Anil Kumar Upadhyay vs The Director General, SSB and Others

Anil Kumar Upadhyay vs The Director General, SSB and Others

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2707 OF 2022
Anil Kumar Upadhyay … Appellant
Versus
The Director General, SSB and Others … Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 11.04.2018 passed by the Division Bench of the
Gauhati High Court in Writ Appeal No. 346/2017, by which the Division
Bench of the High Court has allowed the said appeal preferred by the
respondents herein – Disciplinary Authority and has quashed and set
aside the judgment and order 02.05.2017 passed by the learned Single
Judge of the High Court in Writ Petition No. 3576 of 2014, by which the
learned Single Judge allowed the said writ petition and interfered with
1
the order of punishment of ‘removal from service’ inflicted upon the
original writ petitioner and remitted the matter to the Disciplinary
Authority, the original writ petitioner – delinquent has preferred the
present appeal.
2. The appellant herein was serving as a Head Constable
(Ministerial) in the 15th Battalion of the Sashastra Seema Bal (SSB),
Bongaigaon. He was charged with violation of good order and discipline
under Section 43 of the Shashastra Seema Bal Act, 2007 (hereinafter
referred to as the ‘SSB Act’), for having entered the Mahila Barrack of
the Battalion at around 00:15 hours, on the intervening night of 14th
 –
15th April, 2013. He was charged with indiscipline and misconduct
leading to compromising the security of the occupants of the Mahila
Barrack. He was apprehended inside the Mahila Barrack by six female
constables. The matter was reported to the superiors. He was placed
under suspension. A departmental enquiry was initiated against him.
The appellant pleaded not guilty to the charges and the Deputy
Commandant of the Battalion was ordered to ensure the Record of
Evidence (ROE). During the ROE, the statements of prosecution and
defence witnesses were recorded. He was afforded an opportunity to
cross-examine the prosecution witnesses. That the ROE was submitted
by the Deputy Adjutant and after due consideration of the same, the
2
Battalion Commandant heard the appellant and under the SSB Rules,
the Summary Force Court (SFC) was ordered against the delinquent –
Head Constable.
2.1 Before the SFC, the appellant pleaded not guilty to both the
charges and accordingly the evidence was recorded. Thereafter, the
SFC found the appellant guilty of the charges and initially ordered for his
dismissal on 29.04.2013. But, subsequently, the penalty of dismissal
was converted to ‘removal from service’ on 21.06.2013 by the
Commandant of the Battalion. The departmental appeal filed by the
delinquent – Head Constable came to be rejected at first, as time barred
on 06.12.2013, but later on, the Appellate Authority upheld the
disciplinary action under its order dated 24.01.2014.
2.2 Feeling aggrieved and dissatisfied with the order of removal from
service passed by the disciplinary authority, the appellant – delinquent
preferred a writ petition before the High Court. Number of submissions
were made before the learned Single Judge on the legality and validity
of the ROE and the SFC procedures. It was also submitted on behalf of
the appellant that a female constable, Rupasi Barman, who was on
sentry duty and who allowed entry of the delinquent during her sentry
duty and against whom parallel proceedings were drawn up was also
found guilty, she was inflicted the penalty of forfeiture of two years
3
seniority in the rank of constable and also forfeiture of two years’ service
for the purpose of promotion only. Therefore, it was submitted that
when a much lesser punishment was imposed against a female
constable whereas her partner in crime (the appellant herein) was given
the punishment of ‘removal from service’, the same can be said to be
discriminatory and disproportionate punishment.
2.3 The learned Single Judge specifically observed and held that all
due opportunities were afforded to the delinquent and the finding of guilt
is found to have been based on cogent material and the evidence of
both sides received due consideration and hence under the test of
preponderance of probability, the delinquent has been held guilty.
