 1.00 p.m. to 10.00 p.m. in quarter guard jail –On appeal, held: It was the disciplinary authority, or the appellateauthority in appeal, which is to decide the nature of punishment tobe given to the delinquent employee – Keeping in view theseriousness of the misconduct committed by such an employee, it isnot open for the Courts to assume and usurp the function of theEdisciplinary authority – Even in cases where the punishment imposedby the disciplinary authority is found to be shocking to theconscience of the Court, normally the disciplinary authority or theappellate authority should be directed to reconsider the question ofimposition of penalty – Scope of judicial review on the quantum ofFpunishment is available only when the penalty imposed appears tobe shockingly disproportionate to the nature of misconduct that theCourts would frown upon – Even in such a case, after setting asidethe penalty order, it is to be left to the disciplinary/appellate authorityto take a call and it is not for the Court to substitute its decision byprescribing the quantum of punishment – However, it is only in rareGand exceptional cases where the court might substitute its own viewas to the quantum of punishment in place of punishment that tooafter assigning cogent reasons – Interference made by the HighCourt is in a cavalier manner while recording the finding of penaltyto be disproportionate without taking into consideration theHseriousness of the misconduct committed by the respondent which300

is unpardonable and not sustainable in law – High Court overlookedthe Scheme of the 1949 Act, thus, the interference made by the HighCourt in substituting punishment is unsustainable and set aside –Central Reserve Force Police Act, 1949 – ss. 9, 10, 11 – CentralReserve Force Police Rules 1955 – r. 27.

Removal and dismissal from service – Difference between –Held: Both stand on the same footing and both terminate therelationship of employer/employee – Only difference between thetwo is that in the case of dismissal, it precludes the employee fromseeking future employment in the Government while in the case ofremoval, he is not disqualified from any future employment.

Allowing the appeal, the Court

HELD: 1.1 The scheme of Section 11 of the CentralReserve Force Police Act, 1949 mandates that the competentauthority may, subject to rules made thereunder, award in lieu of,or in addition to, suspension or dismissal any one or morepunishment if found guilty of misconduct in his capacity as memberof the force. The use of words ‘in lieu of, or in addition to,suspension or dismissal’, appearing in Section 11(1) clearlyindicates that the authorities mentioned therein are empoweredto award punishment of suspension or dismissal to member ofthe force who is found guilty and in addition to, or in lieu thereof,the punishment mentioned in clause (a) to (e) may also beawarded. [Para 15, 16][313-B-D]

1.2 More heinous offences or less heinous offencesprescribe penalty of sentence of imprisonment if member of theforce is found guilty. At the same time, Section 11 is clear andunambiguous and prescribe those minor punishments which thecompetent authority may award in a departmental inquiry in lieuof or in addition to suspension or dismissal any one or more ofthe punishments to member of the force as referred under clauses(a) to (e) of Section 11(1) of the Act 1949 even if the member hasnot been prosecuted for an offence under Section 9 or Section 10of the Act. [Para 17][313-D-E]

1.3 Removal and dismissal from service stand on the samefooting and both terminate the relationship of employer/employee.The only difference between the two is that in the case of dismissal, A

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Ait precludes the employee from seeking future employment inthe Government while in the case of removal, he is not disqualifiedfrom any future employment. By virtue of an explanation appendedto Rule 27 of the scheme of Central Reserve Force Police Rules1955, the rule making authority has made it clear that dismissalof a member of the force precludes him from being re-employedBin Government service, while removal of any such member fromthe force shall not be disqualification, for any future employment(other than an employment in the Central Reserve Police Force)under the Government. [Para 18][313-F-G]

1.4 In the instant case, the respondent has been punishedCwith penalty of removal from service after the charges levelledagainst him stood proved by the disciplinary authority in adepartmental inquiry held against him after going through theprocedure prescribed under Rule 27 of the Rules 1955. Suchnature of minor punishment of removal from service could be inDaddition to dismissal as being provided under Section 11 of theAct 1949. Section 11 of the Act 1949 has been completelyoverlooked by the High Court while examining as to whetherthe punishment of removal from service could be inflicted in lieuof or in addition to dismissal from service to member of the force,if the misconduct stands proved in the course of disciplinaryEinquiry and after it was confirmed by the High Court under theimpugned judgment. [Para 19, 20][313-H; 314-A-C]

