Gauhati High Court

Page No.# 1/19 vs Commandant And 5 Ors on 24 July, 2025

                                                                            Page No.# 1/19

GAHC010242322017




                                                                     2025:GAU-AS:9527
                           THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WP(C)/6337/2017

           RAJENDER PAL S/O- CHHANGU RAM, R/O- VILL BANERDHI, P.O- PEHAD,
           TEHSIL SARKAGHAT, DIST- MANDI, HIMACHAL PRADESH, PIN- 175040

           VERSUS

           COMMANDANT and 5 ORS.
           CENTRAL INDUSTRIAL SECURITY FORCE, ONGC, NAZIRA, DIST-
           SIVASAGAR, ASSAM

           2:DEPUTY INSPECTOR GENERAL CENTRAL INDUSTRIAL SECURITY
           FORCE ONGC NAZIRA DIST- SIVASAGAR ASSAM

           3:DEPUTY COMMANDANT
            CENTRAL INDUSTRIAL SECURITY FORCE UNIT LPG
            GAS AUTHORITY OF INDIA LTD LAKWA DIST- SIVASAGAR ASSAM

           4:INSPECTOR GENERAL
            CENTRAL INDUSTRIAL SECURITY FORCENES HQRS
            KOLKATA WEST BENGAL

           5:DIRECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE
            CGO COMPLEX LODHI ROAD 13 NEW DELHI MIN OF HOME

           6:UNION OF INDIA THROUGH ITS SECURITY MIN OF HOME AFFAIRS
            NEW DELHI PIN

Advocate for the Petitioner : MRS.B DAS, MR.A DASGUPTA,MR.R SARKAR
Advocate for the Respondent : C.G.C., MR.K K PARASAR(R- 1-6),ASSTT.S.G.I.

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:::BEFORE:::

HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 24.07.2025 Date of Judgment: 24.07.2025

Judgment & order(Oral)

Heard Mr. Ashis Dasgupta, learned senior counsel, assisted by Ms. Basabi Das, learned counsel, appearing on behalf of the petitioner. Also heard Mr. K. K. Parasar, learned CGC, appearing on behalf of the respondents.

2. The challenge in the present proceeding is to an order, dated 14-10- 2010, passed by the Deputy Inspector General, Central Industrial Security Force, Oil and Natural Gas Commission Ltd., Nazira, imposing the penalty of compulsory retirement from service with full pensionary benefits upon the petitioner, herein.

3. The facts, in brief, requisite for adjudication of the issue arising in the present proceeding, is noticed, as under:

The petitioner, herein, was appointed as a constable in the Central Industrial Security Force in the year 1992. On 26-04-2009, when the petitioner was detailed for quarter guard duty, one Shri K. C. Kalita, a constable with the Intelligence Bureau of Central Industrial Security Force, had come to him making some queries. The discussion between the petitioner and the said constable Shri K. C. Kalita, led to an altercation and Page No.# 3/19

it is contended by the petitioner that the altercation was ultimately pacified at the instance of other personnel deployed at the place. However, said Shri Kalita proceeded to lodge a complaint with the higher authorities of the Force to the effect that the petitioner had assaulted him.

Basing on the allegation now levelled against the petitioner, he was, vide an order, dated 27-04-2009, placed under suspension. Thereafter, a preliminary enquiry was conducted in the matter and basing on the materials coming on record, therein; the disciplinary authority being satisfied that a misconduct was committed in the matter by the petitioner, herein, a memorandum of charge came to be issued to the petitioner on 11-05-2009, levelling against him therein, an allegation of having assaulted said Shri Kalita without provocation on 26-04-2009. The petitioner was charged with having committed serious misconduct, indiscipline and an act unbecoming of a good member of the armed Force like the Central Industrial Security Force.

