JUDGMENT Shishir Kumar, J.
1. By means of the present writ petition, the petitioner has approached this Court for issuing a writ of certiorari quashing the orders dated 26.10.2002, 1.5.2002 and 3.12,2001 passed by the respondents Nos 1, 2 and 3 respectively. Further issuing a writ in the nature of mandamus restraining the respondents from interfering in the working of the petitioner on the basis of impugned orders.
2. The facts arising out of the writ petition are that the petitioner was appointed as Sub Inspector of Police in the year 1984 and since then he is discharging his duties faithfully. There was no complaint regarding work and conduct of the petitioner. While the petitioner was posted in District Rampur, an application was submitted by one Km Rana Rais before Inspector General of Police, Bareilly Zone, Bareilly making certain false and frivolous allegations against the petitioner and asserting that the petitioner after promising her to marry has resiled from his promise. A copy of the same Has been filed as Annexure 1 to the writ petition A preliminary enquiry was conducted by Circle Officer. Bilaspur, District Rampur, who submitted his enquiry report on 5.7.1999 exonerating the petitioner from the aforesaid charge. The Superintendent of Police vide its letters dated 12.8.1999 and 23.12.1999 addressed to Deputy Inspector General of Police in armed him that the charges levelled against the petitioner by Km. Rana Rais have been found to be false by the enquiry officer. Km. Rana Rais then again on 8.1,2001 directly submitted an application before the Inspector General of Police Bareilly. An order-dated 3.2.2001 was passed directing the Superintendent of Police to submit his comments regarding conduct of the petitioner in accordance with the provisions of the U.P. Government Servants Conduct Rules, 1956 (hereinafter referred to as Conduct Rules, 1956). In compliance of the aforesaid order, the circle officer Bilaspur sent a letter dated 3.3.2001 stating therein that he had overlooked the conduct of the petitioner in the light of the provisions of Conduct Rules, 1956. By order dated 12,3,2001, passed by the Superintendent of Police directing the petitioner to show cause as to why an entry of censure be not made in his character roll for committing breach of Conduct Rules, 1956. However, by order dated 27.3.2001, the Inspector General of Police directed the Superintendent of Police, Rampur to proceed against the petitioner in accordance with the provisions of Rule 14(1) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal ) Rules, 1991 (hereinafter referred to 1991 Rules). On receipt of the aforesaid order dated 19.5.2001, the Superintendent of Police, Rampur recalled the earlier show cause notice dated 12.3.2001 and appointed Additional Superintendent of Police as an enquiry officer.
3. A charge sheet dated 10.6.2001 was served upon the petitioner by enquiry officer and time was granted till 19.6.2001 to submit his reply. From the perusal of the aforesaid charge sheet indicates that only one charge was levelled against the petitioner namely that in the year 1991, while he was posted as Sub Inspector he had a love affair with Km. Rana Rais in spite of the fact that he was married, which constituted an offence under Rule 28 of the Conduct Rules, 1956. An application was submitted by the petitioner for being supplied certain documents, which were, however, supplied to him only on 6.7.2001. An application was thereafter submitted by the petitioner on 10,7,2001 seeking 30 days time to the petitioner for filing his reply to the aforesaid charge sheet. However, only three days time was granted to the petitioner by the Enquiry Officer. On 21.7.2001, an application was submitted by the petitioner before the Enquiry Officer stating therein that the provisions of Rule 28 of the Conduct Rules 1956 are not applicable keeping in view of the nature of the charges levelled against him and so he may be informed accordingly so as to enable him to submit a proper reply. It has also been stated that the enquiry officer vide letter dated 21.7.2001 had fixed 23.7.2001 for recording the statement of Km. Rana Rais, but however, the statement of the said lady was recorded on 22.7.2001 i.e. one day prior to the date fixed. The statement was recorded ex parte behind the back of the petitioner. Subsequently on continuation of the aforesaid statement another statement was recorded on 23.7.2001. The petitioner categorically asserts that he had no notice of postponing the enquiry proceeding or of the recording of the statement of Km. Rana Rais on 22.7.2001. On 9.5.2001 the petitioner was transferred to Meerut zone from Rampur, as such, an application dated 22.7.2001 was moved before the competent authority seeking transfer of the enquiry proceeding. It has also been asserted in the said application that the petitioner does not expect a proper enquiry from the enquiry officer on account of bias and malafides. A copy of the said application dated 22.7.2001 has been filed as Annexure 12 to the writ petition. Realizing the provisions of Rules 28 of the Conduct Rules 1956 were not applicable, an amended charge sheet was issued to the petitioner on 24.7.2001. From the perusal of the aforesaid charge sheet it indicates that now the charge, which has been levelled against the petitioner, was in violation of Rule 4(1) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991. Since the petitioner had fallen ill and cannot recovered from his illness, as such, he could not participate in the enquiry proceedings and ultimately an exparte enquiry report was submitted by the enquiry officer on 21.8.2001.
4. On the basis of the aforesaid enquiry report a show cause notice was given to the petitioner on 25.10.2001 by the Deputy Inspector General of Police. The reply of the aforesaid show cause notice was submitted by the petitioner on 17.11.2001. The respondents without taking into consideration the aforesaid reply of the petitioner an order dated 3.12.2001 was passed by which the Deputy Inspector General of Police has enforced a punishment of dismissal from service. A copy of the same has been filed as Annexure 17 to the writ petition.
