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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5162-63  OF 2013 (Arising out of SLP (C) Nos.23363-23364 of 2011)

Jai Bhagwan …….Appellant  

Versus

Commr. Of Police & Ors. …….Respondents

  J U D G M E N T   

T.S. Thakur, J.

1. Leave granted.

2. These appeals by special  leave arise out of an order  

dated 21st October 2010 passed by the High Court of Delhi  

whereby Writ Petition (Civil) No.5450 of 2005 filed by the  

appellant challenging his dismissal from the post of Assistant  

Wireless Operator has been dismissed.  An order dated 18th  

February  2011 whereby  the  High  Court  dismissed Review

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Petition  No.72/2011  filed  by  the  appellant  has  also  been  

assailed by the appellant.   

3. The  appellant  was  posted  as  an  Assistant  Wireless  

Operator at Patel Nagar Police Station, Delhi.   A cabin was  

provided to him for that purpose.  On the night intervening  

28/29th July  2001 when Inspector  Harjeet  Singh went  for  

checking the cabin used by the appellant he found the same  

locked from inside.  The Inspector knocked at the door but  

got no response from within the cabin.  He then knocked the  

door harder whereupon, the appellant shouted at him from  

inside  saying,  “KYA  DARWAJE  KO  TOREGA  BE”  (Are  you  

determined  to  break  the  door).  When  the  door  was  

eventually opened by the appellant, the Inspector found him  

wearing plain civilian clothes.  He asked the appellant the  

reason  for  not  being  in  proper  uniform  to  which  the  

appellant replied that he liked to dress like that only.  The  

appellant also refused to give the log book to the Inspector  

when  asked  and  snatched  the  same  from him  when  the  

Inspector picked it up from the table.  The appellant was, in

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the  above  circumstances,  charged  with  misconduct.   The  

charge read as under:

“I, Inspr. Anil Dureja, DE Cell. Delhi charge you HC  Jai  Bhagwan,  No.  1212/Commn.  That  while   discharging operator Duty at Radio a Radio Station   P.S.  Patel  Nagar  on  the  intervening  night  28/297.2001  from  2000  hrs.  to  0800  hrs.  Inspr.   Harjeet  Singh  who  was  night  checking  officer,   approached  for  checking  at  the  door  of  wireless   cabin at 0035 hrs,    The cabin was found locked   from inside.  The Inspector knocked the door with   little force, you HC Jai Bhagwan shouted from inside   in  a  very  undisciplined  manner  “kya  darwaje  ko   torego be” you were also found in plain clothes and  when asked the reasons for  the same you replied   that you would like this only.  You also refused to   give the log book when asked to do so snatched the   log  book from him which the later  had picked  up   from the table.  You made irrelevant transmission on   District  No  at  0130  hrs  which  aggravated  your  misconduct.

The above act of misbeaviour and misconduct   on  the  part  of  you  HC  (AWO)  Jai  Bhagwan  No.   1212/Comn.  Renders  you  liable  for  punishment   under  Section  21  D.P.  Act  read  with  Delhi  Police   (Punishment and Appeal) Rules, 1980.”    

4. An  inquiry  followed  in  which  the  charges  were  held  

proved. The appellant found guilty and was dismissed from  

service by an order passed by the Disciplinary Authority on  

29th March 2002.  Aggrieved by the said order, the appellant

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preferred  an  appeal  before  the  prescribed  appellate  

authority which too failed and was dismissed on 9th January  

2003.  The  appellant  then  approached  the  Central  

Administrative  Tribunal  for  redress  but  remained  

unsuccessful even there. He next approached the High Court  

of Delhi in Writ Petition No.5450 of 2005 before whom he  

urged five distinct grounds against the order of dismissal.  It  

was  firstly  urged  by  the  appellant  that  a  copy  of  the  

preliminary  inquiry  conducted  by  the  DCP Communication  

and relied upon by the Inquiry Officer was never supplied to  

him  thereby  causing  prejudice  to  the  appellant.  It  was  

secondly urged that Inspector Harjeet Singh had improved  

upon his version inasmuch as the narrative given by him in  

the first  report  and that  given in  the second report  were  

materially  different.  Thirdly,  it  was  contended  that  DCP  

Communication could not act as the Disciplinary Authority  

inasmuch as it was he who had conducted the fact finding  

inquiry that gave rise to a likelihood of bias.   The fourth  

submission urged on behalf of the appellant before the High

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Court  related  to  the  appellant’s  version  that  he  was  

medically  advised  against  wearing  the  police  uniform  on  

account of some kind of skin allergy. It was lastly contended  

that the allegations that he was sleeping inside the wireless  

cabin  was  unsupported  by  any  evidence  and  that  the  

punishment of dismissal from service awarded to him was in  

any  case  much  too  harsh,  unreasonable  and  

disproportionate  to  the  gravity  of  the  misconduct,  to  be  

countenanced by the Court.