The petitioner submitted his written statement against the said memorandum of charge, dated 11-05-2009, denying the charge levelled against him. The written statement submitted by the petitioner, herein, not being found to be satisfactory; the disciplinary authority appointed an enquiry officer as well as a presenting officer to enquire into the charges levelled against the petitioner vide the said memorandum of charge. The enquiry officer conducted the departmental enquiry and on conclusion of the same, submitted his report on 06-10-2009, holding the charges levelled against the petitioner, as proved. The disciplinary authority, on perusal of the findings of the enquiry officer, concurred with the same and proceeded Page No.# 4/19

to forward a copy, thereof, to the petitioner giving him 15 days time to submit his representation. The petitioner received the said enquiry report on 10-10-2009 and submitted his representation against the same on 24- 10-2009. The disciplinary authority, thereafter, taking into consideration all the materials coming on record; proceeded to impose the penalty of removal from service, which shall not be a disqualification for future employment under the Government upon the petitioner, vide the order, dated 04-11-2009.

The petitioner, herein, being aggrieved by the said order, dated 04- 11-2009, preferred an appeal in the matter on 09-11-2009 before the Deputy Inspector General, Central Industrial Security Force Unit, Oil and Natural Gas Commission Ltd., Nazira. The appellate authority upon consideration of the appeal so preferred by the petitioner and the materials available on record; proceeded vide order, dated 14-01-2010, to modify the penalty imposed upon the petitioner vide the order, dated 04-11-2009 and imposed the penalty of compulsory retirement from service with full pensionary benefits upon the petitioner.

Being aggrieved, the petitioner, herein, had initially instituted a writ petition before the High Court of Himachal Pradesh at Shimla. However, the said writ petition was withdrawn on 04-09-2015 and the present proceeding was instituted by the petitioner before this Court.

4. Mr. Dasgupta, learned senior counsel appearing on behalf of the petitioner, at the outset, has submitted that the respondent authorities before issuance of the memorandum of charge, dated 11.05.2009, had Page No.# 5/19

conducted a preliminary enquiry into the matter. However, along with the said memorandum of charge, the petitioner was not furnished with a copy of the preliminary enquiry. The learned senior counsel has further submitted that the materials coming on record in the preliminary enquiry being the basis, for the disciplinary authority to arrive at a satisfaction of commission of a misconduct by the petitioner; the copy of the preliminary enquiry report, thereof, was invariably required to be furnished to him.

5. Mr. Dasgupta, learned senior counsel, has submitted that the petitioner, herein, had approached the departmental authority praying for a copy of the said preliminary enquiry report, however, the departmental authority by contending that the same was not a listed document in the list of documents annexed to the memorandum of charge, dated 11-05-2009, had refused to furnish a copy, thereof, to the petitioner. The learned senior counsel has further submitted that the non-furnishing of the preliminary enquiry report has the effect of vitiating the disciplinary proceeding initiated by the disciplinary authority against the petitioner in addition to compromising his defence in the matter. Mr. Dasgputa, learned senior counsel, has, accordingly, submitted that the said deficiency existing in the conduct of the disciplinary authority against the petitioner, herein, goes to the root of the matter and accordingly, the proceeding itself would mandate an interference from this Court.

6. In support of his such submissions, Mr. Dasgupta, learned senior counsel for the petitioner, has relied upon the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Shatrughan Lal & anr., reported in (1998) 6 SCC 651. The learned senior counsel has Page No.# 6/19

submitted that one of the listed witnesses, i.e., Constable B. K. Pal, who had deposed in his favour in the preliminary enquiry, was also subjected, for making such statement, to a disciplinary proceeding by the respondent authorities. The learned senior counsel has submitted that the action taken by the disciplinary authority against said Shri Pal, would go to reveal that the proceedings initiated against the petitioner was so instituted with a pre- determined mind to hold the petitioner guilty of the charge framed against him.

7. Mr. Dasgupta, learned senior counsel, has further submitted that in the enquiry held in the matter against the petitioner, said Shri Pal had deposed against the petitioner and the same was only on account of the pressure exerted on him by the departmental authority.

8. Mr. Dasgupta, learned senior counsel, has submitted that the petitioner, herein, was denied an opportunity to have the assistance of a Defence Assistant of his choice by the disciplinary authority and accordingly, the defence of the petitioner, in the matter, was compromised. Accordingly, Mr. Dasgupta, learned senior counsel, has submitted that the order, dated 14-10-2010, impugned in the present proceeding, would mandate an interference by this Court with a further direction to the respondent authorities for reinstatement of the petitioner in his service with all consequential benefits.

