Ram Kishan vs U O I And Ors
2024 Latest Caselaw 970 Raj/2

Rajasthan High Court

Ram Kishan vs U O I And Ors on 8 February, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:6026]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                    S.B. Civil Writ Petition No. 29/2000

Ram Kishan S/o Shri Kishorilal, aged about 35 years, resident of
Village    and      Post   Mandha,         Tehsil      Behrod,      District   Alwar
(Rajasthan)
                                                                      ----Petitioner
                                      Versus
1. Union of India, through the Secretary to the Government of
India, Ministry of Home Affairs, New Delhi.
2. Inspector General of Police, Northern Sector, Central Reserve
Police Force, New Delhi.
3. Dy. Inspector General of Police, Central Reserve Police Force,
Ajmer.
4. Commandant, 9th Battalion, Central Reserve Police Force, ADC
Complex, Khumulwng, Radhapur, Tripura.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Ashish Sharma
For Respondent(s)           :     Mr. B. S. Chhaba, Dy. S. G. with
                                  Mr. Mukesh Dudi


                HON'BLE MR. JUSTICE SAMEER JAIN
                                       Order

Reportable
Reserved on                11/01/2024
Pronounced on              08/02/2024

1.           The instant petition is preferred with the following

prayers, as noted herein-under:-

      "(i) To quash and set aside the impugned orders dated
      08.06.1999 (Annexure-12), 04.11.1998 (Annexure-
      10)     and     16.01.1998    (Annexure-8)      with    all
      consequential service benefits in favour of petitioner.
      (ii) to direct the respondents to reinstate the petitioner
      in service and to pay and allow him all consequential
      service benefits forthwith.
      (iii) Any other appropriate relief which this Hon'ble
      Court may deem fit and proper be passed in favour of
      petitioner.

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      (iv) Cost of the writ petition be also awarded in favour
      of petitioner."

2.           Learned counsel for the petitioner has submitted that

the petitioner was employed with the Central Reserve Police Force

(hereinafter, C.R.P.F.). On 20.09.1997, when the petitioner was

posted at Kirania, West Agartala, Tripura, an incident of firing took

place through his rifle i.e. SLR (Self Loading Rifle), causing the

death of one, Dev Bahadur Thapa and aggravated injury to one,

Malaram.     Resultantly,        the     petitioner       was        arrested.   In   this

background,         on   07.11.1997,         the     First    Enquiry      Officer    was

appointed. Thereafter, on 10.11.1997, a charge-sheet was issued

upon the petitioner. Vide said charge-sheet, the following charges

were leveled upon the petitioner, as reproduced herein-under:-
     "¼1½ ua- 850852105 ykUl uk;d jkefd'ku ,@9 cVk0 dsfjiqcy dks
      fnukad 20-09-1997 dks dSEi ,fj;k dh isVªksfyax M~;wVh djus ds fy,
      fu;qDr fd;k Fkk] us viuh yksM jkbZQy ds lkFk tokuksa ds vkokl ykbZu
      esa fcuk fdlh l{ke vf/kdkjh dh vuqefr ls x;k] tks fd dSEi ds LFkkbZ
      vkns'k dh iw.kZ voKk ¼fMlvksfcfM;sUl½ gS] blfy, ds0fj0iq0cy vf/kfu;e
      1949 dh /kkjk 11¼1½ ds v/khu cy dk lnL; gksus dh gSfl;r ls voKk
      dk O;ogkj fd;k gS tks fd mDr vf/kfu;e dh /kkjk ds varxZr n.Muh;
      gSA
      2-      ua- 850852105 ykUl uk;d jkefd'ku ,@9 cVk0 dsfjiqcy dks
      fnukad 20-09-1997 dks 18%00 cts dSEi ,sfj;k dh isVªksfyax M~;wVh djus ds
      fy, fu;qDr fd;k FkkA og M~;wVh ij tkus ls igys viuh jkbZQy ds lkFk
      dSEi ds vUnj tgka vuqpjksa dk vkokl ¼VSUV½ Hkh ekStwn gS lkFk gh
      'kkSpky; Hkh gS] ogka ua0 790130018 lQkbZ deZppkjh ekykjke vius VSUV
      ds ikl [kM+k FkkA y?kq'kadk fuo`fÙk ds i'pkr~ jkLrs esa ua0 860090128
      tyokgd nsocgknqj Fkkik feyk vkSj mldh ykUl uk;d jkefd'ku ds
      chp ckrphr gqbZA ftls lqudj ykUl uk;d jkefd'ku us vius dks la;r
      ugha jpk vkSj gksf'k;kj ds lkFk gksrs gq, dSEi ds vkns'k ds fo:) vkokl
      {ks= esa tkdj >xMk fd;kA bl >xMs ds ifj.kkeLo:i gfFk;kj dk
      nq:i;ksx dj Qk;j dj fn;k tks tyokgd nso cgknqj ds 'kjhj ds ikj
      dj] lQkbZ deZpkjh ekykjke ds gkFk dh dykbZ dks ikj fd;k rFkk mlds
      isV ds vanj izos'k djrs gq, lkbM ls vkxs pyh xbZA ifj.kker% nksuksa ogka
      ij ?kk;ykoLFkk esa iMs jgsA rRdky nksuksa dks th-ch- iUr vLirky]
      vxjryk ys tk;k x;k] tgka jkLrs esa ty okgud nsocgknqj Fkkik us vius
      izk.k R;kx fn, vkSj lQkbZ deZpkjh ekykjke dks vLirky esa isV dk
      vkWijs'ku djok;k x;kA mldh fLFkfr cgqr gh uktqd FkhA cy dk lnL;
      gksus ds ukrs ykUl uk;d jkefd'ku us vius gfFk;kj dk nq:i;ksx djrs

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 [2024:RJ-JP:6026]                        (3 of 17)                           [CW-29/2000]


      gq, dSEi ds LFkkbZZ vkns'k dh voKk dh gSA tks fd cgqr gh t?kU; vijk/k
      gSA blfy, ds0fj0iq0cy vf/kfu;e 1949 dh /kkjk 11¼1½ ds v/khu cy dk
      lnL; gksus dh gSfl;r ls voKk dk O;ogkj fd;k gS tks fd mDr
      vf/kfu;e dh /kkjk ds varxZr n.Muh; gSA"
3.           It was further submitted by learned counsel for the

petitioner that on 15.11.1997, the Enquiry Officer visited the

prison.    However,         without        explaining         the     charges     and/or

producing/naming            any    witnesses,         the     petitioner    was    asked

whether he seeks to conduct cross-examination in his defense. As

a result of not having knowledge regarding the witnesses

produced, the petitioner refused to conduct cross-examination. On

28.11.1997,         the     erstwhile       Enquiry         Officer    was      changed.

Thereafter, a copy of the proceedings already signed by the said

Officer was furnished upon the petitioner, prescribing him a short

duration of 90 days, to contest the charges and present his

defense. Subsequently, on 24.12.1997, the Enquiry Officer prior to

the expiration of the said period of 90 days, submitted his report

to the Disciplinary Authority. In this background, vide order

impugned-I          dated     16.01.1998,            the     Disciplinary       Authority

dismissed the petitioner from service. After being enlarged on bail,

the petitioner preferred an appeal before the Appellate Authority

i.e. respondent no.3. However, the same was dismissed vide order

impugned-II dated 04.11.1998. Being further aggrieved, the

petitioner filed review against the order-in-appeal, which also

came to be dismissed vide order impugned-III dated 08.06.1999.

Accordingly, being dissatisfied by the impugned punishment of

dismissal from service and the corresponding orders upholding the

same, the petitioner has preferred the instant petition.




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4.           In order to draw out a case qua the punishment of

dismissal    from      service      being      disproportionate                as     well    as

arbitrary/unmaintainable,           learned        counsel          for   the        petitioner

argued that enquiry into the purported act of indiscipline was

conducted without following the due process of law. In this regard,

learned counsel averred that the Enquiry Officer never informed

the petitioner of the contents of the memorandum and articles of

the charges levelled upon the petitioner, imputation and list of

witnesses and the documents to be exhibited in connection

therewith. It is averred that without having explained the

aforesaid, the petitioner was merely asked to furnish his

signatures upon the pre-typed statements. Moreover, even when

the Enquiry Officer was changed, the Officer who was

subsequently appointed, never re-examined the petitioner.

5. Lastly, learned counsel for the petitioner contended that

the punishment of dismissal from service was disproportionate

and without jurisdiction. In support of the said contention, it was

averred that the memorandum containing the statement of

charges upon the petitioner clearly stated that the same has been

issued under Section 11(1) of the Central Reserve Police Force

Act, 1949 (hereinafter, Act of 1949) categorizing the conduct of

the petitioner to be of 'disobedience'. Resultantly, it was submitted

that Section 9 of the said Act deals with more heinous offenses,

whereas Section 10 deals with less heinous offenses and Section

11 concerns itself with minor punishments. Therefore, in such

circumstances where the memorandum containing the statement

of charges was issued under Section 11(1), there was no reason

to dismiss the petitioner from service. Hence, placing reliance

[2024:RJ-JP:6026] (5 of 17) [CW-29/2000]

upon the arguments noted above, it was conclusively argued that

the orders impugned ought to be quashed and set aside and as a

consequence thereof, the petitioner be reinstated into service with

all consequential benefits.

6. Per contra, learned counsel for the respondents has

submitted that the orders impugned have been passed in strict

compliance of the due process of law, after having carefully taken

into consideration the facts of the case, statements of the

witnesses, defense of the petitioner and also the documents

exhibited in connection therewith. Therefore, no interference with

the orders impugned is called for. In support of the said

opposition, learned counsel for the respondents submitted that the

act of indiscipline on part of the petitioner was of unbecoming of a

government servant, wherein he intentionally fired upon his

colleagues, resulting into the death of one, Dev Bahadur Thapa

and aggravated injury upon one, Malaram. Furthermore, it was

averred that due enquiry was conducted into the incident in

question, in relation to which, all the documents as well as

statements were duly served upon the petitioner to prepare his

defense. Adequate opportunity of hearing was afforded to the

petitioner as well. Therefore, the arguments put forth by the

petitioner qua violation of the due process of law in conducting the

inquiry are categorically false and are rather presented before this

Court as a mere afterthought. In this regard, learned counsel

submitted that subsequent to the occurrence of the incident in

question, the petitioner of his own volition, immediately pleaded

guilty to the offense before the concerned authorities. Hence, it is

evident that the arguments furnished by the petitioner are

[2024:RJ-JP:6026] (6 of 17) [CW-29/2000]

categorically false and fabricated. In support of the punishment of

dismissal from service being proportionate to the act committed

by the petitioner, reliance was placed upon the dictum of the

Hon'ble Apex Court as enunciated in Union of India vs. Diler

Singh: Civil Appeal No. 1133/2016. Resultantly, in light of the

arguments noted above, it was prayed that the instant petition be

dismissed.

7. Heard the arguments advanced by learned counsel for

both the sides, scanned the record of the petition and perused the

judgment(s) cited at Bar.

8. At the outset, prior to the discussion on merits, this

Court deems it to be in the interest of justice to briefly note the

cause and controversy of the instant petition.

9. Upon a considered perusal of the entire record including

the statements of witnesses as well as the criminal conviction

order of the petitioner dated 02.02.2005, it is noted that on

20.09.1997, the petitioner was detailed for area-patrolling duty,

having been assigned SLR No. 15366314. Prior to leaving for the

said patrolling duty, the petitioner voluntarily entered the

restricted area i.e. residential line of the cadets, while in

possession of the said rifle. In the said restricted area, the

petitioner saw the now-deceased Dev Bahadur Thapa as well as

Malaram. Upon an heated exchanged between the petitioner and

the said individuals, the petitioner issued a verbal warning to the

now-deceased Dev Bahadur Thapa, announcing that he shall shoot

him. Although, the same is noted to have been issued in jest.

Thereafter, the now-deceased Dev Bahadur Thapa, who was

unaware regarding the petitioner possessing the rifle on his

[2024:RJ-JP:6026] (7 of 17) [CW-29/2000]

person, inquired as to how he shall kill him, jokingly. However,

much to his surprise, the petitioner took out the rifle and

mistakenly/without intention opened fire, resulting into the

instantaneous death of Dev Bahadur Thapa and aggravated injury

on the abdomen of Malaram. Thereafter, the disciplinary as well as

criminal proceedings commenced against the petitioner. Vide

orders impugned dated 16.01.1998 i.e. order-in-original

dismissing the petitioner from service, 04.11.1998 i.e. appellate

order upholding the punishment of dismissal and 08.06.1999 i.e.

revisionary order maintaining the erstwhile order(s), the petitioner

was dismissed from service. Whereas, qua the criminal

proceedings, the petitioner was convicted for an offense under

Section 304-A of IPC.

10. Having perused the charge-sheet dated 10.11.1997, it

is noted that the same was issued detailing acts of severe crime,

resulting into the death of Dev Bahadur Thapa and aggravated

injury upon Malaram.

11. Moreover, upon a further perusal of the statements

tendered by the petitioner dated 15.11.1997 as well as the

corresponding record, the following admitted facts emerge, noted

herein-under:-

11.1 That prior to his departure for the assigned patrolling

duty, the petitioner entered the restricted area i.e. residential line

of the cadets, without authorization, whilst being in possession of

a rifle issued specifically for the said duty.

11.2 That the fire which was opened upon Dev Bahadur

Thapa and Malaram, was from the same rifle, as issued to the

petitioner for the purpose of patrolling.

[2024:RJ-JP:6026] (8 of 17) [CW-29/2000]

11.3 That the recovery of charges/bullets/residue so

effected, also corroborate the fact that the fire was opened from

the rifle issued to the petitioner for his specifically assigned

patrolling duty.

Therefore, at this juncture, the factors drawing out the

commission of the offense of opening fire by the weapon

specifically assigned to the petitioner for an otherwise official task,

inside the premises of a restricted area, is not disputed. Hence,

the only stipulation for the consideration of this Court, pertains to

assessing whether while passing the orders impugned, the due

process of law was complied with or not.

12. Having further perused through the record, this Court

deems it appropriate to hold that due process of law was indeed

observed by the Enquiry Officer/Disciplinary Authorities. In

support of the said assertion, the following observations are made,

as noted herein-under:-

12.1 That the petitioner himself, in his pleadings, has

admitted to the fact that while in judicial custody, the petitioner

was handed over a copy of the Memorandum dated 05.10.1997,

by Sub-Inspector T.S. Bisht on 10.11.1997.

12.2 That upon a perusal of Annexure 4 i.e. Proceedings of

the Enquiry/Copies of Statements, more particularly on Page 39,

the petitioner when asked about being in receipt of all the

documents relied upon by the prosecution, has categorically

stated that he was duly supplied with all the requisite documents

on 14.10.1997 itself. At the same time, the petitioner has also

duly admitted to the fact that all the charges leveled were duly

read out and explained to him.

[2024:RJ-JP:6026] (9 of 17) [CW-29/2000]

12.3 That as per the record, on 15.11.1997, the petitioner

even categorically admitted to the fact of commission of the

offense as alleged, before the Enquiry Officer.

12.4 That the record annexed with the petition, more

particularly Annexure-5, also reflects that the petitioner has duly

admitted to the fact that due opportunity of hearing was afforded

to the petitioner. Moreover, he was also specifically asked whether

he wished to cross-examine the prosecution witnesses, to which

he admittedly refused. The relevant extract of Annexure-5 is

reproduced herein-under:-

"cy la[;k &850852105 vfHk;qDr ykUl uk;d jkefd'ku bZ@9 cVk0 dEiuh nksckjk fo'ys"k.kksa esa fy;s x;s c;ku %&

loky ua- 01 %& D;k vki fiziks'ku ds xokgksa@lkf{k;ksa ds fy, x;s c;ku ds le; mifLFkr FksA tokc %& eSa mifLFkr ugha Fkk] exj ejs nks xokkgksa ds c;kuksa dh ,d izfr nh xbZ gSA loky ua- 02 %& D;k vkidks bu xokgksa ds Økl D;w'ku dk iwjk&iwjk ekSdk fn;k x;k FkkA tokc %& th gk¡ iwjk&iwjk ekSdk fn;k x;k FkkA loky ua- 03 %& D;k vkidks Hkh ØkWl D;w'ku ,oa fVvusl ¼xokgksa½ ds LVsVesaV dh izfr;k¡ izkIr gks xbZ gSA tokc %& th gk¡] eq>s izkIr gks xbZ gSA loky ua- 04 %& ifjf'k"V&03 o 04 ds tkr&01 ls 04 rd vkidks fn[kk;s x;s gSa] ftuls vkids f[kykQ vkVhZdy vkWQ pktZ@vkjksi Ýse fd;k x;k gSA tokc %& th gk¡] eq>s f[kk;s x;s gSa vkSj le> Hkh fy;k gSA loky ua- 05 %& D;k vki vius cpko i{k ds fy, fdlh fMQsal ;k xokg dk uke nsuk pkgrs gSaA tokc %& eSa vius cpko i{k ds fy, dksbZ fMQsal ;k xokg ugha is'k djuk pkgrkA loky ua- 06 %& D;k vki vius okn i{k esa dksbZ dkxtkr ;k izek.k&i= is'k djuk pkgrs gSaA tokc %& eSa vius cpko i{k esa dksbZ dkxtkr ;k izek.k&i= ugha is'k djukA"

[2024:RJ-JP:6026] (10 of 17) [CW-29/2000]

13. Therefore, upon a cumulative perusal of Annexure-5

i.e. Typed Written Statement signed by the Enquiry Officer as well

as Annexure-4 i.e. Copies of Statements, it can be conclusively

noted that the petitioner has duly admitted to the various

procedural mandates being complied with by the Enquiry Officer,

exhibiting adherence with the due process of law. Therefore, at

this stage, the grounds as raised by the petitioner claiming

procedural lapses in the enquiry so conducted, cannot be

countenanced, especially in view of the admissions made by the

petitioner himself vide Annexures-4 and 5 respectively.

14. Furthermore, it is noted that the learned Sessions

Court, vide judgment dated 02.02.2005, in the criminal trial

initiated against the petitioner, passed an order of conviction

under Section 304A of the IPC, having taken note of the absence

of intention on part of the petitioner to kill Dev Bahadur Thapa

and Malaram whilst simultaneously highlighting the negligence on

his part, resulting into the death of Dev Bahadur Thapa and

aggravated injury upon Malaram. The relevant extract of the order

of conviction is reproduced herein-under:-

"Order of Sentence

9. Heard the convict on the question of sentence. He prays for mercy of the Court.

Punishment for commission of offence punishable u/s 304(A) of the Indian Penal Code is imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Considering all aspects I sentence the convict Ram Kishan Yadav to suffer R.I. for 2(two) months and to pay a fine of Rs.2000/- (rupees two thousand), in default to suffer further imprisonment for 2(two) months.

From the record, it appears that the convict had already undergone imprisonment for 2(two months) during the period of investigation, inquiry and trial

[2024:RJ-JP:6026] (11 of 17) [CW-29/2000]

and as such the said period is set off against the period of sentence imposed upon the convict.

The convict be set at liberty if he pays the fine of Rs.2000/- (rupees two thousand), in default he will suffer imprisonment for 2(two) months.

Fine money, if realized, should be paid to the victim S/K. Mala Ram Singh.

Supply a copy of the judgment to the convict free of cost.

Also send a copy of the judgment to the District Magistrate, West Tripura, Agartala."

15. Lastly, this Court deems it appropriate to hold that the

argument raised by the learned counsel for the petitioner that the

punishment of dismissal from service is disproportionate as the

memorandum containing the statement of charges was issued

under Section 11(1) of the Act of 1949 which deals with minor

punishments only, cannot be countenance for the following

reasons:-

15.1 That the actions/negligence of the petitioner resulted

into the death of one, Dev Bahadur Thapa and aggravated injury

to one, Malaram.

15.2 That the fact of unauthorized entry into the restricted

area i.e. residential line of the cadets, is established and

undisputed.

15.3 That the fact of the bullets having been fired from the

rifle specifically assigned to the petitioner for patrolling is

undisputed.

16. Furthermore, the Hon'ble Apex Court in Diler Singh

(Supra) has held that Section 11(1) of the Act of 1949 would

include within its ambit the punishment of dismissal from service,

especially when the foregoing acts of indiscipline are duly

established. The relevant extract is reproduced herein-under:-

[2024:RJ-JP:6026] (12 of 17) [CW-29/2000]

"19. The core issue that emerges for consideration is whether Under Section 11(1) of the Act, punishment of dismissal can be imposed. The controversy is no more res integra. In Ghulam Mohd. Bhat (supra) while interpreting Section 11 of the Act, it has been held thus:

5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may subject to any Rules made under the Act, award any one or more of the punishments to any member of the Fore who is found guilty of disobedience, neglect of duty or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to the High Court the only punishments which can be awarded under this Section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, the interpretation is not correct, because the Section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.

6. The use of the words "in lieu of, or in addition to, suspension or dismissal", appearing in Sub-section (1) of Section 11 before Clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in Clauses (a) to (e) may also be awarded.

And again:

7. ...It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence Under Section 9 or Section 10.

[2024:RJ-JP:6026] (13 of 17) [CW-29/2000]

20. We respectfully agree with the said view and opine that under the scheme of the Act, in exercise of power Under Section 11(1) of the Act punishment of dismissal can be imposed. As is seen from the impugned order, the High Court, to reverse the conclusion of the first appellate Court, has extensively quoted from the decision of the Calcutta High Court rendered in Akhilesh Kumar (supra). Be it stated that the charges levelled against the delinquent officer therein was the same. The Division Bench of the Calcutta High Court, analysing the Act, especially Section 10(m) and various clauses of the CRPF Manual, came to hold thus:

It is an admitted position from the factual matrix of the departmental proceedings that the writ Petitioner/delinquent was posted in a camp. As per Rule of such positing in a camp/lines the concerned personnel is not free to move as per his choice even during the period when he is not on actual duty. The discipline of a camp is completely different in comparison with the posting of an individual in an office and or in other places outside of the camp. It is true, by rotation of 8 hours duty is allotted to the respective personnel who are attached to the camp and staying in the camp but that does not mean that when he will not be in active duty, he would be allowed to go outside of the camp without prior permission. From the relevant provision of Clauses 7.2 and 6.23 as already quoted it appears that absence without leave or permission from the camp would invite initiation of judicial trial of the delinquent if there is a serious and grave situation or otherwise a departmental enquiry. Hence, finding of the learned trial judge that as the delinquent/writ Petitioner was not on active duty, the aforesaid clauses got no effect, is not appealing us for its applicability to quash the order of dismissal.

However, from the aforesaid provision of maintaining discipline while a personnel is posted in a camp which requires a prior permission to leave the camp even for a short period from the Company Commander, we are of the view that the charge Under Article No. 1 was proved. Now, on the question of quantum of punishment, namely, dismissal from service as imposed on such charge,

[2024:RJ-JP:6026] (14 of 17) [CW-29/2000]

we are of the view that as under Clause 6.23 there is a provision for initiation of the departmental enquiry and as per decision only a minor punishment could be imposed and as Section 10(m) of CRPF Act provides the minor punishment issue in that field, we are of the view that dismissal being a major punishment should not have been passed by the Disciplinary Authority.

8. Considering all the issues, we are quashing the order of dismissal as well as the order of confirmation of such by the Appellate Authority and remanding the matter back to the Disciplinary Authority under the service Regulation of the delinquent to decide the quantum of punishment as would be commensurating with the charge of misconduct as admitted, which invites only minor punishment.

21. The aforesaid analysis reveals that the Division Bench has clearly held that the delinquent employee, being a member of the Force, could not have left the camp without prior permission. It has also opined when a personnel is posted in a camp, he is not free to move as per his choice even during the period when he is not on duty. However, as is manifest, the Division Bench has opined that the imposition of dismissal as a punishment, which is a major one, could not have been imposed by the disciplinary authority. The said opinion has been expressed without referring to the position of law that has been clearly laid down in the case of Ghulam Mohd. Bhat (supra). Thus, the basic premise is erroneous. In the impugned order, the writ court has, after reproducing the passage from Akhilesh Kumar (supra), opined that the controversy is covered by the judgment rendered by the High Court of Calcutta. It is extremely significant to note that the learned Single Judge has not even made an effort to appreciate the decision in Ghulam Mohd. Bhat (supra) though the same was relied upon by the learned first appellate Judge. Thrust of reasoning of the first appellate court was that a major punishment of dismissal could be imposed in law. It is quite unfortunate that the High Court has dislodged the finding without any analysis but reproducing a passage from the Calcutta High Court which had not referred to the ratio laid down by a two- Judge Bench of this Court in Ghulam Mohd. Bhat's

[2024:RJ-JP:6026] (15 of 17) [CW-29/2000]

case. Thus, the conclusion arrived at by the High Court is wholly unsustainable.

