JAI BHAGWAN vs. COMMR.OF POLICE .

1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5162-63 OF 2013 (Arising out of SLP (C) Nos.23363-23364 of 2011) Jai Bhagwan …….Appellant Versus Commr. Of Police & Ors. …….Respondents J U D G M E N T T.S. Thakur, J. 1. Leave granted. JUDGMENT 2. These appeals by special leave arise out of an order st dated 21 October 2010 passed by the High Court of Delhi whereby Writ Petition (Civil) No.5450 of 2005 filed by the appellant challenging his dismissal from the post of Assistant th Wireless Operator has been dismissed. An order dated 18 February 2011 whereby the High Court dismissed Review Page 1 2 Petition No.72/2011 filed by the appellant has also been assailed by the appellant.

provided to him for that purpose. On the night intervening th 28/29 July 2001 when Inspector Harjeet Singh went for checking the cabin used by the appellant he found the same locked from inside. The Inspector knocked at the door but got no response from within the cabin. He then knocked the door harder whereupon, the appellant shouted at him from inside saying, “KYA DARWAJE KO TOREGA BE” (Are you determined to break the door). When the door was JUDGMENT eventually opened by the appellant, the Inspector found him wearing plain civilian clothes. He asked the appellant the reason for not being in proper uniform to which the appellant replied that he liked to dress like that only. The appellant also refused to give the log book to the Inspector when asked and snatched the same from him when the Inspector picked it up from the table. The appellant was, in Page 2 3 the above circumstances, charged with misconduct. The charge read as under:

The above act of misbeaviour and misconduct on the part of you HC (AWO) Jai Bhagwan No. 1212/Comn. Renders you liable for punishment under Section 21 D.P. Act read with Delhi Police (Punishment and Appeal) Rules, 1980.” JUDGMENT 4. An inquiry followed in which the charges were held proved. The appellant found guilty and was dismissed from service by an order passed by the Disciplinary Authority on th 29 March 2002. Aggrieved by the said order, the appellant Page 3 4 preferred an appeal before the prescribed appellate th authority which too failed and was dismissed on 9 January

unsuccessful even there. He next approached the High Court of Delhi in Writ Petition No.5450 of 2005 before whom he urged five distinct grounds against the order of dismissal. It was firstly urged by the appellant that a copy of the preliminary inquiry conducted by the DCP Communication and relied upon by the Inquiry Officer was never supplied to him thereby causing prejudice to the appellant. It was secondly urged that Inspector Harjeet Singh had improved upon his version inasmuch as the narrative given by him in JUDGMENT the first report and that given in the second report were materially different. Thirdly, it was contended that DCP Communication could not act as the Disciplinary Authority inasmuch as it was he who had conducted the fact finding inquiry that gave rise to a likelihood of bias. The fourth submission urged on behalf of the appellant before the High Page 4 5 Court related to the appellant’s version that he was medically advised against wearing the police uniform on

cabin was unsupported by any evidence and that the punishment of dismissal from service awarded to him was in any case much too harsh, unreasonable and disproportionate to the gravity of the misconduct, to be countenanced by the Court. 5. The High Court examined each of these contentions and rejected the same by an order that is impugned in the present appeals. The High Court took pains to look into the JUDGMENT evidence on record to find out whether there was any perversity in the view taken by the disciplinary authority, the appellate authority, or the Tribunal and found none. Even on the question of quantum of punishment, the High Court held that the petitioner had no case inasmuch as the incident in question was one of gross indiscipline and the penalty of dismissal from service was justified. Page 5 6 6. We have heard learned counsel for the parties at some length and perused the orders under challenge. The charges

the Tribunal concurrently. The High Court reviewed those findings and found nothing perverse about the same. There is in that view no room for our interference on that account. In fairness to learned counsel for the appellant we must mention that even he did not make any serious attempt to assail the concurrent findings of fact recorded against the appellant. We have, therefore, no hesitation in affirming the said findings. JUDGMENT 7. What was argued by learned counsel for the appellant with considerable tenacity was the dis-proportionality of the quantum of punishment imposed upon the appellant. It was contended that the charges against the appellant were limited to using rude language against a superior officer who had come to check the wireless cabin provided to the appellant. The fact that the appellant was not in proper Page 6 7 uniform or took a little more time than necessary in opening the door also did not materially add to the gravity to the

