Gauhati High Court
WP(C)/1730/2024 on 7 January, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/16
GAHC010062732024
2025:GAU-AS:600
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Writ Petition (Civil) no. 1730/2024
Prem Kumar Singh, S/o Late Yogindar Singh, permanent
resident of Birupur, Muzaffarpur, Saraiya Factory, Bihar, Pin -
843120, presently residing at Bordubi Bazar, P.O.- Hoogrijan,
Dist - Tinsukia, Pin- 786601.
..................Petitioner
-VERSUS-
1. The State of Assam represented by the Commissioner
Secretary to the Government of Assam, Home and Political
Department, Dispur, Assam, Guwahati-6.
2. The Director General of Police, B.K. Kakati Road, Ulubari,
Guwahati- 781007, Assam.
3. The Inspector General of Police (A) Assam, Ulubari
Guwahati-7.
4. The Inspector General of Police (NER), Tinsukia, Assam.
5. The Superintendent of Police, Dibrugarh, Assam.
6. The Deputy Superintendent of Police, Dibrugarh, Assam.
7. The Officer In-Charge, Dibrugarh Police Station,
Dibrugarh, Assam.
...................Respondents
Advocates :
Petitioner : Mr. S.P. Choudhury, Advocate
Respondents : Mr. T.C. Chutia, Additional Senior Government Advocate,
Assam
Page No.# 2/16
Date of Hearing and Judgment & Order : 07.01.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
Invoking the extra-ordinary and discretionary jurisdiction of this Court under Article 226
of the Constitution of India, the petitioner has instituted the instant writ petition to assail an
Order dated 30.11.2023 passed by the respondent no. 5 in the capacity of the Disciplinary
Authority/Appointing Authority, whereby, the petitioner who was serving as an Unarmed
Branch Constable [UBC] in the Assam Police, has been removed from service w.e.f.
30.11.2023 by imposing the major penalty of removal in a disciplinary proceeding,
Departmental Proceeding no. 05 of 2023. The impugned Order of penalty dated 30.11.2023
has further stipulated that the period of suspension of the petitioner w.e.f. 17.08.2023 to
09.10.2023 is to be treated as dies-non.
2. The background facts leading to passing of the impugned Order of penalty dated
30.11.2023 can be stated, in brief, at first.
2.1. The petitioner has stated that he joined the service in the year 1994 as a Constable at
11th Battalion of Assam Police at Dergaon and accordingly, he was sent for completing, the
mandatory training course. After completion of the training course, the petitioner joined the
Assam Police as a UBC/37 and served at various units and places during his service tenure.
2.2. On 16.08.2023, the petitioner, UBC/37, was serving in the D.E.F., Dibrugarh and was
posted at the Police Reserve, Dibrugarh. On 16.08.2023, the petitioner was detailed for
under-trial prisoners' [UTPs'] escort duty from the Central Jail, Dibrugarh to the Court of
learned Sub-Divisional Judicial Magistrate [SDJM] at Naharkatia along with six other police
personnel. On that day, it was reported that the petitioner appeared in an inebriated
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condition on duty and had, thus, created an unpleasant situation in the Court premises.
2.3. The petitioner came to be placed under suspension immediately thereafter, by an
Order dated 17.08.2023 passed by the respondent no. 5 as the Disciplinary Authority. In the
Suspension Order dated 17.08.2023, it was mentioned that the petitioner appeared to be
drunk on the day, 16.08.2023 at the Court premises of the learned SDJM, Naharkatia
whereafter he was tested with breath analyzer and on being so tested, presence of 321
mg/100 ml alcohol was reported. Such activities were found to be an indisciplined conduct. It
was further mentioned that during the suspension period, the subsistence allowance as
admissible would be paid to the petitioner under the relevant rules and the petitioner would
attend morning and evening Roll calls at the Police Reserve regularly.
2.4. Close on the heels of the incident dated 16.08.2023 and the Order of Suspension dated
17.08.2023, the petitioner was served with a Show Cause Notice under Section 65 and
Section 115 of the Assam Police Act, 2007 read with Rule 7 of the Assam Services [Discipline
& Appeal] Rules, 1964 read with Rule 66 of the Assam Police Manual [Part-III] and Article 311
of the Constitution of India, on 31.08.3023, whereby the petitioner was asked to show cause
as to why any of the penalties prescribed therein should not be imposed on him on the
charge, mentioned therein, based on the Statement of Allegations, the List of Witnesses and
the List of Documents appended thereto. The petitioner was asked to submit his Reply within
7 [seven] days from the date of receipt of the Show Cause Notice.