9. Per contra, Mr. Parasar, learned CGC, appearing on behalf of the respondent authorities, has submitted that the assault committed by the petitioner upon Shri Kalita amounted to a misconduct, in-as-much as, the Page No.# 7/19

petitioner and said Kalita, were members of a disciplined Force and such action on the part of the member of a disciplined Force, was not permissible to be condoned, with a view to maintain discipline in the Force.

10. Mr. Parasar, learned CGC, by referring to the contention of Mr. Dasgupta, learned senior counsel for the petitioner that the defence of the petitioner, herein, was compromised on account of not being furnished with the enquiry report, has submitted that although the preliminary enquiry report was not furnished to the petitioner, but, all the statements of the witnesses recorded in the preliminary enquiry, were provided to him along with the charge-sheet.

11. With regard to the allegation of Mr. Dasgupta, learned senior counsel for the petitioner, that the petitioner, herein, was not allowed to take assistance of a Defence Assistant; Mr. Parasar, learned CGC, has submitted that during the enquiry, the petitioner was asked as to whether, he would require a Defence Assistant, however, he denied to take assistance of any Force member. The learned CGC has further submitted that during the enquiry, the petitioner was given all opportunity to cross-examine the departmental witnesses and further, the copies of the exhibits so made during the course of the enquiry by the departmental witnesses, were also furnished to him.

12. In the above premises, Mr. Parasar, learned CGC, has submitted that the penalty imposed by the appellate authority upon the petitioner being so imposed by taking a lenient view on the matter; would not mandate any interference from this Court.

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13. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

14. At the outset, the charge framed against the petitioner, herein, vide the memorandum of charge, dated 11.05.2009, being relevant, is extracted hereinbelow:

"ARTICLE OF CHARGE - I That No.924521991 Constable Rajender Pal of CISF Unit LPG GAIL Lakwa who was detailed for Quarter Guard duty assaulted Constable K C Kalita without any provocation on 26.04.2009 at about 0620 hrs. The above on the part of No. 924521991 Constable Rajender Pal amounts to serious misconduct, indiscipline, and an act of unbecoming of a good member of the Armed Force of the Union like CISF. Hence the Charge."

COMMANDANT"

15. The memorandum of charge, dated 11-05-2009, had, as its annexures, a list of documents as well as a list of witnesses. The same being also relevant for the adjudication of the issue arising in the present proceeding, is extracted hereinbelow:

"ANNEXURE-III LIST OF DOCUMENTS BY WHICH THE ARTICLE OF CHARGE FRAMED AGAINST NO. 924521991 CONSTABLE RAJENDER PAL (UNDER SUSPENSION) OF CISF UNIT LPG GAIL LAKWA (ASSAM) ARE PROPOSED TO BE SUSTAINED

1. Statement of No. 993610422 51/Exe S C Ghose, CISF Unit, LPG GAIL Lakwa

2. Statement of No. 763190158 HC/GD S S Gogai, CISF Unit, LPG GAIL, Lakwa

3. Statement of No. 854504082 HC/GD Shanta Raj, CISF Unit, LPG GAIL Lakwa

4. Statement of No. 074472086 Constable S S Yadav CISF Unit, LPG GAIL, Lakwa

5. Statement of No. 074670086 Constable KK Meena CISF Unit, LPG GAIL, Lakwa

6. Statement of No. 994450021 Constable K C Kalita CISF Unit, LPG GAIL, Lakwa

7. Statement of No. 922290714 Constable B K Pal CISF Unit, LPG GAIL, Lakwa

8. Report submitted by Constable K C Kalita dated 26.04.2009

9. Extract of GD No. (651) dated 26.04.2009 at Control Room of CISF Unit, LPG GAIL Lakwa Page No.# 9/19

10. Any other document if considered necessary during the course of enquiry.

COMMANDANT"

"ANNEXURE-IV LIST OF WITNESSES BY WHOM THE ARTICLE OF CHARGE FRAMED AGAINST NO. 924521991 CONSTABLE RAJENDER PAL OF CISF UNIT LPG GAIL (ASSAM) ARE PROPOSED TO BE SUSTAINED