1.5 The nature of allegations against the respondent areindeed grave in nature as the respondent not only threatenedthe Doctor-complainant but has misbehaved and abused andFinjured him and made false allegations against him of sexualharassment to his wife. Such a nature of misconduct which hasbeen committed by the respondent once stand proved isunpardonable and if the authority has considered it appropriateto punish him with penalty of removal from service by an OrderGand confirmed by the appellate/revisional authority and by theHigh Court in the impugned judgment leaves no sympathy forretention in service and that too in a discipline force like CRPF.[Para 21][314-C-E]

1.6 The well ingrained principle of law is that it is theHdisciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquentemployee. Keeping in view the seriousness of the misconductcommitted by such an employee, it is not open for the Courts toassume and usurp the function of the disciplinary authority. [Para22][314-E-F]

1.7 Even in cases where the punishment imposed by thedisciplinary authority is found to be shocking to the conscienceof the Court, normally the disciplinary authority or the appellateauthority should be directed to reconsider the question ofimposition of penalty. The scope of judicial review on the quantumof punishment is available but with a limited scope. It is onlywhen the penalty imposed appears to be shockinglydisproportionate to the nature of misconduct that the Courts wouldfrown upon. Even in such a case, after setting aside the penaltyorder, it is to be left to the disciplinary/appellate authority to takea call and it is not for the Court to substitute its decision byprescribing the quantum of punishment. However, it is only inrare and exceptional cases where the court might to shorten thelitigation may think of substituting its own view as to the quantumof punishment in place of punishment awarded by the competentauthority that too after assigning cogent reasons. [Para 23][314-F-H; 315-A-B]

1.8 Adverting to the facts of the instant case, the High Court,erred in interfering with the punishment, which could lawfully beimposed by the departmental authorities for his provenmisconduct. The High Court should not have substituted its owndiscretion for that of the authority. What punishment was requiredto be imposed, in the facts and circumstances of the case, was amatter which fell exclusively within the jurisdiction of thecompetent authority and the interference made by the High Courtis in a cavalier manner while recording the finding of penalty tobe disproportionate without taking into consideration theseriousness of the misconduct committed by the respondentwhich is unpardonable and not sustainable in law. [Para 26][316-F-G]

1.9 In the instant case, the disciplinary matters of membersof the force for minor punishments are being governed underSection 11 of the Act 1949 and if any nature of more heinous A

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Aoffence/less heinous offence being committed, if found proved,member of the force shall be punishable for imprisonment for aspecified term as being referred to under Section 9 and Section10 of the Act 1949 and at the same time, dismissal and removalfrom service are being considered to be the minor punishmentsas reflected from Section 11(1) of the Act 1949. If the allegationBis found proved, the competent authority may award in lieu of, orin addition to, suspension or dismissal any one or more ofpunishments to a member of the force whom he considers to beguilty of disobedience, neglect or duty, or remissness in thedischarge of any duty or of other misconduct with confinement inCthe quarter-guard or removal as indicated under clauses (d) and(e) of Section 11(1) of the Act 1949. [Para 28][317-G-H; 318-A-B]

1.10 The scheme of the Act 1949 of which reference hasbeen made was completely overlooked by the High Court andDwhile keeping in mind the standards of examining the misconductof a civil servant, interference has been made in the quantum ofpunishment which may not apply to member of the discipline forceand, the interference made by the High Court in substitutingpunishment in the instant case is unsustainable and is set aside.[Para 29][318-B-D]E

Union of India and Others v. Ghulam Mohd. Bhat.(2005) 13 SCC 228 : [2005] 4 Suppl. SCR 367; B.C.Chaturvedi v. Union of India and Others (1995) 6 SCC749 : [1995] 4 Suppl. SCR 644; Lucknow KshetriyaFGramin Bank (Now Allahabad, Uttar Pradesh GraminBank) and Another v. Rajendra Singh (2013) 12 SCC372 : [2013] 17 SCR 309 – referred to.