22. The learned Counsel for the Respondent has submitted that even if the charges have been proven, the punishment of dismissal in the obtaining factual matrix is absolutely harsh and shocking to the conscience. It is his submission that the punishment is disproportionate. The Respondent was a part of the disciplined force. He has left the campus without prior permission, proceeded to the market, consumed liquor and quarrelled with the civilians. It has been established that he had consumed liquor at the market place, and it has been also proven that he has picked up quarrel with the civilians. It is not expected of a member of the disciplined force to behave in this manner. The submission, as has been noted earlier, is that the punishment is absolutely disproportionate. The test of proportionality has been explained by this Court in Om Kumar and Ors. v. Union of India: (2001) 2 SCC 386, Union of India and Anr. v. G. Ganayutham:

(1997) 7 SCC 463 and Union of India v. Dwarka Prasad Tiwari: (2006) 10 SCC 388. In Dwarka Prasad Tiwari (supra), it has been held that unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate and shocking to the judicial conscience.

23. We are inclined to think so as a member of the disciplined force, the Respondent was expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in fancy. It is not a mild deviation which human nature would grant some kind of lenience. It is a conduct in public which has compelled the authority to think and, rightly so, that the behaviour is totally indisciplined. The Respondent, if we allow ourselves to say so, has given indecent burial to self- control, diligence and strength of will-power. A disciplined man is expected, to quote a few lines from Mathew Arnold:

[2024:RJ-JP:6026] (16 of 17) [CW-29/2000]

We cannot kindle when we will The fire which in the heart resides, The spirit bloweth and is still, In mystery our soul abides:

But tasks in hours of insight will'd Can be through hours of gloom fulfill'd.

Though the context is slightly different, yet we have felt, it is worth reproducing.

24. Consequently, the appeal is allowed, the judgment and decree passed by the High Court is set aside and that of the first appellate court is restored and the suit instituted by the Respondent/Plaintiff stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs."

17. Even otherwise, upon a perusal of the orders impugned

dated 16.01.1998 i.e. order-in-original, 04.11.1998 i.e. order-in-

appeal and 08.06.1999 i.e. order-in-revision, it is noted that the

adjudicatory bodies have duly taken into consideration the factum

of gross indiscipline and its aggravated consequences resulting

into the death of one Dev Bahadur Thapa and serious injury on

the person of Malaram. Furthermore, the adjudicatory bodies have

also paid due heed to the fact that the incident occurred within the

restricted area, where the petitioner's entry was unauthorized,

especially when he was specifically tasked with the patrolling duty,

whilst being in possession of a loaded weapon. Moreover, the fact

of the bullet being fired from the gun specifically assigned to the

petitioner for patrolling, is also duly considered, in addition to the

statements tendered by the witnesses.

18. In the opinion of this Court, the learned adjudicatory

authorities have passed well-reasoned speaking orders i.e. orders

dated 16.01.1998, 04.01.1998 and 08.06.1999, and after

consideration of material aspects, arrived at a logical conclusion.

This Court is in complete agreement with the reasoning adopted

therein. No interference with the orders impugned is called for.

[2024:RJ-JP:6026] (17 of 17) [CW-29/2000]

19. Even otherwise, it is noted that the callous and

negligent conduct as exhibited by the petitioner, who was at the

time an uniformed officer, tasked with the noble responsibility of

rendering their services to the people of the nation at large with

utmost discipline, is not acceptable. The faith of the people largely

rests upon the shoulders of such uniformed officers, who are

required to observe the supervening tenets of authority and

responsibility, with great care and caution. This Court also

unhesitatingly notes that we do not remotely get a sprinkle of bliss

in upholding orders of dismissal of service. However, when the

conduct is unbecoming of a government servant in an uniformed

post, and is opposed to the confidence with which they must carry

their duties, an equilibrium must be maintained between the acts

committed and the corresponding punishment awarded. Derelict

conduct ought not to be condoned.

20. Resultantly, in light of the observations made herein-

above and placing reliance upon the dictum of the Hon'ble Apex

Court as enunciated in Diler Singh (Supra), this Court deems it

appropriate to dismiss the instant petition.

21. As a result, the petition is dismissed. Pending

applications, if any, stand disposed of.

(SAMEER JAIN),J

Pooja /241

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