Union Of India vs Managobinda Samantaray

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1622-1623 OF 2022 (@SLP (C) No(s). 18110-18111/2018

UNION OF INDIA & ORS. Appellant(s)

VERSUS

MANAGOBINDA SAMANTARAY Respondent

J U D G M E N T

Leave granted.

2. This case has a checkered history. The respondent -

Managobinda Samantaray, a constable in the Central Industrial

Security Force (CISF), detailed on a ‘C’ shift duty on the

intervening night of 3rd and 4th of January 2000, for

patrolling between Watch Tower No. 5 and Watch Tower No. 6 of

National Thermal Power Corporation Plant, Kaniha was found to

be sleeping at Watch Tower No. 5 by Officer ASI/Exe. B.

Panda. It is alleged that the respondent had abused,

misbehaved and assaulted the officer on the right shoulder

with a short lathi. ASI/Exe. B. Panda was taken to the

hospital for treatment.

3. The respondent was placed under suspension on 4 th January

2000, and was served with the charge sheet. In the enquiry Signature Not Verified Digitally signed by Dr. the charges were established and proved. The Disciplinary Mukesh Nasa Date: 2022.03.04 17:24:52 IST Reason: Authority vide order dated 15th July 2000 while agreeing that

the charges were proved, took a lenient view and imposed

Page 1 of 11 penalty of reduction of pay by two stages, from Rs. 3425/- to

Rs. 3275/- in the time scale of pay for a period of three

years with immediate effect. Further, it was directed the

respondent would not earn any increment of pay during the

period of reduction and that on the expiry of three years,

the reduction would have the effect of postponing his future

increments of pay. The period of suspension commencing from

4th January 2000 till the receipt of the order would be

treated as non-duty for all purposes. For this period the

respondent would not be entitled to any more pay and

allowances except the subsistence allowance.

4. The respondent preferred an appeal before the Appellate

Authority. The Appellate Authority on consideration issued

Show Cause Notice dated 21st November 2000, under Rule 47(2)

(c)(i)1 read with 31(a)2 of Central Industrial Security

Force, Rules 1969 for enhancement of punishment to that of

dismissal from service. The respondent was directed to

explain why the proposed enhancement of punishment should not

be imposed. Thereafter, the Appellate Authority passed an

order dated 23rd January 2001, dismissing the respondent from

service.

1 47. Consideration of Appeals – (2) In case of an appeal against an order imposing any of the penalties specified in rule 31 the appellate authority shall consider, -

(i) setting aside, reducing, confirming or enhancing the penalty;

2 31. Nature of Penalties – The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a member of the Force, namely –

a) Dismissal;

Page 2 of 11

5. The respondent had, thereupon, preferred a Writ Petition

before the High Court of Odisha- O.J.C. No. 556 of 2001,

which was allowed vide judgment dated 17th October 2011,

inter-alia, holding that the order dated 23rd January 2001

was improper and had violated the principles of natural

justice as the Appellate Authority had failed to notice and

consider the application filed by the respondent seeking

extension of time to file reply to the Show Cause Notice. On

perusal of the records it was noticed that as per the order

sheet the draft order was prepared by the subordinate staff

and was simply approved by the Appellate Authority without

due consideration and application of mind. The matter was

remitted to the Appellate Authority to re-examine the case

afresh after giving an opportunity to the respondent to file

reply. The respondent was given six weeks’ time to file

reply. The judgment of the High Court dated 17.10.2001 was

not challenged and has attained finality.

6. Pursuant to the remand, the Appellate Authority examined the

matter and, on consideration, passed an order of dismissal on

18th February 2012. This order on the question of the charges

and quantum of punishment observed:-

“6...the fact remains that the conclusion reached by the enquiry officer on the charges framed against him are duly supported by the depositions of PW-I, PW-II, CW-I, CW-II and medical report dated 04.01.2000. As regards second article of charge. Based on the evidences of PW-I and PW-II and medical report dated 04.01.2000, the fact is established well that on 04.01.2000 at about 0020 hrs, the appellant while being on duty in night

