Union Of India vs Const. Sunil Kumar

Union of India and Ors. ...Appellant(S)

Versus

Const Sunil Kumar ...Respondent(S)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 01.09.2017 passed by the High

Court of Judicature for Rajasthan Bench at Jaipur in D.B.

Special Appeal Writ No. 303/2005, by which, the High

Court has allowed the said appeal preferred by the

respondent herein and has set aside the penalty imposed

by the disciplinary authority and has directed the

appellant(s) to reinstate him in service with notional Signature Not Verified Digitally signed by benefits without any back wages, the Union of India and Neetu Sachdeva Date: 2023.01.19 16:40:11 IST Reason:

others have preferred the present appeal.

1

2. The facts leading to the present appeal in a nutshell are as

under: -

2.1 That the respondent was serving in disciplined force –

CRPF. A departmental enquiry was initiated against him

and was served with a chargesheet alleging the charges as

under: -

“That No. 911120421 CT/GD Sunil Kumar Jat of F/118 CRPF while functioning as CT/GD committed an act of gross misconduct and disobedience of orders in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949 in that he misbehaved, in subordinated with Shri Ajay Mishra, Dy. Comdt. (Adjutant), Dr. J.N. Trivedi, SMO and Sub Inspector Ramesh Chandra of 94 Bn. then attached with 118 Bn. CRPF by consuming country liquor while on Govt. duty and threated Senior Officers with dire consequences on 26th August, 02 and thus committed an act which is pre-judicial to good orders and discipline of the force.”

2.2 On conclusion of the departmental enquiry and after

following the due procedure as required under Rule 27 of

the Central Reserve Police Force (CRPF) Rules, 1955 and in

exercise of powers under Section 11 of the CRPF Act,

1949, the disciplinary authority/CRPF passed an order

dismissing the respondent from service. The order of

2 dismissal came to be confirmed by the Appellate Authority.

That thereafter, the respondent filed a writ petition before

the learned Single Judge of the High Court challenging the

penalty order of dismissal being Writ Petition No.

2195/2004. The learned Single Judge by judgment and

order dated 07.01.2005 dismissed the writ petition. Then,

the respondent preferred D.B. Special Appeal Writ No.

303/2005 before the Division Bench of the High Court and

by the impugned judgment and order the High Court has

set aside the order of penalty of dismissal by observing

that considering Sections 9 and 10 of the CRPF Act, 1949

and when the misconduct was committed the respondent

was not on active duty and therefore, the offences

committed by the respondent can be said to be less

heinous offence which does not warrant the extreme

penalty of dismissal. Therefore, by observing that the order

of penalty of dismissal can be said to be disproportionate

to the gravity of the wrong, denying the back wages, the

High Court has ordered reinstatement of respondent in

service with notional benefits. The impugned judgment

3 and order passed by the Division Bench of the High Court

is the subject matter of present appeal.

3. Ms. Madhavi Diwan, learned ASG, appearing on behalf of

the Union of India and others – appellant(s) has

vehemently submitted that in the facts and circumstances

of the case the Division Bench of the High Court has

committed a very serious error in setting aside the order of

penalty of dismissal and reinstating the respondent in

service.

3.1 It is vehemently submitted by Ms. Diwan, learned ASG

that the penalty of dismissal from service inflicted upon

the respondent was after conclusion of the departmental

enquiry and after holding the charges and misconduct

proved against the respondent – delinquent. It is submitted

that the charges and misconduct proved against the

respondent – delinquent were very serious and not

befitting a solider working in the disciplined force – CRPF.

It is submitted that while under the influence of

intoxication he misbehaved with senior and threatened

him of dire consequences, thus, committed an act of

4 insubordination. It is submitted that therefore, the order

of penalty of dismissal which was passed after following

the due procedure as required under Rule 27 of the CRPF

Rules, 1955 cannot be said to be disproportionate to the

charges and misconduct proved.