2.5. In response to the Show Cause Notice dated 31.08.2023, the petitioner submitted his
Reply before the respondent no. 5 on 05.09.2023 admitting the fact that on 16.08.2023, prior
to joining of duty, he consumed alcohol. In the Reply, the petitioner had also made apology
for his such act with an undertaking that such type of incident would not happen in the near
future during his service career.
2.6. After receipt of the Reply, the same was considered by the respondent no. 5 as the
Disciplinary Authority and finding the Reply unsatisfactory, the disciplinary proceeding,
Departmental Proceeding no. 05 of 2023 was drawn up. One Deputy Superintendent of Police
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was appointed as the Enquiry Officer to complete the enquiry and one Inspector [UB] of
Police was nominated as the Presenting Officer to present the case before the Enquiry Officer
on behalf of the Disciplinary Authority, by an Order dated 09.09.2023. By the Order dated
09.09.2023, the Enquiry Officer was also requested to submit his findings within 15 [fifteen]
days therefrom.
2.7. On 10.12.2023, the Order of Suspension passed against the petitioner was revoked
and the petitioner was reinstated in service with immediate effect by retaining him in the
Police Reserve. In the Order of reinstatement dated 10.10.2023, it was observed that the
disciplinary proceeding, Departmental Proceeding no. 05 of 2023 drawn up against the
petitioner would continue. After conclusion of the disciplinary proceeding, the Enquiry Officer
submitted an Enquiry Report on 07.11.2023 holding that during the enquiry, it was
established that the delinquent / petitioner was found to have taken alcohol at the time of
official duty hours and accordingly, it was held that the allegation against the petitioner
regarding taking of alcohol was proved. The petitioner was served with a copy of the Enquiry
Report submitted by the Enquiry Officer in connection with Departmental Proceeding no. 05
of 2023. After receipt of the Enquiry Report, the petitioner submitted a Reply on 23.11.2023
wherein the delinquent / petitioner again admitted that he had taken alcohol during the duty
hours due to some mental pressure and had apologized for his such act with an undertaking
that such type of act would not happen in the near future during his service career.
2.8. It was after consideration of the Enquiry Report and the Reply submitted by the
petitioner, the impugned Order imposing the penalty of removal from service w.e.f.
30.11.2023 came to be passed by the respondent no. 5 as a Disciplinary Authority.
3. I have heard Mr. S.P. Choudhury, learned counsel for the petitioner and Mr. T.C. Chutia,
learned Additional Senior Government Advocate, Assam for all the respondents.
4. Mr. Choudhury, learned counsel appearing for the petitioner has submitted that the
charge leveled against the petitioner included an allegation of creating an unpleasant
situation by the petitioner in the court premises. He has submitted that during the disciplinary
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proceeding, none of the witnesses had specifically mentioned about his creation of an
unpleasant situation in the court premises, much less by the petitioner. He has further
submitted that though the petitioner in response to the Show Cause Notice and to the
Enquiry Report, had admitted about consumption of liquor on the date of the incident,
16.08.2023, but during the disciplinary proceeding, nothing further had been established. In
such view of the matter, imposition of the penalty of removal from service passed against the
petitioner is arbitrary and disproportionate. By referring to a decision of the Hon'ble Supreme
Court in Civil Appeal no. 7382 of 2021 [Brijesh Chandra Dwivedi (Dead) thr. LRs. vs. Sanya
Sahayak and others], decided on 25.01.2022, he has submitted that it would be just and
appropriate in the fact situation obtaining in the case in hand if the penalty of removal is
converted into compulsory retirement. He has further submitted that prior to the alleged
incident dated 16.08.2023, the service record of the petitioner was an unblemished one,
which calls for a similar consideration on the entire matter.
