Ramu Vs. District and Sessions Judge, Kolar and ors. - Court Judgment

Excerpt:
- indian succession act, 1925. section 2(h): [n. kumar,j] proof of will legal requirements duty of the court held, under the act, the will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. if these legal requirements are not found, in the eye of law there is no will at all. therefore, the first step is that if the documents produced before the court prima facie do not satisfy these legal requirements, the court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document. further, the second step is that when the legal heirs are disinherited, the court has to scrutinise the evidence with greater degree of care than usual. the third step would be to find out whether the testator was in a sound state of mind at the terms of executing the will. the fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the will. the fifth step is to consider whether the will that is executed is in accordance with section 63 of the act read with section 68 of the evidence act. -- section 63 r/w section 68: execution of a will - attestation and execution procedure held, the will that is executed to be in accordance with section 63 of the act read with section 68 of the evidence act. the will is a document required by law to be attested. the execution of will must include both execution and attestation. attestation and execution are different acts, one following the other. there can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail. the court has to find out whether the will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the will. further the said will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the will as attesting witness in the present of the testator though it shall not be necessary that both of them should be present at the same time. section 68 of the evidence act deals with proof of execution of documents required by law to be attested. a will is a document which requires to be attested under section 63 (c) of the act. therefore, the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. whether such a will is registered or not registered, in the eye of law it makes no difference. even if the said will is registered under the provisions of the indian registration act, 1908 whether the execution of the will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said will. under no circumstances the proof of execution of the will is dispensed with in law. it is only after the court is satisfied that all these tests are successfully passed, the court can declare that will is executed in accordance with law, as such it is valid and enforceable. -- section 63: [n.kumar, j] execution of unprivileged wills - three rules to be the complied with held, the first rule is that the said will should be signed by the testator. if he is incapable of signing, his thumb mark is to be affixed. if some other person is signing the will, the other person shall affix his signature in the presence of the testator and on his direction. therefore, it is mandatory that the will should contain the signature or thumb mark to authenticate the same, without which it cannot be said to be the will of the testator. the second rule is the signature or the mark shall be so placed on the will, that it shall appear that it was intended thereby to give effect to the writing as a will. the signature of the testator may be found on all pages at the end also. according to sub-section (b), the signature need not necessarily be at the end of the will. it does not matter in which part of the will the testator signs. if a will is written on several sheets of paper, with all sheets severally signed, one signature on the last sheet made with the intention of executing the whole is sufficient. mere signature found on the will at some place is not sufficient. if the signature is found at some place of the page and it does not appear that such a signature was put with any such intention or giving effect to the will, then the signature or mark has no value. the test is whether the said signature found on the will, conveys the intention of the testator to give effect to the writing as a will. the third rule is that the will requires attestation by two or more witnesses. attestation means the persons, who have affixed their signature as attesting witness, saw the executant, (in the case of a will a testator), sign or affix his mark to the instrument. not only the attesting witness should sign the will in the presence of the testator, but they should also see with their eyes the testator signing the instrument or if they are not present at the time of signing the instrument, the testator should acknowledge to them his signature or mark to the said instrument. -- section 63 (c):requirement of due attestation to prove the will held, to prove due attestation under section 63(c) it is open to the propounder of the will to examine a person who was present at the time of attestation, who saw the testator acknowledging to such attesting witness who was not present at the time of attestation, who saw the testator acknowledging to such attesting witness who was not present at the time of the testator affixing his signature to the will, acknowledging his signature or mark and then the attesting witness signing the will in the presence of the testator. that would meet the requirement of clause(c) of section 63. if an attesting witness is not present when the testator affixed his signature and if the testator does not acknowledge his signature to the said attesting witness, before the attesting witness affixes his signature to the will, then this requirement of law is not fulfilled and the will is not proved. in those circumstances, if the other attesting