Judgment:
Umeshwar Pandey, J.
1. By this intra Court appeal, the appellant-Union of India has challenged the judgment and order dated 10.9.2002 passed by the learned Single Judge granting relief of quashing the dismissal order of the petitioner-respondent and directing the authorities to reinstate him in service with all consequential benefits etc.
2. The brief facts arc that the petitioner while on earned leave for some time, was involved in a criminal case under Sections 376, 452 and 323 of IPC at his home police station of district Agra. He was said to have entered the house of Smt Roopam Devi, the prosccutrix of a criminal case and committed rape against her and also assaulted her family members. After his return from leave, the petitioner did not inform his immediate authorities about registration of the criminal case against him and then had proceeded for 40 days earned leave. In that criminal ease the petitioner was taken into police custody during the investigation proceedings and was later on released on bail. The petitioner also did not give information of his arrest in the case and subsequent release on bail to his immediate superior officer. It was the aforesaid Smt. Roopam Devi who gave this information to the Company Commander of the petitioner. On receipt of this information, details of the criminal case were obtained by the department from the police station concerned. Since the conduct of the petitioner was gravely prejudicial to the required standard of discipline of the force to which he belonged, disciplinary proceedings were started against him under the relevant rule of C.R.P.F Rules, 1975. The Inquiry Officer, after conclusion of the proceedings, found that the charges of mis-conduct about the concealment of facts regarding his arrest in the aforesaid criminal case and subsequent release on bail, has been fully established against him. Accordingly, the disciplinary authority concurring with the report of the inquiry and on considering the reply submitted by the petitioner found that even if the police case registered against the petitioner was fabricated, he, in all propriety, as a member of a disciplined force should have reported the full facts to his Company Commander on coming back form the leave but he deliberately did not do so. Accordingly not finding the petitioner a fit person to be retained in service as a member of the force, he passed the impugned order of dismissal from service.
3. It was contended on behalf of the petitioner that in the course of time he faced trial in the criminal case and was acquitted for the offences with which he was charged. As such, that incident should not be construed as a mis-conduct on his part and he cannot be held guilty which could entail the award of extreme punishment of dismissal. It is further contended that the petitioner on return from his earned leave has come to the office and had detailed the entire fact about his arrest and release etc. to his Company Commander-Ishwar Singh. Thus, he could not be accused of having concealed this fact from his superiors in the force.
4. The learned Single Judge after having considered the entire aspect of the matter found that the charge of alleged concealment of fact by the petitioner about his involvement and arrest in the criminal case and later on his release on bail, could not stand to judicial scrutiny and the alleged mis-conduct of involvement in a criminal case of rape etc. also stood completely washed off on petitioner's ultimate acquittal in the criminal case. The leaned Single Judge also found that the award of punishment of dismissal from service was highly disproportionate to the charges levelled against the petitioner and he accordingly allowed the petition and passed the impugned order.
5. We have heard Sri Subodh Kumar, learned Counsel appearing for the appellants and Sri Krishnaji Khare representing the respondent-petitioner and have gone through the entire record.
6. The learned Counsel for the appellant has tried to emphasise that the learned Single Judge while granting relief in the present writ petition has given undue weightage to petitioner's acquittal in the criminal case of rape etc., whereas this aspect should not be of much relevance in a departmental proceeding started against a delinquent in connection with the charges relating to that criminal incident and his subsequent conduct in respect thereto. Sri Subodh Kumar, learned Counsel for the appellant in this context has relied upon the decision in Chairman & Managing Director, United Commercial Bank v. P.C. Kakkar, (2003) 4 SCC 364, and has contended that acquittal in a criminal case could not be determinative of the commission of mis-conduct and it is open to the authorities to proceed with the disciplinary proceedings notwithstanding such acquittal in the criminal case. The employee is not entitled to claim immunity from such proceeding on that basis, That may be a circumstance to be considered while awarding punishment and it would depend upon, the facts of each case. There cannot be any universal application of such circumstance. Learned Counsel for the appellants has also contended that the proportionality of the punishment awarded as judged by the learned Single Judge in his impugned order, is also not legally justifiable. It is further submitted that the petitioner has only challenged the order of dismissal dated 30.1.1991 form service whereas he had preferred a departmental appeal which was dismissed vide order dated 12.12,1993. The dismissal order dated 30.1.1991 passed by the Disciplinary Authority thus, stood merged with the order of the Appellate Authority dated 12.12.1993 and in case the appellate order has not been challenged in the petition, the relief of quashing the order of dismissal from service could not be legally granted by the learned Single Judge.