5. Being aggrieved by the aforesaid order, the petitioner filed a writ petition before this Court which was numbered as Writ Petition No. 1363 or 2002, which was disposed of on 10.1.2002 on the ground of alternative remedy with a liberty to the petitioner to file an appeal before the Director General of Police. It was further provided that it will be open to the petitioner to file an application before the Director General of Police to transfer his appeal to some other Inspector General of Police but the appeal of the petitioner was also dismissed by its order dated 1.5.2002. A copy of the same has been annexed as Annexure 20 to the writ petition.
6. Being aggrieved by the aforesaid order, the petitioner filed a revision , before the Director General of Police, who also by its order dated 26.10.2002 has rejected the revision filed by the petitioner. A copy of the same has been filed as Annexure 21 to the writ petition.
7. It has been contended on behalf of the petitioner that from the perusal of the order, it clearly goes to show that the services of the petitioner have been dispensed with on the ground that his conduct was in violation of Rule 3 of the Conduct Rules 1956. The aforesaid order is wholly illegal and contrary to law as the provisions of the aforesaid rules are clearly not applicable against the petitioner. Rule 3 is being reproduced below:
3. General-(l) Every Government servant shall at all times maintain absolute integrity and devotion to duty.
(2)Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force.
8. Even otherwise neither the appellate or revisional authority have taken into consideration the points raised by the petitioner in the memo of revision or appeal even it has also not taken into consideration the fact regarding the enquiry proceedings that the enquiry officer has proceeded ex parte and no opportunity of hearing has been afforded to the petitioner Admittedly, all the proceedings have been initiated against the petitioner on the basis of a letter/complaint by Km. Rana Rais. Her statement has also been recorded behind the back of the petitioner and he has not been afforded any opportunity to cross examine her. The said action of the respondents is in clear violation of the principles of natural justice and as such, the aforesaid statement could not have formed the basis for terminating the services of the petitioner. Even otherwise, the charge levelled against the petitioner does not constitute a misconduct either under the provisions of the Conduct Rules, 1956 or under 1991 Rules. Thus no disciplinary proceedings could have been initiated against the petitioner on the basis of the aforesaid complaint. There is no allegation against the petitioner that the petitioner at any point of time as a Sub Inspector has acted in violation to the Service Rules. Thus on the basis of such charge the services of the petitioner could not have been dispensed with, therefore, the orders impugned passed by the respondents are clearly illegal and without jurisdiction.
9. Even assuming without admitting this fact that the charges levelled against the petitioner are correct, then that also relates only to his private life and it does not in any manner relate to his official duties and in view of the aforesaid fact, no proceeding under the provisions of the Service Rules could have been initiated against the petitioner. There is no allegation against the petitioner to establish that the petitioner has in any manner any physical relations with the complainant, which is amply disclosed by her in statement recorded during the enquiry proceedings, Thus the punishment awarded against the petitioner is highly excessive, disproportionate and clearly violates the provisions of Article 14 of the Constitution of India. The contention of the petitioner is established in view of the application dated 5.6.1999 submitted by Km. Rana Rais. A certificate issued by Dr. Zilani W.H.Siddiqui, brother-in-law of Km. Rana Rais in which it has also been clearly stated that they were fully aware regarding the fact that the petitioner was already married. The respondents themselves in view of the present facts and circumstances are not clear as regards the provisions of the Service Rules or Conduct Rules which have been violated by the petitioner but in spite of the aforesaid fact, the enquiry was conducted and have imposed an excessive order of punishment without giving proper and reasonable opportunity to the petitioner. The petitioner further submits that he is entitled to the protection of the Service Rules and the procedure provided ' therein for holding an enquiry under the law. None of the provisions have been followed and the Rules have been violated and the charges levelled against the petitioner have not been proved, therefore, the punishment is to be quashed. While rejecting the appeal of the petitioner the respondents have also not applied their mind.
10. The further contention raised on behalf of the petitioner is that in spite of the fact that if respondents were of the opinion that some mistake or there is some misconduct on the part of the petitioner is there some minor punishment should have been awarded as it was decided in earlier proceeding to award a censure entry against the petitioner As admittedly, the charges, which have been levelled against the petitioner, does not come under the definition of misconduct, therefore, there cannot be any punishment of dismissal. The punishment awarded to the petitioner is clearly disproportionate to the charges as such, the same is liable to be quashed.