1. No. 993610412 SI/Exe 5 C Ghose, CISF Unit, LPG GAIL Lakwa

2. No. 763190158 HC/GD S S Gogai, CISF Unit, LPG GAIL, Lakwa

3. No. 854504082 HC/GD Shanta Raj, CISF Unit, LPG GAIL Lakwa

4. No. 074472086 Constable S S Yadav CISF Unit, LPG GAIL, Lakwa

5. No. 074670086 Constable K K Meena CISF Unit, LPG GAIL, Lakwa

6. No. 994450021 Constable K C Kalita CISF Unit, LPG GAIL, Lakwa

7. No. 922290714 Constable B K Pal CISF Unit, LPG GAIL, Lakwa

8. Any other witness if considered necessary during the course of enquiry

COMMANDANT"

16. A perusal of the said charge levelled against the petitioner vide the memorandum of charge, dated 11.05.2009, would go to reveal that it was alleged against the petitioner that he had while being detained for quarter guard duty, assaulted Constable K. C. Kalita, without any provocation on 26.04.2009, at about 6.20 hours. Basing on the said allegation; the petitioner was placed under suspension vide an order, dated 27.04.2009. Thereafter, the materials available on record, revealed that a preliminary enquiry was held to ascertain the allegations so levelled against the petitioner by Constable Kalita. Upon the preliminary enquiry report coming on record, the disciplinary authority being satisfied about commission of a misconduct by the petitioner, herein, had issued the memorandum of charge, dated 11.05.2009, framing the charge as noticed hereinabove. The petitioner submitted his written statement in defence and thereafter, participated in the enquiry held in the matter. On conclusion of the Page No.# 10/19

departmental enquiry, the enquiry officer submitted his report on 06.10.2009. The enquiry report was forwarded to the petitioner and he had also submitted a representation against the same. The disciplinary authority, thereafter, taking into consideration, the materials coming on record including the representation submitted in the matter by the petitioner, herein, proceeded vide order, dated 04.11.2009, to impose the penalty of removal from service upon him. The petitioner preferred an appeal against the said order, dated 04.11.2009. The appellate authority, on consideration of the materials coming on record, proceeded vide order, dated 04.01.2010, to modify the penalty of removal from service imposed upon the petitioner by the disciplinary authority to that of compulsory retirement from service with full pensionary benefits, vide order, dated 14.10.2010, which is presently under challenge.

17. Mr. Dasgupta, learned senior counsel, has submitted that the petitioner after being served with a copy of the memorandum of charge, dated 11.05.2009, had requested the departmental authority for being furnished with a copy of the preliminary enquiry report as well as the materials collected, therein. However, the departmental authority had rejected the said request of the petitioner by contending that the preliminary enquiry report was not a listed document annexed to the said memorandum of charge. The learned senior counsel for the petitioner has further submitted that non-furnishing of the said preliminary enquiry report, having denied an opportunity to the petitioner to frame his defence in the matter; the disciplinary proceeding initiated against the petitioner, herein, stood vitiated.

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18. Mr. Dasgupta, learned senior counsel for the petitioner, having relied upon the decision of the Hon'ble Supreme Court rendered in the case of Shatrughan Lal (supra); the said decision is being noticed by this Court, at this stage. The Hon'ble Supreme Court, in its decision, rendered in the case of Shatrughan Lal(supra); had drawn the following conclusions:

"6. Preliminary enquiry which is conducted invariably on the back of the delinquent employee may often constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita v. Union of India wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non- supply of copies of those documents had not caused any prejudice to the delinquent in his defence.

7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of the articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.

8. Learned counsel appearing for the appellant has contended that the opportunity to inspect the documents was, as a matter of fact, provided to him as set out in para 10 of the written statement filed before the Tribunal, in which, it was, inter alia, indicated as under:

"The petitioner was required to reply to the charge within a period of 15 days from the date of receipt of the charge-sheet and not from the date of the order as alleged in the petition. It is no doubt correct that the copies of the documents mentioned in the charge-sheet purporting to substantiate a particular charge were not supplied to the petitioner because it was not necessary and the petitioner had every right to inspect them at any time. It is, therefore, wrong to say that the petitioner was greatly handicapped for want of the copies of the documents mentioned above."

