TMI Blog2013 (5) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was dismissed from service for about 19 months. He had been granted 'Z' class protection initially which was subsequently scaled down to 'Y' category. The Appellant was given the said security/protection even during the period of suspension and dismissal. Even during that period he had been provided with a bullet proof car and PSOs as he had been facing threats from naxalites. Therefore, the punishment so imposed is to be set aside. Charge no. 4 Favoritism and manipulation in the selection of Headmaster, BSF Primary School Kadmatala even though the candidate did not possess essential qualification and was not eligible. Charge no.6 Misuse of official vehicle, arms and ammunition and BSF personnel during the marriage of his son in Feb. 2006 at his native place in Balia, UP. Whether the punishment of compulsory retirement awarded by the Disciplinary Authority is proportionate to the delinquency proved - HELD THAT:- In both the cases the misconduct seems to be of an administrative nature rather than a misconduct of a serious nature. It was not the case of the department that the Appellant had taken the escort vehicle with him. There was only one vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral times. 3. Facts and circumstances giving rise to these appeals and contempt petitions are as under: A. The Appellant, an IPS Officer of 1982 batch joined the service on 1.9.1982, promoted on the post of Deputy Inspector General (D.I.G.), and subsequently as Inspector General of Police (I.G.) in his cadre of the State of Andhra Pradesh in May 2001. The Appellant was on deputation and was posted as I.G., Frontier Head Quarters, Border Security Force (BSF) (North Bengal) from 23.6.2005 to 14.11.2006. B. The Appellant was put under suspension vide order dated 13.11.2006 as the disciplinary authority decided to hold disciplinary proceedings. As a consequence thereof, a charge sheet dated 23.3.2007 containing 8 charges was served upon him. The Appellant denied all the said charges and therefore, an Inquiry Officer was appointed. The Department examined a large number of witnesses and produced documents in support of its case. The Appellant also defended himself and the Inquiry Officer submitted the report dated 23.12.2008 holding him guilty, as charge No. 3 stood proved fully while charge Nos. 4 and 6 stood proved partly. C. The Disciplinary Authority did not agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e letter dated 13.8.2012 advised that the Appellant be compulsorily retired. The advice given by the UPSC was served upon the Appellant and he was asked to make a representation on the same. In the meanwhile, this Court vide order dated 5.10.2012 asked the Appellant to file a detailed representation before Respondent No. 1, who was asked in turn to pass a speaking and reasoned order within a stipulated period in respect of the punishment. However , the order of punishment would not be given effect to immediately and the same would be placed before this Court on the next date of hearing. In pursuance thereof, the Appellant submitted the representation on 5.10.2012. Respondent No. 1 vide order dated 17.10.2012 passed the order imposing the punishment of compulsory retirement. The said order was given effect to and communicated to the Appellant vide letter dated 19.11.2012. J. Thus, the questions that arise for consideration of this Court are whether the punishment of compulsory retirement awarded by the Disciplinary Authority is proportionate to the delinquency proved and whether the Respondents in the contempt petitions wilfully violated the order dated 5.10.2012 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unauthorized interference by Smt. Chandrakala in the official functioning of North Bengal Frontier causing premature release of four constables from the Quarter Guard. (iii) Complete disregard to the rules and without jurisdiction, reviewed punishment awarded and mitigated the sentence awarded to No. 86161306 Constable Prakash Singh by Frontier Headquarter, BSF South Bengal. (iv) Favoritism and manipulation in the selection of Headmaster, BSF Primary School Kadmatala even though the candidate did not possess essential qualification and was not eligible. (v) Assisted enrolment of a person in BSF from his native district, UP by fraudulent means. (vi) Misuse of official vehicle, arms and ammunition and BSF personnel during the marriage of his son in Feb. 2006 at his native place in Balia, UP. (vii) Retaining of four BSF Constables for Personal work. (viii) Attachment of Shri Prakash Singh, constable with North Bengal Frontier despite contrary remarks of the PSO, North Bengal Frontier. 8. The Inquiry Officer held that out of the 8 charges levelled against the Appellant, charge Nos. 1, 2, 5, 7 and 8 were not proved at all. Charge No. 3 was proved fully and charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no favouritism or manipulation on the part of the Appellant. The Tribunal further took note of the subsequent developments as under: It is rather strange that the same very Respondents, who were harping upon irregular appointment of Majumdar as Headmaster, the same being against the education code, when the applicant issued them show cause notice for termination of services, directed him to withdraw the same and permit all of them to continue in service. So much so, it was specifically ordered that Majumdar would be continued in service. And then recorded the following finding: We accept the contention of the Learned Counsel for the applicant that the Respondents are blowing hot and cold in the same breath. The applicant, at the most, could be jointly held responsible for making selection of Majumdar on the post of Headmaster, even though he was the best amongst the lot to the extent that his appointment was against the educational qualification criteria mentioned in the advertisement itself, but for that, as mentioned above, he alone could not be held responsible. (Emphasis added) On charge No. 6, the Tribunal took note of the facts as under: The char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have to advert only to the said charges. The Inquiry Officer, the Disciplinary Authority, the Tribunal and the High Court have considered all the facts involved herein. On charge No. 4, the High Court has admittedly committed a factual mistake observing that Shri S.S. Majumdar had been appointed by Appellant as a regular teacher with retrospective effect. In fact there is no evidence that Appellant had appointed him or regularised him as Shri Majumdar was already in service for a period of 10 years. Same remained the position in respect of charge No. 6 as the High Court misdirected itself as it considered the case as if the charge against the Appellant had been taking two vehicles; one his official car and another an escort, though there had been no such charge levelled against the Appellant. The High Court while dealing with the review petition on charge No. 4, did not consider the fact that the appointment of Shri S.S. Majumdar as a Head Master, was a unanimous decision of the Board and not that of the Appellant alone. The High Court also did not correct the mistake in its original judgment regarding the usage of two vehicles. 13. In Commissioner of Income-tax, Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for or not. 16. There may be a case where the holders of public offices have forgotten that the offices entrusted to them are a sacred trust and such offices are meant for use and not abuse. Where such trustees turn to dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav and Anr. v. State of Haryana and Ors. AIR 1994 SC 2166). 17. The court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay through its Registrar v. Udaysingh S/o Ganpatrao Naik Nimbalkar and Ors. AIR 1997 SC 2286; Government of Andhra Pradesh and Ors. v. Mohd. Nasrullah Khan AIR 2006 SC 1214; and Union of India and Ors. v. Manab Kumar Guha (2011) 11 SCC 535). 18. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. 20. In V. Ramana v. A.P.S.R.T.C. and Ors. AIR 2005 SC 3417, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. 21. In State of Meghalaya and Ors. v. Mecken Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police and Ors. AIR 1999 SC 677; Gamini Bala Koteswara Rao and Ors. v. State of Andhra Pradesh thr. Secretary AIR 2010 SC 589; and Babu v. State of Kerala (2010) 9 SCC 189). Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible. 25. So far as charge No. 4 is concerned, the matter was considered by a Board consisting of several officers and the Appellant could not have been selectively targeted for disciplinary action. Further, no material could be placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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