JUDGMENT Shishir Kumar, J.
1. By means of the present writ petition, has approached this Court for issuing a writ of certiorari quashing the order of termination dated 16.6.1992 passed by the Senior Superintendent of Police, respondent No. 2 (Annexure 4 to the writ petition) and the appellate order dated 2.4.1993 (Annexure 7 to the writ petition) passed by respondent No. 3 and issue a writ of mandamus directing the respondents to reinstate the petitoner with retrospective effect and give all consequential benefits.
2. The fact arising out of the present writ petition are that the petitioner entered into police service as Constable on 1.1.1978 and since then performing his duties with utmost sincerity and to the entire satisfaction of his superior authorities. In the year 1989, while the petitioner was posted at Fatehpur, his service was dismissed by order dated 1.7.1989 on the ground of misconduct, as it has been alleged that the petitioner has misbehaved with R.I. Sri Shyam Bir Singh on 6.4.1989. Against the order 1.7.1989 the petitoner has filed a Writ Petition before this Court as Writ Petition No. 19745 of 1989 and this Court vide order dated 11.12.1989 was pleased to stay the operation of the order dated 1.7.1989. That while the petitioner was posted at Kanpur at Phoolganj Police Chouki, P.S. Pilkhana, the petitioner was suspended by the Senior Superintendent of Police, Kanpur Nagar vide order dated 8.8.1990 on false charges. Against the order of suspension the petitioner filed another Writ petition No. 30524 of 1990 and this Court was pleased to stay the said order of suspension vide order dated 20.11.1990. The petitioner received a charge sheet dated 22.6.1991 with regard to the incident, which has taken place on 6.4.1989 while the petitioner was posted at Fatehpur. A copy of the charge sheet has been filed as Annexure 2 to the writ petition. The petitioner submitted a reply to the charge sheet on 10th July, 1991. Thereafter the petitioner could not receive any information from the side of the Enquiry Officer. In fact no enquiry proceedings were conducted nor the petitioner was given opportunity to appear in the alleged proceedings. Even the petitioner has not been given an opportunity to cross-examine the witnesses alleged to have been produced on behalf of the department, nor he was allowed to produce his witness. However, the Enquiry Officer submitted an ex-parte report on 2.12.1991. A copy of the enquiry report has been filed as Annexure 3 to the writ petition. On the basis of the aforesaid enquiry report, the petitioner was dismissed from service by order dated 16.6.1992. A copy of the order of dismissal has been filed as Annexure 4 to the writ petition. Aggrieved by the order passed by the disciplinary authority, the petitioner filed an appeal under Rule 20 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 before the Deputy Inspector General of Police, Kanpur Range, Kanpur. The petitoner submits that the petitioner sent various reminders to the authority concerned for deciding the appeal of the petitioner but the petitioner's appeal was not decided and thereafter the petitioner filed a writ petition before this Court and this Court had passed an order directing the respondents to decide the appeal of the petitioner by order dated 16.2.1993. The appeal of the petitioner had been decided by the respondent No. 3 vide order dated 2.4.1993. A copy of the same has been filed as Annexure 7 to the writ petition.
3. It has been submitted on behalf of the petitoner that the order dated 2.4.1993 is ex-facie bad, illegal, arbitrary and without jurisdiction. Rule 4 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991, deals with the punishment and dismissal from service comes under the major penalty. Rule 8 provides that no police officer shall be dismissed except after proper enquiry and disciplinary proceedings as contemplated by these rules. Rule 14 of the Rules 1991 deals with procedure for conducting departmental proceedings, which lays down that the departmental proceedings in the cases referred under Rule (1) of Rule 5 may be conducted in accordance with the procedure laid down in Appendix-1. The further contention of the petitioner is that Para 478 of the Police Regulation deals with the punishment of dismissal or removal from the force is a major punishment. It provides that punishment may be awarded only after departmental proceeding. In the present case mandatory provisions of law not been complied with. The petitoner has not been given an opportunity to defend his case and on the basis of the ex-parte enquiry the decision has been taken and the petitioner has been dismissed from service on the basis of irrelevant considerations of false charge sheet. The petitioner has not been given an opportunity to cross-examine Shyam Bir Singh with whom it has been alleged that the petitioner had misbehaved. The order of dismissal and the appellate orders are contrary to the principle of natural justice and it is also contrary to U.P. Police Regulations of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The charge, which has been levelled against the petitoner is of 1989, which alleges that when the petitioner was posted at district Fatehpur in 1989, he had damaged the government fan, which was placed at Barrack No. 3 on 6.4.1989 and the said act of the petitioner is loss to the government property and has also misbehaved with the officer. The further allegation against the petitioner is that when on the day of inspection i.e. 7.4.1989, he was standing below to the damaged fan in the same barrack only to show the broken fan for the purposes of making complaint to the Inspector concerned. The petitioner submits that the charges levelled against the petitioner has not been proved, as such, the services of the petitioner cannot be terminated. It has further been submitted that the witnesses, who has been examined has not supported the case of the petitioner. The statements of Angad Singh and Shyam Bir Singh do not support the case of the respondents that the petitioner has broken the said fan. The statement of Sri Shyam Bir Singh Company Commander, under whom the petitioner was working on the day of the incident has stated that the petitioner has misbehaved but he has not made any complaint to any authority regarding the misconduct of the petitioner, clearly goes to show that the petitioner has falsely been implicated. The statement to this effect that there is a reason to believe that the fan has been damaged or broken by the petitioner cannot be treated to be misconduct and only on this basis the services of the petitioner cannot be dispensed with. The finding of the Enquiry Officer to this effect that the charges levelled against the petitioner has been proved beyond any doubt and such type of indisciplined person should not be retained in service is based on no evidence.