9. This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge-sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give the copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents of which the copies were asked for by him may be inspected. The access to record must be assured to him.

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10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge-sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during the preliminary enquiry had not caused any prejudice to the respondent in defending himself."

19. A perusal of the said conclusions drawn by the Hon'ble Supreme Court, in its decision, rendered in the case of Shatrughan Lal(supra), would go to reveal that the preliminary enquiry which is conducted invariably in the back of the delinquent, may often constitute the whole basis of a charge-sheet; therefore, before a person is called upon to submit his reply to the charge-sheet, he must, on request made by him in that behalf, be supplied the copies of the statements of the witnesses recorded during the preliminary enquiry, particularly, if those witnesses are proposed to be examined at the departmental trial. The Hon'ble Supreme Court, in its said decision, had not mandated the supply of the preliminary enquiry report, but, had laid down that the copies of the witnesses deposing during the preliminary enquiry, has to be supplied to the delinquent, and/or, he be permitted to inspect those documents.

20. Applying the said decision of the Hon'ble Supreme Court, rendered in the case of Shatrughan Lal(supra) to the facts of the present case; it is seen that in the list of documents annexed to the memorandum of charge, dated 11-05-2009, it was spelt-out that the charges levelled against the petitioner, herein, would also be established by the statement of the witnesses enlisted therein, which, undoubtedly, were the statements so recorded during the conduct of the preliminary enquiry.

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21. In the writ petition filed by the petitioner, no plea was taken to the effect that he, on request, was not furnished with the copies of the statements of the witnesses examined during the preliminary enquiry. A perusal of the contentions made by the petitioner in the writ petition, would go to reveal that he had the access to the statements made by the witnesses in the preliminary enquiry, inasmuch as, in his representation against the enquiry report; he had stated that in the preliminary enquiry, the charges of slapping Constable K. C. Kalita, was not established. The petitioner had further contended in the writ petition that Mr. B. K. Pal had deposed in the preliminary enquiry that the petitioner had not slapped Shri Kalita.

22. The said contentions of the petitioner, when viewed in the light of the categorical stand taken by the learned counsel for the respondents during the hearing of the matter that the preliminary enquiry report although not furnished to the petitioner, herein, the statements of the witnesses examined during the preliminary enquiry, were provided to the petitioner along with the charge sheet and the absence of any material to demonstrate that the petitioner was not furnished with the copies of the statements of the witnesses included in the list of documents; this Court is not in a position to accept the submission made by the learned senior counsel that the petitioner, herein, was not furnished with the copies of the documents mentioned in the list of documents which also included the statements of the witnesses examined during the preliminary enquiry. Accordingly, this Court is of the considered view that the respondent authorities while conducting the departmental proceeding against the petitioner, herein, had not committed any violation of the law laid down by the Hon'ble Supreme Court in the case of Shatrughan Lal (supra).

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23. The further contention of the learned senior counsel for the petitioner that the defence of the petitioner was compromised on account of the fact that he was not allowed to have the assistance of a Defence Assistant during the enquiry; is being considered only to be rejected. The said plea of the petitioner was dealt with by the respondents in the affidavit filed by them. The respondents in the said affidavit, have categorically stated that during the hearing held on 05-08-2009, the enquiry officer had, vide Question No. 9, categorically asked the petitioner whether he required assistance of any serving member of the Force to present the case on his behalf and if yes, to give the name in writing with consent letter from such Officer. However, it is contended that the petitioner had denied the assistance of any member of the Force. The said contention raised by the respondents in paragraph No. 11 of the affidavit in opposition, has not been disputed by the petitioner by way of filing a rejoinder thereto. Accordingly, this Court is of the considered view that the said contention of the petitioner would not mandate an acceptance.

24. Mr. Dasgupta, learned senior counsel for the petitioner, while making his arguments, has submitted that the incident involved in the present proceeding, being a slap made by the petitioner upon said Kalita, and the same being a result of an altercation taken place; the penalty of compulsory retirement from service imposed upon the petitioner, herein, is grossly disproportionate.