Page 3 of 11 shift for patrolling from Tower No.5 to 6 had misbehaved and assaulted ASI/Exe B Panda (PW-2) when he was on night checking duty of his duty post. Further plea taken by the appellant that it crucial material like X-ray and medical report were not provided to him, does not have legs to stand on the face of the material facts held in the case file. On contrary, the fact remains that soon after the appellant had misbehaved and assaulted ASI/Exe B Panda (PW-II) while he on checking duty of his duty post, his X-ray was done and treated hi the TTPS, Kaniha Hospital and a copy of the such X-ray report was provided to him on 11.05.2000 as requested by him as to facilitate him to use it as his effective defence. Likewise, the contention of the appellant that the appellate authority invoked colorable exercise of power by denying the legitimate claims in terms of reasonable opportunity being afforded to him, does not have any merit and hence not tenable. Since during the entire process of departmental enquiry, the appellant did not raise such issue of being deprived of reasonable opportunity, the allegation now raised by him at belated stage that he was denied reasonable opportunity, the allegation now raised by him at belated stage that he was denied reasonable opportunity is nothing but after thought. On contrary, what transpires from the material facts held in the case flies is that the departmental enquiry was conducted strictly as per laid down procedure in which the appellant was afforded all reason opportunities to defend his case, His further contention that the show cause notice has been issued upon the appeal preferred by him wherein he had prayed for exoneration of the punishment and the principle of equity warrants that there should not be any enhancement of punishment upon the appeal, is not tenable and appears to be misleading in as much as in the light of provision contained under rule 52 of CISF Rules, 2001 (Amended rules, 2003), the appellate authority is vested with the powers either to appellate authority is vested with the powers either to enhance or reduce the penalty imposed the disciplinary authority and therefore, there was nothing wrong on the part of appellate authority, if he proposed to enhance the penalty after, in his considered opinion, the punishment awarded to him was found disproportionately on lesser side vis-à- vis- the gravity of the poverty charges against him.

Page 4 of 11 7. In view of foregoing discussions, I find that none of the contention raised by the appellant in his reply to the show cause notice is convincing. Also the appellant has not produced any plausible ground to discredit the evidences held in the case file. On contrary, the charges are held duly proved against him based on the clinching evidences held on record. In my considered opinion, since the act of misdemeanor that he misbehaved and assaulted his senior while on duty comes within the preview of serious misconduct, he deserves to be dealt with sternly. In these circumstances, the proposal made vide show cause notice dated 21.11.2000 to enhance the penalty from ‘Reduction of pay by two stages i.e from Rs. 3425/- to Rs. 13275/- in the time scale of pay for a period; of 03 years with Immediate effect, with further direction that he will not earn increments of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future Increment of pay to that of ‘Dismissal form service’ hereby confirmed.”

7. Thereupon, the respondent had preferred Writ Petition (C) No.

5515/2012 before the High Court of Orissa, which was allowed

vide order dated 7th November 2014 on the ground that the

punishment of dismissal was shockingly disproportionate to

the quantum of the offence. The respondent would be entitled

to 50% back wages for the period 23rd January 2001, till the

order of dismissal passed on 18th February 2012 along with

interest @ 8%. Order of reinstatement of service was passed.

8. The respondent and the appellant preferred cross-appeals

before the Division Bench of the High Court of Orissa, which

were disposed of by the impugned judgment dated 11 th January

2018. The Division Bench dismissed the appeal preferred by

the Union of India and affirmed the order passed by the

Single Judge, setting aside the punishment of dismissal

Page 5 of 11 passed by the Appellate Authority and restored the punishment

of reduction of pay etc. imposed by the Disciplinary

Authority. In other words, the order of reinstatement of the

respondent was upheld. Directions given for payment of 50%

back-wages from 23rd January 2001 to 18th February 2012 have

not been commented upon and set aside. In other words, these

directions have been upheld.

9. Impugned judgment by the Division Bench is difficult to

sustain as it equates appellate power under Rule 52 of the

CISF Rules, 2001, with power of judicial review exercised by

constitutional courts. Rule 523 of the CISF Rules, 2001

empowers the appellate authority to examine whether the 3 Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider –

(a) Whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record ; and

(c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders;

(i) Confirming, enhancing, reducing or setting aside the penalty; or

(ii) Remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case.

(iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty.

Provided that - (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit; and

(ii)If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (i) to (v) of rule 34 and an inquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit.

Page 6 of 11 penalty imposed is excessive, adequate or inadequate and pass

consequential order confirming, enhancing, reducing or

setting aside the penalty. In the present case, the procedure

requiring issue of show-cause notice and compliance with the

principles of natural justice is made. Quantum of punishment

is within the discretionary domain and the sole power of the

decision-making authority once the charge of misconduct

stands proved. Such discretionary power is exposed to

judicial interference if exercised in a manner which is

grossly disproportionate to the fault, as the constitutional

courts while exercising the power of judicial review do not

assume the role of the appellate authority. Writ jurisdiction

is circumscribed by limits of correcting errors of law,

procedural error leading to manifest injustice or violation

of principles of natural justice.4 The decision are also

disturbed when it is found to be ailing with perversity. 5 On

the question of quantum of punishment, the court exercising

the power of judicial review can examine whether the

authority has been a reasonable employer and has taken into

consideration measure, magnitude and degree of misconduct and

all other relevant circumstances and excluded irrelevant

matters.6 In the context of quantum of punishment these

aspects are examined to consider whether there is any error

in decision making process. On merits of the quantum of

4 B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 5 Pravin Kumar v. Union of India, (2020) 9 SCC 471 6 Chairman-cum-Managing Director, Coal India Ltd. & Another v. Mukul Kumar Choudhuri & Others, (2009) 15 SCC 620

Page 7 of 11 punishment imposed, the courts would not interfere unless the

exercise of discretion in awarding punishment is perverse in

the sense the punishment imposed is grossly disproportionate.