4. The disciplinary authority without any basis has accepted the finding of the enquiry report and has passed an order of dismissal of the services of the petitoner. It has been submitted on behalf of the petitioner that the appeal filed by the petitioner has also been dismissed without affording any opportunity.
5. The further argument of the petitioner is that the order of dismissal is to harsh as the only charge against the petitioner as alleged in the charge sheet is that he has misbehaved with one Shyam Bir Singh. It is clear from the statement given by Sri Shyam Bir Singh that the petitioner has misbehaved with hum on 6.4.1989 and as he was alone he went silently from there and has not reported the aforesaid alleged misconduct to any higher authorities. In this way the petitioner submits the incident of 1989 but the charge sheet for the purposes of taking a disciplinary action against the petitoner has been given on 22nd June 1991.
6. It has further been stated that the punishment, which has been awarded to the petitioner is too harsh and does not commensurate to the offence committed. The main charge against the petitoner regarding misbehavior with Sri Shyam Bir Singh, has not been proved from the statement of Shyam Bir Singh. As Sir Shyam Bir Singh has admitted this fact during he enquiry proceedings that he has not intimated he incident to any higher authority, therefore, it is clear that the aforesaid charge had been levelled against the petitioner after a lapse of two years only to punish the petitioner. It is also not the case of the respondents authorities that due to the act of the petitioner there was any loss to the Government property. Regarding the damage of the fan, which is one of the charge against the petitioner has not been proved during the enquiry proceedings and no witnesses have ever stated in their statement that it has been done by the petitioner. The head constable Angad Singh has also stated the fact that he does not know any incident, as he was on leave on that day when the alleged incident had taken place. The petitioner contends that the punishment, which has been awarded, is a punishment, which is to harsh as no charges against the petitioner has been proved. The charge levelled against the petitioner was of misconduct has not been proved. Therefore, punishment, which has been awarded by the authorities below is disproportionate.
7. The petitioner placed reliance upon a judgment of the Apex Court reported in B.C. Chaturvedi v. V.C. Union of India and Ors. (1995) 6 SCC Page 749 and has placed reliance upon Paras 22, 24, and 23 of the said judgment and has submitted that the High Court would be within its jurisdiction to modify the punishment, penalty by moulding the relief. In a case of dismissal, the Article 21 gets attracted and in view of inter dependence of fundamental rights, the punishment awarded has to be reasonable and if it is unreasonable Article 14 would be violated. If Article 14 were to be violated the High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it.
8. The relevant paras are being quoted below-
22. The aforesaid has, therefore, to be and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is no material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh Case that the High Court, too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.
24. What has been stated above may be buttressed by putting the matter a little differently, the same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of Fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalization case, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India, the punishment penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was view of this Court in Bhagat Ram v. State of H.P. also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting in appropriate cases, a punishment deemed reasonable by it.
The further reliance has been placed upon the judgment of this Court reported in Colour-Chem Ltd. v. A.L. Alaskarta and Ors. 1998(3) Supreme Court Cases 192 and has submitted that the nature of misconduct are passed record of the service if it appears to the Court that the punishment imposed is shockingly disproportionate tot he charges held proved against the employee the minor punishment should be awarded.