5. The  High  Court  examined  each  of  these  contentions  

and rejected the same by an order that is impugned in the  

present appeals.  The High Court took pains to look into the  

evidence  on  record  to  find  out  whether  there  was  any  

perversity in the view taken by the disciplinary authority, the  

appellate authority, or the Tribunal and found none.  Even  

on the question of quantum of punishment, the High Court  

held  that  the  petitioner  had  no  case  inasmuch  as  the  

incident in question was one of gross indiscipline and the  

penalty of dismissal from service was justified.  

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6. We have heard learned counsel for the parties at some  

length and perused the orders under challenge. The charges  

framed against the appellant have been held proved by the  

disciplinary authority, the appellate authority and even by  

the Tribunal concurrently.  The High Court reviewed those  

findings and found nothing perverse about the same.  There  

is in that view no room for our interference on that account.  

In  fairness  to  learned counsel  for  the  appellant  we must  

mention that even he did not make any serious attempt to  

assail  the concurrent findings of fact recorded against the  

appellant. We have, therefore, no hesitation in affirming the  

said findings.   

7. What was argued by learned counsel for the appellant  

with considerable tenacity was the dis-proportionality of the  

quantum of punishment imposed upon the appellant.  It was  

contended  that  the  charges  against  the  appellant  were  

limited to using rude language against a superior officer who  

had  come  to  check  the  wireless  cabin  provided  to  the  

appellant.  The  fact  that  the  appellant  was  not  in  proper

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uniform or took a little more time than necessary in opening  

the door also did not materially add to the gravity to the  

misconduct, if any.   Dismissal from service for such a minor  

act of misdemeanor was according to learned counsel totally  

unreasonable and disproportionate even assuming that the  

charges had been satisfactorily  proved.  Relying upon the  

decision of this Court in  Ram kishan v. Union of India  

(1995) 6 SCC 157 it  was contended that the delinquent  

was  in  that  case  also  charged  with  an  act  like  the  one  

alleged  against  the  appellant.   This  Court  had,  however,  

stepped in to set aside the order of dismissal passed by the  

disciplinary  authority  and  reduced  the  punishment  to  

stoppage  of  two  increments  only.   It  was  urged  that  a  

similar  order  in  the instant  case would meet  the ends of  

justice.    

8. On behalf of the respondent, it was submitted that the  

conduct  of  the  appellant  was  highly  objectionable  and  

unbecoming of any one serving in the police force where the  

need for maintaining discipline is paramount.  Any leniency

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towards  those  responsible  for  such  misconduct  was,  

according to the learned counsel, bound to encourage others  

to commit similar or more serious acts of indiscipline and  

misconduct which will not be in public interest as it is bound  

to undermine discipline as a value, erode the efficacy of the  

police force and shake the confidence of the people in its  

efficiency.  It was also submitted that the appellant had not  

only  sent  out  an  unwarranted  message  on  the  wireless  

regarding the incident but had gone to the extent of making  

a false accusation against the Inspector, which aggravated  

the appellant’s  misconduct  wholly  unbecoming of  a  police  

officer.   A  false  charge  implicating  his  superior  for  using  

casteist  remarks  was  a  serious  matter.   Dismissal  from  

service,  in  that  view was the  only  punishment  which  the  

appellant deserved and with which this Court ought not to  

interfere.

9. What is the appropriate quantum of punishment to be  

awarded to a delinquent is a matter that primarily rest in the  

discretion of the disciplinary authority.  An authority sitting

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in appeal over any such order of punishment is by all means  

entitled  to  examine  the  issue  regarding  the  quantum  of  

punishment as much as it is entitled to examine whether the  

charges have been satisfactorily proved.  But when any such  

order  is  challenged before a Service  Tribunal  or  the High  

Court the exercise of discretion by the competent Authority  

in  determining  and  awarding  punishment  is  generally  

respected  except  where  the  same  is  found  to  be  so  

outrageously  disproportionate  to  the  gravity  of  the  

misconduct that the Court considers it be arbitrary in that it  

is wholly unreasonable. The superior Courts and the Tribunal  

invoke  the  doctrine  of  proportionality  which  has  been  

gradually accepted as one of the facets of judicial review.  A  

punishment that is so excessive or disproportionate to the  

offence as to shock the conscience of the Court is seen as  

unacceptable  even  when  Courts  are  slow  and  generally  

reluctant  to  interfere  with  the  quantum  of  punishment.  

The law on the subject is well settled by a series of decisions

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rendered by this Court.  We remain content with reference  

to only some of them.

10. In  Ranjit Thakur v. Union of India (1987) 4 SCC  

611, this Court held that the doctrine of 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 Court-Martial, if the decision even as to the  

sentence  is  in  defiance  of  logic,  then  the  quantum  of  

sentence  would  not  be  immune  from  correction.  