Therefore, the learned Single Judge opined that no prejudice was
caused and it cannot be described a case of unreasonable procedure as
there was due adherence to the SSB Rules. However, thereafter the
learned Single Judge interfered with the order of punishment imposed by
the disciplinary authority of ‘removal from service’ solely on the ground
that female constable, Rupasi Barman, who allowed the entry of the
delinquent during her sentry duty, after holding her guilty, was inflicted a
lesser penalty, whereas the appellant herein was inflicted the
punishment of ‘removal from service’, which can be said to be
disproportionate and therefore the learned Single Judge set aside the
4
order of punishment imposed by the disciplinary authority of ‘removal
from service’ and remitted the matter to the disciplinary authority to
impose any lesser punishment which may facilitate the appellant herein -
Head Constable (Ministerial) to retain his job.
2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the disciplinary authority preferred
writ appeal before the Division Bench. By the impugned judgment and
order, the Division Bench of the High Court has set aside the judgment
and order passed by the learned Single Judge.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court in quashing
and setting aside the judgment and order passed by the learned Single
Judge interfering with the order of punishment imposed by the
disciplinary authority and remanding the matter back to the disciplinary
authority to impose the lesser punishment, the delinquent has preferred
the present appeal.
3. Ms. Ankita Patnaik, learned counsel has appeared on behalf of the
appellant and Ms. Vaishali Verma, learned counsel has appeared on
behalf of the respondents – disciplinary authority.
3.1 Ms. Ankita Patnaik, learned counsel appearing on behalf of the
delinquent has made submissions on merits of the disciplinary
5
proceedings and on the order of Summary Force Court (SFC) and has
submitted that the convening order of SFC records no reasons/basis for
conducting SFC. She has also submitted that no proper procedure was
followed by conducting the SFC against the appellant and that the same
was in breach of principle of natural justice. However, even the learned
Single Judge had held against the appellant on the disciplinary
proceedings. In paragraph 8, the learned Single Judge had specifically
observed that all due opportunities were afforded to the delinquent; the
finding of guilt is found to have been based on cogent material and the
evidence of both sides received due consideration. The findings
recorded by the learned Single Judge on the disciplinary proceedings
had attained finality. Even otherwise, the findings recorded by the
learned Single Judge as well as Division Bench of the High Court on the
disciplinary proceedings are on appreciation of evidence on record which
are not required to be re-appreciated by this Court in exercise of powers
under Article 136 of the Constitution of India.
3.2 It is then submitted by the learned counsel appearing on behalf of
the appellant that the learned Single Judge, while allowing the writ
petition, had rightly held that all the attending circumstances including
the evidence on record and the fact that a lesser punishment was
inflicted upon the female constable Rupasi Barman, while the appellant’s
6
services were terminated, was grossly disproportionate and therefore the
learned Single Judge had rightly remitted the matter back to the
disciplinary authority to impose a lesser punishment which will enable
the delinquent to retain his job.
3.3 It is submitted that the charges inflicted upon the appellant –
delinquent as well as the female constable – Rupasi Barman were
identical in nature and warranted similar punishments. It is submitted
that the punishment of ‘removal from service’ awarded by the
Commandant in the same facts and circumstances of the instant case is
disproportionate to the charges levelled against the appellant. It is
submitted that the female constable – Rupasi Barman has been
awarded punishment of forfeiture of two years’ seniority in the rank of
constable and forfeiture of two years’ service for the purpose of
promotion. She was also tried by the SFC for an offence under Section
43 of the SSB Act. It is submitted that therefore the learned Single
Judge rightly interfered with the punishment of ‘removal from service’
awarded by the disciplinary authority – Commandant holding that the
same was disproportionate to the charges levelled against the appellant.
3.4 It is further submitted by the learned counsel appearing on behalf
of the delinquent that during the service period up to 2013, the
delinquent has received three cash rewards from the senior officers for
7
good conduct. It is submitted that therefore to remove the appellant from
service for a single delinquency would be too harsh and/or
disproportionate to the charges and the misconduct held to be proved.