9. The reliance has been placed on a judgment of UPSRTC v. Mahesh Kumar Misra 2000 (30) SCC page 450 the counsel for the petitioner placed reliance upon Para 6, 10 and 12 and has submitted that High Court will be in its jurisdiction to interfere upon the finding that the punishment of dismissal is shockingly disproportionate the substitution of reinstatement against the dismissal was justified.
10. Para 6 is being reproduced below-
6 It was in the background of these circumstances that the high Court exercised its discretion under Article 226 of the Constitution and interfered with the quantum of punishment inflicted by the disciplinary authority. It maybe that the order of dismissal was held to be valid and proper by the U.P. State Public Services Tribunal but the Tribunal also overlooked the fact that thought sufficient evidence could have been collected at the spot to indicate that the passengers to whom tickets were issued by the respondent has boarded the bus at the "High Court" and not at "Zero Road" but this was not done. It was a bus plied in the city itself and therefore, the passengers, who were available in the bus, being local passengers, could have been approached at the spot for stating whether they had boarded the bust at the "High Court" or at "Zero Road". Learned counsel for the appellants have placed reliance upon an unreported decision of this Court in UPSRTC v. Om Prakash Pandey in which the order of The submission of the learned counsel for the petitioner is that high Court, by which interference was made with the punishment inflicted upon the delinquent employee of the Corporation, was set aside. This case is clearly distinguishable on the ground that a number of passengers were allowed to travel without tickets, and therefore, the misconduct imputed to the employee was serious. This is not the case here as the respondent had issued tickets to all the passengers, who were found traveling in the bus, but the dispute was only with regard to the spot or place at which they had boarded the bus. To put it differently, the dispute was whether they had boarded the bus at "Zero Road" or at the "High Court". In these circumstances, the High Court was justified in interfering with the quantum of punishment."
11. The further reliance has been placed upon by the counsel for the petitioner is Girja Shankar Singh v. General Manager UPSRTC. 1992 (2) UPLBEC Page 851 and it has been held by this Court that High Court has a power to reduce the punishment.
12. In view of the principle laid down by the Apex Court it has been submitted on behalf of the petitioner that as the misconduct has not been proved and the punishment, which has been awarded to the petitioner is too harsh, therefore, the same is liable to be quashed.
13. A counter affidavit has been filed. It has been stated that entire enquiry has been conducted strictly in accordance with the legal provisions and the petitioner was given full opportunity of hearing and no illegality of any kind has been committed in the enquiry. It has further been submitted that after conclusion of the enquiry, the petitioner was found guilty of negligence for holding post and as such, penalty of removal from service is completely legal and justified.
14. I have heard learned counsel for the petitioner and the learned Standing Counsel and have perused the record.
15. It is clear from the record that earlier a writ petition was filed by the petitioner by which the service of the petitioner was dismissed by order dated 1.7.1989 for some offence and the interim order was granted in favour of the petitioner. Then in the year 1990, the petitioner was suspended and subsequently on the basis of the disciplinary proceedings, the petitioner is dismissed from service. After perusal of the statements of Sri Shyam Bir Singh, it is clear that the incident is of 1989 and the action of that misconduct has been taken after a period of two years. It is also clear from the statement that he has not reported the matter to any authority, which is apparent from his statement. Regarding the damage of the fan of Barrack No. 4, one Angad Singh, who was produced as witnesses has not supported the case of the respondents. He himself has stated that he was on leave on that day. Meaning thereby he was not present and no person had seen that the petitioner had damaged the fan. It is not the case of the respondents that the fan had been stolen or it had been taken out by the petitioner. The charge is that some damage is being done with the fan, which was installed at barrack No. 4. It has also not been clarified by the respondents that up to what extent the fan was damaged.
16. In view of the aforesaid fact, I am of the opinion that he punishment which has been awarded against the petitioner is disproportionate to the charge levelled against the petitioner. It is clear from the record that the charges leveled against the petitioner has not been proved, therefore, in my view it would be said to be a misconduct as the charge of misconduct has not been proved. The order of dismissal dated 16.6.1992 was stayed by this Court by order dated 19.8.1993 and the petitioner is working on the basis of the interim order and is getting salary.
17. In view of the aforesaid fact, the order passed by the respondents dated 16.6.1992 (Annexure 4 to the writ petition passed by the respondent No. 2 and order dated 2.4.1993 (Annexure 7 to the writ petition) passed by the respondent No. 3 is hereby quashed. The writ petition is allowed. However, the facts and circumstances of the case, no order as to costs.