3.2 It is further submitted by Ms. Diwan, learned ASG, that

order of penalty of dismissal was imposed upon the

delinquent – respondent in exercise of powers under

Section 11 of the CRPF Act, 1949. It is submitted that

Section 11 of the CRPF Act, enables the authority to

impose minor penalties/punishments other than

suspension or dismissal. It is submitted that reliance

placed upon Sections 9 and 10 of the CRPF Act, 1949 by

the Division Bench of the High Court while interfering with

the order of penalty of dismissal imposed by the

disciplinary authority on the ground that the respondent –

delinquent was not on active duty when he committed the

misconduct and therefore, the same can be said to be a

less heinous offence and therefore, the order of penalty of

dismissal is disproportionate, is absolutely misplaced. It is

5 submitted that as such the consideration of heinous

offence or less heinous offence would have bearing on

order of imprisonment as provided under Sections 9 and

10 of the CRPF Act, 1949. It is submitted that it would not

have any bearing on the imposition of penalty of dismissal

under Section 11 in an appropriate case after holding the

disciplinary proceedings. Reliance is placed upon the

recent decision of this Court in the case of Union of India

Vs. Ram Karan; (2022) 1 SCC 373 (paragraphs 16 to 21

and 30).

3.3 It is further submitted by Ms. Diwan, learned ASG, that

even on merits also the Division Bench of the High Court

has committed a very serious error in observing that

penalty of dismissal imposed was disproportionate to the

proved charges and misconduct. It is submitted that the

respondent was working in a disciplined force – CRPF and

he misbehaved with the superior and he threatened the

senior officers with dire consequences and the act of

respondent was of insubordination. It is submitted that

therefore, the misconduct of disobedience of the orders of

6 the superior and insubordination and giving threats to the

senior officers for dire consequences cannot be tolerated in

a disciplined force.

3.4 It is further submitted by learned ASG that in the case of

Commandant, 22nd Battalion, CRPF Vs. Surinder

Kumar; (2011) 10 SCC 244, it is observed and held by

this Court that even in a case when a CRPF personnel is

awarded imprisonment under Section 10(n) for an offence

which though less heinous he can be dismissed from

service after holding departmental enquiry if his conduct is

found to be prejudicial to good order and discipline of

CRPF. It is submitted that in the aforesaid decision, it is

observed and held by this Court that the High Court in

exercise of powers of judicial review, Courts should be slow

in interfering with the punishment of dismissal on the

ground that it was disproportionate. It is submitted that

punishment should not be merely disproportionate but

should be strikingly disproportionate to warrant

interference by the High Court under Article 226 of the

Constitution of India and it is only in an extreme case,

7 where on the face of it there is perversity or irrationality

that there can be judicial review under Articles 226 or 227

or under Article 32 of the Constitution of India.

3.5 Making the above submissions and relying upon the above

decisions, 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 and

misconduct was committed by the respondent while he

was not on active duty. 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 not on duty is

deemed to have committed a less heinous offence. It is

submitted that therefore, the Division Bench of the High

Court is absolutely justified in interfering with the order of

penalty of dismissal imposed by the disciplinary authority

by observing that the penalty of dismissal for committing a

8 less heinous offence can be said to be disproportionate to

the gravity of the wrong.

4.2 It is further submitted by the learned counsel appearing

on behalf of the respondent that looking to the fact that

the respondent had worked for 11 years, a lenient view

may be taken and any other punishment lessor than the

penalty of dismissal may be imposed. Therefore, it is

prayed to take a lenient view looking to his past 11 years

of service.

5. We have heard learned counsel appearing on behalf of the

respective parties at length.

6. At the outset, it is required to be noted that the

disciplinary authority imposed the penalty of dismissal

after holding the departmental enquiry and after following

the due procedure as required under Rule 27 of the CRPF

Rules, 1955 and after having held the charges and

misconduct proved. The charges and misconduct held to

be proved against the respondent who was serving in CRPF

– a disciplined force can be said to be a grave and serious

misconduct. The charges and misconduct proved against

9 the respondent is of misbehaving with superior and giving

threats of dire consequences to the superior, may be under

the influence of 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 of

insubordination can be said to be a very serious

misconduct and cannot be tolerated in a disciplined force

like CRPF and therefore, as such the Division Bench of the

High Court is not justified in observing that on the proved

charges and misconduct penalty of dismissal can be said

to be disproportionate.