3.5 Learned counsel appearing on behalf of the appellant has
submitted that as such the female constable – Rupasi Barman was the
friend of the delinquent and the delinquent went to meet her in order to
offer her a gift on New Year eve and therefore he entered the Mahila
Barrack and she herself unlocked the barrack gate. It is therefore
submitted that the intention of the appellant was not bad. It is submitted
that therefore the order of punishment of ‘removal from service’ can be
said to be disproportionate to the misconduct proved.
3.6 Making the above submissions and relying upon the decision of
this Court in the case of Ranjit Thakur v. Union of India, AIR 1987 SC
2386, it is prayed to allow the present appeal and quash and set aside
the impugned judgment and order passed by the Division Bench of the
High Court and restore the well-reasoned judgment of the learned Single
Judge, remitting the matter to the disciplinary authority for imposing a
lesser punishment.
4. Ms. Vaishali Verma, learned counsel appearing on behalf of the
respondents, while supporting the impugned judgment and order passed
by the Division Bench of the High Court, has vehemently submitted that
8
in the present case, even the learned Single Judge held that the
disciplinary proceedings were conducted after following the due
procedure as required under the law. It is submitted that in the
disciplinary proceedings, a very serious charge and misconduct
committed by the appellant entering into the Mahila Barrack in the
midnight has been established and proved. It is submitted that only
thereafter the disciplinary authority after considering the seriousness of
the misconduct passed an order removing the appellant from service,
which was not required to be interfered with by the learned Single Judge.
4.1 It is further submitted that the learned Single Judge interfered with
the order of punishment imposed by the disciplinary authority of
removing the appellant from service solely on the ground that in the case
of female constable – Rupasi Barman who allowed the entry of the
delinquent during her sentry duty, parallel proceedings were drawn up
and she was also found guilty of both the charges, however, she was
inflicted a lesser punishment and therefore the punishment of ‘removal
from service’ imposed on the delinquent can be said to be
disproportionate. It is submitted that the misconduct committed by the
appellant by entering the Mahila Barrack in the midnight cannot be
equated with the misconduct committed by the female constable. It is
submitted that the appellant was serving as a Head Constable in the
9
disciplined force in the SSB. Therefore, his indisciplined conduct leading
to compromising the security of the occupants of the Mahila Barrack
cannot be tolerated. It is submitted that when a conscious decision was
taken by the disciplinary authority to impose the punishment of ‘removal
from service’, which was after the charges and misconduct held to be
proved against him, thereafter it was not open for the learned Single
Judge of the High Court to interfere with the same in exercise of powers
under Article 226 of the Constitution of India. Reliance is placed on the
decisions of this Court in the cases of Om Kumar v. Union of India,
(2001) 2 SCC 386; Union of India v. G. Ganayutham, (1997) 7 SCC 463;
Union of India v. Dwarka Prasad Tiwari, (2006) 10 SCC 388; and Union
of India v. Diler Singh, (2016) 13 SCC 71, on the test of proportionality.
4.2 Learned counsel appearing on behalf of the disciplinary authority
has also relied upon the decisions of this Court in the cases of B.C.
Chaturvedi v. Union of India, (1995) 6 SCC 749; and Lucknow Kshetriya
Gramin Bank (Now Allahabd, Uttar Pradesh Gramin Bank) v. Rajendra
Singh, (2013) 12 SCC 372, on the jurisdiction of the courts interfering
with the order of punishment imposed by the disciplinary authority.
4.3 It is further submitted that, apart from the fact that the case of the
appellant cannot be compared with the misconduct committed by the
female constable – Rupasi Barman, even otherwise merely because the
10
female constable, who allowed the entry of the delinquent in the Mahila
Barrack, was inflicted with the lesser punishment, cannot be a ground to
impose a lesser punishment on the delinquent. The misconduct
conducted by the appellant, being a member of the disciplined force, by
entering the Mahila Barrack in the midnight and such an indisciplined
conduct leading to compromising the security of the occupants of the
Mahila Barrack can be said to be a grave and serious misconduct and
therefore the disciplinary authority was absolutely justified in imposing
the punishment of ‘removal from service’. It is therefore submitted that
the learned Single Judge erred in interfering with the order of
punishment imposed by the disciplinary authority, which is rightly set
aside by the Division Bench of the High Court.
