UNION OF INDIA & ORS. versus CONST SUNIL KUMAR on 19 January 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 01.09.2017 passed by the High Court of Judicature forRajasthan Bench at Jaipur in D.B. Special Appeal Writ No. 303/2005,by which, the High Court has allowed the said appeal preferred by therespondent herein and has set aside the penalty imposed by thedisciplinary authority and has directed the appellant(s) to reinstate him inservice with notional benefits without any back wages, the Union ofIndia and others have preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder: - 2.1 That the respondent was serving in disciplined force – CRPF.A departmental enquiry was initiated against him and was served with achargesheet alleging the charges as under: - “That No. 911120421 CT/GD Sunil Kumar Jat of F/118CRPF while functioning as CT/GD committed an act of grossmisconduct and disobedience of orders in his capacity as amember of the Force under section 11(1) of CRPF Act, 1949in that he misbehaved, in subordinated with Shri Ajay Mishra,Dy. Comdt. (Adjutant), Dr. J.N. Trivedi, SMO and SubInspector Ramesh Chandra of 94 Bn. then attached with 118Bn. CRPF by consuming country liquor while on Govt. dutyand threated Senior Officers with dire consequences on 26[th]

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AAugust, 02 and thus committed an act which is pre-judicial togood orders and discipline of the force.”

2.2 On conclusion of the departmental enquiry and after followingthe due procedure as required under Rule 27 of the Central ReservePolice Force (CRPF) Rules, 1955 and in exercise of powers under SectionB11 of the CRPF Act, 1949, the disciplinary authority/CRPF passed anorder dismissing the respondent from service. The order of dismissalcame to be confirmed by the Appellate Authority. That thereafter, therespondent filed a writ petition before the learned Single Judge of theHigh Court challenging the penalty order of dismissal being Writ PetitionNo. 2195/2004. The learned Single Judge by judgment and order datedC07.01.2005 dismissed the writ petition. Then, the respondent preferredD.B. Special Appeal Writ No. 303/2005 before the Division Bench ofthe High Court and by the impugned judgment and order the High Courthas set aside the order of penalty of dismissal by observing thatconsidering Sections 9 and 10 of the CRPF Act, 1949 and when themisconduct was committed the respondent was not on active duty andDtherefore, the offences committed by the respondent can be said to beless heinous offence which does not warrant the extreme penalty ofdismissal. Therefore, by observing that the order of penalty of dismissalcan be said to be disproportionate to the gravity of the wrong, denyingthe back wages, the High Court has ordered reinstatement of respondentEin service with notional benefits. The impugned judgment and orderpassed by the Division Bench of the High Court is the subject matter ofpresent appeal.

3. Ms. Madhavi Diwan, learned ASG, appearing on behalf of theUnion of India and others – appellant(s) has vehemently submitted thatin the facts and circumstances of the case the Division Bench of theFHigh Court has committed a very serious error in setting aside the orderof penalty of dismissal and reinstating the respondent in service.

3.1 It is vehemently submitted by Ms. Diwan, learned ASG thatthe penalty of dismissal from service inflicted upon the respondent wasafter conclusion of the departmental enquiry and after holding the chargesGand misconduct proved against the respondent – delinquent. It is submittedthat the charges and misconduct proved against the respondent –delinquent were very serious and not befitting a solider working in thedisciplined force – CRPF. It is submitted that while under the influenceof intoxication he misbehaved with senior and threatened him of direconsequences, thus, committed an act of insubordination. It is submittedH

that therefore, the order of penalty of dismissal which was passed afterfollowing the due procedure as required under Rule 27 of the CRPFRules, 1955 cannot be said to be disproportionate to the charges andmisconduct proved.