Case Law Reference

[2005] 4 Suppl. SCR 367referred toPara 11G[1995] 4 Suppl. SCR 644referred toPara 24[2013] 17 SCR 309referred toPara 25

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.6723 of2021.

From the Judgment and Order dated 11.02.2016 of the High Courtof Delhi at New Delhi in W.P. (C) No.13317 of 2009.

Ms. Madhavi Divan, ASG, Ms. Manjula Gupta, Balaji Srinivasan,Ayush Puri, B. V. Balaram Das, Advs. for the Appellants.

Ashok Agrwaal, Ms. Sridevi Panikkar, Ms. Aditi Saraswat, Advs.for the Respondent.

The Judgment of the Court was delivered by RASTOGI, J.

1. Leave granted.

2. Union of India, in the instant appeal, has challenged the judgmentand order passed by the Division Bench of the High Court of Delhisubstituting the penalty of removal from service inflicted on the respondentafter holding disciplinary inquiry as provided under Rule 27 of The CentralReserve Police Force Rules, 1955 (hereinafter being referred to as the“Rules 1955”) with confinement of respondent from 1.00 p.m. to 10.00p.m. in quarter guard jail without noticing the mandate of the nature ofpunishments indicated under Section 11(1) of The Central Reserve PoliceForce Act, 1949 (hereinafter being referred to as the “Act 1949”).

3. The brief facts of the case culled out from the record are thatthe respondent joined service with the Central Reserve Police Force inthe year 1983 and was on attachment duty at Group Centre, CRPF. In2003, his wife was under treatment of Dr. Nazir, Gynaecologist(complainant). On 12[th] September 2003, the respondent accompaniedwith his wife forcibly entered into the chamber of the Dr. Nazir-complainant and asked him to attest the reimbursement of medical claimsand upon his refusal, the respondent verbally abused and physically struckthe Doctor-Complainant, resulting in injuries. He was escorted out bythe Constable Suresh, who also happened to see the conduct of therespondent and his wife. Respondent not only misbehaved and abusedthe Doctor-complainant while on duty in which he sustained injuries onhis face but to conceal his misconduct, he made a false allegation ofsexual harassment on his wife against the Doctor-complainant. For sucha gross misconduct, which he had committed while in service, he wasplaced under suspension and a Charge Memo dated 29[th] October, 2003

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Afor holding disciplinary inquiry under Rule 27 of the Rules 1955 came tobe served upon him for (i) violation of Section 11(1) of the Rules 1955,for misbehaving and abusing and injuring the Doctor-complainant whileon official duty; and (ii) for instituting false criminal charges of sexualharassment against the Doctor-complainant. Article of Charge 1 andCharge 2 of the Charge Memo along with the details are reproducedBhereunder:- “ARTICLE I

Constable Driver No.961340413 Ram Karan of 120BNwhile being at the post of Constable have violated rule 11(1) beingCthe member of the force on 12.9.03 around 12.00 senior medicalofficer who was on official duty Const. Ram Karan misbehavedand abused due to which received injuries near bus left eye whichis punishable under the act.

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Constable Driver Ram Karan 120 BN while being postedin Pinjore as Const/Driver in the Month of September 2003 hasviolated CRPF rules 1949 rule 11(1) being the member of theforce misbehaved with doctor Abdul Nair abused him that thedoctor had misbehaved with his wife Savita Devi who has visitedthe doctor along with her husband who had violated the said rules.”