5. We have heard learned counsel for the respective parties at
length.
6. The appellant herein, who at the relevant time was serving as a
Head Constable, was subjected to disciplinary proceedings for having
entered the Mahila Barrack of the Battalion at around 00:15 hours on the
intervening night of 14-15th April, 2013. He was charged with an
indisciplined conduct relating to compromising the security of the
occupants of the Mahila Barrack. He was apprehended inside the
Mahila Barrack by six female constables. Thereafter he was subjected
11
to the disciplinary proceedings. All due opportunities were afforded to
him. He was found guilty based on cogent material and evidence and on
appreciation of evidence led by both the sides. Only thereafter, the
disciplinary authority initially imposed the punishment of dismissal,
however, subsequently, the penalty of dismissal was converted to
‘removal from service’. The punishment of ‘removal from service’ was
challenged by the delinquent before the High Court. The learned Single
Judge, though held that the disciplinary proceedings were conducted
after following due procedure under the SSB Rules and due
opportunities were afforded to him, thereafter interfered with the order of
punishment imposed by the disciplinary authority by observing that as
the female constable who allowed the appellant – Head Constable to
enter the Mahila Barrack and who was also found guilty of both the
charges was inflicted with the lesser punishment and the appellant was
inflicted the punishment of ‘removal from service’, which can be said to
be disproportionate and thereby the learned Single Judge interfered with
the order of punishment imposed by the disciplinary authority and set
aside the punishment of ‘removal from service’ and remitted the matter
back to the disciplinary authority to impose a lesser punishment. The
same has been interfered with by the Division Bench of the High Court
and the order of punishment imposed by the disciplinary authority has
been restored.
12
7. Therefore, the short question which is posed for the consideration
of this Court is, “whether the learned Single Judge was justified in
interfering with the order of punishment imposed by the disciplinary
authority on the ground that the same was disproportionate as the
female constable against whom also the disciplinary proceedings were
initiated and the two charges were held to be proved against her, was
inflicted with the lesser punishment?”
8. On the judicial review and interference of the courts in the matter
of disciplinary proceedings and on the test of proportionality, few
decisions of this Court are required to be referred to:
i) In the case of Om Kumar (supra), this Court, after considering the
Wednesbury principles and the doctrine of proportionality, has
observed and held that the question of quantum of punishment in
disciplinary matters is primarily for the disciplinary authority and the
jurisdiction of the High Courts under Article 226 of the Constitution or
of the Administrative Tribunals is limited and is confined to the
applicability of one or other of the well-known principles known as
‘Wednesbury principles’.
In the Wednesbury case, (1948) 1 KB 223, it was observed that
when a statute gave discretion to an administrator to take a decision,
the scope of judicial review would remain limited. Lord Greene further
13
said that interference was not permissible unless one or the other of
the following conditions was satisfied, namely, the order was contrary
to law, or relevant factors were not considered, or irrelevant factors
were considered, or the decision was one which no reasonable person
could have taken.
ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court
observed and held as under:
“18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being factfinding authorities have exclusive power to consider the evidence with a
view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and
impose some other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of the High
Court/Tribunal, it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof.”
iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in
paragraph 19, it is observed and held as under:
“19. The principles discussed above can be summed up and summarised
as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum
of punishment to be imposed in a particular case is essentially the
domain of the departmental authorities.
19.2. The courts cannot assume the function of disciplinary/departmental
authorities and to decide the quantum of punishment and nature of
penalty to be awarded, as this function is exclusively within the
jurisdiction of the competent authority.