Irrationality  and  perversity,  observed  this  Court,  are  

recognized grounds of judicial review. The following passage  

is apposite in this regard:

“the  doctrine  of  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  Court-Martial,  if  the  decision  even  as  to  sentence  is  an  in  defiance of   logic, then the quantum of sentence would not be   immune  from  correction.    Irrationality  and   perversity are recognized grounds of judicial review”.

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11. Similarly,  in  Dev  Singh  v.  Punjab  Tourism  

Development Corporation limited (2003) 8 SCC 9, this  

Court, following Ranjit Thakur’s case (supra) held:

“…a court sitting in an appeal against a punishment   imposed  in  the  disciplinary  proceedings  will  not   normally  substitute  its  own conclusion on penalty.   However,  if  the  punishment  imposed  by  the  disciplinary  authority  or  the  appellate  authority   shocks the conscience of  the court  then the court   would  appropriately  mould  the  relief  either  by   directing  the  disciplinary/  appropriate  authority  to   reconsider  the  penalty  imposed  or  to  shorten  the   litigation it may make an exception in rare cases and   impose appropriate punishment with cogent reasons   in support thereof.  It is also clear from the above   noted  judgments  of  this  court,  if  the  punishment   imposed  by  the  disciplinary  authority  is  totally   disproportionate  to  the  misconduct  proved  against   the delinquent officer, then the court would interfere   in such a case.”  

12. Reference may also be made to the decisions of this  

Court in  Union of India v. Ganayutham (1997) 7 SCC   

463, Ex-Naik Sardar Singh v. Union of India (1991) 3   

SCC 213 and Om Kumar v. Union of India (2001) 2 SCC  

386, which reiterate the same proposition.

13. Coming to the case at hand we are of the view that the  

punishment  of  dismissal  from  service  for  the  kind  of

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misconduct proved against the appellant appears to us to be  

grossly  disproportionate.   There  is  no  allegation  that  the  

appellant  had  manhandled  the  police  Inspector  who  had  

gone to check the cabin.  Delay of 10 minutes in opening the  

cabin door, which according to the appellant was open but  

had got stuck because of humidity leading to expansion of  

the wooden frame, was not a matter that ought to have led  

to the appellant’s dismissal after he had served the police  

force for over 10 years.  Even assuming that the version  

given by the appellant was not acceptable the same did not  

constitute  a  misconduct  of  a  kind  that  would  justify  the  

appellant’s dismissal from service leading to forfeiture of his  

past service. That the appellant was not in uniform may also  

be  breach  of  discipline  calling  for  administrative  action  

against him but not so severe as to throw him out of the  

police  force.   The analogy drawn by the appellant  in this  

case  and  that  of  Ram  Kishan’s  case  (supra)  is  not,  

therefore, wholly misplaced.  The delinquent in that case too  

was charged with misbehaviour with his superior leading to

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his dismissal from service which was found by this Court to  

be disproportionate to the nature of misconduct calling for  

moderation.   

14. Having  said  that  we cannot  ignore  the  fact  that  the  

appellant had falsely accused the Inspector of having used  

casteist  abuses  to  humiliate  him  which  allegation  on  an  

inquiry was found to be totally false.  It is obvious that the  

appellant  had tried  to  use the  caste  card  only  to  escape  

punishment for the misconduct and indiscipline committed  

by him.  There is no manner of doubt that an allegation like  

the one made by the appellant could have resulted in his  

prosecution  and  dismissal  of  the  superior  officer  from  

service.   The appellant’s case in that view is not on all four  

corners of  Ram Krishna to call  for such leniency as was  

shown to Ram Krishna.

15. In the totality  of  these circumstances, we are of the  

view that while dismissal from service of the appellant is a  

harsh  punishment  the  order  for  dismissal  could  be

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substituted  by  an  order  of  reduction  to  the  rank  of  a  

constable  with the direction that while  the appellant  shall  

have  the  benefit  of  continuity  of  service  he  shall  not  be  

entitled to any arrears of pay or other financial benefits for  

the period between the date of dismissal and the date of his  

reinstatement against the lower post of constable.  We are  

conscious of the fact that this Court could in the ordinary  

course remit the matter back to the disciplinary authority for  

passing a fresh order of punishment considered proper but  

we are deliberately avoiding that course.  We are doing so  

because the order of dismissal of the appellant was passed  

in the year 2001.  A remand at this distant point of time is  

likely to lead to further delay and litigation on the subject  

which  is  not  in  the  interest  of  either  party.   We  have,  

therefore, upon an anxious thought as to the quantum of  

punishment that is appropriate taken the un-usual but by no  

means impermissible course of reducing the punishment to  

the extent indicated above.  

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16. These  appeals  are  accordingly  allowed  in  the  above  

terms; with a further direction that the respondents shall do  

the needful  expeditiously but not later than three months  

from the date of this order.  No costs.  

…………..…………………...…J.      (T.S. THAKUR)

………….…………………... …J.

                                        (GYAN SUDHA MISRA) New Delhi July 5, 2013