JUDGMENT V.C. Misra, J.
1. Sri Triloki Nath, learned Counsel for the petitioner and Sri Harish Chandra Dube, learned Counsel for the respondents- Union of India are present. Counter and rejoinder affidavits have been exchanged in the matter. On the joint request of the learned Counsel for the parties, this writ petition is being decided finally at the admission stage itself in terms of the Rules of Court.
2. This writ petition has been filed by the petitioner for issuance of a writ, order or direction in the nature of certiorari quashing the impugned orders dated 16.5.1994 (Annexure No. 7 to the writ petition) passed by respondent No. 2 Commandant, Central Industrial Security Force, Ministry of Home Affairs, New Delhi and dated 22.4.1997 (Annexure No. 8 to the writ petition) passed by respondent No. 1 Deputy Inspector General, Central Industrial Security Force, Ministry of Home Affairs, New Delhi and further for a direction in the nature of mandamus commanding the respondents to reinstate the petitioner in service.
3. The facts of the case of the petitioner in brief are that while he as posted as Constable at Hindustan Thermal Power Station, Kasimpur, Aligarh, he participated in a Volleyball tournament at CISF Unit Raeoareli on 30.7.1993 and remained there till completion of the tournament i.e. 12.8.1993. It has been contended in the writ petition that on 12.8.1993 the petitioner received a message from his home village regarding critical illness of his son, he informed his party incharge and went to his home from where he sent application for leave (Annexure No. 4 to the writ petition) from 12.8.1993 to 12.9.1993. It has been further contended that the petitioner was served with a charge sheet (Annexure No. 5 to the writ petition) on two charges i.e. absent without leave for 35 days i.e. from 12.8.1993 to 14.9.1993 and charge of indiscipline. The contention of the petitioner is that on the basis of exparte inquiry proceedings and findings of the case, he was held guilty of charges levelled against him and consequently dismissed from service by passing the impugned order dated 16.5.1994 (Annexure No. 7 to the writ petition). The petitioner, being aggrieved by the order of dismissal from service, preferred an appeal before respondent No. 1- Deputy Inspector General, Central Industrial Security Force, Ministry of Home Affairs who too rejected his appeal without application of his mind vide impugned order dated 22.4.1997 (Annexure No. 8 to the writ petition). Feeling aggrieved, he has filed this writ petition.
4. The petitioner has challenged the impugned orders on the grounds, inter alia, that petitioner had not been provided copy of the inquiry report till date despite demand made through representation dated 15.10.1993 (Annexure No. 6 to the writ petition) even an application sent to the authority concerned to grant him leave for the aforesaid period and at the time of resuming his duty alongwith his joining report dated 16.9.1993 the medical certificate dated 12.9.1993 filed was not examined or considered.; that the respondent No. 2 on the basis of exparte inquiry proceedings and findings held him guilty of the charges levelled against him and removed him from service and that the punisnment awarded to the petitioner is not commensurate with the gravity of the charges, hence punishment is arbitrary and violative of the provisions of Article 14 of the Constitution of India. Learned Counsel for the petitioner in support of his arguments has placed reliance upon the decision rendered in Bhagwan Lal Arya v. Commissioner of Police, Delhi and Ors. .
5. Learned Counsel for the petitioner has stressed on the bonafide of the petitioner with regard to absent from duty without permission and submitted that when he received information regarding illness of his son, he after intimating the team incharge and after obtaining his oral permission went to his home village to see his son where he himself fell ill and for the same he sent an application to the authority concerned for grant of leave and due to aforesaid reasons, he could not report on duty in time. He has also submitted that the petitioner does not have any other source of income and would not get any other job at this stage particularly upon such charges resulting not only he but also his entire family dependant upon him would be forced to starve.
6. The case of the respondents as referred to in para 5 of the counter affidavit is that the petitioner was detained for Volleyball tournament at CISF Unit Raebareli from 30.7.1993 to 12.8.1993 and on 12.8.1993 at about 10.30 a.m. the petitioner told his party incharge -Sub Inspector that he was going to meet his friend and would reach at Railway Station before departure of train though party incharge did not permit him to go. It has been further contended that the petitioner neither informed his party incharge that his son was sick nor applied for leave and he reported for duty on 16.9.1993 by filing an application dated 16.9.1993 alongwith medical certificate dated 12.9.1993 (Annexure No. 1 and 2 to the counter affidavit) mentioning therein his illness. It has been stated that the petitioner remained absent for 35 days without obtaining permission of the competent authority. Since the petitioner did not appear before the Inquiry officer, an exparte departmental disciplinary proceeding was initiated against him and charge sheet was sent to him by registered post. After completion of departmental enquiry the petitioner was found guilty of charges levelled against him and dismissed from service. The appeal filed by the petitioner was also dismissed by the respondent No. 1. In the appellate order the respondent No. 1 while rejecting the appeal recorded a finding to the effect that the appellant is a habitual absentee. He has also recorded that the penalty imposed on the appellant is proportionate with the gravity of misconduct exhibited by him and he had no reason to interfere with the order passed. Learned Counsel for the respondents has also submitted that since the petitioner absented himself from duty without leave, the disciplinary inquiry initiated against him was valid and the punishment awarded is also just and proper.