11. The reliance has been placed by the petitioner upon a Division Bench decision of this Court in Pravina Solanki v. State of U.P. and Ors. reported in 2001 (2) ESC (Allahabad), 719 and has submitted that in the aforesaid case, the lady petitioner who was constable in U.P. Police was dismissed on the charge that she was found at her residence under influence of liquor and sleeping with one person in the same bed. This Court hold that she has not committed any misconduct for which she can be departmentally proceeded against and the order of dismissal has been quashed. Reliance has been placed upon Paras 4 and 5 to the judgment. The same are being quoted below:
4. There are no allegations against the petitioner that her conduct in any way affected her official functions. There is also no allegation (hat she was on duty at the relevant time. In our opinion unless an employee does some act which interferes with his her official function then ordinarily whatever he she does in his her private life cannot he regarded as misconduct. In the case of Rabindra Nath Ghosh 1985 (1) SLR 598 it was the view taken by the Calcutta High Court and this was also the view taken by a Division bench of this Court in State of U.P. v. B.N. Singh AIR 1989 AM. 359. The position may have been different if the petitioner was doing (he aforesaid acts while on duty, but in the present case she was at her residence late in the night, and (here is no allegation that she was on duty at that time. As held by this Court in the case of State of U.P. K B.N. Singh (Supra) in order to bring a case of a government servant within the definition of personal immorality on the ground of habit of sex, it must be shown that this habit of the government servant has reduced his utility as a public servant so as to damage the government or official generally in public esteem. In Sukhdev Singh v. State of Punjab 1983 (2) SLR 645 the Punjab High Court held that a constable under influence of alcohol while not on duty cannot he held to be guilty of misconduct. In (he present case the petitioner was not having sex in a public place but at her residence. Hence it cannot he said that she has committed any misconduct for which she can be departmentally proceeded against.
5. We cannot help observing that if the petitioner had been a male employee perhaps the authorities would have done nothing about it but since she was a female she has been proceeded against. Thus, this is a case which smacks of sexual discrimination.
12. Another judgment cited by the petitioner in 2002 (1) ESC Allahabad 341 Shahjahan Khan v. State of U.P. and Ors. The charge in the aforesaid case was that the petitioner in that writ petition was having a married wife, lived with another woman for seven months. The same was in violation of Rule 29 of the U.P. Government Servants Conduct Rules, 1956 This Court has held that merely because of government servant who had married wife lived with a woman, it does not mean that he has married to her, unless the evidence proves the second marriage. The order of dismissal was quashed.
13. Another judgment relied upon by the counsel for the petitioner is Raj Kishore Yadav v. V.P. Public Service Tribunal, Indra Bhawan, Lucknow and Ors. reported in (2004) 2 UPLBEC 1461. In support of the contention of the aforesaid judgment, the petitioner submits that this Court as well as the Apex Court has a wide power of judicial review of the , quantum of punishment. In that case, the employee concerned made some wrong measurement. This Court has held that mistake may be committed by any person. It is apart of human nature, therefore, applying the principle laid down by the Apex Court it has been held that the punishment imposed is highly excessive and disproportionate.
14. The another judgment relied upon by the petitioner in Dev Singh v. Punjab Tourism Development Corporation Ltd. and Anr. . In the light of the aforesaid judgment the counsel for the petitioner submits that this Court has full power of judicial review regarding proportionality of punishment and this Court while considering the aforesaid fact can set aside the punishment, if the punishment imposed by the disciplinary authority or the appellate authority shocks the judicial conscience of the Court, the Court can mould the relief. The reliance has been placed upon paras 6 and 7 to the judgment. The same is being reproduced below:
6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, then the court would appropriately mould the relief either by directing the disciplinary appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.
7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was leveled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to traced the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should he viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegations of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Rye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. Hence, having considered the basis on which he punishment of dismissal was imposed on the appellant and the facts and circumstances of this case, we think to avoid further prolonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowance payable up to the date of the dismissal order.
15. In view of the aforesaid fact, the petitioner submits that the total disciplinary proceedings against the petitioner is vitiated only on the ground that the petitioner has not been afforded an opportunity, which was necessary to follow the principle of natural justice. Another aspect of the matter is that as it does not come under the definition of "misconduct', therefore, the punishment of dismissal is highly excessive and disproportionate to the offence committed and is liable to be quashed.
16. Aggrieved by the aforesaid orders, the petitioner has approached this Court and this Court had issued notice to the respondents to file counter affidavit. A counter affidavit has been filed and the respondents wanted to justify the punishment which has been awarded against the petitioner that in the preliminary enquiry, the charges against the petitioner have been proved and after departmental enquiry, according to Rule 14(1) as the charges against the petitioner was proved, the services have been dispensed with. As the petitioner has promised one Km. Rana Rais when he was posted in 1991 as Sub Inspector and there were certain letters and photos, which clearly proves the misconduct against the petitioner. In paragraph 10 of the counter affidavit, the allegation against the petitioner regarding taking the statement prior to one day before the date fixed, it has been stated that the date was fixed for 23.7.2001 but Km. Rana Rais appeared on 22.7.2001. The petitioner was searched but he was not available, therefore, the statement of Km. Rana Rais was taken on 22.7.2001. It has further been stated in Para 18 of the counter affidavit that as the charge against the petitioner that he has adduced Km. Rana Rais by non fulfilling the promise and he has deceived the lady and he maintain the relationship of love affair with that lady is in violation of Sub Rule 3 of U.P. Government Servants Conduct Rules. Reliance has been placed upon Daya Shanker v. High Court of Judicature at Allahabad and Ors. and reliance has been placed upon para 11 of the writ petition. The same is being quoted below:
11. In our opinion the conclusion reached by the Inquiry Officer that the petitioner used unfair means is fully justified. No amount of denial could take him away from the hard facts revealed. The conduct of the petitioner is undoubtedly unworthy of a judicial officer. Judicial officer cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy. The second contention urged for the petitioner also fails and is rejected.
17. I have heard learned Counsel for the petitioner and learned Standing Counsel and have perused the record.
18. From the record, it is clear that the proceedings against the petitioner were initiated only on the basis of complaint made by Miss Rana Rais. On an application made in 1997, an enquiry to that effect was made and it was found false. Subsequently, on the basis of another application dated 8.1.2001 directly submitted to the Inspector General of Police by which the * Superintendent of Police was directed to submit report regarding petitioner's conduct and the Superintendent of Police had issued a show cause notice for awarding an censure entry but on the basis of order dated 27.3.2001, the Inspector General of Police directed the Superintendent of Police, Rampur to proceed against the petitioner in accordance with the provisions of Rule 14(1) of the U.P. Police Officer Rules, 1991 and on the basis of aforesaid fact the order was recalled and enquiry officer was appointed and a show cause notice was served upon the petitioner. From the perusal of the charge sheet, it is clear that one and only charge against the petitioner that he was having friendship with Miss Rana Rais and promise to marry her but the petitioner has not fulfilled his promise. From the earlier report submitted to the Inspector General of Police dated 3.3.2001 a finding to this effect has been recorded that no incident of love affair has been confirmed and it does not come under the definition of 'misconduct'. From the perusal of the show cause notice dated 12.3.2001, it is also clear that Superintendent of Police had decided to award a punishment of censure entry in his character roll for committing breach of Conduct Rules, 1956. It appears that on the basis of instigation of higher authorities, the disciplinary proceedings against the petitioner have been initiated. From the record, it is also clear that the statement of Km. Rana Rais has been recorded one day prior the date fixed and the petitioner has not been afforded an opportunity for cross examination. It is not the case of the complainant that on the basis of the aforesaid promise as stated by the respondent, the petitioner was having an illicit relation with the complainant. There is no prove to that effect. It is also apparent from the record that the complainant was fully aware regarding that the petitioner was a married man. From the record, it is also clear that when the proceedings were transferred to Meerut zone, after that no date, time and place was fixed for conducting the enquiry and the enquiry officer has submitted report. From the charges levelled against the petitioner, no charge has been levelled to this effect that the petitioner while in service has not maintained discipline and has violated any provision of the Service Rules, therefore, in my opinion, it does not constitute a misconduct as defined under the Conduct Rules of 1956 or under 1991 Rules.
19. The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which arc inconsistent with such conduct. The Conduct Rules contain provisions which pertain to the standards of conduct which the Government servant are to follow whereas the Conduct and Appeal Rules provide the punishment or penalties which may be imposed for misconduct. The conduct rules and the rules for punishment may be provided in separate rules or combined into one Moreover, there are a host of departmental instructions, which elucidate, amplify and provide guidelines regarding the conduct of the employees. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statue and the public purpose it seeks to serve.
20. In Baldev Singh Gandhi v. State of Punjab and Ors. , it was held that the expression "misconduct" means unlawful behaviour, misfeasance, wrong conduct, misdemeanor etc. Similarly, in State of Punjab and Ors. v. Ram Singh Ex. Constable , it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong behaviours, unlawful behaviour, willful in character, forbidden act, a transgression of established and definite Rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
21. "Misconduct" as stated in Bart's Law of Master and Servant ("4 Edition) (At page 63) is ''comprised positive acts and not mere neglects or failures," The definition of the word as given in Bakllentine's law Dictionary (148th Edition) is "A transgression of some established and definite Rule of action, wherein discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness'.
22. 'Misconduct' as defined in Webster's Encyclopedic Unabridged Dictionary as follows- I. improper conduct; wrong behaviour. 2. Unlawful conduct by an official in regard to his office, or by a person in the administration of justice, such as a lawyer, witness, or juror. 3, to mismanage 4. to misbehave (oneself).
23. In Union of India and Ors. v. J. Ahmed , the Apex Court while interpreting the meaning of 'misconduct' has defined what is misconduct. In para 11 and 13 of the aforesaid judgment, the Apex Court has held that "misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, do not constitute such misconduct. Paras 11 and 13 are being quoted below:
11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected to a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would he misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1886) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur 61 Bom LR 1596 : AIR 1961 Bom 150 and Satubha K. Vaghela v. Moosa Raza (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
Misconduct means, misconduct arising from all motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct hut in Management, Utkal Machinery Ltd v. Workmen, Miss Shanti Patnaik , in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India , the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta , wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life an, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. ' Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision: a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op, Department Stores Ltd. (1978) 19 Guj. LR 108 at P. 120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an interference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would he expected to possess. They may he relevant considerations on the question of retaining him in the post or for promotion, hut such lack personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of effective preventive measures to arrest or to nip in the bud the ensuring disturbances. We do not taken any notice of charge No. 4 because even the inquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as charge No. 6 is the conclusion, Viz, because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the enquiry Officer completely Jailed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against he respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz, such acts and omissions which would render him liable for any of the punishments set out in Rule 5 of the Discipline and Appeal Rules, 1955. No such case has been made out.
24. In The State of Punjab and Ors. v. Rum Singh Ex-Constable reported in Judgment Today 1992 (4) Supreme Court 253, the Apex Court has defined the word "misconduct'. The relevant paras 5 and 6 are being reproduced below:
5. Misconduct has been defined in Black's Law Dictionary, Sixth edition at page 999 thus:-
A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety mismanagement, offence, but not negligence or carelessness.
Misconduct in office has been defined as :
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
P. Ramanatha Aiyer's the Law Lexicon, Reprint Edition 1987 at page 82 'misconduct' defines thus:-
The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law, carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.
6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and Us effect on the discipline and the nature of the duty. It may involve moral turpitude, it must he improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of Conduct hut not mere error of judgment, carelessness or negligence in performance of the duly; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to be scope of the statute and (he public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline in the service causing serious effect in the. maintenance of law and order.
25. From the perusal of the aforesaid definition and interpretation made by the Apex Court it cannot constitute a misconduct of the petitioner, as it does not constitute misconduct of the petitioner, therefore, the question is whether this Court while exercising the jurisdiction under Article 226 of the Constitution of India can have a power of judicial review to set aside the finding and punishment awarded by the administrative authorities.
26. In a case like instant, the Court can review only the " decision making , procedure" and not the "decision" of the authority. The Court, not being a Court of Appeal, is not competent to substitute its own view on factual aspect of the case.
27. The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in "exceptional circumstances" (Vide ' Union of India v. Parma Nanda ; State Bank of India v. Samarendra Kishore Endow (1994) 2 SCC 537, State of Punjab v. Surjit Singh ; State of U.P. v. Ashok Kumar Singh AIR 1996 Supreme Court 736; State of U.P. v. Nand Kishore Shukla 7 Anr. ; Transport Commissioner, Madras v. Thiru ARK Moorthy ; Rae Bareily Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. ; State of Punjab v. Bakshish Singh ; Yoginath D. Bagde v. State of Maharashtra and Anr. ; Union of India v. Lt. Gen. R.S. Kadyan and Ors. ; Food corporation of India v. A. Prahalada Rao and Anr. AIR 2001 Supreme Court 51; Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. AIR 2001 Supreme Court 24; N.R. Nair v. union of India and Ors. ; Union of India v. Ashutosh Kumar Srivastava (2002) 1 SCC 188; and Lalit Popli v. Canara Bank .
28. In the State of Tamil Nadu v. S. Subramaniam , the Apex Court held that as the High Court has power of judicial review of the administrative action on complaint relating to service conditions of the employee, it is within the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge stood proved or not. It is equally settled law that technical rules of evidence have no application in the disciplinary proceedings and the authority is to consider the material on record. In judicial review, the Court "has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the matter in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in view of the Court or the Tribunal. When the conclusion reaches by the authority is based on evidence, the Court or the Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. The only consideration the Court /Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record that support the finding, or whether the conclusion is based on no evidence.
29. In the General Court Martial and Ors. v. Col. Aniltej Singh Dhaliwal , the Hon'ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Inquiry Officer or the Disciplinary Authority to consider the relevant evidence. Similarly, in Rajendra Kumar Kindra v. Deli Administration , the Court observed as under:
It is equally well settled that where a quasi-judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated... Viewed from either angle, the conclusion of the Inquiry Officer... are wholly pervasive and hence unsustainable. The High court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence. Between appraisal of evidence and total lack of evidence, there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition.
30. In R.S. Saini v. State of Punjab , the Apex Court noted as follows:
We will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiry authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiry authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
31. Even the issue of interference on quantum of punishment has also been considered by the Hon'ble Supreme Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. Thus, being illegal, it cannot be enforced, (Vide Bhagat Ram v. State of Himachal Pradesh ; S.K. Giri v. Home Secretary, Ministry of Home Affairs and Ors. 1995 Suppl (3) SCC 519; Union of India v. Giriraj Sharma ; Bishan Singh and Ors. v. State of Punjab ; Ranjit Thakur v. Union of India and Ors. ; & B.C. Chaturvedi v. Union of India and Ors. .
32. In Ranjeet Thakur (supra), the Hon'ble Apex Court observed as under:
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 the 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. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.
33. The said judgment has been approved and followed by the Apex Court in Union of India v. G. Ganayutham , and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated.
34. In B.C. Charturvedi (supra), after examining various earlier decisions of the Supreme Court, the court observed that in exercise of the powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself "impose appropriate punishment with cogent reasons in support thereof. "While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. (Vide Giriraj Sharma (supra). The Court may further examine the effect, if order is set aside or substituted by some other minor penalty.
35. In Regional Manager, U.P.S.R.T.C v. Hoti Lal , the Hon'ble Supreme Court held that judicial review of the quantum of punishment is not warranted by a writ court unless it is held to be arbitrary. While deciding the said case, the Hon'ble Supreme Court placed reliance upon it earlier judgment in Om Kumar v. Union of India (2001) 2 SCC 386.
36. Thus, in view of the above, the legal position can be summarized that the judicial review in a disciplinary proceedings is permissible only in exceptional circumstances wherein the Court comes to the conclusion that the matter suffers from errors of law or decision is wrong for not following the fundamental procedural requirement, which have led to manifest injustice. The quantum of punishment cannot be interfered with and substituted by the Court like an Appellate Authority unless it shocks the judicial conscious being disproportionate to the misconduct and for that, reasons have to be recorded as how the punishment is found to be not commensurate to the delinquency. Thus, punishment itself should be held to be arbitrary before interfering with it by the writ court.
37. In the present case, as weeded out from the record that it cannot be held that the petitioner has not maintained discipline in service or he has committed an offence which relates to the performance of his service. Admittedly, the incident alleged to have been of 1991 but first time the compliant has been made by Km. Rana Rais in the year 1999 after a lapse of about eight years. The Superintendent of Police after enquiry has found that there is no misconduct on the part of the petitioner and only to give a caution to the petitioner has decided to award a censure entry but the higher authority was of the opinion that this is a misconduct and the petitioner should be departmentally proceeded ignoring the Rules. The charge sheet was given and the petitioner has submitted a reply.
38. The order-dated 5.7.1999 is a copy of the first enquiry report, which is in favour of the petitioner. Then a show cause notice was given to the petitioner on 12.3.2001. The said show cause notice was under Rule 14(2) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. Then by letter-dated 27.3.2001, it has been directed that the said show cause notice be treated under Rule 14 Sub-Clause 1 of the Rules, 1991 and subsequently the order has been passed terminating the services of the petitioner. From the perusal of the record, it appears that the preliminary enquiry which was made against the petitioner that was under Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, 1956. The same is being reproduced below:
3. General- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.
(2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force.
39. The letter dated 10.6.2001, which has been filed as Annexure 10 to the writ petition sent by the enquiry officer clearly goes to show that the conduct of the petitioner was treated to be in violation of Rule 28 of the U.P. Government Servants Conduct Rules, 1956. The same is being reproduced below:
28. Unauthorised pecuniary arrangements- No Government servant shall enter into any pecuniary arrangement with another Government servant or any other person so as to afford any kind or advantage to either or both of them in any unauthorized manner or against the specific, or implied, provisions of any rule for the time being in force.
40. Subsequently, the said charge sheet was amended and it was treated to be under Rule 14 (1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. From the perusal of the aforesaid Rules 4 & 5, it is clear that Rule 4 relates to the punishment and Rule 5 relates to the procedure for the purposes of awarding punishment and Rule 14 is relating to procedure for the purposes of conducting departmental proceedings. Rules 4, 5 and 14 are being reproduced below:
4. Punishment - (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely :-
(a) Major Penalties :-
(i) Dismissal from service,
(ii) Removal from service.
(iii) Reduction I rank including reduction to a lower scale or to a lower stage in a time-scale,
(b) Minor Penalties :-
(i) With-holding of promotion.
(ii) Fine not exceeding one month's pay.
(iii) With-holding of increment, including stoppage at an efficiency bar.
(iv) Censure.
(2) In addition to the punishments mentioned in Sub-rule (1) head Constables and Constables may also be inflicted with the following punishments:-
(i) Confinement to quarters 9 this term includes confinement to quarter Guard for a term not exceeding fifteen days extra guard or other duty).
(ii) Punishment Drill not exceeding fifteen days.
(iii) Extra guard duty not exceeding seven days.
(iv) Deprivation of good conduct pay.
(3) In addition to the punishments mentioned in Sub-rules (1) and (2) Constables may also be punished with Fatigue duty, which shall he restricted to the following tasks:
(v) Tent pitching;
(vi) Dram digging;
(vii) Cutting grass, cleaning jungle and picking stones from parade grounds;
(viii) Repairing huts and butts and similar work in the lines;
(ix) Cleaning Arms.
5. Procedure for award of Punishment.- (1) The cases in which major punishments enumerated in Clause (a) of Sub-rule (1) of Rule 4 may be awarded shall be dealt with in accordance with the procedure laid down in Sub-rule (1) of Rule 14.
(2) The cases in which minor punishments enumerated in Clause (b) of Sub-rule (1) of Rule 4 may be awarded, shall be dealt with in accordance with the procedure laid down in Sub-rule (2) of Rule 14.
(3) The cases in which minor penalties mentioned in Sub-rules (2) and (3) of Rule 4 may be awarded shall be dealt with in accordance with the procedure laid down in Rule 15.
14. Procedure for conducting departmental proceedings- (1) Subject to the provisions contained in these rules, the departmental proceedings in the cases referred to in Sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix 1.
(2) Notwithstanding anything contained in Sub-rule (1) punishments in cases referred to in Sub-rule (2) of Rule 5 may be imposed after informing the Police Officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal.
(3) The charged Police Officer shall not be represented by counsel in any proceedings instituted under these rules.
41. It is also clear from the letters annexed to the writ petition which has not been denied by the respondents that earlier the show cause notice dated 12.3.2001 was under Rule 14(2). Subsequently, by letter-dated 27.3.2001, it has been stated that the petitioner should not be proceeded under Rule 14(2) and it should be treated under Rule 14(1).
42. From the perusal of the order dated 24th July, 2001 sent by the Enquiry Officer, it has been stated that the enquiry against the petitioner is not under Rule 14(1) of 1991 Rules but it should be treated under Rule 28 of the Uttar Pradesh Government Servants Conduct Rules, 1956.
43. From the record, it is also clear that the petitioner has not been afforded an opportunity in view of the aforesaid amended charge sheet and the enquiry report has been submitted and a punishment to the petitioner has been awarded. There is no allegation against the petitioner that the petitioner has misused his position as Sub-Inspector and any action of the petitioner is in violation of Service Rules. The respondents themselves are not sure that under which provision the petitioner can be proceeded for the purposes of awarding the punishment. From time to time, the provision of Rules relating to awarding the punishment is being changed and lastly the enquiry officer has stated that the petitioner has been proceeded for enquiry under Rule 28 of the Conduct Rules. Admittedly, the petitioner has completed 17 years of service when the services of the petitioner have been terminated.
44. It is not the case of the respondents that except this complaint at any point of time there was any complaint against the petitioner regarding discharging of his official duties. It is also clear from the record that the petitioner has not been afforded proper opportunity which was necessary to follow the principle of natural justice. The Court has perused the various provision. From the perusal of the various provisions like Rule 28 of the Conduct Rules, Rule 14 of the 1991 Rules, under which the offence alleged against the petitioner is stated to be covered. In my opinion, Rule 28 does not apply in the present case. From the record, it is also clear that the petitioner has not been afforded an opportunity to the amended charge sheet dated 10.6.2001 and the enquiry officer has submitted his report dated 28.8.2001.
45. As regards, the punishment in B.C. Chaturvedi's case (Supra) the Apex Court has clearly observed that in exercise of powers of judicial review the Court cannot substitute its own conclusion and penalty. However, if the penalty imposed by an authority shocks the conscience of the Court, it would appropriately mould the relief. In exceptional cases, the Court can reconsider penalty imposed in exceptional and rare cases and in order to shorten the litigation itself impose appropriate punishment with cogent reasons in support thereof.
46. In V. Ramana v. A.P. SRTC and Ors. reported in 2006, Supreme Court Cases (Labour and Service) 69, the Court has again discussed regarding the scope of judicial review. The Apex Court has held that scope of interference with quantum of punishment has been the subject matter of various decision of this Court. Such interference cannot be a routine matter. In para 7 of the said judgment, the Apex Court has observed as follows:
7. Lord Greene said in 1948 in the famous Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service (called the CCSU case) summarized the principles of judicial review of administrative action as based upon one or other of the following viz. illegality, procedural irregularity and irrationality. He, however, opined the "proportionality" was a "future possibility".
47. In Damoh Panna Sasar Rural Regional Bank and Anr. v. Munna Lal Jain reported in Judgment Today 2005 (1) 70 the Apex Court has again taken the similar view. The Apex Court has held that if the punishment imposed by the disciplinary authority or the appellate authority shocks conscience of the Court, it would appropriately mould the relief. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. It has further held that in normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to re-consider the penalty imposed.
48. However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R.V. Secy. of State for the Home Department ex p Brind (1991)1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organizations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of organizations. It did not however, for example, preclude the board casting by such persons through the medium of a film, provided there was a "voice-over" account, paraphrasing what they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the common law and that, even in the absence of the Convention, English Courts could go into the question.
...whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organizations and that the Courts were "not perfectly entitled to start from the premise that any restrictions of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it".
Lord Templeman also said in the above case that the Courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention" any such interference must be both necessary and proportionate.
In the famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696. Where convention rights were in question the courts could exercise a right of primary review. However, the courts would exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:
The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.
49. In B.C. Chaturvedi v. Union of India (Supra) it was observed by the Apex Court that "A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
50. In Union of India v. G. Ganavutham (Supra), the Apex Court in para 31 has observed as follows:
37, The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational- in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b)If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedom as aforesaid are involved, is that the courts tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b)Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and nor for Article 14.
50. But where an administrative action is challenged as 'arbitrary' under Article 14, the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done will in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken.
51. In view of the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disiciplinary cases is questioned as 'arbitrary' under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. If the Court is satisfied that settled principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.
52. In view of the aforesaid proposition of law, discussed above, there is no doubt to this effect that this Court while exercising power under Article 226 of the Constitution of India can only interfere when the Court comes to the conclusion that the punishment which has been awarded is highly disproportionate and the same shocks the conscience of the Court in the sense that it was in defiance of logic or moral standards. From the perusal of the record, it clearly goes to show that the charges levelled against the petitioner does not come under the definition of 'misconduct' as defined above. From the perusal of Rule 28 of the Conduct Rules, in my opinion, this also does not cover the charges levelled against the petitioner. The complaint made by the lady does not come in relation to the performance of the petitioner's in service. There is no charge against the petitioner that he was ever having any illicit relation with that lady. From the record, it is also clear that the complainant was fully aware that the petitioner was married having two children.
53. Another point for consideration is that the incident is alleged to be of 1991 but the complaint is of 1999, after a lapse of eight years. Initially in the preliminary enquiry the charges framed against the petitioner was not found proved but for the reasons best known to the authorities they have proceeded against the petitioner under Rule 14 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal), Rules, 1991. From the perusal of the aforesaid rule, it appears that there is a procedure provided. The punishment is mentioned in Rule 4. As in my opinion, it does not cover any provision of aforesaid Rules including Rule 28 of the Conduct Rules therefore, in my opinion, the punishment which has been awarded against the petitioner, is totally improper and disproportionate.
54. In view of the aforesaid facts and circumstances and in view of the definition of 'misconduct', I am of the opinion, that awarding punishment of dismissal from service to petitioner is wholly disproportionate and cannot be sustained as this Court is of the view that the complaint and allegations do not constitute a misconduct.