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Details

“The said Const/Driver Rain Karan did 10.3.03 to 26.9.03was posted in Pinjore. Wife of Const/Driver were under treatmentof senior medical officer Dr. Nazir on 11.9.03 has set her case forconsideration. Smt. Savita dated 12.9.03 around 11.15 has visitedDr. Nazir with Cash memo No.2137 dated 11.9.03 she left theroom that her husband is going to teach him a lesson. Around12.00 driver Ram Karan visited the office saying to authorize thecash memo in which medicine prescribed by the doctor were notmentioned when refused he misbehaved and abused the doctor.

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The said, misbehaviour was reported by Dr. Abdul Nazir tothe senior official Pinjore on the complaint of Abdul Nazir actionwas taken against Cont. Ram Karan and suspended on the sameday. In order to gain sympathy of the general public he falselymade allegation against Dr. Nazir of sexual abuse of his wife.

According to const. Ram Karan his wife Savita was undertreatment of Dr. Abdul Nazir and had gone for a checkup. Duringcheck up Dr. Nazir sexually abused her and on calling her husbandfor help and when his husband entered the room he was beatenby the doctor.

Hence Cont./Driver Ram Karan has made false allegationsagainst Dr. Nazir of sexual abuse of his wife Savita. His onlypurpose of doing so was to save himself from injury and gainsympathy of public although according to witnesses on 12.9.03around 12.00 he along with his wife has entered the room of thedoctor.”

4. The departmental inquiry was conducted by the disciplinaryauthority in terms of the procedure prescribed under Rule 27 of Rules1955 and after affording an opportunity of hearing, the disciplinaryauthority found both the charges proved against him after due complianceof the principles of natural justice and taking note of the gravity of thecharges which were found proved and all other factors into consideration,punished him with the penalty of removal from service by an Orderdated 14[th] July, 2004.

5. The Departmental Appeal preferred against the Order dated14[th] July, 2004 before the Appellate Authority came to be dismissed byan Order dated 3[rd] January, 2006 and the revision petition also came tobe rejected by the revisional authority by an Order dated 1[st] October,2008. The penalty of removal from service and consequential orderspassed by the appellate/revisional authority was the subject matter ofchallenge by filing writ petition before the High Court of Delhi underArticle 226 of the Constitution at the instance of the respondent.

6. After taking note of the factual matrix on record and thesubmissions made, the High Court under its impugned judgment dated11[th] February, 2016 upheld the charges which were found proved by thedisciplinary authority during the course of inquiry. However, substitutedthe penalty of removal from service inflicted upon the respondent inexercise of the power of judicial review and recorded a finding thatlooking into the nature of allegations which stand proved, the punishmentof removal from service is disproportionate to the proved misconduct toconfinement of the respondent from 1.00 p.m. to 10.00 p.m. in quarterguard jail as the adequate punishment with a further direction for his A

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Areinstatement with immediate effect with entitlement of salary and otherbenefits admissible to him under the law for the purposes of calculatingthe pensionary benefits. The relevant paras of the impugned judgmentdated 11[th] February, 2016 are as under:-

“19. The evidence of PW-5 Suresh shows that on entering intoBDr. Nazir’s room, he saw both the doctor and the appellant scufflingwith each other and they were separated through his intervention.There is nothing on record to show that the appellant had acted ina pre-meditated manner or had planned the whole thing. Theincident appears to have occurred at the spur of the moment.Although the court cannot be certain about the circumstance, yetCthere can be a reasonable doubt as to whether there was anythingspoken to the petitioner’s wife, by Dr. Nazir, which led to thescuffle or altercation. Whilst the version about the assault on thepetitioner’s wife may be doubtful, the statement made to the policethat the doctor had expressed something about her character inDthe context of her inability to produce the prescribed medication,for verification, is still open to judicial scrutiny in the applicationunder Section 156(3) of Cr.P.C. of his wife.