14
19.3. Limited judicial review is available to interfere with the punishment
imposed by the disciplinary authority, only in cases where such penalty is
found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed against the
delinquent employee, the appropriate course of action is to remit the
matter back to the disciplinary authority or the appellate authority with
direction to pass appropriate order of penalty. The court by itself cannot
mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would
be in those cases where the co-delinquent is awarded lesser punishment
by the disciplinary authority even when the charges of misconduct were
identical or the co-delinquent was foisted with more serious charges. This
would be on the doctrine of equality when it is found that the employee
concerned and the co-delinquent are equally placed. However, there has
to be a complete parity between the two, not only in respect of nature of
charge but subsequent conduct as well after the service of charge-sheet
in the two cases. If the co-delinquent accepts the charges, indicating
remorse with unqualified apology, lesser punishment to him would be
justifiable.”
9. In the present case, the appellant was imposed the penalty of
‘removal from service’ after the charges levelled against him stood
proved by the disciplinary authority in an enquiry held against him after
following the procedure prescribed under the SSB Rules. The nature of
allegations against the appellant are grave in nature. He entered the
Mahila Barrack in the midnight at around 00:15 hours, may be to meet
his alleged friend Rupasi Barman, but such an indisciplined conduct
leading to compromising the security of the occupants of the Mahila
Barrack cannot be tolerated. As a member of the disciplined force –
SSB, he was expected to follow the rules. He was apprehended inside
the Mahila Barrack by six female constables. As observed by this Court
in the case of Diler Singh (supra), a member of the disciplined force is
15
expected to follow the rules, have control over his mind and passion,
guard his instincts and feelings and not allow his feelings to fly in a fancy.
The nature of misconduct which has been committed by the appellant
stands proved and is unpardonable. Therefore, when the disciplinary
authority considered it appropriate to punish him with the penalty of
‘removal from service’, which is confirmed by the appellate authority,
thereafter it was not open for the learned Single Judge to interfere with
the order of punishment imposed by the disciplinary authority.
10. From the judgment and order passed by the learned Single Judge,
which has been interfered with by the Division Bench, it appears that
what weighed with the learned Single Judge was that the female
constable – Rupasi Barman, who allowed the entry of the delinquent and
who was also subjected to disciplinary proceedings and was found guilty
of both the charges, was inflicted with a lesser punishment and therefore
punishment of ‘removal from service’ imposed on the delinquent official
was disproportionate. However, the learned Single Judge did not
appreciate that the misconduct committed by the delinquent official,
being a male Head Constable cannot be equated with the misconduct
committed by the female constable. The misconduct of entering the
Mahila Barrack of the Battalion in the midnight is more serious when
committed by a male Head Constable. Therefore, the learned Single
16
Judge committed a grave error in comparing the case of female
constable with that of the appellant – delinquent, male Head Constable.
11. Even otherwise, merely because one of the employees was
inflicted with a lesser punishment cannot be a ground to hold the
punishment imposed on another employee as disproportionate, if in case
of another employee higher punishment is warranted and inflicted by the
disciplinary authority after due application of mind. There cannot be any
negative discrimination. The punishment/penalty to be imposed on a
particular employee depends upon various factors, like the position of the
employee in the department, role attributed to him and the nature of
allegations against him. Therefore, the Division Bench of the High Court
is absolutely justified in interfering with the judgment and order passed
by the learned Single Judge, interfering with the order of punishment
imposed by the disciplinary authority removing the appellant from
service. If the conduct on the part of the appellant entering the Mahila
Barrack of the Battalion in the midnight is approved, in that case, it would
lead to compromising the security of the occupants of the Mahila
Barrack. Therefore, the disciplinary authority was absolutely justified in
imposing the punishment/penalty of ‘removal from service’ by modifying
the earlier punishment of dismissal. The same cannot be said to be
17
disproportionate at all to the misconduct held to be proved against the
appellant – delinquent.
12. In view of the above and for the reasons stated above, the present
appeal fails and the same deserves to be dismissed and is accordingly
dismissed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
…………………………………..J.
[M.R. SHAH]
NEW DELHI; …………………………………..J.
APRIL 20, 2022. [B.V. NAGARATHNA]
18

Comments

Popular posts from this blog

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर