HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J. (Oral)
1. Learned counsel for the petitioner restricts her submissions to the proportionality of the penalty imposed upon the writ petitioner and for which she highlights that co-accused HC Bhullan Singh admitted having picked up 100 empty urea bags from within the precincts of NFL Panipat; that save and except the instant incident the petitioner had an unblemished service of 19 years; penalty of removal from service is thus stated to be disproportionate inasmuch as entire service of 19 years rendered by the petitioner has been washed away. He gets no pension.
2. The petitioner does not dispute that he and HC Bhullan Singh had driven a fire-tender to within the precincts of NFL Panipat and that in his presence HC Bhullan Singh picked up 100 old empty bags of urea and hid them under the driver’s seat and additionally when petitioner and HC Bhullan Singh came outside the precincts of NFL Panipat they made an entry in the register at the gate in which aforesaid was not disclosed.
3. Learned counsel for the petitioner concedes that the petitioner and HC Bhullan Singh took an incorrect stand when they stated that only 7 or 8 bags were picked up.
4. Assuming HC Bhullan Singh, who admitted to have picked up the bags did so, but the fact of the matter would remain that he did so under the nose of the petitioner. Now, if somebody picks up a bag or two of unused old bags, it may be said that the principle of de minimis is attracted, but when 100 empty jute bags are picked up, it cannot be said that the act is small. Justification by HC Bhullan Singh that he picked up the bags for personal use has to be taken with a pinch of salt inasmuch as nobody would personally use 100 jute bags. Qua the petitioner, what is relevant is that his common-sense ought to have told him that Bhullan Singh picking up 100 bags was not an innocent act. The petitioner is a CISF force personnel and was a part of a contingent stationed at NFL Panipat to guard the precincts of NFL Panipat and thus, by training, the petitioner ought to have known that nobody, much less a force personnel, should be permitted to surreptitiously remove 100 empty old bags of urea.
5. Having noted the aggravating circumstances against the petitioner, we note the mitigating. Firstly, the petitioner was not to benefit from the act of 100 old empty urea bags being removed. He was a passive player i.e. turned a blind eye to the illegal act performed by his colleague. He tacitly connived. He has rendered 19 years service without a blemish. He had no personal motive for the wrong. The penalty of removal from service would not entitle petitioner to any gratuity or pension. He may be technically not disqualified for a government job, but is over age. Petitioner comes from a humble socio-economic background. His roots are in a village in Uttar Pradesh. He has a wife, children and a widowed mother to support.
6. In the decision reported as 2009 (7) SCC 248 Ramanuja Pandey v. State of M.P. & Ors., Ramanuja Pandey, a Head Constable in the service of M.P. Police was found guilty of illegally detaining one Laxmi Narayan working as a Dozer Operator at Kolar Dam and registered a false complaint against him under Section 13 of the Lunacy Act. It was found to be an act of abuse of power. The Supreme Court observed that the penalty must be a deterrent, but not as a vengeance and of a kind that Ramanuja Pandey should not lose pensionary benefits and thus converted the penalty to one of compulsory retirement.
7. Learned counsel for the respondent would urge that CISF is a Central Para Military Force charged with the duty to protect the property of Public Sector Undertakings and thus if any force personnel indulges in theft of property of a Public Sector Undertaking or connives or overlooks or turns a blind eye to theft being committed under this nose, it would be a serious misdemeanor for the reason he who has to guard a property wrongs the cause for which he is employed and thereby destroys the name of the institution he serves.
8. A balancing act, by its very nature, is a difficult act; even a gram or two shifting on either side unbalances the person who has to do the balancing act. But, in the field of service jurisprudence, we have the guiding star of proportionality. A penalty must be proportionate to the gravity of the offence and needless to state while measuring proportion, circumstances, for and against the offender have to be finally weighed.
9. Noting that the petitioner has rendered 19 years unblemished service and had no motive for the wrong; he is guilty of turning a blind eye to a wrong committed by his colleague, but the wrong permitted pertained to theft of 100 empty urea bags, but which were used bags, the fulcrum shifts the weight of the penalty to be of a kind where the petitioner does not lose pensionary benefits. Whether or not the petitioner would be entitled to pension if he is compulsorily retired with 19 years’ service; whether or not if it is directed that the penalty of removal from service would be with pensionary benefits would entitle petitioner to pension for having rendered 19 years service are some of the alternative penalties which could be considered, apart from the penalty of reducing petitioner’s rank, and for which we note that the petitioner was originally enrolled as a constable and earned promotion as a head constable.
10. We dispose of the petition quashing the penalty order dated September 20, 2011 dismissing the Revision Petition filed by the petitioner, requiring the Revisional Authority to reconsider the penalty which should be imposed upon the petitioner; and needless to state, the penalty would be of a kind where petitioner does not lose pensionary benefits. The Revision Petition is restored for fresh adjudication, but limited to the quantum of penalty to be imposed. Necessary orders would be passed by the Revisional Authority within 8 weeks from today.
11. No costs.
(PRADEEP NANDRAJOG) JUDGE JULY 17, 2012 dk (MANMOHAN SINGH) JUDGE