witness is not examined or other evidence is not adduced regarding due attestation, the requirement of section 63(c) is not complied with, willis not proved. on facts, held, evidence on record clearly discloses that testator was not in a sound state of mind at the time when the will come into existence and it has come into existence under suspicious circumstances. the propounder of the will has failed to remove the suspicious circumstances. petitioner are not entitled to the letters of administration sought for. - ' 7. applying the principle to the facts of this case, though it may not be possible to reach the conclusion that the decision impugned in this case is either an outrageous defiance of logic or suffers from irrationality and perversity, i am still of the opinion that assessing the disastrous consequence resulting from infliction of maximum punishment on the petitioner in a case of remissness of not reporting for duty and remaining away from the office of calling without the necessary permission or authorisation, the punishment is in a sense disproportionate to the gravity of the offence committed by the petitioner. in a situation like this, it is hard to reach pitiless conclusions despite remorseless logic. petitioner being a marginal person belonging to class iv service is craving before the court for a lesser punishment which the discretion of this court cannot mercilessly reject and for good reasons too. again i would like to impress that what i have done is only an assessment of the situation in so far as the circumstances of this case are concerned and i am averse to hazard a general proposition in this regard.order1. the situation in this case is such as to place any decision making authority on the horns of dilemma. on the one hand consistency in the callousness of the petitioner to the call of duty and on the other the pressure of equity and sympathy for the irreparable loss the petitioner would suffer along with the members of his family, if the impugned order is confirmed. the task is rendered rather difficult and unenviable in striking a balance between the two. on a very careful consideration of all aspects, both human and disciplinary, i am of the view that a lesser punishment than what has been awarded would meet the ends of proportionality. 2. ramu was appointed as a peon in 1979 in the office of the munsiff, kolar. by his irresponsible conduct of remaining unauthorisedly absent, he provoked disciplinary proceedings against him. from 20th november 1979 to 7th december 1979, he remained absent without authorisation from duty and after disciplinary proceedings, he was administered a warning. the second instance was that he remained similarly absent from 23rd august 1982 to 18th december 1982 necessitating an enquiry into his dereliction of duty, which resulted in a penalty of withholding two increments with cumulative effect. finally one more enquiry which was a sequel to his absence from duty without authorisation from 21st march 1985 and this resulted with the consequence of removal from service on 5th january 1987. the petitioner has questioned the impugned order of dismissal dated 5th january 1987 in this writ petition. 3. no discrepancy or irregularity is noticeable in the conduct of the enquiry and the entire disciplinary proceedings. the petitioner has rendered himself culpable on account of his own conduct inconsistent with the requirement of disciplined conduct of a government servant. 4. what survives for consideration is the short point and that is whether the punishment meted out to the petitioner is too harsh and therefore is not consistent with the principle of proportionality. 5. the learned government pleader submitted that instruction was sought from the authorities in order to find out whether the authorities would be willing for a lesser punishment than what has been imposed on the petitioner. however she drew blank on account of the firm opinion of the authorities that this is not a case in which the authorities should relent in view of the lapses committed by the petitioner in remaining absent without authorisation on three specific occasions for long periods. the government pleader also submitted that the petitioner does not deserve, in the circumstances of the case, any lesser punishment than what has been inflicted upon him. 6. a principle of far reaching consequence has been laid down in ranjit thakur v. union of india by the supreme court (1988-i-llj-256), in which the court was of the opinion that the punishment was so strikingly disproportionate as to call for and justify interference. it would be necessary to reproduce the relevant portion of the judgment in para 3 of the aforesaid decision 'the accused no. 1429055 m. signalman ranjit thakur of4 corps' operating signal regiment is chargedwith - disobeying a lawful command given by his superiorarmy act office. in that he at 15.30 hrs. on 29th march 1985 whensection ordered by jc 106251p sub ram singh, the orderly officer41(2) of the same regiment, to eat his food did not do so.'the result of refusal to eat his own food costing the job, the supreme court thought, was a punishment strikingly disproportionate and called for interference. an excerpt from the judgment would bear out the principle to be followed by the decision making authority (p.262) - 'judicial review, generally speaking, is not directed against a decision, but is directed against the 'decision making process'. the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-material. but the sentence has to suit the offence and the offender. it should not be vindictive or unduly harsh. it should not be so disproportionate to the offence as to shock the conscience and amount in 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 as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. irrationality and perversity are recognised grounds of judicial review. (1984) 3 wlr 1174 (hl) and (1983-ii-llj-1) followed.' 