5. Mr. Chutia, learned Additional Senior Government Advocate, Assam representing all the
respondents including the Disciplinary Authority and the Appellate Authority, has submitted
that the petitioner was a member of a disciplined force and on the date of the incident, the
petitioner was serving as an Unarmed Branch Constable [UBC]. The petitioner, on that day,
was entrusted with the duty to accompany UTPs from the jail premises to the court premises
and to carry out such duty, a police personnel like the petitioner, had to be alert and focused
at all times in order to avert any risk involving the UTPs and for any incident during the
journey or inside the court premises. It has been conclusively established that the petitioner
was in inebriated condition on the date of the incident and the said fact has also been
established from the breath analysis test. Moreover, the petitioner himself had admitted on
two occasions in writing that he had consumed alcohol on 16.08.2023. Thus, no leniency can
be shown in the matter of imposition of penalty on the petitioner for the fact that he was a
member of a disciplined force.
6. I have given my consideration to the submissions of the learned counsel for the parties
and have also perused the materials brought on record by the parties through their pleadings.
I have also perused the records of the disciplinary proceeding, Departmental Proceeding no.
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05 of 2023, placed by the learned Additional Senior Government Advocate, in original.
7. Before adverting to the submissions made by the learned counsel for the parties, it
appears appropriate to refer to the charge brought against the petitioner in the Show Cause
Notice dated 31.08.2023. In the Show Cause Notice dated 31.08.2023, the following charge
was framed against the petitioner :-
While you were posted at Police Reserve, Dibrugarh on 16.08.2023, you were detailed for
UTP Escort duty from Central Jail, Dibrugarh to Hon'ble SDJM Court, Naharkatia along with
Hav Paburam Nath, NK[UB] Prasanta Baruah, ABC / Atul Mohan, UBC / 512 Atul Dutta,
UBC / Minhaz Khan and UBC / Nipen Das, you appeared in intoxicated condition on duty and
created an unpleased situation at the court premises. After that S.I.[P] Santosh Deb Barma of
Naharkatia P.S. arrived at court premises and brought you to the Naharkatia P.S. and tested
with breath analyzer at Naharkatia P.S. where you were found with 321 mg/100 ml alcohol.
You were also conducted Medical examination at Naharkatia PHC by Dr. Puja Deori where
smell of alcohol substance was found from your mouth.
Your above act tantamounts to gross indisciplined conduct and dereliction of duty on your
part. Therefore, you are charged accordingly.
8. The Show Cause Notice was accompanied by a Statement of Allegation; a List of
Witnesses containing names of nine witnesses; and a List of Documents containing
specifically five nos. of documents. In response to the Show Cause Notice, the petitioner had
submitted a Reply on 05.09.2023, as already mentioned hereinabove. In the said Reply, the
petitioner had stated that at the relevant time, [i] he did not receive the payment of G.P.F. for
the previous three months; [ii] his sister-in-law had expired; and [iii] the marriage of his
daughter was scheduled to be held on 05.11.2023; and it was in view of those situations, the
petitioner was in mental stress on 16.08.2023 and prior to joining duty on that date, he
consumed alcohol. With such admission, he tendered his apology for his such acts and he
was also found to have made an undertaking that such type of incident would not happen in
the near future during his service career.
Page No.# 7/16
9. During the course of the departmental proceeding, the statements of nine witnesses
were recorded by the Enquiry Officer. The statements of the said nine witnesses bear the
signatures of the witnesses and the petitioner. One of the witnesses was a Sub-Inspector of
Police posted at Naharkatia Police Station on 16.08.2023. In his statement, the said witness
stated that on 16.08.2023, the Officer In-Charge, Naharkatia Police Station informed him that
one Constable of Police had created a situation in the court premises at Naharkatia in
inebriated condition and he was instructed to reach the court premises immediately to take
the said Constable of Police for medical examination. The said witness further stated that he
immediately reached the court premises and finding the delinquent / petitioner therein
sleeping on a bench, he took the delinquent / petitioner to the Police Station for breath
analysis test. Another witness, a Sub-Inspector of Police, stated in his statement that he
completed the breath analysis test of the delinquent / petitioner and the result of the breath
analysis test showed presence of 321 mg/100 ml alcohol. The said witness further stated that
after completion of breath analysis test, the delinquent / petitioner was forwarded for medical
examination. From the statements of the other witnesses, it has been established that on
16.08.2023, the delinquent / petitioner accompanied some of them from the District Jail,
Dibrugarh to the Court of learned SDJM, Naharkatia along with two under-trial prisoners
[UTPs] as escort party. It has further emerged that the escort party by taking the UTPs had
also gone to the court room of the learned SDJM, Naharkatia. The other witnesses had
mentioned that the delinquent / petitioner was taken to the Police Station for breath analysis
test and thereafter, for medical examination. During the disciplinary proceeding, a photograph
taken during the breath analysis test was exhibited along with a Report of the delinquent's /
petitioner's medical examination submitted by one Dr. Puja Deori, Naharkatia CHC.