10. In the instant case, the respondent was a constable in CISF,

a specialized police force responsible for providing security

to strategic establishments like the Department of Space, the

Department of Atomic Energy, and premises of establishments

fundamental to Indian economy. Given the nature of the

appellant’s force, sense of integrity, commitment,

discipline, and camaraderie is paramount. Discipline is the

essence of the organization and structure of police force.7

No indulgence or latitude can be granted when the case is of

violence and assault on the officer who had checked and

reprimanded the respondent. To condone the misconduct will

have ramifications. Discipline in the police force cannot be

compromised.8 In the background of facts, and as the

respondent had not even expressed any remorse or pleaded a

good ground for having acted in the manner he did, we do not

accept that the punishment of dismissal imposed by the

Appellate Authority by order dated 8th February 2012 was

grossly disproportionate to the quantum of the offence.

11. The next issue relates to payment of subsistence allowance

during the period from 4th January 2000, the date on which the

respondent was suspended, till 15th July 2000, the date on

which the Disciplinary Authority had passed an order for

7 Supra note 4, at page 10 8 Arashdeep Singh v. Armed Forces Medical College (2005 SCC OnLine Bom 198)

Page 8 of 11 reduction of payment. The appellants have to pay subsistence

allowance to the respondent for this period in accordance

with the CISF Rules. It is unclear whether, in fact, the

respondent was paid subsistence allowance for this period.

12. On or after 16th July 2000 till the first order of dismissal

was passed on 23rd January 2001, the respondent would be

entitled to payment of salary in terms of the order passed by

the Disciplinary Authority on 15th July 2000. It appears that

this payment has not been made. The appellants would be

liable to make this payment.

13. In view of the judgment of the High Court of Orissa dated 17 th

October 2011, the order passed by the Appellate Authority

dismissing the respondent from service was set aside with an

order of remit to the Appellate Authority for a fresh

decision. Rule 33 (3) of the CISF Rules, 2001, which applies

reads:-

“33. Suspension

xx xx xx

3. Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an enrolled member of the Force under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the orders of his suspension shall be deemed to have continued in [force] on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in [force]9 until further order.”

14. In terms of Rule 33(3) of the CISF Rules, 2001, the

9 Subs. By G.S.R. 462(E), dated 23rd May, 2003 (w.e.f. 9-6-2003).

Page 9 of 11 respondent is to be treated as being under suspension from

23rd January 2001 when the first order passed by the

Appellate Authority dismissing the respondent from service,

till 18th February 2012, when the second and final order was

passed by the Appellate Authority dismissing the respondent

from service.

15. The respondent for this period being under suspension would

be entitled to subsistence allowance. The appellants have not

paid the subsistence allowance for this period, which must be

paid to the respondent.

16. Accordingly, we dispose of the present appeals on the

following terms and directions: -

16.1. The Order passed by the Appellate Authority dated 18 th

February 2012 dismissing the respondent from service is

upheld.

16.2. The respondent would be entitled to subsistence allowance

already paid or if not paid @ 50% of his salary etc. for

the period 4th January 2000 till 15th July 2000. 16.3. The respondent would be entitled to his salary in terms

of the order dated 15th July 2000 as passed by the

Disciplinary Authority till the order dated 23rd January

2001 passed by the Appellate Authority. 16.4. The respondent would be entitled to subsistence allowance

@ 50% of his salary etc., for the period between 24 th

January 2001 to 18th February 2012.

16.5. As there has been delay on the part of the appellants in

payment of the subsistence allowance/ and salary, they

shall make the payment within six weeks from today along

Page 10 of 11 with interest @ 7% per annum from the date payment was

due and payable, till payment is made. The respondent

would provide details of his bank account to which the

said payment would be electronically made. The appellants

will also furnish to the respondent a detailed

calculation, with regard to the computation made towards

the subsistence allowance, salaries and the interest

component as awarded above.

17. The appeals are partly allowed and disposed of in the

aforesaid terms.

18. Pending application(s) stands disposed of.

. . . . . . . . . . . . . J.

(SANJIV KHANNA)

. . . . . . . . . . . . . J.

(BELA M. TRIVEDI)

NEW DELHI;

FEBRUARY 24, 2022.

Page 11 of 11