IMPORTANT POINT
It is not for the Court to determine the quantum of punishment once charges are proved in domestic enquiry, unless punishment is disproportionate to proved misconduct. In this case it cannot be said that the punishment of dismissal is not commensurate with not obeying lawful order of Superior Officer and assaulting him particularly when it was so in para-military force service and for the third time the respondent was punished. Division Bench of High Court was wrong in interfering with punishment of dismissal on misplaced ground of mercy on account of poverty, etc.

JUDGMENT

S.N. Variava, J.-Leave granted.

2. Heard parties.

3. This Appeal is against an Order dated 26th February, 2001. Briefly stated the facts are as follows:

The Respondent was appointed as a Driver in the Border Security Force in 1990. In 1992 he met with an accident which was found to be due to his negligence. He was punished with 28 days quarter guard and a sum of Rs. 2,405/- was recovered from him. He was then changed from the cadre of Driver to that of a Constable. Thereafter he was punished a second time for misconduct.

4. On 3rd February, 1997 the Head Constable, who was in-charge of assigning duties to the Constables working under him, directed the Respondent to go for Sentry Duty at Sector Headquarters, BSF, Silliguri. The Respondent did not report for Sentry duty. When the Head Constable learnt about this he went to the barrack and found the Respondent sleeping. The Head Constable woke up the Respondent. Some altercation took place and the Respondent gave a fist blow on the mouth of the Head Constable as a result of which the front tooth of the Head Constable was broken.

5. On 4th February, 1997 the Respondent was charge-sheeted for two charges, viz. (i) disobeying the lawful command given by the superior officer and (ii) assaulting the superior officer. On 2nd March,1997, during Court Martial, the Respondent admitted that he had disobeyed the lawful command and that he had assaulted his superior officer. He stated that, "I am a poor man, I have committed a mistake. I may be pardoned." The Disciplinary Authority, on admitted facts, found the Respondent guilty of the charges and dismissed him from service. The Appellate Authority dismissed the Appeal filed by the Respondent.

6. The Respondent filed Writ Petition No. 669 of 1998. This was dismissed by a learned single Judge of the High Court of Rajasthan on 3rd September, 1998. The Respondent then filed an Appeal. The Division Bench in the impugned Order, inter alia, held as follows :

"It is true that the charges levelled against the appellant and found to be proved on his pleading guilty are really of serious nature and such a person cannot be allowed to go scot free without any punishment. More particularly, when he was punished in all thrice in his entire service of about seven years. However, we are of the considered opinion that while passing the extreme penalty of dismissal from service the authorities were also required to keep in mind other factors, namely; (i) the person is coming from which place, (ii) his family back ground, and (iii) his service record of seven years, etc.

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When a poor person pleads guilty to the misconduct committed by him then in our considered opinion the extreme penalty from service was un-called for."

On this reasoning, the Division Bench set aside the Order of dismissal and directed reinstatement of the Respondent. The Division Bench imposed an order of stoppage of three grade increments without cumulative effect. The Division Bench directed the Appellants to reinstate the Respondent latest by 1st May, 2001 without back wages.

7. This Court has, in the case of Union of India v. Sardar Bahadur reported in (1972) 4 SCC 618, held that there are limits to the powers which can be exercised by a Single Judge under Article 226 of the Constitution and, similarly, there are limits to the powers of a Division Bench while sitting in appeal over the judgment of a Single Judge. This Court has held that where there are relevant materials which support the conclusion that the officer is guilty, it is not the function of the High Court to arrive at an independent finding. It has been held that if an enquiry has been properly held the question of adequacy or reliability of evidence cannot be canvassed before the High Court.

8. In the case of Apparel Export Promotion Council v. A.K. Chopra reported in (1999) 1 SCC 759, it has been held by this Court that it is within the jurisdiction of the competent authority