20. Keeping in view the totality of the circumstances of this case,we are of the view that the penalty of removal from service,Eespecially when the petitioner has clean record of 11 years ofprevious service, is disproportionate to the proved charges. Giventhe circumstances of the case, we feel that confinement of petitionerfrom 1.00 PM noon to 10.00 PM in quarter guard jail was sufficientpunishment. We accordingly order for the reinstatement of thepetitioner with immediate effect. The respondents are also directedFto treat the period from the date of dismissal till the reinstatementas per the provisions of law. The petitioner is also entitled forsalary and other benefits admissible in law. He shall be consideredon duty during this period for the purpose of calculation ofpensionary benefits. The petition is allowed in the above terms.GNo costs.”

7. This Court, while issuing notice by an Order dated 18[th]November 2016, stayed the operation of the impugned judgment dated11[th] February, 2016.

8. Ms. Madhavi Divan, learned ASG appearing for the Union ofIndia submits that the interference which has been made by the HighCourt under its limited scope of judicial review under Article 226 of theConstitution is a clear abuse of judicial discretion and such a grossmisconduct which was committed by the respondent while serving asmember of discipline force in CRPF, in no manner, was pardonable.

9. Learned counsel further submits that Section 11 of the schemeof Act 1949 has been completely overlooked by the High Court. That interms of Section 11, the competent authority may award in lieu of or inaddition to suspension or dismissal, any one or more of the punishmentsincluding confinement in quarter guard jail or removal referred to underclauses (d) and (e) of Section 11(1) of the Act, 1949.

10. Learned counsel further submits that the High Court hasproceeded on its own perception as if it was a case of criminal trialwhere incident can be condoned if it has been committed without pre-meditated manner or occurred at the spur of the moment. This theorymay not apply in the case of departmental enquiry and in the givencircumstances, the interference made by the High Court in substitutingpunishment under the impugned judgment dated 11[th] February 2016 isunsustainable in law and deserves to be set aside.

11. In support of her submission, learned counsel has placed relianceon the judgment of this Court in Union of India and Others Vs. GhulamMohd. Bhat.[1]

12. On the other hand, Mr. Ashok Agrwaal, learned counsel forthe respondent, while supporting the finding recorded by the High Courtin the impugned judgment submits that the respondent had rendered, bythat time, 11 years of unblemished service and he had full respect andregard to Dr. Nazir-complainant but the circumstances created at thegiven time were such that were beyond his control and the High Courthas taken note of not only the unblemished service of 11 years but intotality of the facts under consideration while holding the punishment ofremoval from service, to be disproportionate to the charges provedagainst him and what has been considered by the High Court in theimpugned judgment is not only substituting the punishment but protectingthe rights of the respondent and his family and to save his livelihood and 1 2005 (13) SCC 228.

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Asubmits that a justice has been done by the High Court under the impugnedjudgment which may not require any interference by this Court.

13. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

14. The service conditions of member of the force are governedBin accordance with provisions of the Act 1949. Section 9 and Section 10provides the nature of “more heinous offences/less heinous offences”.The nature of punishments have also been provided for more heinousoffences/less heinous offences, if found proved against member of theforce are in the form of imprisonment for a term provided under schemeCof the Act. At the same time, the nature of minor punishments are providedunder Section 11 of the Act 1949 and the procedure to be followed bythe disciplinary authority has been prescribed under Rule 27 of the Rules1955. The relevant paras are as under:- “Section 11. Minor punishments. – (1) The Commandant orDany other authority or officer as may be prescribed, may, subjectto any rules made under this Act, award in lieu of, or in addition to,suspension or dismissal any one or more of the followingpunishments to any member of the Force whom he considers tobe guilty of disobedience, neglect of duty, or remissness in thedischarge of any duty or of other misconduct in his capacity as aEmember of the Force, that is to say, - (a) reduction in rank; (b) fine of any amount not exceeding one month’s pay andallowances; F

(c) confinement to quarters, lines or camp for a term not exceedingone month; (d) confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard,fatigue or other duty; and G

(e) removal from any office of distinction or special emolumentin the Force.

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“Rule 27. Procedure for the Award of Punishments.- (a) ThePunishments shown as items 1 to 11 in column 2 of the tableH

below may he inflicted or non-Gazetted Officers and men of thevarious ranks shown in each of the headings of columns 3 to 6, bythe authorities named below such headings under the conditionsmentioned in column 7.

