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1997 Supreme(All) 1160
IN THE HIGH COURT OF ALLAHABAD
O. P. Garg, J.
RAM BACHAN YADAV - Appellant
Versus
COMMANDANT, P.A.C.20th BATALLION - Respondents
Civil Misc. Writ Petition 7685 Of 1994
Decided On : 09/25/1997
PRAKASH PADIYA, R.G.PADIA
The extreme penalty of dismissal from service is disproportionate to the proved misconduct of the petitioner and violative of Article 14 of the Constitution.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14 - DISMISSAL FROM SERVICE - PROPORTIONALITY OF PUNISHMENT - EXTREME PENALTY OF REMOVAL FROM SERVICE FOR MISCONDUCT - DOCTRINE OF PROPORTIONALITY - JUDICIAL REVIEW - POWER OF COURT TO INTERFERE WITH AWARD OF PUNISHMENT - SETTING ASIDE OF DISMISSAL ORDER - DETERMINATION OF QUANTUM OF PUNISHMENT BY COURT - BACK WAGES - CONSIDERATION OF FACTORS - REINSTATEMENT WITH REDUCED PUNISHMENT.
Fact of the Case:
The petitioner, a Constable in the Provincial Armed Constabulary, was dismissed from service for damaging a vehicle, misusing diesel, and misbehaving with a Head Constable. He challenged the dismissal order, arguing that the punishment was disproportionate to the misconduct.
Finding of the Court:
The Court found that the petitioner's misconduct was proved, but the punishment of dismissal from service was excessive and disproportionate. The Court held that the extreme penalty of removal from service was not called for and was violative of Article 14 of the Constitution.
Issues: 1. Whether the punishment of dismissal from service was disproportionate to the proved misconduct of the petitioner? 2. Whether the Court should leave the matter of punishment to be determined by the disciplinary authority or pass the order of punishment itself? 3. Whether the petitioner is entitled to full wages for the period he remained out of employment?
Ratio Decidendi: 1. The Court held that the punishment of dismissal from service was disproportionate to the proved misconduct of the petitioner. The Court relied on the doctrine of proportionality, which requires that the penalty imposed must be commensurate with the gravity of the misconduct. 2. The Court held that it had the power to interfere with the award of punishment if it found that the extreme penalty of removal or dismissal from service was not called for and was disproportionate to the guilty of the employee. 3. The Court held that the petitioner was not entitled to full wages for the period he remained out of employment, but he should be paid subsistence allowance subject to a maximum of 50% of basic salary plus allowances.
Final Decision: The Court quashed the dismissal order and reinstated the petitioner in service with reduced punishment. The petitioner's five increments were withheld with future effect, and he was paid subsistence allowance from the date of dismissal till the date of reinstatement.
( 1 ) THE petitioner Ram Bachan Yadav has prayed by means of the present writ petition under article 226 of the Constitution to quash the order of his dismissal from service, dated 4. 6. 1986, passed by respondent No. 1, contained in Annexure 26, and the orders dated 10. 7. 1987 and 17. 1. 1994, contained in Annexures 28 and 31, respectively dismissing the appeal of the petitioner by respondent No. 4 and claim petition by respondent No. 5.
( 2 ) COUNTER and rejoinder affidavit have been filed. Heard Dr. R. G. Padia learned Counsel for the petitioner and Sri D. P. Singh learned Standing Counsel.
( 3 ) THE case of the petitioner is that he was appointed as a Constable in the Provincial Armed constabulary on 27. 6. 1969. In 1985, while the petitioner was posted in the 20th Batallion of the provincial Armed Constabulary (for short pac, at Azamgarh. Though the petitioner was working as a Driver, but he was holding the lien in the substantive post of Constable under the provisions of Police Act, 1861. The petitioner was served with a charge-sheet dated 15th november, 1985, containing three charges (i) the petitioner damaged the vehicle No. USS-3486 on 1. 9. 1985 while going to Punjab, (ii) misused 10 litres of diesel and (iii) misbehaved with head Constable Ram Asrey Shukla by beating him. Subsequently the suspension order of the petitioner was revoked on 7. 2. 1986. However, another charge-sheet was served on him on 10. 2. 86 containing the same charges, as said above. The allegation of the petitioner is that despite repeated requests made by him, he was not supplied the copies of necessary documents and the enquiry officer rejected his prayer for documents by his order dated 11. 3. 1986, which is contained in Annexure 10 to the writ petition. The statements of the witnesses were recorded without prior intimation to the petitioner and the petitioner was not even allowed to cross-examine the witnesses. As a protest, he did not sign the proceedings. Thereafter, all entreaties of the petitioner for free and impartial enquiry went a begging and without following the basic principle of audi alteram partem, the services of the petitioner were dismissed by the impugned order dated 4. 6. 1986 by the Commandant-PAC, 20th Bn. Azamagarh-respondent No. 1. The appeal against the aforesaid order, as well as claim petition before the U. P. Public services Tribunal, Lucknow met the same fate and hence this petition.
( 4 ) THOUGH a number of grounds have been taken to challenge the procedure adopted in the conduct of enquiry, in the instant writ petition, and the petitioner has also assailed the order of punishment, Dr. R. G. Padia, learned Counsel for the petitioner frankly conceded that he has nothing to say about the findings of enquiry officer or with regard to the procedural irregularities, which might have taken place in the present case, but he confined his submissions only to the quantum of punishment. As it is, I have perused the documents relating to enquiry and find that the enquiry was conducted perfectly in accordance with law and it does not suffer from any infirmity. At every stage, the petitioner was afforded sufficient opportunity, in accordance with law, but it was petitioner himself who for one reason or the other, did not co-operate in the enquiry proceedings, perhaps, it is for this reason that Dr. Padia refrained from challenging the validity of the enquiry conducted against the petitioner. Now the only question involved in the present writ petition is whether the punishment awarded to the petitioner is disproportionate to the proved delinquency and misconduct on his part.
( 5 ) I was, during the course of arguments, addressed at great length by learned Counsel on both sides on the doctrine of proportionality in the mater of awarding punishment. Having heard learned Counsel for the parties I have no hesitation to come to the conclusion that the punishment of removal from service on three counts, namely, damaging
