Delhi High Court
Subhash Chander vs Uoi & Ors. on 18 November, 2009
Author: Pradeep Nandrajog
12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18th November 2009.
+ WP(C) 6180/2008
SUBHASH CHANDER ..... Appellant
Through: Mr.Rajat Sharma, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Manoj Ohri, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the
Digest? No.
PRADEEP NANDRAJOG, J. (Oral)
1. On the intervening night of 3rd and 4th April 2005, it was
alleged against the petitioner that he fired three rounds from the
licensed firearm issued to him and that at said point of time the
petitioner was intoxicated, having drunk liquor.
2. Notwithstanding that the petitioner pleaded guilty to the
charge, an inquiry was held and in view of the evidence, being the
testimony of the eye-witnesses, it was concluded that the incident
was correct.
3. Noting the fact that the petitioner had pleaded guilty
and had apologized for the mistake, the disciplinary authority
imposed punishment of reduction of pay to the minimum pay-scale
for a period of two years for which period the petitioner was not to
earn any increments and that the said loss of two increments was to
have future effect as well.
4. The appellate authority, admittedly having power to suo
motu review the penalty under Rule 54 of the CISF Rules, felt that
the penalty imposed was shockingly low. Forming a tentative
opinion that being a member of the disciplined force, the conduct of
the petitioner in firing from the SLR (Self Loading Rifle) issued to
him was serious, coupled with the fact that the petitioner was
intoxicated, a show cause notice was issued to the appellant on
25.1.2006 as to why penalty of dismissal from service be not
imposed.
5. Considering the response of the petitioner in which he
stated that suffering from cold he consumed alcohol and that
nobody was injured in the firing, the appellate authority opined that
the same were hardly any mitigating circumstance. Reiterating that
it was a serious misconduct to fire three shots from the self loading
rifle issued to the petitioner coupled with the drunkenness of the
petitioner at the time when he committed the act, the proposed
penalty of dismissal from the service was inflicted upon the
petitioner.
6. Further two remedies availed by the petitioner in the
form of further appeal and thereafter a revision were negated.
Hence, the instant petition challenging the order passed by the
appellate authority and the two further orders which have
confirmed the same.
7. A two folds submission has been urged at the hearing of
the appeal.
8. Firstly that under Rule 54(1)(d) of the CISF Rules 2001
the superior authority can suo motu call for the record and pass
orders as it deems fit but within six months of the date of the
original order, it is urged that the original order imposed by the
disciplinary authority is dated 20.7.2005 and that the show cause
notice as to why penalty be not imposed is dated 25.1.2006. It is
thus urged that there is a delay of five days in taking suo motu
action by the appellate authority.
9. Second contention urged is that the disciplinary
authority weighed the pros and cons before inflicting the
punishment and therefore the immediately superior authority could
not have substituted the penalty.
10. Both submissions have to be negated for the reason
under Rule 54(1)(d) of the CISF Rules 2001 the period of six months
have to be reckoned with effect from the date of communication of
the order imposing penalty to the superior authority. Limitation has
not to be reckoned with effect from the date of the original order. It
has to be reckoned with effect from the date the same is
communicated.
11. As regards the second plea, suffice would it be to state
that undisputably the immediately superior authority above the
disciplinary authority is vested with a power to enhance the penalty
imposed. Thus, it cannot be urged that since the disciplinary
authority has weighed the quantum of punishment, the same can
never be interfered.
12. Obviously, the suo motu power to enhance the penalty
is vested, to be exercised, where the penalty imposed by the
disciplinary authority is shockingly low.
13. Thus, the question which needs to be considered is,
whether the penalty imposed by the disciplinary authority was
shockingly low and secondly whether the penalty imposed by the
immediately superior authority as confirmed by the further superior
authority, is disproportionately severe.
14. As regards the first, suffice would it be to state that
firing indiscriminately from the service firearm i.e. the self loading
rifle and that too three times, is indeed a serious misconduct. That
the fellow brother jawans of the petitioner were not hit is a matter
of chance.
15. For the misconduct in question, indeed, the penalty
imposed by the disciplinary authority is shockingly low.
16. Thus, the immediately superior authority was fully
justified in taking suo motu action to enhance the penalty.
17. On the issue of disproportionality of the enhanced
penalty, with reference to the gravity of the offence, we have
questioned the learned counsel for the petitioner as to how many
years service has been rendered by the petitioner. Our intention in
seeking said information is to see whether to convert the penalty to
one of removal entitle the benefit to the petitioner in the form of
pecuniary benefits.
18. Learned counsel states that having rendered seven
years service, even if the penalty of removal from service is
imposed, no financial benefits would flow to the petitioner.
19. We had intended to consider whether the penalty could
be lowered and be of the kind that without the petitioner being in
service some monetary benefit could flow to him, for the reason we
are satisfied that the misconduct committed by the petitioner is of
the kind that it would be hazardous to keep him in service.
20. We record out satisfaction that the misconduct
committed by the petitioner is severe and warrants a cessation of
service.
21. The penalty imposed cannot be called disproportionate
to the gravity of the offence.
22. The petition is dismissed.
23. No costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
NOVEMBER 18, 2009
Dharmender