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Note.- 1. When the post of Deputy Inspector General remainsunfilled for a period of over one month at a time the Commandantshall exercise the powers of punishing the Subedars (Inspectors)and Sub-Inspectors except the powers of ordering dismissal orremoval from the Force.

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Note. - 2. When the post of Commandant remains unfilled for aperiod of over one month at a time consequent on the incumbentproceeding on leave or otherwise, the Assistant Commandant shall H

exercise the powers of punishment vested in the Commandant,except the powers of ordering dismissal or removal from the Force.

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Explanation:- (a) Dismissal of member of the Force precludeshim from being re-employed in Government service while removalof any such member from the Force shall not be disqualificationfor any future employment (other than an employment in theCentral Reserve Police Force) under the Government.

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(b) When non-gazetted officers or men of the various ranks areto be punished for any offence; a departmental enquiry, if necessaryunder clause (a) shall be held by the Commandant or other superiorCofficer under the orders of the Commandant, provided that whenthe charge is against an officer of the rank of Subedar (Inspector)or Sub-Inspector the enquiry shall be held by an authority to bedesignated for the purpose by the Deputy Inspector General.Where the officer conducting the enquiry in the case of a Subedar(Inspector) or a Sub-Inspector considers that a punishment underDitems (1) to (5) and (7) of the Table is called for, he shall completethe departmental proceedings and forward the same to the DeputyInspector General for orders.(GSR 631 dated 27.8.1983)

(c) The procedure for conducting a departmental enquiry shall beas follows:- E

(1) The substance of the accusation shall be reduced to the formof a written charge, which should be as precise as possible.The charge shall be read out to the accused and a copy of itgiven to him at least 48 hrs. before the commencement of theenquiry.

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(2) At the commencement of the enquiry the accused shall beasked to enter a plea of “Guilty” or “Not Guilty” after whichevidence necessary to establish the charge shall be let in.The evidence shall be material to the charge and may eitherbe oral or documentary, if oral:

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(i) it shall be direct:

(ii) it shall be recorded by the Officer conducting, the enquiryhimself in the presence of the accused:

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(iii) the accused shall be allowed to cross examine thewitnesses.

……..”

15. The scheme of Section 11 of the Act 1949 mandates that thecompetent authority may, subject to rules made thereunder, award inlieu of, or in addition to, suspension or dismissal any one or morepunishment if found guilty of misconduct in his capacity as member ofthe force.

16. The use of words ‘in lieu of, or in addition to, suspension ordismissal’, appearing in Section 11(1) clearly indicates that the authoritiesmentioned therein are empowered to award punishment of suspensionor dismissal to member of the force who is found guilty and in additionto, or in lieu thereof, the punishment mentioned in clause (a) to (e) mayalso be awarded.

17. It may be noted that more heinous offences or less heinousoffences prescribe penalty of sentence of imprisonment if member ofthe force is found guilty. At the same time, Section 11 is clear andunambiguous and prescribe those minor punishments which the competentauthority may award in a departmental inquiry in lieu of or in addition tosuspension or dismissal any one or more of the punishments to memberof the force as referred under clauses (a) to (e) of Section 11(1) of theAct 1949 even if the member has not been prosecuted for an offenceunder Section 9 or Section 10 of the Act.

18. It is also well settled that removal and dismissal from servicestand on the same footing and both terminate the relationship of employer/employee. The only difference between the two is that in the case ofdismissal, it precludes the employee from seeking future employment inthe Government while in the case of removal, he is not disqualified fromany future employment. By virtue of an explanation appended to Rule27 of the scheme of Rules 1955, the rule making authority has made itclear that dismissal of a member of the force precludes him from beingre-employed in Government service, while removal of any such memberfrom the force shall not be disqualification, for any future employment(other than an employment in the Central Reserve Police Force) underthe Government.