unreasonable and disproportionate even assuming that the charges had been satisfactorily proved. Relying upon the decision of this Court in Ram kishan v. Union of India (1995) 6 SCC 157 it was contended that the delinquent was in that case also charged with an act like the one alleged against the appellant. This Court had, however, stepped in to set aside the order of dismissal passed by the disciplinary authority and reduced the punishment to stoppage of two increments only. It was urged that a JUDGMENT similar order in the instant case would meet the ends of justice. 8. On behalf of the respondent, it was submitted that the conduct of the appellant was highly objectionable and unbecoming of any one serving in the police force where the need for maintaining discipline is paramount. Any leniency Page 7 8 towards those responsible for such misconduct was, according to the learned counsel, bound to encourage others

to undermine discipline as a value, erode the efficacy of the police force and shake the confidence of the people in its efficiency. It was also submitted that the appellant had not only sent out an unwarranted message on the wireless regarding the incident but had gone to the extent of making a false accusation against the Inspector, which aggravated the appellant’s misconduct wholly unbecoming of a police officer. A false charge implicating his superior for using casteist remarks was a serious matter. Dismissal from JUDGMENT service, in that view was the only punishment which the appellant deserved and with which this Court ought not to interfere. 9. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rest in the discretion of the disciplinary authority. An authority sitting Page 8 9 in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of

order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent Authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A JUDGMENT punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when Courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions Page 9 10 rendered by this Court. We remain content with reference to only some of them.

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 even as to the sentence is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review. The following passage is apposite in this regard: JUDGMENT “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 even as to sentence is an in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review”. Page 10 11 11. Similarly, in Dev Singh v. Punjab Tourism Development Corporation limited (2003) 8 SCC 9 , this

12. Reference may also be made to the decisions of this JUDGMENT Court in Union of India v. Ganayutham (1997) 7 SCC 463, Ex-Naik Sardar Singh v. Union of India (1991) 3 SCC 213 and Om Kumar v. Union of India (2001) 2 SCC 386 , which reiterate the same proposition. 13. Coming to the case at hand we are of the view that the punishment of dismissal from service for the kind of Page 11 12 misconduct proved against the appellant appears to us to be grossly disproportionate. There is no allegation that the

cabin door, which according to the appellant was open but had got stuck because of humidity leading to expansion of the wooden frame, was not a matter that ought to have led to the appellant’s dismissal after he had served the police force for over 10 years. Even assuming that the version given by the appellant was not acceptable the same did not constitute a misconduct of a kind that would justify the appellant’s dismissal from service leading to forfeiture of his past service. That the appellant was not in uniform may also JUDGMENT be breach of discipline calling for administrative action against him but not so severe as to throw him out of the police force. The analogy drawn by the appellant in this case and that of Ram Kishan’s case (supra) is not, therefore, wholly misplaced. The delinquent in that case too was charged with misbehaviour with his superior leading to Page 12 13 his dismissal from service which was found by this Court to be disproportionate to the nature of misconduct calling for moderation.

appellant had falsely accused the Inspector of having used casteist abuses to humiliate him which allegation on an inquiry was found to be totally false. It is obvious that the appellant had tried to use the caste card only to escape punishment for the misconduct and indiscipline committed by him. There is no manner of doubt that an allegation like the one made by the appellant could have resulted in his prosecution and dismissal of the superior officer from JUDGMENT service. The appellant’s case in that view is not on all four corners of Ram Krishna to call for such leniency as was shown to Ram Krishna. 15. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be Page 13 14 substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall

the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject JUDGMENT which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the un-usual but by no means impermissible course of reducing the punishment to the extent indicated above. Page 14 15 16. These appeals are accordingly allowed in the above terms; with a further direction that the respondents shall do

…………..…………………...…J. (T.S. THAKUR) ………….…………………... …J. (GYAN SUDHA MISRA) New Delhi July 5, 2013 JUDGMENT Page 15