3.2 It is further submitted by Ms. Diwan, learned ASG, that orderof penalty of dismissal was imposed upon the delinquent – respondent inexercise of powers under Section 11 of the CRPF Act, 1949. It issubmitted that Section 11 of the CRPF Act, enables the authority toimpose minor penalties/punishments other than suspension or dismissal.It is submitted that reliance placed upon Sections 9 and 10 of the CRPFAct, 1949 by the Division Bench of the High Court while interferingwith the order of penalty of dismissal imposed by the disciplinary authorityon the ground that the respondent – delinquent was not on active dutywhen he committed the misconduct and therefore, the same can be saidto be a less heinous offence and therefore, the order of penalty ofdismissal is disproportionate, is absolutely misplaced. It is submitted thatas such the consideration of heinous offence or less heinous offencewould have bearing on order of imprisonment as provided under Sections9 and 10 of the CRPF Act, 1949. It is submitted that it would not haveany bearing on the imposition of penalty of dismissal under Section 11 inan appropriate case after holding the disciplinary proceedings. Relianceis placed upon the recent decision of this Court in the case of Union ofIndia Vs. Ram Karan; (2022) 1 SCC 373 (paragraphs 16 to 21 and30).

3.3 It is further submitted by Ms. Diwan, learned ASG, that evenon merits also the Division Bench of the High Court has committed avery serious error in observing that penalty of dismissal imposed wasdisproportionate to the proved charges and misconduct. It is submittedthat the respondent was working in a disciplined force – CRPF and hemisbehaved with the superior and he threatened the senior officers withdire consequences and the act of respondent was of insubordination. Itis submitted that therefore, the misconduct of disobedience of the ordersof the superior and insubordination and giving threats to the senior officersfor dire consequences cannot be tolerated in a disciplined force.

3.4 It is further submitted by learned ASG that in the case ofCommandant, 22[nd]Battalion, CRPF Vs. Surinder Kumar; (2011)10 SCC 244, it is observed and held by this Court that even in a casewhen a CRPF personnel is awarded imprisonment under Section 10(n)for an offence which though less heinous he can be dismissed from A

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Aservice after holding departmental enquiry if his conduct is found to beprejudicial to good order and discipline of CRPF. It is submitted that inthe aforesaid decision, it is observed and held by this Court that the HighCourt in exercise of powers of judicial review, Courts should be slow ininterfering with the punishment of dismissal on the ground that it wasdisproportionate. It is submitted that punishment should not be merelyBdisproportionate but should be strikingly disproportionate to warrantinterference by the High Court under Article 226 of the Constitution ofIndia and it is only in an extreme case, where on the face of it there isperversity or irrationality that there can be judicial review under Articles226 or 227 or under Article 32 of the Constitution of India.C3.5. Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present appeal.4. Present appeal is vehemently opposed by Shri Abhishek Gupta,learned counsel appearing on behalf of the respondent – delinquent.

4.1 It is submitted that in the present case the offences andDmisconduct was committed by the respondent while he was not on activeduty. It is submitted that therefore, as per Section 10 of the CRPF Act,1949, a member of the force who is in a state of intoxication when noton duty is deemed to have committed a less heinous offence. It issubmitted that therefore, the Division Bench of the High Court isabsolutely justified in interfering with the order of penalty of dismissalEimposed by the disciplinary authority by observing that the penalty ofdismissal for committing a less heinous offence can be said to bedisproportionate to the gravity of the wrong.

4.2 It is further submitted by the learned counsel appearing onbehalf of the respondent that looking to the fact that the respondent hadFworked for 11 years, a lenient view may be taken and any otherpunishment lessor than the penalty of dismissal may be imposed.Therefore, it is prayed to take a lenient view looking to his past 11 yearsof service.

5. We have heard learned counsel appearing on behalf of therespective parties at length.G

6. At the outset, it is required to be noted that the disciplinaryauthority imposed the penalty of dismissal after holding the departmentalenquiry and after following the due procedure as required under Rule 27of the CRPF Rules, 1955 and after having held the charges andmisconduct proved. The charges and misconduct held to be proved againstH

the respondent who was serving in CRPF – a disciplined force can besaid to be a grave and serious misconduct. The charges and misconductproved against the respondent is of misbehaving with superior and givingthreats of dire consequences to the superior, may be under the influenceof intoxication. He also misbehaved and gave threats to the colleagues.The misconduct committed by the respondent is of insubordination also.The misconduct of misbehaving with the superior/senior officer and ofinsubordination can be said to be a very serious misconduct and cannotbe tolerated in a disciplined force like CRPF and therefore, as such theDivision Bench of the High Court is not justified in observing that on theproved charges and misconduct penalty of dismissal can be said to bedisproportionate.