7. applying the principle to the facts of this case, though it may not be possible to reach the conclusion that the decision impugned in this case is either an outrageous defiance of logic or suffers from irrationality and perversity, i am still of the opinion that assessing the disastrous consequence resulting from infliction of maximum punishment on the petitioner in a case of remissness of not reporting for duty and remaining away from the office of calling without the necessary permission or authorisation, the punishment is in a sense disproportionate to the gravity of the offence committed by the petitioner. the degree of seriousness and the measure of the gravity of the offence cannot be standardised. but they have to be assessed in relation to the peculiarities of each case and the peculiarities vary from one situation to another depending once again on the various factors which influence the creation of situations. 8. though the explanation offered by the petitioner in this case does not bear legal scrutiny, it cannot be lost sight of that the petitioner in all the three disciplinary proceedings remained ex parte in keeping with the cursed habit of remaining away from duty without authorisation. the mental attitude of the petitioner does not reflect the attitude of an ordinary, reasonable and prudent person. if the principle that every one is presumed to be aware of the ordinary, natural and probable consequences of his conduct is to be applied to the instant case, it is difficult to find an answer from the petitioner. this peculiar mental attitude of the petitioner alone creates a doubt in the mind of the court as to what actually operated on the mind of the petitioner in keeping away from work without permission. though it would be risky to delve into the psychology of a person and as observed by brian c.j., 'it is common knowledge that the thought of man shall not be tried, for, the devil himself knowledge not the thought of man.' the trite saying is that 'truth is a dangerous experiment and man is a bungling investigator.' however, it must be said that there is a degree of enigma in the behaviour of the petitioner on whom is placed the responsibility of supporting a family of five children and a long term of service ahead and if the petitioner had committed a graver offence than what he has done resulting in his dismissal, i would not have had any hesitation in refraining from taking a different view from what the authority has done in the instant case. it is not doubt true that in taking a decision in matter of this nature, which affects the future of an employee and his dependents to support, there is no place for misplaced sympathy or unregulated benevolence. however, in the instant case. i do not think that a reasonably lenient view by reducing the punishment would amount to either unregulated benevolence or misplaced sympathy. on the other hand, i am of the opinion that it would be possible to say that a lesser punishment would satisfy the requirements of the principle of proportionality and produce a salutary effect on the petitioner. the retribution of dismissal from service perhaps would require a graver offence than what has been proved against the petitioner in this case. the petitioner has no other ostensible source of livelihood nor is it the intention of the disciplinary authority to deprive him of the source of livelihood once and for all in a climate of inevitable socio-economic conditions which permeates society to-day. it cannot be more aptly said than that 'justice tempered with mercy is equity'. it cannot be said that the petitioner is guilty of a heinous offence or a gross tort or even moral turpitude as to warrant the maximum penalty of dismissal from service. the petitioner was produced before the court by the learned counsel for the petitioner. the petitioner was remorseful and vowed to avoid recurrence of his accursed habit of straying away from duty. he is in his thirties without any earning member in his family and all look to him for existence. in a situation like this, it is hard to reach pitiless conclusions despite remorseless logic. 'a heart buried in a dungeon is as precious as a heart seated on the throne' said oliver goldsmith. petitioner being a marginal person belonging to class iv service is craving before the court for a lesser punishment which the discretion of this court cannot mercilessly reject and for good reasons too. these are days when 'reformative theory' is gathering momentum in dealing with even delinquents facing capital punishments so as to reabsorb them into society for its benefit because the solution lay not in ending but in mending. i am therefore persuaded to opine that the petitioner deserves a lesser punishment than dismissal from service. again i would like to impress that what i have done is only an assessment of the situation in so far as the circumstances of this case are concerned and i am averse to hazard a general proposition in this regard. 9. for the reasons stated above, i am of the opinion that the ends of justice would be met if the petitioner is subjected to the punishment of loss of back wages and withholding of two increments with cumulative effect and an order of reinstatement in service. 10. i, therefore, allow this writ petition and pass the following order - the impugned order is quashed. i direct that the petitioner be reinstated without back wages and any consequential benefit and further subject to denial of two increments with cumulative effect. 11. the writ petition is disposed of accordingly.

