Madan Lal vs Government Of Nct And Ors.
2007 Latest Caselaw 122 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this writ petition assails the order dated 1.10.2002, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, dismissing his OA No. 1132 of 2001 as also orders dated 27.1.1998, 6.9.2000 and 5.3.2001 of the Disciplinary Authority. By the said orders the Disciplinary Authority imposed upon the petitioner, punishment of reduction of rank from Head Constable to Constable, till he is found fit by the Competent Authority to be restored to the higher rank. A Corrigendum was issued on 6.9.2000, whereby the said order was modified and the period of reduction in rank was mentioned to be five years, clarifying that the punishment will take effect from 27.1.1998, i.e. the date of the order of punishment. Petitioner's appeal was also rejected on 5.3.2001.

2. The facts culminating in filing of the present petition are:

Petitioner, a Head Constable with Delhi Police, was serving at Police Station Anand Parbat. On 1.5.1995 at about 12:35 P.M., Petitioner allegedly came to the Police Station on a two wheeler scooter, without wearing helmet. Additional SHO of the Police Station, who allegedly bore a grudge with the petitioner, asked the ASI on duty to challan the petitioner for driving without helmet, under the provisions of the Motor Vehicle Act. Petitioner's entreaties for dropping the matter and being excused were not heeded to. Petitioner was challaned. Thereafter petitioner entered the office of Additional SHO, Officer-in-Charge of the said Police Station, where incidentally one journalist was waiting for the SHO, and stated that by issuing a challan, the Additional SHO had not done a right thing and humiliated the Head Constable of the Police Station. Petitioner is alleged to have misbehaved with him and used abusive language.

3. Petitioner pleaded that he had contested the challan and was acquitted by the Learned Metropolitan Magistrate. Departmental enquiry was also initiated against the petitioner on 18.5.1995 under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980. Petitioner was placed under suspension on 9.5.1995 and was taken back on duty on 29.9.1995, without prejudice to the Departmental Enquiry pending against him. The Enquiry Officer found the petitioner guilty of the charge vide his report dated 15.3.1997. Accordingly vide order dated 27.1.1998, the Additional DCP imposed upon the petitioner, the punishment of reduction in rank ?to the lower rank of Constable until he is found fit by the Competent Authority to be restored to the higher rank of Head Constable.? The suspension period from 1.5.1995 to 28.9.1995 was ordered to be treated as period not spent on duty for all intents and purposes.

4. Petitioner submitted an application for supply of relevant documents and punishment order for preferring appeal to the Appellate Authority on 21.12.1999 and 24.2.2000. Despite the representation, no documents were provided to the petitioner.

5. Petitioner also represented sometime in June 2000 to be promoted to the rank of Head Constable. It is alleged that the response of the respondents to the above request for promotion and copies of documents was issuance of a corrigendum dated 6.9.2000 to the following effect:

CORRIGENDUM

Reference this Office Order No. 1601-80/P(W) dated 27.1.1998 regarding the punishment of reduction in the rank of H.C. Madan Lal, No. 379/West (now Ct No. 11485/DAP). Please read as ?for a period of five years and punishment will take effect from the date of punishment order dated 27.1.1998? instead of ?until he is found fit by the competent authority to be restored to the higher rank of Head Constable.? in the para 4 of this office order referred above.

Sd/

Deputy Commissioner of Police West District., New Delhi

6. Petitioner preferred an appeal on 20.10.2000 before the Joint Commissioner of Police assailing the order of punishment. Petitioner contended that the allegations against him were primarily based on the version of the Additional SHO. The latter was the person at whose behest the challan had been issued and was inimical to the Petitioner. Petitioner contended that the impugned order was uncertain and vague as regards the punishment. The inherent lacunae therein could not be removed belatedly by issuance of a corrigendum which materially and substantially prejudiced the petitioner by making the punishment highly disproportionate and excessive. Besides, this was indicative of complete non application of mind. The appellate authority rejected the appeal vide order dated 5.3.2001 on the ground that not wearing helmet while driving was a grave misconduct and violation of rules by a police man leaves a bad impression on the image of the police. Punishment was held to be justified and it was also held that Corrigendum did not nullify the Departmental Enquiry.

7. Petitioner filed OA No. 1132 of 2001 before the Tribunal which was dismissed on 1.10.2002. The Tribunal held that the records reveal that the journalist present at the time when the incident took place had deposed against the petitioner. It was held that personal hearing by the Appellate Authority was not mandated under the Rules and as such there was no violation of principles of natural justice.