6.1 While holding that the penalty of dismissal can be said to bedisproportionate to the gravity of the wrong, what is weighed with theDivision Bench of the High Court is that as the respondent was found tobe in a state of intoxication when not on duty and considering Section 10,he is deemed to have committed a less heinous offence. Whether amember of the force has committed a heinous offence or a less heinousoffence as per Sections 9 and 10 of the CRPF Act, 1949 would havebearing on inflicting the punishment as provided under Sections 9 and 10but has no relevance on the disciplinary proceedings/departmental enquiryfor the act of indiscipline and/or insubordination. In the case of SurinderKumar (supra), it is observed that even in a case when a CRPF personnelwas awarded imprisonment under Section 10(n) for an offence whichthough less heinous, he can be dismissed from service, if it is found to beprejudicial to good order and discipline of CRPF. Under the circumstances,the reasoning given by the High Court that as the respondent is deemedto have committed a less heinous offence, the order of penalty ofdismissal can be said to be disproportionate is not required to be accepted.

6.2 Even otherwise, the Division Bench of the High Court hasmaterially erred in interfering with the order of penalty of dismissal passedon proved charges and misconduct of indiscipline and insubordinationand giving threats to the superior of dire consequences on the groundthat the same is disproportionate to the gravity of the wrong. In the caseof Surinder Kumar (supra) while considering the power of judicialreview of the High Court in interfering with the punishment of dismissal,it is observed and held by this Court after considering the earlier decisionin the case of Union of India Vs. R.K. Sharma; (2001) 9 SCC 592that in exercise of powers of judicial review interfering with the AB

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Apunishment of dismissal on the ground that it was disproportionate, thepunishment should not be merely disproportionate but should be strikinglydisproportionate. As observed and held that only in an extreme case,where on the face of it there is perversity or irrationality, there can bejudicial review under Article 226 or 227 or under Article 32 of theConstitution.B

6.3 Applying the law laid down by this Court in the aforesaiddecision(s) to the facts of the case on hand, it cannot be said that thepunishment of dismissal can be said to be strikingly disproportionatewarranting the interference of the High Court in exercise of powersunder Article 226 of the Constitution of India. In the facts andCcircumstances of the case and on the charges and misconduct ofindiscipline and insubordination proved, the CRPF being a disciplinedforce, the order of penalty of dismissal was justified and it cannot besaid to be disproportionate and/or strikingly disproportionate to the gravityof the wrong. Under the circumstances also, the Division Bench of theHigh Court has committed a very serious error in interfering with theDorder of penalty of dismissal imposed and ordering reinstatement of therespondent.

6.4 At this stage, it is required to be observed that even whileholding that the punishment/penalty of dismissal disproportionate to thegravity of the wrong, thereafter, no further punishment/penalty is imposedEby the Division Bench of the High Court except denial of back wages.As per the settled position of law, even in a case where the punishmentis found to be disproportionate to the misconduct committed and provedthe matter is to be remitted to the disciplinary authority for imposingappropriate punishment/penalty which as such is the prerogative of thedisciplinary authority. On this ground also, the impugned judgment andForder passed by the Division Bench of the High Court is unsustainable.

As observed hereinabove as the order of penalty/punishmentcannot be said to be disproportionate, there is no question of remandingthe matter back to the disciplinary authority.

7. In view of the above and for the reasons stated above theGpresent appeal succeeds. The impugned judgment and order passed bythe High Court setting aside the order of penalty of dismissal andreinstating the respondent is hereby quashed and set aside. No costs.

Ankit Gyan

H(Assisted by : Abhishek Pratap Singh, LCRA)

Appeal allowed.