Delhi High Court
Anil Kumar vs Union Of India & Anr. on 13 July, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : July 13, 2016
+ W.P.(C) 5535/2014
ANIL KUMAR ..... Petitioner
Represented by: Mr.Mohar Singh, Advocate with
Mr.Sidharth, Advocate
versus
UNION OF INDIA & ANR. ..... Respondents
Represented by: Mr.Vikas Mahajan, CGSC with
Ms.Saroj Bidawat and Mr.Amit
Mehta, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. Punishment has to be tampered with mercy. An unjust sentence
causes more harm than good. The person punished feels cheated and those
who see the sentence imposed develop hatred for the system.
2. You hurt me and I will hurt you. If I cannot hurt you myself, I
demand that you should be hurt by others, are concepts of punishment i.e.
retribution which have no place in civil society. The idea expressed by Sir
James Stephen in the 19th century, when he said : 'it is highly desirable that
criminals should he hated, that the punishment should be so contrived as to
give expression to that hatred, and to justify by gratifying a healthy natural
sentiment', is also irrelevant today. The philosophy of Socrates and
Hobhouse who questioned whether the infliction of evil upon anyone can
ever be in itself good finds acceptability. It is well recognized even
otherwise the concept of retribution with object of punishment, implies
relationship between the severity of punishment and the degree of guilt.
3. In the background of the philosophy of law above noted we
proceed to note the facts.
4. The record produced before us establishes through the testimony
of the 11 prosecution witnesses that on August 31, 2013 Insp.(Min.)
S.N.Chakraborty of the 152nd Bn. BSF was slapped thrice by the petitioner
in his office room.
5. The adjutant Dy.Comdt.Rajesh had deputed Insp.(Min.)
S.N.Chakraborty to prepare the movement orders for the personnel going on
leave.
6. The testimony of the prosecution witnesses when read with
conjunction with the testimony of the two defence witnesses would evince
that Insp.(Min.) S.N.Chakraborty was a brusque person and his manner of
speaking was not only curt but a little offensive. The petitioner was
suffering from Neuro Spinal ailment and for which he was under medical
treatment. He had sought and had been granted an appointment by the
Director General, BSF. The petitioner had applied for leave to go home
which was sanctioned and he was awaiting the clearance to leave the
battalion to catch a train. The train had to depart at 16:50 Hrs. The
petitioner had a confirmed reservation for Delhi by Sealdah Rajdhani train
which he had booked in the Tatkal quota on the morning of August 30,
2013. The necessary formalities and the leave certificate had not been
prepared by Insp.(Min.) S.N.Chakraborty who was slapped by the petitioner.
Even past noon S.N.Chakraborty had not prepared the papers. Time was
running out for the petitioner. The train had to be boarded by 16:50 Hours.
7. It is in this background that assault by the petitioner, who slapped
Insp.(Min.) S.N.Chakraborty 3 times has to be weighed in the context of the
penalty of dismissal from service inflicted upon the petitioner. Conscious of
the fact that in the past four minor penalties of having committed an offence
of absenting without leave once, for having allegedly taken away leave
documents along with note sheet and for committing mistakes in private
connectivity telephone of VIP and on one occasion using intimidatory
language with the Dy.Commandant in an interview were inflicted upon the
petitioner we are of the firm opinion even factoring the past record, given
the backdrop in which the petitioner slapped Insp.(Min.) S.N.Chakraborty,
the penalty of dismissal from service inflicted upon the petitioner is grossly
disproportionate to the gravity of the wrong.
8. The petition is allowed. The penalty of dismissal inflicted is set
aside.
9. Maintaining the conviction we direct petitioner to be reinstated in
service and do not permit any penalty to be imposed for the reason we are
denying back wages fully to the petitioner and also declaring that the period
post-service being terminated which is September 10, 2013 till reinstatement
would not be counted in service for purposes of increment but otherwise
would be counted in service for all other purposes i.e. continuity of service,
and this would be sufficient penalty upon the petitioner who loses his
increments for all times to come i.e. akin to a penalty of permanent
forfeiture of two increments as also no pay for the period in question.
10. Compliance be made with the decision within four weeks of
receipt of certified copy of the order in the office of the Competent
Authority.
11. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JULY 13, 2016
rk