25. This Court, at this stage, would like to deal with the contention raised by the learned senior counsel for the petitioner that the penalty of dismissal from service as imposed upon the petitioner, is grossly disproportionate to Page No.# 15/19

the allegations as levelled against him and accordingly, the same requires to be interfered with.

26. This Court, in this context, would refer to the decision of the Hon'ble Supreme Court in the case of Chairman-cum-Managing Director, United Commercial Bank & ors. v. P. C. Kakkar, reported in (2003) 4 SCC 364, wherein in this connection, the following conclusions were drawn by the Court:

"15. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union [1971 (1) All E.R. 1148] observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application."

27. The allegations as levelled against the petitioner on being established in the inquiry held and the same having demonstrated a misconduct being committed in the matter by the petitioner who admittedly was a responsible employee of the disciplined Force; it is to be noted that the petitioner cannot, in any manner, be extended with any sympathy. The Page No.# 16/19

allegations levelled against the petitioner having been held to have been established and the misconduct as committed by him, being apparent, the penalty as imposed upon him by the appellate authority, cannot be held to be disproportionate to the proved misconduct. It is a settled position of law that the penalty that is to be imposed upon the petitioner is the discretion of the departmental authority. 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 Rules and the same is permissible to be re-considered by the appellate authority. A host of factors go into the decision making process 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 establishment where he so works, as well as extenuating circumstances, if any. Accordingly, the penalty as imposed upon the petitioner in the case in hand by the appellate authority, in the considered view of this Court; is proportionate to the allegations levelled against him and established in the inquiry.

28. It is only when the punishment is found by this Court to be outrageously disproportionate to the nature of the allegations levelled against the delinquent that the principle of proportionality would come into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it Page No.# 17/19

is totally unreasonable and arbitrary.

29. The principle of proportionality was first propounded by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service in the following words:(AC p. 410 D-E)

"........ Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality'."

30. The Hon'ble Supreme Court had approved the aforesaid principle in the case of Ranjit Thakur v. Union of India, reported in (1987) 4 SCC 611, wherein, the Hon'ble Supreme Court by emphasising that "all powers have legal limits" invoked the aforesaid doctrine in the following words in paragraph No. 25. Paragraph No. 25 of the said judgment being relevant, is extracted hereinbelow for ready reference: (SCC p. 620, para 25)

"25. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

31. In view of the pronouncement made by the Hon'ble Supreme Court in the matters, as noticed above; it is clear that it is not for the writ Court to interfere with the punishment imposed upon a delinquent in a disciplinary proceeding, which is a matter within the domain and the jurisdiction of the departmental authority. The respondent authorities having found the Page No.# 18/19

misconduct against the petitioner, to have been established; it is within their competence and jurisdiction to impose the penalty as it may consider adequate commensurating to the misconduct attributed and proved. It is not for the writ Court to prescribe another penalty in lieu of the penalty imposed by the disciplinary authority. It will have to be borne in mind that the responsibility entrusted to the petitioner, herein, being a responsible member, in a disciplined Force like the Central Industrial Security Force, is that of faith and confidence and once it is lost, it is for the authorities of the disciplined Force to decide what penalty is to be imposed keeping in view the necessity of maintaining discipline in the Force.

32. In case of the petitioner, herein, it is to be noted that the appellate authority on examination of the materials coming on record, has already modified the penalty of removal from service imposed upon the petitioner by the disciplinary authority, to that of compulsory retirement from service with full pensionary benefits. Accordingly, this Court is of the considered view that the penalty now imposed upon the petitioner, is not disproportionate to the allegations proved against him in the enquiry held. This Court has also not found any extenuating circumstance for interference with the penalty now imposed upon the petitioner.

33. Accordingly, in view of the above discussions and conclusions; this Court is of the considered view that, given the facts and circumstances as existing in the matter; it has to be held that the penalty as imposed upon the petitioner, herein, also commensurates to the misconduct as established against him in the matter and the same does not call for any interference from this Court.

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34. The writ petition, accordingly, is held to be devoid of any merit and the same, consequently, stands dismissed. However, there shall be no order as to costs.

JUDGE

Comparing Assistant