55. As discussed above, it is well settled principle of law by this Court as well as by Apex Court that generally this Court should not consider regarding quantum of punishment as it is total discretion of the administrative authority, but as in the present case, the alleged incident is of 1991 but the complaint by the lady concerned has been made in the year 1999 after a lapse of eight years, normally in view of the Apex Court judgment, reported in (2005) AIR SCW 5690, P.V. Mahadevan v. M.D., Tamilnadu Housing Board, the Apex Court has quashed the disciplinary enquiry only on the ground of in apparent and unexplained delay of 10 years in issuance of charge memo and the Apex Court has held that the total disciplinary proceedings is vitiated, as there is no explanation by the department regarding initiating the disciplinary proceedings against the petitioner. The relevant para 16 is being reproduced below:
16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interest of the government employee but in public interest and also in the interest of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
56. In Canara Bank and Ors. v. Swapan Kumar Pani and Ors. reported in Judgment Today 2006 (3) Page 472, the Apex Court has gone to this extent and quashed the High .Court order by which the High Court had granted a liberty to the Bank to initiate a fresh enquiry. In that case, some charges were against bank employee, a charge sheet was given in 1987, of an act committed in 1985. He was exonerated in the year 1989, then again a charge sheet was issued in the year 1996 in that circumstances, when the High Court has quashed and given a liberty to the Bank for issuance of fresh charge sheet, the Apex Court has quashed the said liberty given by the High Court only on the ground that there was delay in initiation in the proceedings. For the same set of charges, the charge sheet is being given third time and the Apex Court has further held that if the High Court was of the opinion that new material purported to have been found were not sufficient for initiation of the enquiry in question, we fail to understand as to on what basis liberty was given to the Bank to initiate fresh enquiry more so when the misconduct, if any, was committed in the year 1985.
57. In the latest decision of the Apex Court reported in Judgments Today 2006 (4) 469 M.V. Biilani v. Union of India and Ors., the Apex Court has substituted the punishment only on the ground that there was a delay in initiation of disciplinary proceedings as the incident in that case was of 1969-70. In Bijlani's case (Supra), the charge against the delinquent for non-maintainance of ACE-8 Register and non-supervision of working of the line. The Apex Court has held that as the enquiry officer or the appellate authority has not held that whether the appellant was required to prepare the ACE-8 register and the disciplinary proceeding being a quasi-judicial in nature, there should be such evidence to prove the charge. The report of the enquiry officer is to be based on a relevant consideration of record. Taking into all the facts and circumstances of that case, the Apex Court in spite of holding that jurisdiction of the Court in judicial review is very limited but instead of remitting back the matter to the disciplinary authority, has substituted the punishment only on the ground of delay.
58. As observed in the present case, it is borne out from the record and fact that admittedly, the incident is of 1991 but no complaint was made against the petitioner. It was only in the year 1999 that there was only one single charge against the petitioner that in the year 1991, he has assured the complainant to marry but as he has not married, therefore the petitioner be punished for not fulfilling the promise. From the perusal of the Service Rules, it is also clear that assuming without admitting this fact if the contents of the complaint are treated to be true it does not amount to misconduct.
59. There is no finding by any authority that the petitioner has violated any provisions of Service Rules during his official duty and he has not maintained the proper integrity, which was required to be maintained. From the record it is also clear that the petitioner has not been afforded an opportunity to the amended charge sheet and without affording an opportunity to the petitioner the enquiry report was submitted by the enquiry officer and the disciplinary authority on that basis has awarded the punishment. It is also clear that the allegation against the petitioner does not constitute any misconduct, as such, in my opinion, the punishment of termination or dismissal cannot be awarded.
60. In view of the aforesaid fact, in my opinion, it is a case in which this Court while exercising the power under Article 226 of the Constitution of India treating it to be a rare case, it will not serve any fruitful purpose to remit the matter to the disciplinary authority for awarding any other punishment. Though this Court in exercising the power under Article 226 of the Constitution of India should not substitute the punishment but in the facts and circumstances of the present case, treating this case to be an exceptional, as there is nothing against the petitioner and the alleged act does not include any act relating to service of the petitioner and complaint does not constitute a misconduct, as such, this Court is setting a side the order of termination dated 3.12.2001 as well as orders dated 1.12.2002 and 26.10.2002 passed by the respondent Nos. 1 , 2 and 3.
61. In special facts and circumstances of the present case, as narrated above, this Court without remitting the matter to the disciplinary authority while exercising the power under Article 226 of the Constitution of India, itself substituting the punishment to the petitioner. Justice will be served if a punishment to the petitioner to the tune of withholding 25% of back wages is awarded from the date of dismissal till the date of reinstatement. This will be sufficient in the facts and circumstances of the present case.
62. In view of the aforesaid fact, the writ petition is allowed. The orders passed by the respondents Nos. 1,2 and 3 dated 26.10.2002, 1.5.2002 and 3.12.2001 are hereby quashed. The consequence of the said order would have been to remit the matter to the disciplinary authority. As stated above, as the charge is of 1991 and due to pendency of the present proceeding, the petitioner has suffered a lot, as such, I hereby direct that he may be reinstated in service but keeping in view of the facts and circumstance of the present case, as the petitioner has not worked, I direct that he may only be paid 75% back wages.
63. There shall be no order as to costs.