6.1 While holding that the penalty of dismissal can be said to

be disproportionate to the gravity of the wrong, what is

weighed with the Division Bench of the High Court is that

as the respondent was found to be in a state of

intoxication when not on duty and considering Section 10,

he is deemed to have committed a less heinous offence.

Whether a member of the force has committed a heinous

offence or a less heinous offence as per Sections 9 and 10 10 of the CRPF Act, 1949 would have bearing on inflicting the

punishment as provided under Sections 9 and 10 but has

no relevance on the disciplinary proceedings/departmental

enquiry for the act of indiscipline and/or insubordination.

In the case of Surinder Kumar (supra), it is observed that

even in a case when a CRPF personnel was awarded

imprisonment under Section 10(n) for an offence which

though less heinous, he can be dismissed from service, if it

is found to be prejudicial to good order and discipline of

CRPF. Under the circumstances, the reasoning given by

the High Court that as the respondent is deemed to have

committed a less heinous offence, the order of penalty of

dismissal can be said to be disproportionate is not

required to be accepted.

6.2 Even otherwise, the Division Bench of the High Court has

materially erred in interfering with the order of penalty of

dismissal passed on proved charges and misconduct of

indiscipline and insubordination and giving threats to the

superior of dire consequences on the ground that the same

is disproportionate to the gravity of the wrong. In the case

of Surinder Kumar (supra) while considering the power of

11 judicial review of the High Court in interfering with the

punishment of dismissal, it is observed and held by this

Court after considering the earlier decision in the case of

Union of India Vs. R.K. Sharma; (2001) 9 SCC 592 that

in exercise of powers of judicial review interfering with the

punishment of dismissal on the ground that it was

disproportionate, the punishment should not be merely

disproportionate but should be strikingly disproportionate.

As observed and held that only in an extreme case, where

on the face of it there is perversity or irrationality, there

can be judicial review under Article 226 or 227 or under

Article 32 of the Constitution.

6.3 Applying the law laid down by this Court in the aforesaid

decision(s) to the facts of the case on hand, it cannot be

said that the punishment of dismissal can be said to be

strikingly disproportionate warranting the interference of

the High Court in exercise of powers under Article 226 of

the Constitution of India. In the facts and circumstances of

the case and on the charges and misconduct of

indiscipline and insubordination proved, the CRPF being a

12 disciplined force, the order of penalty of dismissal was

justified and it cannot be said to be disproportionate

and/or strikingly disproportionate to the gravity of the

wrong. Under the circumstances also, the Division Bench

of the High Court has committed a very serious error in

interfering with the order of penalty of dismissal imposed

and ordering reinstatement of the respondent.

6.4 At this stage, it is required to be observed that even while

holding that the punishment/penalty of dismissal

disproportionate to the gravity of the wrong, thereafter, no

further punishment/penalty is imposed by 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

punishment is found to be disproportionate to the

misconduct committed and proved the matter is to be

remitted to the disciplinary authority for imposing

appropriate punishment/penalty which as such is the

prerogative of the disciplinary authority. On this ground

also, the impugned judgment and order passed by the

Division Bench of the High Court is unsustainable. 13

As observed hereinabove as the order of

penalty/punishment cannot be said to be

disproportionate, there is no question of remanding the

matter back to the disciplinary authority.

7. In view of the above and for the reasons stated above the

present appeal succeeds. The impugned judgment and

order passed by the High Court setting aside the order of

penalty of dismissal and reinstating the respondent is

hereby quashed and set aside. No costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (C.T. RAVIKUMAR) NEW DELHI, JANUARY 19, 2023.

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