10. From the records of the disciplinary proceeding, Departmental Proceeding no. 05 of
2023, it is noticed that the learned SDJM, Naharkatia had also reported about the incident
occurred on 16.08.2023 to the respondent no. 5 vide an Office Letter bearing Memo no.
JDL/NHKM/580/2023 dated 16.08.2023, that is, on the date of the incident itself. In the said
official letter, the learned SDJM, Naharkatia had reported that on the date of the incident, it
was reported by a lady before him that the delinquent / petitioner had outraged her modesty
and the said lady had, however, refused to submit any written complaint regarding the
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incident on the apprehension that the delinquent / petitioner might take action against her
family abusing his official position.
11. The statements of the witnesses recorded during the disciplinary proceeding were
recorded in presence of the delinquent / petitioner and the petitioner as the delinquent had
chosen not to cross-examine any of these witnesses. The petitioner has not made any plea in
the present writ petition regarding violation of the principles of natural justice during the
course of the departmental proceeding on the ground that he was denied the opportunity to
cross-examine the witnesses. Thus, the facts that when the petitioner / delinquent was made
to undergo the breath analysis test on 16.08.2023 and the said test recorded presence of 321
mg/100 ml alcohol, have remained unchallenged and unrebutted. Moreover, the petitioner /
delinquent had himself in first Reply dated 05.09.2023 and also in the subsequent second
Reply dated 23.11.2023, admitted about him consuming alcohol on 16.08.2023. The breath
analysis test was conducted during the duty hours of the petitioner / delinquent on
16.08.2023 prior to medical examination at the CHC, Naharkatia on 16.08.2023 itself. Apart
from the above, there was a medical examination report of the petitioner / delinquent
submitted by Dr. Puja Deori, Naharkatia CHC recording that when examined, the petitioner /
delinquent was found intoxicated with alcohol and there was smell of alcohol from his mouth.
It was in such backdrop, the Enquiry Report submitted by the Enquiry Officer on 07.11.2023
recorded the finding that during the enquiry, it had been established that the petitioner /
delinquent was found to have taken alcohol during the time of his official duty hours. In the
Enquiry Report, the Enquiry Officer had recorded that the allegation against the petitioner
about consuming alcohol during official duty hours was held to be proved. After consideration
of the Enquiry Report, the impugned Order came to be passed on 30.11.2023 imposing the
major penalty of removal w.e.f. 30.11.2023 upon the petitioner / delinquent. By disposing of
the disciplinary proceeding, Departmental Proceeding no. 05 of 2023 by the Order dated
30.11.2023, the respondent no. 5 as a Disciplinary Authority had further held that the period
of suspension of the petitioner / delinquent from 17.08.2023 to 09.10.2023 would be treated
as dies-non as the acts of the petitioner / delinquent was found to be an act of indisciplined
conduct, more particularly, for the reason that his such act in the court premises of the
learned SDJM, Naharkatia had brought disrepute to the D.E.F.
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12. When an appeal was preferred by the petitioner / delinquent before the Appellate
Authority, the same was numbered and registered as Appeal no. 01/2024. After consideration,
the appeal, Appeal no. 01/2024 was disposed of by an Order dated 05.02.2024. In the Order
dated 05.02.2024, the Appellate Authority had inter-alia observed as under :-
15. By perusing the ground of the appellant and also scrutinizing the DP file, this appellate
has some observations :-
a. In the first place, the DP was drawn up against the appellant as per penalty laid down in
sec. 65 of Assam Police Act, 2007 r/w Rule 66 of AP Manual Part III and Article 311 of the
Constitution of India and Rule 7 of Assam Service [Discipline & Appeal] Rule 1964.