8. Aggrieved, the petitioner has preferred the present petition seeking inter alia quashing of the order dated 1.10.2002 of the Tribunal as also orders dated 27.1.1998, 6.9.2000 and 5.3.2001 of the Disciplinary Authority. 9. Vide our order dated 29.11.2006, we recorded that from the documents available on record we are unable to fathom whether this modification or corrigendum, which obviously can neither be a clerical or typographical error, was the result of any representation of the petitioner or an internal review done at the headquarters. Accordingly, original records were produced before us. As becomes evident from the records produced before us, petitioner had submitted an application for supply of copies of documents for preferring appeal and representation for promotion to the rank of Head Constable (Ex.) pointing out that no specific period in the lower rank was mentioned in the punishment order dated 28.1.1998. It appears that on consideration of the matter departmentally, the respondents reached a conclusion that punishment of reduction in rank was required to be for a specific period and this led to the issuance of the Corrigendum.

10. In our view the order dated 28.1.1998 reducing the rank of the petitioner to the lower rank of Constable until he is found fit by the Competent Authority can not stand judicial scrutiny being vague and uncertain and arbitrary as it could operate for an indefinite period. The issuance of Corrigendum imposing punishment of five years of service in the reduced rank, in the present circumstances, would not be a correct way of remedying an illegal order of punishment which was non est. The punishment as sought to be imposed, even otherwise, appears to be excessive and disproportionate.

11. Petitioner submits that apart from this solitary incident of misbehavior, he has never been departmentally proceeded against. The Petitioner was promoted as Head Constable in due course after considerable service as Constable. The punishment has resulted in his reversion to a lower rank after having worked as Head Constable for over a decade nearly. His promotional prospects have been prejudicially affected due to the impugned orders, for a misconduct which in the circumstances and his past record cannot be regarded as grave.

12. The legal position as regards judicial review of the punishment imposed by the Disciplinary Authority may be noted. The normal rule is that the Court does not substitute its own opinion regarding the penalty imposed or the quantum thereof. The judicial review in such matters is limited.

13. Principles generally followed by Court as observed in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar reported at are as follows:

The Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.? The Supreme Court, further analyzed the law of proportionality and observed as follows:

Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as ?arbitrary? under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.

14. In State Bank of India v. Samarendra Kishore Endow reported at it was observed as follows:

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.

In Ranjit Thakur v. Union Of India reported at , the Supreme Court has held that if punishment inflicted by the Disciplinary Authority is excessively harsh and vindictive instead of being commensurate with the gravity of offence, it is open to judicial review.

15. Again in Kailash Nath Gupta v. Enquiry Officer (R.K. Rai), Allahabad Bank and Ors. reported at , the Supreme Court emphasized upon the limited scope of the power to interfere with the quantum of punishment. After analysing the case law on the subject, the Court remitted the matter to the High Court for considering the aspect of proportionality of the quantum of punishment. Relevant portions are extracted for reference:

...The High Court did not go into the question as to whether the order of removal of the appellant from service was grossly disproportionate in view of the decision of this Court in State Bank of India v. Samarendra Kishore Endow...

These aspects do not appear to have been considered by the High Court in proper perspective. In the fitness of things, therefore, the High Court should examine these aspects afresh. The consideration shall be limited only to the quantum of punishment...

16. From the foregoing it would be seen that the Court applies the principle of disproportionality only in cases where its judicial conscience is shocked and there also it generally remits the case to the Disciplinary Authority for disposal in accordance with law. It is in exceptional cases where matter has been unduly delayed or remand would result in perpetuation of injustice that the Court itself substitutes the punishment.

17. In the present case, as observed earlier the petitioner has conducted himself well without any complaint or grievance in the past. In the solitary incident the charge is of having driven in without helmet and having misbehaved with superior officer on 1.5.1995. He had contested the challan under the Motor Vehicles Act and was acquitted by the Learned Metropolitan Magistrate. The punishment imposed in the disciplinary proceedings was reduction in rank till the Competent Authority deems fit. This was represented against and the same was modified by the Competent Authority to 5 (five) years of reduction in rank. The OA of the petitioner was dismissed on 1.10.2002. A decade has passed since the incident of misconduct and the ongoing litigation. In view of the nature of misconduct and other attendant circumstances, the punishment of reduction in rank till the Competent Authority deems appropriate, earlier given as well as the punishment of reduction in rank for a period of 5 years imposed vide the corrigendum, would fall in the category of excessive and disproportionate punishment amenable to correction in judicial review. This would be a case where the Court, in exercise of its discretionary power, should itself intervene and amend the punishment imposed.

18. We set aside the orders dated 28.1.1998, 6.9.2000, 5.3.2001 as well as 1.10.2002. In view of the fact that there is some evidence of alleged misbehavior with superior officer and the time already spent in litigation, we reduce the punishment imposed upon the petitioner to reduction of rank for a period of two and a half years with effect from 28.1.1998, which would meet the ends of justice. Petition stands allowed in the above terms.