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RAJBIR SINGH versus GOVERNMENT OF INDIA

High Court of Punjab and Haryana, Chandigarh

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Rajbir Singh v. Government of India - CWP-2443-2006 [2006] RD-P&H 1431 (6 March 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Civil Writ Petition No. 2443 of 2006

Date of decision : 17.2.2006.

...

Parties Name

Rajbir Singh

................ Petitioner

vs.

Government of India through

Ministry of Railways, New Delhi

and others

.................Respondents

Coram: Hon'ble Mr.Justice J.S.Khehar

Hon'ble Mr. Justice S.N. Aggarwal

Present: Sh. R.K. Malik, Advocate

for the petitioner.

...

S.N. Aggarwal, J.

The petitioner was a Constable in Railway Protection Force. He was charge sheeted as under :-

" 1. On 6.7.2002 at about 18:25 hrs, he arrived at RPF post SRE and used abusive language against RPF officers and other RPF staff without any provocation.

2. He remained absent from his duty on 6.7.2002 without any permission or authority when he was detailed to perform OHE track patrolling duty from K.M. To 197 to 202/3 in 19.00 to 05.00 hrs shift duty on 6/7.7.02.

3. He is habitual remaining absent/overstaying, leaving his duty beat without any information or authority and sleeping on duty.

By doing so he has violated rule No.146.2 (i) (ii), (iii), 146.4, 146.5 (a) and 147 (vi) of RPF Rules, 1987." Enquiry was held. He was found guilty. The enquiry report was served on him. He was given show cause notice and the punishing authority vide order dated 27.5.2003 awarded him the punishment of removal from service. The said decision was communicated to the petitioner vide order dated 27.5.2005 (Annexure P-1).

The petitioner filed an appeal against the said order to the Appellate Authority (Annexure P-2). The Appellate Authority also rejected the appeal vide order dated 19.8.2003. The petitioner filed a review petition. It was also dismissed vide order dated 29.11.2004 (Annexure P-4). The petitioner filed mercy petition (Annexure P-5). It was also rejected by the competent authority on 14.6.2005 (Annexure p-6). All these orders have been impugned in the present writ petition.

The settled law is that the Court do not sit as a Court of appeal over the orders passed by the appointing and punishing authorities. The rules relating to the punishment are a Code in itself. The procedure for imposing punishment by the punishing authority is specifically laid down in the rules.

The rules regarding the appeal, revision and review are also made in these rules. Therefore the Code is complete in itself leaving very much scope for the Courts to interfere.

The only Course open to the Courts is to see if the enquiry was conducted according to the rules and if the principles of natural justice were complied by the statutory authorities. For that purpose, reference may be made to the recent judgment of the Hon'ble Supreme Court reported as Damoh Panna Sagar Rural Regional Bank and another vs. Munna Lal Jain 2005 AIR SCW 95, in which the Hon'ble Judges of the Hon'ble Supreme Court discussed the whole law regarding the scope of interference by the Court in the form of judicial review of the administrative orders passed by the administrative authorities. Their Lordships discussed the earlier judgments and were pleased to observe as under :- " The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

To put differently 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. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed." Not only this, the Hon'ble Apex Court was further pleased to observe that merely saying that the decision of the administrative authorities is shockingly disproportionate, would not be sufficient, it should give reasons why it is so. For that purpose, we may refer to the observations of their Lordships in the aforesaid judgment, as under :- " 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 ER 1148: observed "the giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Limited 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 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, by 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 rational 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 sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance."

In the present case, as we have observed, charge sheet was issued, regular enquiry officer was appointed, evidence was produced before the enquiry officer, opportunity was given to the petitioner to defend himself in the enquiry proceedings, enquiry report was submitted in which charges were held as proved, copy of the enquiry report was given to the petitioner alongwith show cause notice, the petitioner was heard in person and only then the punishment was passed on to him. So much so, the learned counsel for the petitioner has not disputed, if any part of the enquiry making process has been breached. Therefore, it is held as proved and not denied that the enquiry was conducted in accordance with the settled principles of law and procedure.

The first submission of the learned counsel for the petitioner was that the petitioner has been punished amounting to double jeopardy. In support of his submission reference was made to paragraph 12 of the order in which specific reference was made to eight charges against the present petitioner of the previous dates, which offences were allegedly committed by the petitioner and for which he was already punished. It was submitted that since the petitioner was already punished of the lapses committed by him in the past, therefore, those lapses cannot be made to be a part of the charge of this case because, it would amount to double jeopardy i.e. punishing again for the same offence. In support of his submission, reference was made to a single Bench unreported judgment of this Court in CWP No. 986 of 1994, decided on 8.1.1999 (Satpal Singh vs. State of Haryana) (Annexure P-7).

This submission has been considered by us. It may be looking a little attractive plea but when analysed closely, it falls to the ground. The official has been punished for the individual lapses committed by him, but that does not mean the lapse for which he has been punished does not leave an imprint on his total performance of the duty. When an official commits regularly certain lapses, negligence and acts of commission, which are against the rules or code of conduct and when he is let off with minor punishments for those lapses, that shows that he needs major surgery and he was incorrigible. The past record of an official is always seen while promoting or demoting him or even retiring him compulsory.

It is not the consideration of individual act for which he has been punished which was coming up for consideration for punishment. It was the collective effect of his past service, the combined effect of his performance.

Therefore, it does not amount to double jeopardy. Double jeopardy arises only if for the same offence he is punished for the second time. But in this case only the combined effect of all those lapses is visualized, which becomes an integral part of the conduct of the employee in the performance of his duty and which reflects his performance.

Such an argument has not been raised for the first time. It had come up earlier also. Reference may be made to the judgment of the Hon'ble Supreme Court reported as Union of India and others vs. K. Krishnan AIR 1992 SC 1898. In this case, an employee was considered for promotion, but before he was promoted, he had suffered a punishment in the disciplinary proceedings and as a result of this punishment his promotion was withheld. He had also raised a similar argument that he has been punished for his mistake and withholding of his promotion would amount to double jeopardy. The Lower Court had granted him relief on that account.

But the Hon'ble Supreme Court was pleased to hold that this was not a matter of double jeopardy. An official who had been punished, cannot be promoted and the role of double jeopardy does not come in. Their Lordships were pleased to observe in the aforesaid judgment as under:- " We have considered the matter closely and in our opinion the view taken by the Tribunal both in the impugned judgment and in the earlier decisions holding that as a result of the provisions of Rule 157 forbidding the promotion of a State employee during the currency of the penalty results in a second punishment, is not correct. There is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary proceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a Government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157 by including the aforementioned provision is subjecting the Government servant concerned to double jeopardy. We do not find any merit in the argument that there is no justification or rational behind the policy; nor do we see any reason to condemn it as unjustified, arbitrary and violative of Article 14 and 16 of the Constitution of India. On the other hand, to punish a servant and at the same time to promote him during the currency of the punishment may justifiably be termed as self contradictory. The impugned judgment is, therefore, set aside."

It is very strange that while defining suitability of the official, his past conduct may not be seen and if it is seen, it may be dubbed as double jeopardy. It also does not mean that if an official has committed faults at intervals, his service record cannot be seen in totality. The combined effect of all such lapses committed by him has to be considered for retaining him in service or for promoting him and it cannot be ignored by dubbing it as double jeopardy.

Even recently, the past conduct of the official was noticed by the Hon'ble Supreme Court and punishment of removal from service was considered and approved. Reference may be made to the judgment of the Hon'ble Supreme Court reported as Bharat Forge Company Limited vs.

Uttam Manohar Nakate 2005 AIR SCW 554. The facts in this case were reproduced by the Hon'ble Supreme Court in the first paragraph as under :- " The Respondent herein at all material times was working as a helper in the services of the appellant. At or about 11.40 a.m.

on 26-8-1983 while working in the first shift, he was found lying fast asleep on an iron plate at his working place, whereupon a disciplinary proceeding was initiated against him in terms of Standing Order 24 (1) of the Model Standing Order framed under the Industrial Employment (Standing Orders) Act, 1946. In the said domestic enquiry he was found guilty whereupon by order dated 17-1-1984 he was dismissed him from his services. It is not in dispute that on 3 earlier occasions also, the respondent was found guilty of misconduct; but only some minor punishments had been imposed."

And the Hon'ble Supreme Court took these earlier punishments awarded to the official into consideration and passed the final order :- " In Regional Manager, Rajasthan State Road Transport Corporation v. Sohan Lal ((2004) 8 SCC 218), it has been held that it is not the normal jurisdiction of the superior Courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the Respondent as also his conduct during the domestic enquiry proceeding, we cannot say that the quantum of punishment imposed upon the Respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary."

It clearly means that taking into account of the past conduct of an employee is necessary and rather a mandatory component to assess his performance. It is not double jeopardy.

Still again reference may be made to another judgment of the Hon'ble Supreme Court reported as Life Insurance Corporation of India vs. R.

Dhandapani 2005 AIR SCW 6271. The question before their Lordships was reproduced in the first paragraph which reads as under :- "The Life Insurance Corporation of India (in short the `LIC') calls in question legality of the judgment rendered by a Division Bench of the Madras High Court, in a writ appeal filed under Clause 15 of the Letters Patent holding that even if the penalty of removal from service is held to be in order, the respondent-employee nevertheless would be entitled to pension to which he would be entitled "but for his removal"." During the pendency of the appeal, the appellant filed a counter affidavit. The facts were discussed by the Hon'ble Supreme Court as under:- "The disciplinary authority after taking note of that report held that in view of charge of insubordination and disobedience which were charges of serious nature and which had been proved, it was not in the interest of the appellant-LIC to continue him in service and directed his removal from service.

Respondent raised an industrial dispute under the Industrial Disputes Act, 1947 (in short the `Act') before the Industrial Tribunal, Madras. In the counter affidavit to the claim made by the respondent, the past conduct of the respondent- employee was highlighted and it was pointed out that he had been issued charge sheets earlier in a span of 6 years on seven occasions. It was also pointed out that he had been penalised pursuant to the charge sheets on more than one occasion."

The said person was granted relief. The Industrial Tribunal and the Hon'ble High Court in the first appeal, accepted the claim of the worker, while the Appellate High Court granted him some relief in para 20 of its judgment. The matter reached the Hon'ble Supreme Court. It was duly deprecated by the Hon'ble Supreme court by observing in paragraphs 9 and 11 As under :-

"9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings.

Expensive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (See: Kerela Solvent Extractions Ltd. v. A. Unnikrishnan and another (1994 (1) SCALE 631)).

XXXX XXXX XXXX

11. The High Court found that the Industrial Tribunal had not indicated any reason to justify variations of the penalty imposed. Though learned counsel for the respondent tried to justify the award of the Tribunal and submitted that the Tribunal and the learned Single Judge have considered the case in its proper perspective, we do not find any substance in the plea. Industrial Tribunals and Labour Courts are not forums whose task is to dole out private benevolence to workmen found by Labour Court/Tribunal to be guilty of misconduct. The Tribunal and the High Court, in this case, have found a pattern of defiance and proved misconduct on not one but on several occasions. The compassion which was shown by the Tribunal and unfortunately endorsed by learned single Judge was fully misplaced."

In other words, the past conduct of the accused when he was served seven charge sheets in past six years of service and that he was even penalized in pursuance to the charges on more than one occasion, weighed with the Hon'ble Supreme Court in reversing the orders passed by the Industrial Tribunal, learned Single Judge and learned Division Bench and approved the dismissal of the petitioner from service. In the net result, we reach the conclusion that when the combined effect of the past service of the employee are considered, it is legitimate and it does not amount to double jeopardy.

Coming to the second wing of this argument also, the submission of the learned counsel for the petitioner was not that the punishment visited to the petitioner is shockingly disproportionate. The charges against the petitioner are that on 6.7.2002 at 6.25 hours he arrived at RPF Post SRE and used abusive language against RPF senior officers and other RPF staff without any provocation. This was the first of the three charges against the petitioner, which has been held as proved. Another limb of the argument raised by learned counsel for the petitioner was that if the third charge had not been made a part of the charge sheet, possibly small sentence would have been imposed on the petitioner, considering the gravity of the first two charges.

But even this argument appears to us to be totally devoid of any merit.

It is not denied by learned counsel for the petitioner that all the charges framed against the accused have been held as proved by the enquiry officer. Therefore, each of the charge is sufficient in itself to call for his dismissal from service. Reference can be made to a recent judgment of the Hon'ble Supreme Court reported as Mahindra and Mahindra Limited vs.

N.B. Naravade and others 2005 AIR SCW 1115. In this case a worker had used abusive language against superior officers twice in the presence of his subordinates and the Hon'ble Supreme Court was pleased to observe that punishment of dismissal from service is not disproportionate to the misconduct. In the present case, the charge against the accused was that he had used abusive language against the RPF officers and other RPF staff and this charge has been held as proved, therefore, in view of the law laid down by the Hon'ble Supreme Court in Mahindra and Mahindra's case (supra), it is fully established that the offence was sufficient for the dismissal of the petitioner from service. We may invite reference to the observations made by the Hon'ble Supreme Court in this judgment:- " Learned counsel for the respondent contended that there was sufficient provocation for the use of such words because the workman was asked to do certain work which was impossible to be done by any person without causing harm to himself, but this is not the defence that was taken in the enquiry or before the Labour Court and is being argued for the first time before this Court. On the contrary, the sole defence of the workman was that he did not remember abusing the Engineer concerned.

We may also note here that the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and inspite of the gravity of the offence he was dealt with leniently.

He pointed out that in one such earlier instance this workman had assaulted his co-worker with a galvanized pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the Management-appellant is not being vindictive.

Taking into consideration the overall fact-situation and the law laid down by this court and in spite of the fact that three courts have concurrently come to the conclusion that the punishment of dismissal would be disproportionate to the misconduct, we will have to disagree with those findings.

For the reasons stated above, this appeal succeeds. The order of the Division Bench, single Judge of the High Court and that of the Labour Court to the extent that it sets aside the order of dismissal and directs the reinstatement, is quashed. We uphold the order of the disciplinary authority dismissing the respondent-workman from service."

Therefore, it is of no avail to the learned counsel for the petitioner to argue that if the third charge was left out, the first two charges called for punishment lesser than dismissal. Abusing of a senior officer is a total in- subordination and can create a chaotic condition in the service and cannot be taken lightly. It is a misconduct of grave nature. The officials who have imbibed to this culture should be thrown out of the service at the earliest ensuring to stop this disease spreading in the forces.

No other point was argued before us.

No merit. Dismissed.

( S.N.Aggarwal )

Judge

( J.S. Khehar )

Judge

17.2.2006.

chug


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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