19. In the instant case, the respondent has been punished withpenalty of removal from service after the charges levelled against him A

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Astood proved by the disciplinary authority in a departmental inquiry heldagainst him after going through the procedure prescribed under Rule 27of the Rules 1955. Such nature of minor punishment of removal fromservice could be in addition to dismissal as being provided under Section11 of the Act 1949.B20. Section 11 of the Act 1949 has been completely overlooked B20. Section 11 of the Act 1949 has been completely overlookedby the High Court while examining as to whether the punishment ofremoval from service could be inflicted in lieu of or in addition to dismissalfrom service to member of the force, if the misconduct stands proved inthe course of disciplinary inquiry and after it was confirmed by the HighCourt under the impugned judgment.C

21. The nature of allegations against the respondent are indeedgrave in nature as the respondent not only threatened the Doctor-complainant but has misbehaved and abused and injured him and madefalse allegations against him of sexual harassment to his wife. Such anature of misconduct which has been committed by the respondent onceDstand proved is unpardonable and if the authority has considered itappropriate to punish him with penalty of removal from service by anOrder dated 14[th] July 2004 and confirmed by the appellate/revisionalauthority and by the High Court in the impugned judgment leaves nosympathy for retention in service and that too in a discipline force likeECRPF.

22. The well ingrained principle of law is that it is the disciplinaryauthority, or the appellate authority in appeal, which is to decide thenature of punishment to be given to the delinquent employee. Keeping inview the seriousness of the misconduct committed by such an employee,Fit is not open for the Courts to assume and usurp the function of thedisciplinary authority.

23. Even in cases where the punishment imposed by the disciplinaryauthority is found to be shocking to the conscience of the Court, normallythe disciplinary authority or the appellate authority should be directed toGreconsider the question of imposition of penalty. The scope of judicialreview on the quantum of punishment is available but with a limitedscope. It is only when the penalty imposed appears to be shockinglydisproportionate to the nature of misconduct that the Courts would frownupon. Even in such a case, after setting aside the penalty order, it is to beleft to the disciplinary/appellate authority to take a call and it is not forH

the Court to substitute its decision by prescribing the quantum ofpunishment. However, it is only in rare and exceptional cases where thecourt might to shorten the litigation may think of substituting its ownview as to the quantum of punishment in place of punishment awardedby the competent authority that too after assigning cogent reasons.

24. The principles have been culled out by a three-Judge Benchof this Court way back in B.C. Chaturvedi vs. Union of India andOthers[2] wherein it was observed as under:-

“18. A review of the above legal position would establish that thedisciplinary authority, and on appeal the appellate authority, beingfact-finding authorities have exclusive power to consider theevidence with a view to maintain discipline. They are investedwith the discretion to impose appropriate punishment keeping inview the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannotnormally substitute its own conclusion on penalty and impose someother penalty. If the punishment imposed by the disciplinaryauthority or the appellate authority shocks the conscience of theHigh Court/Tribunal, it would appropriately mould the relief, eitherdirecting the disciplinary/appellate authority to reconsider thepenalty imposed, or to shorten the litigation, it may itself, inexceptional and rare cases, impose appropriate punishment withcogent reasons in support thereof.”

25. It has been further examined by this Court in LucknowKshetriya Gramin Bank (Now Allahabad, Uttar Pradesh GraminBank) and Another vs. Rajendra Singh[3 ]as under:- “19. The principles discussed above can be summed up andsummarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry thequantum of punishment to be imposed in a particular case isessentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishmentand nature of penalty to be awarded, as this function is exclusivelywithin the jurisdiction of the competent authority.

2 1995(6) SCC 749

3 (2013) 12 SCC 372

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19.3. Limited judicial review is available to interfere with thepunishment imposed by the disciplinary authority, only in caseswhere such penalty is found to be shocking to the conscience ofthe court.

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19.4. Even in such a case when the punishment is set aside asBshockingly disproportionate to the nature of charges framed againstthe delinquent employee, the appropriate course of action is toremit the matter back to the disciplinary authority or the appellateauthority with direction to pass appropriate order of penalty. Thecourt by itself cannot mandate as to what should be the penalty insuch a case.