b. The charge against the appellant was enquired through an enquiry officer by initiating a
departmental proceeding.
c. The EO have conducted enquiry by giving opportunity to the appellant to cross verify the
truth of statements of the witnesses and there was no denial of principle of natural justice.
d. As per procedure Departmental proceeding go through several steps, such as
i. Lodging complaint or making of allegation of misconduct.
ii. Holding of preliminary enquiry.
iii. Consideration of preliminary enquiry.
iv. Show cause notice to the delinquent.
v. Replying of the delinquent.
vi. Issuance of statement of allegation mentioning charge of misconduct of the
delinquent if reply is unsatisfactory.
vii. Scrutiny of the reply by the DA.
ix. Appointment of Enquiry Officer and nomination of presenting officer.
x. Legal assistance for defence if desired.
xi. Attendance and recording of oral evidence of witnesses giving sufficient
opportunity for cross examination.
xii. Submission of enquiry report.
xiii. Second show cause to the delinquent with copy of enquiry finding.
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xiv. Submission of reply by the delinquent and consideration of past records.
xv. Penalty proposed.
xvi. Final Order.
16. In the present case all steps mentioned in Para 15 are followed and actions of all steps
are recorded in the proceeding file.
17. Analyzing the entire facts of the proceeding and upon consideration of matters and settled
procedure, this appellate is of considered opinion that the order passed by the DA is affirmed
and is not liable to be set aside. The appeal accordingly, stands not granted.
18. As such the appeal petition is disposed off.
13. The scope and ambit of the power of judicial review under Article 226 of the
Constitution in a matter of disciplinary proceeding is limited in the sense that the writ court
while considering any matter relating to disciplinary proceeding and the order passed thereon
by the disciplinary authority and / or the appellate authority, does not sit as a court of appeal.
Ordinarily, a writ court does not substitute the views of the disciplinary authority and / or the
appellate authority unless an exceptional case from the obtaining facts and circumstances is
made out. It is not the case of the petitioner that there was violation of the principles of
natural justice during the course of the disciplinary proceedings. When a charge is found to
be proved, as happened in the instant case, it is the disciplinary authority with whom the
discretion lies to decide as to what kind of punishment is to be imposed. It is settled that
such discretion has to be examined objectively having regard to the nature and gravity of the
charge. It is the disciplinary authority, who has the discretion to decide about a particular
penalty, specified in the extant rules, to be imposed.
14. In Brijesh Chandra Dwivedi [supra], the employee, Brijesh Chandra Dwivedi [since
deceased] was a driver posted at the 12 th Battalion, P.A.C. at Fatehpur. While the employee
[since deceased] was on duty, on the relevant date, driving a truck carrying the P.A.C.
personnel from Fatehpur to Allahabad on Kumbh Mela duty, the vehicle driven by the
employee [since deceased] got involved in an accident with a jeep. The employee [since
deceased] was charged for having caused the accident by dashing his truck on the back side
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of the jeep while driving under the influence of alcohol. Medical examination conducted on
the same date resulted in the affirmative that the employee [since deceased] was under the
influence of alcohol. In the departmental enquiry conducted thereafter, punishment of
dismissal was awarded by the disciplinary authority and the said punishment was affirmed by
the appellate authority. When a writ petition preferred against the award of punishment of
dismissal before the High Court, the High Court dismissed the writ petition. Thereafter, an
appeal was preferred before the Hon'ble Supreme Court of India. It was during pendency of
the proceeding before the Hon'ble Supreme Court, the employee expired and thereafter, his
legal heirs were brought on record. The Hon'ble Supreme Court of India has noted that the
fact that the employee [since deceased] was driving the truck under the influence of alcohol
had been established and proved, even on the medical examination conducted on the same
date. It has been observed that driving the truck carrying the P.A.C. personnel under the
influence of alcohol is a very serious misconduct and such indiscipline cannot be tolerated,
that too, in the disciplined Military. It has also been observed that merely because there was
no major loss and it was a minor accident, it cannot be a ground to show leniency. It has
been further observed that driving vehicle under the influence of alcohol is not only a
misconduct but also an offence. The Hon'ble Supreme Court considering the statements of
the employee [since deceased] at the time of enquiry and the explanation given by him, had
found that the punishment of dismissal could be said to be harsh and in the peculiar facts and
circumstances of the case, it should be treated as one for compulsory retirement. As the
employee had since died, the Hon'ble Supreme Court had converted the punishment of
dismissal to that of compulsory retirement, with a further direction that the death-cum-
retirement benefits and the family pension, if any, should be paid to the legal heirs of the
deceased employee.