Judgment:
ORDER

1. The situation in this case is such as to place any decision making authority on the horns of dilemma. On the one hand consistency in the callousness of the petitioner to the call of duty and on the other the pressure of equity and sympathy for the irreparable loss the petitioner would suffer along with the members of his family, if the impugned order is confirmed. The task is rendered rather difficult and unenviable in striking a balance between the two. On a very careful consideration of all aspects, both human and disciplinary, I am of the view that a lesser punishment than what has been awarded would meet the ends of proportionality.

2. Ramu was appointed as a peon in 1979 in the office of the Munsiff, Kolar. By his irresponsible conduct of remaining unauthorisedly absent, he provoked disciplinary proceedings against him. From 20th November 1979 to 7th December 1979, he remained absent without authorisation from duty and after disciplinary proceedings, he was administered a warning. The second instance was that he remained similarly absent from 23rd August 1982 to 18th December 1982 necessitating an enquiry into his dereliction of duty, which resulted in a penalty of withholding two increments with cumulative effect. Finally one more enquiry which was a sequel to his absence from duty without authorisation from 21st March 1985 and this resulted with the consequence of removal from service on 5th January 1987. The petitioner has questioned the impugned order of dismissal dated 5th January 1987 in this writ petition.

3. No discrepancy or irregularity is noticeable in the conduct of the enquiry and the entire disciplinary proceedings. The petitioner has rendered himself culpable on account of his own conduct inconsistent with the requirement of disciplined conduct of a government servant.

4. What survives for consideration is the short point and that is whether the punishment meted out to the petitioner is too harsh and therefore is not consistent with the principle of proportionality.

5. The learned Government Pleader submitted that instruction was sought from the authorities in order to find out whether the authorities would be willing for a lesser punishment than what has been imposed on the petitioner. However she drew blank on account of the firm opinion of the authorities that this is not a case in which the authorities should relent in view of the lapses committed by the petitioner in remaining absent without authorisation on three specific occasions for long periods. The Government Pleader also submitted that the petitioner does not deserve, in the circumstances of the case, any lesser punishment than what has been inflicted upon him.

6. A principle of far reaching consequence has been laid down in Ranjit Thakur v. Union of India by the Supreme Court (1988-I-LLJ-256), in which the Court was of the opinion that the punishment was so strikingly disproportionate as to call for and justify interference. It would be necessary to reproduce the relevant portion of the judgment in para 3 of the aforesaid decision

'The accused No. 1429055 M. Signalman Ranjit Thakur of4 Corps' Operating Signal Regiment is chargedwith - Disobeying a lawful command given by his superiorArmy Act office. In that he at 15.30 hrs. on 29th March 1985 whenSection ordered by JC 106251P Sub Ram Singh, the Orderly Officer41(2) of the same Regiment, to eat his food did not do so.'

The result of refusal to eat his own food costing the job, the Supreme Court thought, was a punishment strikingly disproportionate and called for interference. An excerpt from the judgment would bear out the principle to be followed by the decision making authority (p.262) -

'Judicial review, generally speaking, is not directed against a decision, but is directed against the 'decision making process'. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Material. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in 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 as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. (1984) 3 WLR 1174 (HL) and (1983-II-LLJ-1) Followed.'