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19.5. The only exception to the principle stated in para 19.4 above,would be in those cases where the co-delinquent is awarded lesserpunishment by the disciplinary authority even when the chargesof misconduct were identical or the co-delinquent was foistedwith more serious charges. This would be on the doctrine ofDequality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a completeparity between the two, not only in respect of nature of chargebut subsequent conduct as well after the service of charge-sheetin the two cases. If the co-delinquent accepts the charges,Eindicating remorse with unqualified apology, lesser punishment tohim would be justifiable.”

26. Adverting to the facts of the instant case, the High Court, inour considered view, fell in error in interfering with the punishment, whichcould lawfully be imposed by the departmental authorities for his provenFmisconduct. The High Court should not have substituted its own discretionfor that of the authority. What punishment was required to be imposed,in the facts and circumstances of the case, was a matter which fellexclusively within the jurisdiction of the competent authority and theinterference made by the High Court is in a cavalier manner whilerecording the finding of penalty to be disproportionate without takingGinto consideration the seriousness of the misconduct committed by therespondent which is unpardonable and not sustainable in law.

27. Before we may conclude, we would like to observe that theemployees who are in civil services, their disciplinary matters are beinggoverned by their respective services (classification, control and appeal)Hrules and for the sake of instance, we take note of the Central Civil Services (Classification, Control and Appeal) Rules, 1965(hereinafterbeing referred to as the “Rules 1965”). The nature of penalties has beenprovided under Part V and removal and dismissal from service are inthe category of “Major penalties”. If the misconduct is found proved,looking into the gravity and the nature of misconduct, either of thepunishment, i.e., removal or dismissal from service, could be inflictedupon the civil servant after holding disciplinary enquiry for imposing majorpenalties if held guilty as provided under Part IV of the Rules 1965 andthis what being ordinarily understood. The following penalties underscheme of Rules 1965 may, for good and sufficient reasons and ashereinafter provided can be imposed on a Government servant namely:- “Minor penalties

(i) Censure;

(ii) ..

(iii) …

(iiia)…

(iv) withholding of increments of pay;

Major penalties:

(v) …

(vi) …

(vii) Compulsory retirement;

(viii) Removal from service, which shall not be a disqualificationfor future employment under the Government;

(ix) Dismissal from service which shall ordinarily be adisqualification for future employment under theGovernment.

….”

28. In the instant case, the disciplinary matters of members of theforce for minor punishments are being governed under Section 11 of theAct 1949 and if any nature of more heinous offence/less heinous offencebeing committed, if found proved, member of the force shall be punishablefor imprisonment for a specified term as being referred to under Section9 and Section 10 of the Act 1949 and at the same time, dismissal and A

B

C

D

E

F

G

H

Aremoval from service are being considered to be the minor punishmentsas reflected from Section 11(1) of the Act 1949. If the allegation isfound proved, the competent authority may award in lieu of, or in additionto, suspension or dismissal any one or more of punishments to a memberof the force whom he considers to be guilty of disobedience, neglect orduty, or remissness in the discharge of any duty or of other misconductBwith confinement in the quarter-guard or removal as indicated underclauses (d) and (e) of Section 11(1) of the Act 1949.

29. The scheme of the Act 1949 of which reference has beenmade was completely overlooked by the High Court of Delhi and whilekeeping in mind the standards of examining the misconduct of a civilCservant, interference has been made in the quantum of punishment whichmay not apply to member of the discipline force and, in our consideredview, the interference made by the High Court in substituting punishmentin the instant case is unsustainable and deserves to be set aside.

30. Consequently, the appeal succeeds and is allowed. TheDimpugned judgment of the High Court of Delhi dated 11[th] February 2016is quashed and set aside. No costs.

31. Pending application(s), if any, stand disposed of.

ENidhi Jain

Appeal allowed.

F

G

H