15. In Deputy Commissioner Kendriya Vidyalaya Sangthan and others vs. J. Hussain,
reported in [2013] 10 SCC 106, the respondent employee, an Upper Division Clerk, governed
under the provisions of Rule 14 of the Central Civil services [CCA] Rules, 1965, entered into
the office of the Principal of Kendriya Vidyalaya Sangthan at around 11-30 a.m. on
24.05.2000 in a drunken state. In the reply to the show cause notice, the respondent
admitted about the incident, namely, he entered the office of the Principal in inebriated
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condition. He had, however, denied about his entering into the office of the Principal forcibly.
The respondent also offered his unconditional apology for consumption of alcohol and
requested the disciplinary authority to take a sympathetic view of the matter and pardon him.
No regular enquiry was conducted on the basis of the admission made by the respondent in
its reply. The penalty of removal from service for the said act of misconduct was imposed.
The departmental appeal filed by the respondent was also dismissed by the appellate
authority. When the respondent challenged the penalty before the High Court, the High Court
found the penalty of removal from service to be disproportionate to the nature and gravity of
the misconduct on the part of the respondent and invoking the doctrine of proportionality, the
High Court had directed reinstatement of the petitioner into service with continuity of service
only for the purpose of pensionary benefits. It was in such backdrop, the appeal was
preferred by the employer before the Hon'ble Supreme Court.
15.1. The Hon'ble Supreme Court had found the only question to be examined was whether
the penalty of removal from service inflicted upon the respondent therein by the disciplinary
authority / appellate authority offended the principle of proportionality, that is, whether the
penalty was disproportionate to the gravity of the misconduct to the extent that it shocked
the conscience of the Court and should be treated so arbitrary so as to term it as violative of
Article 14 of the Constitution. The Hon'ble Supreme Court has answer the question in the
following manner :-
6. As pointed out above, in his reply the respondent accepted the charge, though he insisted
that it was not a case of forcible entry. It would also be pertinent to add that immediately after
the incident the police was called and the respondent was medically examined as well. The
medical examination confirmed that the respondent was under the influence of liquor.
7. When the charge is proved, as happened in the instant case, it is the disciplinary authority
with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of
course, this discretion has to be examined objectively keeping in mind the nature and gravity of
the charge. The disciplinary authority is to decide a particular penalty specified in the relevant
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Rules. A host of factors go into the decision making while exercising such a discretion which
include, apart from the nature and gravity of misconduct, past conduct, nature of duties
assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty,
if any, and the discipline required to be maintained in the department or establishment where he
works, as well as extenuating circumstances, if any exist.
8. The order of the appellate authority while having a relook at the case would, obviously,
examine as to whether the punishment imposed by the disciplinary authority is reasonable or
not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can
reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the
appellate authority departmentally is ordinarily not available to the court or a tribunal. The court
while undertaking judicial review of the matter is not supposed to substitute its own opinion on
reappraisal of facts. [See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [(2010) 5 SCC 775].
In exercise of power of judicial review, however, the court can interfere with the punishment
imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited
scope of judicial review is permissible and interference is available only when the punishment is
shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the
opinion of the court lesser punishment would have been more appropriate, cannot be a ground
to interfere with the discretion of the departmental authorities.
* * * * *
11. To be fair to the High Court, we may mention that it was conscious of the narrowed scope
of the doctrine of proportionality as a tool of judicial review and has stated so while giving lucid
description of this principle in the impugned judgment. However, we are of the view that it is the
application of this principle on the facts of this case where the High Court has committed an
error while holding that the punishment was shocking and arbitrary. Moreover, while interfering
therewith, the High Court has itself prescribed the punishment which, according to it, "would
meet the ends of justice", little realising that the Court cannot act as a disciplinary authority and
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impose a particular penalty. Even in those cases where it is found that the punishment is
disproportionate to the nature of charge, the Court can only refer the matter back to the
disciplinary authority to take appropriate view by imposing lesser punishment, rather than
directing itself the exact nature of penalty in a given case.