7. Applying the principle to the facts of this case, though it may not be possible to reach the conclusion that the decision impugned in this case is either an outrageous defiance of logic or suffers from irrationality and perversity, I am still of the opinion that assessing the disastrous consequence resulting from infliction of maximum punishment on the petitioner in a case of remissness of not reporting for duty and remaining away from the office of calling without the necessary permission or authorisation, the punishment is in a sense disproportionate to the gravity of the offence committed by the petitioner. The degree of seriousness and the measure of the gravity of the offence cannot be standardised. But they have to be assessed in relation to the peculiarities of each case and the peculiarities vary from one situation to another depending once again on the various factors which influence the creation of situations.

8. Though the explanation offered by the petitioner in this case does not bear legal scrutiny, it cannot be lost sight of that the petitioner in all the three disciplinary proceedings remained ex parte in keeping with the cursed habit of remaining away from duty without authorisation. The mental attitude of the petitioner does not reflect the attitude of an ordinary, reasonable and prudent person. If the principle that every one is presumed to be aware of the ordinary, natural and probable consequences of his conduct is to be applied to the instant case, it is difficult to find an answer from the petitioner. This peculiar mental attitude of the petitioner alone creates a doubt in the mind of the Court as to what actually operated on the mind of the petitioner in keeping away from work without permission. Though it would be risky to delve into the psychology of a person and as observed by Brian C.J., 'It is common knowledge that the thought of man shall not be tried, for, the devil himself knowledge not the thought of man.' The trite saying is that 'truth is a dangerous experiment and man is a bungling investigator.' However, it must be said that there is a degree of enigma in the behaviour of the petitioner on whom is placed the responsibility of supporting a family of five children and a long term of service ahead and if the petitioner had committed a graver offence than what he has done resulting in his dismissal, I would not have had any hesitation in refraining from taking a different view from what the authority has done in the instant case. It is not doubt true that in taking a decision in matter of this nature, which affects the future of an employee and his dependents to support, there is no place for misplaced sympathy or unregulated benevolence. However, in the instant case. I do not think that a reasonably lenient view by reducing the punishment would amount to either unregulated benevolence or misplaced sympathy. On the other hand, I am of the opinion that it would be possible to say that a lesser punishment would satisfy the requirements of the principle of proportionality and produce a salutary effect on the petitioner. The retribution of dismissal from service perhaps would require a graver offence than what has been proved against the petitioner in this case. The petitioner has no other ostensible source of livelihood nor is it the intention of the disciplinary authority to deprive him of the source of livelihood once and for all in a climate of inevitable socio-economic conditions which permeates society to-day. It cannot be more aptly said than that 'Justice tempered with mercy is equity'. It cannot be said that the petitioner is guilty of a heinous offence or a gross tort or even moral turpitude as to warrant the maximum penalty of dismissal from service. The petitioner was produced before the Court by the learned Counsel for the petitioner. The petitioner was remorseful and vowed to avoid recurrence of his accursed habit of straying away from duty. He is in his thirties without any earning member in his family and all look to him for existence. In a situation like this, it is hard to reach pitiless conclusions despite remorseless logic. 'A heart buried in a dungeon is as precious as a heart seated on the throne' said Oliver Goldsmith. Petitioner being a marginal person belonging to Class IV service is craving before the Court for a lesser punishment which the discretion of this Court cannot mercilessly reject and for good reasons too. These are days when 'Reformative Theory' is gathering momentum in dealing with even delinquents facing capital punishments so as to reabsorb them into society for its benefit because the solution lay not in ending but in mending. I am therefore persuaded to opine that the petitioner deserves a lesser punishment than dismissal from service. Again I would like to impress that what I have done is only an assessment of the situation in so far as the circumstances of this case are concerned and I am averse to hazard a general proposition in this regard.

9. For the reasons stated above, I am of the opinion that the ends of justice would be met if the petitioner is subjected to the punishment of loss of back wages and withholding of two increments with cumulative effect and an order of reinstatement in service.

10. I, therefore, allow this writ petition and pass the following order -

The impugned order is quashed. I direct that the petitioner be reinstated without back wages and any consequential benefit and further subject to denial of two increments with cumulative effect.

11. The writ petition is disposed of accordingly.