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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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]

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