Judgment:
S.D. Shah, J.
1. Rule. Mr. D.N. Patel, learned A.G.P. appearing for the respondent-State waives service of rule on behalf of the respondent-State. With the consent of the learned Advocates of parties the matter is finally heard today.
2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order passed by the Deputy Secretary, Home Department, State of Gujarat, dated 21st June, 1991 whereby in exercise of the powers conferred upon the Government under Rule 189(B) of the Bombay Civil Service Rules, he has ordered that an amount of Rs. 75/- per month shall be deducted from the pension payable to the petitioner for a period of five years and he has further directed that such penalty shall be implemented from the date of the order. It is this order which is under challenge in the present petition.
3. Mr. Thakkar. learned Advocate appearing for the petitioner has strenuously urged bsfore This Court that the impugned order passed by the authority is not legal and valid inasmuch as there was no evidence to bring home the charge levelled against the petitioner-delinquent. He has also submitted that the findings reached by the authority are absolutely untenable in law and are not supported by any evidence on record. Lastly, he has urged that even if the charge is held to have been proved against the petitioner-delinquent penalty of deducting an amount of Rs. 75/- p.m. from the meagre amount of petitioner's pension which the delinquent would receive after retirement would be too harsh and unreasonable and therefore, the impugned order is required to be quashed and set aside.
4. Mr. Patel, learned A.G.P. appearing for the respondent-State has, on the other hand, submitted that the impugned order passed by the authority is within its powers and jurisdiction inasmuch as Rule 189(B) of the Bombay Civil Service Rules, 1959 empowers the State Government to deduct any amount from the pension for misconduct committed during the tenure of service. Mr. Patel has also submitted that the validity of the aforesaid rule has been accepted by the Supreme Court of India and that the authority has, after considering the whole evidence, reached the finding which cannot be said to be per se perverse. Therefore, the interference of This Court under Article 226 of the Constitution of India is unwarranted and not called for.
5. Having given my aaxious consideration to the aforesaid submissions of the learned Advocates of the parties. I am of the opinion that This Court cannot go behind the findings reached by the competent authority on appreciation of the evidence whatsoever. The evidence was recorded and on such evidence, the competent authority has found that the charges levelled against the delinquent-petitioner were proved. It is also not possible for This Court to undertake reappreciation of the evidence as is submitted by Mr. Thakkar, Learned Counsel for the petitioner. In fact, in a petition under Article 226 of the Constitution of India if the findings are positively reached by the competent authority on appreciation of the evidence, interference with such finding is not called for and the Courts should be slow to interfere with such findings of fact. I, therefore, do not agree with Mr. Thakkar, Learned Counsel for the petitioner that the finding recorded is perverse or untenable at law.
6. That bring me to the last submission of Mr. Thakkar, Learned Counsel for the petitioner that me order of penally passed by the competent authority is harsh, excessive, unreasonable and mat the imposition of such a penalty would amount to denial of hard earned pension of an employee who has retired from the service. Mr. Thakkar has strenuously urged before This Court that the petitioner was serving as unarmed Head Constable and he has already retired from service. Deduction of an amount of Rs. 75/- p.m. from the amount of pension for a period of five years would cause untold hardships to the petitioner as well as to his family members. He has submitted that in fact, this would amount to deprivation of means of livelihood in the retired age when the same is badly needed by the retired employee and the Court should take humanitarian approach and should see to it tint the penalty does not result into such hardships and untold suffering.
7. True it is, that the Court should be slow to substitute its own penalty for the peaalty imposed by the competent authority. However, in a recent decision in the case of Ex-Naik Sardar Singh v. Union of India and Ors. reported in : 1992CriLJ289 the Supreme Court of India has with approval quoted the following pertinent observations of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service 1984 (3) AII.ER 935:
Judicial review has I think driveloped to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under the heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and there third 'procedural impropriety'. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community...
8. In the case of Ranjit Thakur v. Union of India reported in : 1988CriLJ158 the Supreme Court of India considered the question of doctrine of proportionality in the matter of awarding punishment and it observed as under:
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It shonld not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount itself to conclusive evidence of bias. 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 of the Court even logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.
9. The aforesaid observations make it abundantly clear that the approach of the Disciplinary Authority while imposing punishment should be rational and reasonable. Every misconduct does not call for a severe penalty of dismissal or removal. The nature of misconduct is to be kept in mind while imposing the penalty. The right to impose penalty carried with it the duty to act justly. The penalty imposed must be commensurate with the gravity of the; misconduct and any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution of India. Oscar Wdde's dictum, 'MODERATION IS A FATAL THING. NOTHING SUCCEEDS LIKE EXCESS' cannot be accepted in the present day context in the country wedded to the principle of equality before the law in the matter of employment. There must be graded punishment for graded misconduct because that penalty is just which fits the misconduct and does not suffer from undue mitigation or immoderate exaggeration.
10. In view of the aforesaid observations, it is necessary for This Court to'examine as to whether the penalty imposed by the competent authority can be said to be reasonable, rational and in proportion to the misconduct committed by the petitioner-delinquent. It is required to be noted that the misconduct was committed while the petitioner was in service. It is also true that the misconduct cannot be viewed leniently and that too 'or an. officer serving in the police force. At, the same time, it shall have to be kept hi mind that the employee is already out of employment as he has retired from service. Tilde is no possibility of his repeating the misconduct and therefore impugned penalty cannot be said to have preventive objective. This penalty has, even no deterrent effect so far as the employee is concerned. The employee is simply required to be reminded of the lapses committed by him and that reminder can be given by deduction of token amount from his pension. I, therefore, view the penalty in this case as one which actually has no deterrent or preventive effect, vis-a-vis, the employee. It serves the purpose of setting up an example or teaching a lesson to class of erring employees and thereby restores and satisfies the ego of the employer that an erring employee is not permitted to go scot free despite his retirement. The employer thereby establishes that his writ or whip runs even beyond retirement. Such a punishment should not be harsh and excessive. In my view, depriving retired Head Constable of the amount of Rs. 75/- p.m. from pension for a period of five years would work too harsh and excessive and hence unreasonable in the present day of rising prices. Therefore, in the facts and circumstances of this case, without laying any precedent, I quash and set aside the impugned order of penalty passed by the Deputy Secretary, Home Department and substitute the same by reduction of an amount of Rs. 45/- p.m. from the amount of pension payable to the petitioner-delinquent for a period of five years. The deduction at the rate of Rs. 75/- p.m. which is already effected from the amount of pension payable to the petitioner may be set off so as to work out the same at the rate of Rs. 45/- p.m. for a period of five years from the date of the order passed by the competent authority. Since the pension is to be paid to the petitioner by the Director of Pension and Provident Fund, Multistoreyed Building, Lal Darwaja, Ahmedabad, it would be just, and proper to issue writ of this order to the said authority also and the office is therefore directed to send writ of this order to the respondents herein as well as to the aforesaid authority that is the Director of Pension and Provident Fund, Multistorey Building, Lal Darwaja, Ahmedabad. Rule made absolute to me aforesaid extent with no order as to costs.