Published on: 20 January 2023 at 22:06 IST
While not leaving even an iota of doubt on when the punishment imposed by disciplinary authority can be interfered, the Apex Court in a learned, laudable, landmark and latest judgment titled Union of India and Ors vs Const Sunil Kumar in Civil Appeal No. 219 of 2023 (@ SLP(C) NO. 7645 OF 2018) that was pronounced finally on January 19, 2023 has minced just no words to lay down unequivocally that in exercise of the power of judicial review, the punishment imposed by disciplinary proceedings can be interfered with only if it is ‘strikingly disproportionate’.
It must be noted that the Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice CT Ravikumar made it clear that 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. Very rightly so!
At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice MR Shah for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice CT Ravikumar sets the ball in motion by first and foremost putting forth in para 1 that, “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 benefits without any back wages, the Union of India and others have preferred the present appeal.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 2 that, “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 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 and order passed by the Division Bench of the High Court is the subject matter of present appeal.”
Be it noted, the Bench observes in para 6 that, “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 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.”
It is worth noting that the Bench then enunciates in para 6.1 that, “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 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.”
Most fundamentally and also most crucially, the Bench then minces no words to underscore in para 6.2 while citing the relevant case law also stating that, “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 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.”
Needless to say, the Bench then very rightly points out in para 6.3 that, “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 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.”
Most remarkably, the Bench then hastens to add in para 6.4 holding rightly that, “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. 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.”
Finally, the Bench then concludes by aptly holding in para 7 that, “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.”
All told, we thus see that the Apex Court has made it indubitably clear that the punishment that is imposed by the disciplinary authority can be interfered with only if it is ‘strikingly disproportionate’. There can be thus no gainsaying that all the Courts including the High Courts must definitely pay heed to what the Apex Court has laid down so clearly, cogently and convincingly in this leading case. There can be certainly just no denying it!
Sanjeev Sirohi, Advocate