7. From a perusal of the impugned judgment of the learned Single Judge, it is apparent that the appeal preferred by the petitioner before the Appellate Authority against the order of dismissal dated 30,1.1991 had been dismissed vide appellate order dated 12.12.1993. A copy of the appellate order is filed as Annexure-4 to the affidavit filed along with memo of appeal. If the petitioner's appeal against his dismissal order had been rejected by the authority, it is quite obvious that the said dismissal order challenged in the petition stood merged with the appellate order but by the time the petition was argued before the learned Single Judge and till its disposal by the impugned judgment, the appellate order was not challenged by the petitioner. If such appellate order survives, there is absolutely no meaning of quashing the order of dismissal by the Court under Article 226 of the Constitution of India. The said order of dismissal remains alive in the from of the appellate order which continues to be operative. Thus, the relief claimed in the petition actually becomes redundant so long as the petitioner does not claim the relief to quash the appellate order. In this view of the matter, the present petition being silent about the appellate order and not challenging the same, would be deemed to be not maintainable and no this score itself the petition deserves to be dismissed. This aspect of the matter has not been considered by the learned Single Judge even though the fact that the appeal of the petitioner had been dismissed by the authority was very much in the notice of the learned Single Judge. While referring to the contentions of the counter affidavit, this allegation of the appellant-Union of India finds reference in the last paragraph of the impugned judgment at page 15 of the paper book of this appeal. On this ground itself that the petition was liable for dismissal we find that the impugned judgment thus cannot be sustained in the eye of law.
8. We also fully agree with the submissions of the learned Counsel; for the appellants that undue weightage has been given in the judgment of the learned Single Judge to the fact that the petitioner-respondent in the trial in the case of rape and Marpeet had not been found guilty and was acquitted for those offences.
9. In the aforesaid case of Chairman & Managing Director (UCO Bank) (supra), the Apex Court has in quite categorical terms held that acquittal in the criminal case is not determinative of commission of misconduct and it is open to the authorities to proceed with the disciplinary proceeding notwithstanding acquittal in the case. Such acquittal order of the Criminal Court does not entitle an employee to claim immunity from disciplinary proceedings and at the most it may be a circumstance to be considered while awarding punishment. That too would depend upon the facts of each case and that cannot be a circumstance available for universal application.
10. A perusal of the inquiry report (Annexure-2 to the memo of appeal) and the impugned order of dismissal dated 30.1.1991 (Annexure-3 to the memorandum of appeal) shows that the petitioner has not been found guilty and punished for the charges of committing the offence of rape and Marpeet but in fact he was found guilty for the charges of deliberate concealment of the fact that he was involved in the case, as a result of which he was arrested by the police, kept in the lock up for some days and thereafter released on bail. It is not disputed that in such a criminal case as aforesaid, the petitioner was involved and that he was arrested by the police during the investigation, kept in judicial lock up and was later on released. The fact of the petitioner's involvement in a rape case and the happenings subsequent to the registration of the case were actually not communicated to his immediate superior, the Company Commander-Ishwar Singh, who was examined as a witness during the inquiry proceedings in presence of the petitioner. The petitioner was on leave from 20.7.1990 to 28.8.1990 during which period he had been arrested in the criminal case and later on released on bail. He as a personnel belonging to the disciplined force of C.R.P.F. was bound to intimate his immediate authorities about all these incidents of his arrest etc. But as per his Company Commander-Ishwar Singh, he did not inform him about all these facts, thereby committing a serious ms-conduct making himself liable for disciplinary action. The report submitted by the Inquiry Officer and relied upon by the disciplinary authority (Annexures 2 and 3) clearly discloses this fact that the petitioner was found guilty of making deliberate concealment of those incidents which had happened with him during the period of his earned leave from 20.7.1990 to 28.8.1990. The Inquiry Officer has relied upon the statement of Ishwar Singh- Company Commander regarding the aforesaid finding against the petitioner. We, while exercising our jurisdiction under Article 226 of the Constitution of India, cannot reverse the finding of fact so recorded by the Inquiry Officer or the disciplinary authority. Copy of the statement of Ishwar Singh-Company Commander filed as Annexure-2 to the memorandum of appeal, reveals that it was recorded in the presence of the petitioner and the proceedings were not taken up behind his back. The aforesaid facts are fully established on the record and the petitioner was rightly found guilty for concealment of important facts, which he was bound to divulge before his authorities and thus he had grossly misconduct himself In view of the aforesaid, we find that for proving or disproving this guilt, the circumstance that the petitioner was finally acquitted in the rape and Marpeet case by the trial Court is hardly of any consequence, though it definitely finds great emphasis in the judgment of the learned Single Judge.
