The penalty of dismissal from service for misconduct and dereliction of duty by a member of a disciplined force is not disproportionate if it is supported by the evidence and is consistent with the member's past service record.

JUDGMENT :

D. Biswas, J.—This writ appeal is directed against the judgment and order dated September 11, 1996 passed by the learned single Judge in Civil Rule No. 3839 of 1991 quashing the order of dismissal of the petitioner and directing the respondent to reconsider and to impose lesser punishment other than the punishment of dismissal. Being aggrieved, the Union of India and others have preferred this writ appeal.

2. The writ petitioner, who is the respondent herein, filed the petition under Article 226 of the Constitution of India challenging the penalty of dismissal on the ground that the disciplinary authority (Pretty Security Force Court) acted beyond jurisdiction and awarded verdict of guilt without giving him reasonable opportunity of being heard. The petitioner who was Head Constable in the Border Security Force (A. Coy 22 Bn.) was indicted under four counts for misconduct and dereliction of duty and charges were framed accordingly. On completion of the departmental proceedings, the penalty of dismissal from service was imposed as the charges framed against him were proved. The penalty was also affirmed by the higher authority in due course. Learned single Judge by the judgment under appeal set aside the order of dismissal on the grounds that the lady who had appeared in the witness box to give her statement did not make any statement indicting the petitioner for attempting to outrage her modesty. Learned Judge further held that the penalty of dismissal from service was too harsh and disproportionate to the offence committed and, therefore, directed the respondents to re-consider and impose lesser punishment.

3. Sri K.N. Choudhury, learned senior Central Govt. Standing Counsel appearing for the appellants argued that the petitioner was a member of the disciplinary force and, in that view of the matter, the penalty imposed upon him cannot be said to be disproportionate to the offence committed. Drawing attention of this Court to the nature of the charges, Sri Choudhury submitted that this is a case which does not warrant interference of this Court under Article 226 of the Constitution. Sri Choudhury also referred to the special provision embodied in Article 33 of the Constitution and submitted that this Court while exercising its power of judicial review is only to see the correctness of the decision-making process and not to act as a Court of Appeal evaluating the evidence in details.

4. There is no dispute with regard to the limitation of the power of this Court under Article 226 of the Constitution while dealing with an order passed in a departmental proceedings in respect of a member of 'Force' charged with the maintenance of public order. Examination of evidence in a case of this nature like an Appellate Court is not permissible. Our scrutiny of the documents, therefore, has been restricted to the propriety and correctness of the decision-making process. On such examination, we do not find that there has been any error or illegality committed by the disciplinary authority in awarding the verdict of guilt. The charges framed against the petitioner are available at Annexures 2 and 3. The charges show that he was indicted for disobeying the orders of the Plattoon Commander, indulging in toxication and for committing trespass into the house of Smt. Noor Maher Khatun with an intention to outrage her modesty. From para 6 of the affidavit in opposition, it would appear that the petitioner had pleaded guilty for the first three charges while he denied the 4th charge relating to the alleged attempt to outrage the modesty of Smt. Khatun.

5. Learned single Judge in para 3 of the judgment under appeal observed that the lady who had appeared in the witness box to give her statements did not make any charge of any attempt to outrage her modesty. According to the learned single Judge, the evidence given may only make out a case of assault. This observation of the learned single Judge goes unchallenged. In our opinion the charges adm