7. Section 8 of the Central Industrial Security Force Act, 1968 (hereafter referred to as 'the Act') speaks about dismissal, removal etc. of members of the Force, which reads as under ;
8. Dismissal, removal, etc. of members of the Force - Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may-
(i) dismiss, (remove) or reduce in rank any (enrolled members) of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any (enrolled member) of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:-
(a) fine to any amount not exceeding Severn days' pay or reduction in pay scale;
(b) drill, extra guard, fatigue or other duty;
(c) removal from any office of distinction or deprivation of any special emolument.
Section 18 of the Act provides penalties for neglect of duty, etc. which reads as under:
(1) Without prejudice to the provisions contained in Section 8, every member of the Force who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation or lawful order made by a supervisory officer, or who shall withdraw pom the duties of his office without permission, or who, being absert on leave, fails without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who, shall be guilty of cowardice, may be taken into Force custody and shall, oh conviction, be punished with imprisonment for a term which may extend to one year.
(2) ...)
8. I have heard the learned Counsel for the parties at length and looked into the record of the present case, particularly the impugned order dated 16.5.1994 passed by respondent No. 2 and the appellate order dated 22,4.1997 passed by respondent No. 1 and I find that the disciplinary inquiry was conducted properly. There is also no denial of providing opportunity of hearing to the petitioner and principles of natural justice have been followed in the present case. In view of this since the findings are based on evidence they are not liable to be interfered with. However, considering the nature of punishment awarded in the instant case, as has been also emphatically stressed upon by the learned Counsel for the petitioner, I find merit and substance therein and the punishment is totally disproportionate to the proved charges i.e. absence without leave and misconduct of the petitioner. In the appellate order dated 22.4.1997 the respondent No. 1 has recorded that the petitioner had been on previous occasions also awarded six minor punishments for various acts of misconducts such as overstaying from leave, absence without leave, sleeping on duty, remaining absent from duty etc. Such being the position, if on the previous occasions under similar circumstances the petitioner was awarded, admittedly, minor punishment, no special ground or reason has been disclosed in the instant case, as to why and under what compelling circumstances on similar charges i.e. absesce without leave and indiscipline, this time the punishment of dismissal from service was awarded. In Bhagat Ram (Supra) wherein the delinquent was dismissed under Section 147 of Delhi Police Act (34 of 1978) and Rules 8, 10 of Delhi Police (Punishment and Appeal) Rules 1980 from service on the ground of absence from duty being grave misconduct complete unfitness for police service, it was held to be improper being excessive and disproportionate, as absence on medical ground supported by medical certificate does not amount to grave misconduct. In this case the apex Court held "It is equally true that the penalty imposed must be commensurate with the gravir of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution".
9. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". 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 for 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 authority concerned, 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. Irrationality and perversity are recognized grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174 (HL), Lord Deplock said:
...Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis, may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community....
10. In the case of B.C. Chaturvedi v. Union of India AIR 1996 S C 484, wherein the question for consideration was as to whether the High Court can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to cut short the litigation, the Hon'ble Supreme Court held as under:
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 that relief, either directing the disciplinary/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof.
11. Under the above said facts and circumstances and the pleadings of the present case, I am of the view that the absence of the petitioner on the medical ground with an application for sanction of leave cannot be termed as an act of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for force service. I find that the impugned dismissal order dated 16.5.1994 (Annexure No. 7 to the writ petition) passed by respondent No. 2 is highly excessive and too harsh and disproportionate to the guilt of the proved charges. No such major punishment dismissing the petitioner from service on the said proved charges should be awarded which is uareasonable and unjustified particularly when for similar charges on earlier occasion he had been granted minor punishment, more so, since the petitioner would be debarred from receiving any payment such as pension, gratuity, fund etc., admissible to him otherwise, as a result of which not only he but also his entire family dependent on him would be forced to starve. This mitigating circumstances also warrants that the punishment by way of impugned dismissal order dated 16.5.1994 passed by respondent no 2 and confirmed in appeal by order dated 22.4.1997 passed by respondent No. 1 be quashed.
12. In the result the impugned orders dated 16.5.1994 (Annexure No. 7 to the writ petition) passed by respondent No. 2- Commandant, Central Industrial Security Force, Ministry of Home Affairs and order dated 22.4.1997 (Annexure No. 8 to the writ petition) passed by respondent No. 1- Deputy Inspector General, Central Industrial Security Force, Ministry of Home Affairs are hereby quashed. I do not feel it proper to pass any order of punishment in a departmental proceedings in lieu of the punishment of the dismissal from service which has been set aside and it is the departmental authority who would decide the punishment for the proved charges against the petitioner. Accordingly, the matter is sent back to the disciplinary authority for considering and passing a reasoned and speaking order vim regard to punishment afresh in the light of the observations made herein above, in accordance with law and procedure after affording full opportunity to the petitioner within a period of three months from the date a certified copy of this order is placed before the concerned disciplinary authority. It is made clear that the period during which the petitioner remained absent from duty shall not be counted as a period spent on duty and the petitioner shall not be entitled to any service benefits for the above period. The petitioner must report the respondent No. 2 alongwith certified copy of this order within a period of four weeks from today to take the benefit of this judgment.
13. With the above directions and observations the writ petition is partly allowed. No order as to costs.