12. Here in the given case, we find that the High Court has totally downplayed the seriousness
of misconduct. It was a case where the respondent employee had gone to the place of work in
a fully drunken state. Going to the place of work under the influence of alcohol during working
hours [it was 11.30 a.m.] would itself be a serious act of misconduct. What compounds the
gravity of delinquency is that the place of work is not any commercial establishment but a
school i.e. temple of learning. The High Court has glossed over and trivialised the aforesaid
aspect by simply stating that the respondent was not a 'habitual drunkard' and it is not the case
of the management that he used to come to the school in a drunken state 'regularly or quite
often'. Even a singular act of this nature would have serious implications.
* * * * *
14. Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an
inebriated condition and thereafter forcibly entering into the Principal's room would constitute a
serious misconduct. Penalty of removal for such a misconduct cannot be treated as
disproportionate. It does not seem to be unreasonable and does not shock the conscience of
the court. Though it does not appear to be excessive either, but even if it were to be so, merely
because the court feels that penalty should have been lighter than the one imposed, by itself is
not a ground to interfere with the discretion of the disciplinary authorities. The penalty should
not only be excessive but disproportionate as well, that too to the extent that it shocks the
conscience of the court and the court is forced to find it as totally unreasonable and arbitrary
thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the
repetition that discretion lies with the disciplinary / appellate authority to impose a particular
penalty keeping in view the nature and gravity of charge. Once it is found that the penalty is not
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shockingly disproportionate, merely because in the opinion of the Court lesser punishment
could have been more justified, cannot be a reason to interfere with the said penalty.
16. Observations recorded in the afore-quoted paragraphs in J. Hussain [supra] appear to
be of import and relevance also to the case in hand. The employee in J. Hussain [surpa] was
an Upper Division Clerk in Kendriya Vidyalaya Sangthan. On the other hand, the delinquent /
petitioner involved in the case in hand is a Constable of Police detailed with the task of
escorting under-trials [UTPs] from the jail premises to the Court premises, which is to be
treated as temple of justice. The incident dated 16.08.2023 had occurred when the petitioner
along with other police personnel was tasked with the duty of accompanying two UTPs from
the District Jail, Dibrugarh to the Court of learned SDJM, Naharkatia. Any lapse on the part of
any of the escort duty personnel had the propensity of causing serious ramifications either
inside or outside the Court premises. The petitioner being a member of disciplined force, had
the duty to exercise extreme discipline, alacrity and alertness. Consumption of alcohol during
the official duty hours, that too, when the petitioner was tasked with the duty of
accompanying UTPs from the jail premises to the Court premises, is a serious case of
misconduct. It is true that in case of penalty of removal, dismissal or compulsory retirement,
hardship would result but that does not mean that in a given case, punishment of removal
can be modified by the Court on the ground of misplaced sympathy. Though a contention has
been advanced on the basis of the decision in Brijesh Chandra Dwivedi [supra] for
conversion of penalty of removal to one under compulsory retirement, this Court in the given
facts and circumstances obtaining in the case in hand, is not persuaded to agree with such
contention as any such order of conversion of the penalty of removal to a punishment of
compulsory retirement would be a case of misplaced sympathy.
17. A Constable in the Assam Police, in present case, is found to have acted in public in a
manner which brought disrepute to the disciplined force. It is not a case where the delinquent
/ petitioner was forced or compelled to consume alcohol by others. From his own admission,
it is evident that he had consumed alcohol on his own during the duty hours and in an
inebriated condition, he proceeded to discharge his official duty of escorting UTPs from the
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jail premises to the Court premises, exhibiting extreme carelessness and indiscipline which
were acts unbecoming of a member of a disciplined force. Taking into perspective and
consideration all the factors, this Court is of the unhesitant view that in the given facts and
circumstances, the penalty of removal cannot be held shockingly disproportionate and harsh
for any kind of interference in exercise of extra-ordinary and discretionary jurisdiction under
Article 226 of the Constitution of India.
18. For the discussion made above and the reasons assigned hereinabove, this writ
petition is found to be bereft of any merits. Consequently, it is liable to be dismissed. It is
accordingly ordered. There shall, however, be no order as to cost.
JUDGE
Comparing Assistant