11. As regard the quantum of punishment awarded to the petitioner, there is a catena of case law in which the propriety of the Court interfering with the quantum of punishment awarded to the delinquent have been questioned. The Apex Court in several cases has in very clear words made this scope of Courts interference as extremely limited. In case the findings recorded by the disciplinary authority are not found questionable and worth interference in the judicial review, the Courts are not supposed to interfere with the punishment awarded to the delinquent. Even if a lesser punishment has been awarded, the Courts are not supposed to interfere with such administrative orders also vide Balbir Chauhan v. Food Corporation of India Ltd. and Ors., (1997) 3 SCC 371 (Para 6).
12. In B.C. Chaturvedi v. Union of India and Ors., (1995) 6 SCC 749, the Apex Court in Para 18 of the judgment has observed as below :
'......................................................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 the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.'
13. In Union of India and Anr. v. G. Ganayutham, (1997) 7 SCC 463, the Supreme Court has summarized the scope of judicial review against a punishment order in the following words:
'In such a situation, unless the Court/Tribunal opines in its secondary role, that the Administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might-to shorten litigation-think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority.'
14. The Supreme Court in another case, State Bank of India v. Samrendra Kishore Endow, (1994) 2 SCC 537, while considering the order of the Tribunal which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not reappreciate the evidence and substitute its own conclusion for that to the Disciplinary Authority. It would, therefore, be clear that the Tribunal (or Court) cannot embark upon the aprcciation of evidence to substitute its own findings of fact for that of a Disciplinary/Appellate Authority, and it cannot ordinarily interfere with the quantum of punishment.
15. The Court will not apply proportionality as a primary reviewing Court. It is, thus, established that the Diciplinary Authority or the Appellate Authority, as the case may be, being fact finding authorities have exclusive power to consider the evidence recorded in disciplinary proceedings with a view to maintain discipline. They are also invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the mis-conduct. The Courts while exercising power of judicial review cannot substitute its own conclusion on penalty and impose some other penalty. In the aforesaid B.C. Chaturvedi's case (supra), the Supreme Court has gone to the extent of laying down a principle that the High Court or Tribunal in very exceptional ircumstances can appropriately mould the relief either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
16. The High Court or Tribunal is not supposed to go into1 the correctness of the choice made by the Disciplinary Authority amongst the various alternatives open to him. Nor could the Court substitute its decision for that of the Disciplinary Authority. While coming to the present case, we find that the petitioner-respondent was a C.R.P.F. personnel and was thus a member of a disciplined force. The authorities had received information through some complaint that he was arrested in a criminal case of rape and marpeet. He was kept under the lockup for a few days and thereafter released on bail. Obviously, these are such important facts, which had to be brought to the notice to his immediate superiors at the earliest opportunity by the petitioner himself. As per the findings recorded by the Inquiry. Officer, these facts were not brought to the notice of the Company Commander by the petitioner, instead such information was sent to him through a letter of the lady who was alleged to have been raped by the petitioner. This was definitely a misconduct of serious nature committed by the petitioner, who was a member of a disciplined force, If one belongs to a force of the type, he is supposed to maintain that discipline everywhere whether on duty or off duty, Such grave mis-conduct having been found to have been committed by the petitioner, there was hardly any occasion for the learned Single Judge to hold that the decision for the award of punishment of dismissal from service taken by the Disciplinary Authority was so unreasonable or irrational as can be termed shockingly disproportionate. The learned Single Judge has referred to the decisions in Ram Awadh v. The Dy, Inspector General Eastern Region, C.I.S.F., Patna and Ors., 1997 (76) FLR 775 and Ranjet Thakur v. Union of India, AIR 1987 SC 2386, The aforesaid cases are distinguishable on the facts and principles from the present case, especially in the background of the principles of law laid down by the Apex Court in the cases referred to above.
17. Thus, while summing up the entire facts and circumstances in the light of the above observations recorded by us in the judgment, we hold that the petitioner was not entitled for the relief of quashing the punishment order dated 30.1.1991 which had stood merged with the appellate order, as he had not sought for the relief to quash the appellate order dated 12.12.1993. We also find that the learned Single Judge has strived in vain to question the proportionality of the quantum of punishment when there was hardly any justification to exonerate the petitioner of the charges of deliberate concealment of important and sensitive facts about his arrest etc. in connection with a criminal case.
18. On the facts and circumstances, we find that the petition of the delinquent employee docs not have any force at all and instead of granting relief in his favour the petition itself should have dismissed. We thus find that there is sufficient merit in the appeal, which deserves to be allowed.
19. This intra-Court appeal is allowed with no order as to costs and the judgment and order dated 10.9.2002 passed by the learned Single Judge is hereby set aside. Respondent's petition is hereby dismissed.