Judgment · High Court · 2012

The sole question which falls for consideration in this writ petition is , whether the punishment of removal from service imposed upon the petitioner by the impugned order is grossly disproportionate to the misconduct proved against him. This single issue is now being considered as Mr HRA Choudhury, the learned senior counsel for the petitioner has now confined himself to this question. The facts prompting the petitioner to file this writ petition may be bri efly stated at the outset. The petitioner was appointed as Armed Branch Constabl e at Kokrajhar Police Reserve in the year 1993. After completion of the trainin g, he was deputed as a Personal Security Officer (in short (cid:28)PSO (cid:29)) with other pol ice officers and was also discharging his duties in various police station or po lice out post. In the year 2007, he was attached to the respondent No. 8 and jo ined his duty on 25.05.2007. According to the petitioner, after obtaining perm ission from the respondent No. 8, he went home to get his bedding etc. and depos ited his arms/ammunition with the respondent No. 8. On 26.05.2007, he received injury while he was crossing the Gongia River. He wanted to report to the respo ndent No. 8, but did not find him and instead met the wife of respondent No. 8 a nd informed her about the accident. It is the claim of the petitioner that the wife of the respondent No. 8 advised him to go back home for medical treatment. On 30.05.2007, the petitioner reported for duty, but no one was present in the house of the respondent No. 8 as the entire family had gone to Dhubri. In the me anwhile, he received a call from his wife that his three years old son was ill. He then returned home to give medical treatment to his ailing son. On 31.05.20 07, he reported for duty at the house of the respondent No. 8, but the latter wa s not present at his house It was at that moment he came to learn that his allot ted arms/ammunitions were collected from the house of the respondent No. 8. He w as accordingly placed under suspension by the order dated 01.06.2007 issued by t he respondent No. 5 and was also issued the show cause notice dated 02.06.2007. Accordingly, a departmental enquiry was conducted against the petitioner. At t he conclusion of the enquiry, he was found guilty of the charges levelled agains t him. At this stage, it may be noted that he was charged with an unauthorised absence from duty with effect from 25.05.2007 and leaving his arms/ammunitions i ssued to him unattended at the house of respondent No. 8. On the basis of the e nquiry report, the disciplinary authority passed the impugned order removing him from service. As already noted, the learned counsel for the petitioner has abandoned the chall enge to the finding of facts recorded by the disciplinary authority: such findin gs have now attained finality. The only contention of the learned senior counsel for the petitioner is that the instant case is not exactly the case where the p etitioner did not intentionally absent himself from duty as the respondent No. 8 informally permitted him while the arms/ammunitions allotted to him were also l eft by him at the house of respondent No. 8 with his permission and, as such, th e punishment imposed upon him is harsh and grossly disproportionate to the misco nduct proved against him, more so, when it is not the case of the respondent aut horities that those arms/ammunitions had disappeared. It is also not the case of the respondent authorities that any damage or injury was caused to the responde nt No. 8 or the Government due to such acts of commission or omission of the pet itioner. On the other hand, Mr JUNM Laskar, the learned State counsel supports t he impugned order and submits that the petitioner belongs to armed police of the State and the misconducts proved against him are, therefore, unpardonable acts, for which the punishment imposed is most appropriate and does not call for the interference of this Court: to modify the penalty so imposed will send a wrong s ignal to others. Incidentally, the respondent No. 8 also participated in the cas e by engaging a counsel and filed his affidavit-in-opposition wherein he support ed the case of the petitioner. The learned counsel for the respondent No. 8 sub mits that the penalty imposed upon the petitioner is harsh and disproportionate to the misconduct proved against him as the acts of commission or omission compl ained of was done by him with the permission of the respondent No. 8. Ordinarily, this Court does not interfere with the quantum punishment im posed by the disciplinary authority. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision itself. The l aw is now well settled that unless the punishment imposed by the disciplinary au thority or the appellate authority shocks the conscience of the court/tribunal a s being harsh and grossly disproportionate to the misconduct proved against the delinquent official, there is no scope for interference by this Court. In other words, this Court should not substitute its decision to that of the disciplinary or appellate authority. On the facts of this case, I am of the view that the p unishment imposed upon the petitioner cannot be said to be proportionate at all. I am fortified in my view by the decision of the Division Bench of this Court in Mecken Sing N Marak vs. State of Meghalaya, 2006(Supp) GLT 316. That was a ca se in which the appellant, who was Sub-Inspector of Police, charged with miscond uct for loss of loaded service revolver and un-disbursed pay of battalion person nel while travelling in a bus upon being administered tranquilizer by a co-passe nger. The Division Bench of this Court felt that the punishment of removal is di sproportionate. In the instant case also, the petitioner was absent from duty wi th the knowledge and permission of the respondent No. 8, a fact fully corroborat ed by the latter by entering his appearance in the case. The arms/ammunitions a llotted to him were also kept in the custody of the respondent No. 8 with the kn owledge and permission of the latter. No case of misuse of arms/ammunitions or l oss thereof was reported by the respondent authorities. On the undisputed facts of this case, I hold that the punishment of removal imposed upon the petitioner is harsh and grossly disproportionate to the misconduct proved against him. To t his extent, the impugned order warrants the limited interference of this Court. For the reasons stated in the foregoing, this writ petition is partly al lowed. The impugned orders dated 18-9-2007 and 18.09.2007 (Annexure-9 & 13) in so far as the removal of the petitioner from service is concerned, is hereby qua shed. The appellate authority, namely, the Deputy Inspector General of Police ( WR), Bongaigaon, Assam (respondent 4), shall now consider the question of imposi ng any penalty upon the petitioner other than the penalty of removal, dismissal or termination from the service. The entire exercise shall be carried out withi n a period of two months from the date of receipt of this order. No cost.