S.Arulappan v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/36/2023 S. Arulappan Vs.

The Union of India and others Mr. KMB Jayapal ...

for the petitioner Mr. Tulsi Lall ...

for the UOI Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration November 20, 2023 [SR] Item No.12

1. The writ petition is arising out of an order passed by the Central Administrative Tribunal, Kolkata Bench, Kolkata dated 10th July, in connection with O.A/351/95/AN/2013 filed by the petitioner under section 19 of the Administrative Tribunal Act, 1985 seeking, inter alia, for quashing and/or cancelling the impugned order book No.1398 dated 26th February, 2013 passed by the respondent no.3 whereby his service was terminated.

2. We have heard the learned counsel for the parties.

3. The petitioner is a Constable working in the Police Department of the Union Territory. On the allegation that he was in possession of police land illegally and has raised construction thereat and had failed to vacate the said property in spite of notice served to him, disciplinary proceeding was initiated against him after issuance of charge sheet.

4. It appears that the petitioner has filed a suit challenging the order of the resumption of possession in which he has categorically stated that the land in question is not a police land but is a government land and he is entitled to regularization under the settlement scheme. The said civil suit is pending.

5. In the disciplinary proceeding, he has categorically stated that the disciplinary proceeding may be stayed till the civil suit is decided.

6. However, The enquiry officer has proceeded on the basis of the Articles of Charges framed against him which is as follows:

"ARTICLE -I That, PS/170 S. Arulappan (U/s) and PS/151 R.Nagan (U/S) had illegally encroached upon the Police Land near Police Quarters situated at bahdur Line-I, Polcie Line and constructed sem-pacca houses at Bahadur Line-I illegally without any permission or knowledge of the competent authority for which they have been placed under suspension by the Disciplinary Authoirty along with other 10 police personnel for the same case. Later, the 10 Police personnel were re-instated after they dismantled the sem-pacca houses and vacated their encroached land. But, PS/170 S. Arulappan (U/S) and PS/151 R. Nagar (U/S) despite issuance of several notices and repeated instructions from the competent authority did not pay any heed and bothered to vacate their illegal encroached land at Bahadur Line- No.I.

That such an act on the part of PS/170 S.Arulappan (U/S) and PS/151 R. Nagar (U/S) being members of Police Force, amounts to grave misconduct and indiscipline, which is contravention of the mandatory provision under rules 8.45, 8.46 and 8.47 of A & N Police Manual, 1963 rendering them unfit and becoming of a member of uniformed Police Force and making them liable for punishment under rule 9.3 of said Police Manual."

7. The enquiry officer has returned a finding against the petitioner and the Disciplinary Authority, after giving an opportunity of hearing to the petitioner, passed an order of dismissal of the applicant/petitioner. The appellate authority has affirmed the said order. The said order was under challenge before the Tribunal.

8. The learned Tribunal did not find any reason to interfere with the order passed by the Disciplinary Authority on the ground that the basis of the available record, the Disciplinary Authority could have arrived at the said finding and the appellate authority has affirmed the order after giving a reasonable opportunity of hearing and on consideration of all relevant material. The jurisdiction of the Tribunal in a judicial review of an order of the disciplinary authority is very limited.

9. During argument, Mr. Jayapal has submitted that the writ petitioner is willing to vacate the premises and in view of the changed circumstances, the quantum of punishment may be revisited. He has further submitted that even if it is assumed for the time being that the writ petitioner has committed any misconduct in occupying the land in question, which, according to the writ petitioner, is a government land and not the police land, the punishment imposed is disproportionate to the alleged misconduct. Mr. Jayapal has reiterated that the writ petitioner is willing to withdraw the suit and shall abandon its claim in the suit.

10.

Mr.

Shatadru Chakraborty, learned counsel appearing on behalf of the respondent authorities has supported the findings of the Disciplinary Authority and order passed by learned Tribunal and emphasized that a person employed by the police is required to follow scrupulously and adhere to the rules and cannot not be expected to act contrary to law and having regard to the fact that he has openly violated the

law in occupying the area which belongs to the police, the punishment was justified. It is submitted that the writ petitioner in the disciplinary proceeding has given an undertaking to vacate the premises.

11.

We have carefully gone through the report of the Inquiry Officer, order of the Disciplinary Authority and Appellate Authority imposing punishment of dismissal from service.

12.

The question that has arisen in the aforesaid background is whether the order of dismissal is disproportionate to the alleged misconduct. It is not in dispute that the petitioner has throughout contended that the land is a government land and a suit has been filed against the attempt to evict him from the government land. The police authorities have contended that the land belonged to the police department. The issue of encroachment and settlement of the land in favour of the writ petitioner are the issues to be resolved in the civil suit.

13.

However the writ petitioner has decided to vacate the premises now. There is no evidence on record to suggest that petitioner has committed any misconduct in course of his employment.

Presumably there is no adverse remark against the petitioner in his service record. The only allegation is that the he has occupied the police land unauthorisedly. 14.

In fact, the Union Territory has framed various schemes for settlement of land in favour of the trespassers. If it were the government land, the questions of settlement in respect of such government land were required to be considered and decided in the light of the scheme.

15.

We are aware of the fact that in exercising judicial review in disciplinary matters the Court is not exercising its appellate power and sit in appeal over the decision of the disciplinary authority or appellate authority as the case may be.

16.

In the instant case the disciplinary authority as well as the appellate authority has imposed the punishment by way of dismissal from service in view of failure on the part of the writ petitioner in not vacating the land claimed to be a police land. Although the Court is not exercising its appellate jurisdiction in deciding the issue with regard to the punishment the power of the Court to interfere with the quantum of punishment on the Doctrine of proportionalities is however well established. If the Court finds from the nature of the alleged misconduct punishment imposed is shockingly disproportionate the Court is within its power to remand the matter to the authority concerned for re-examining and reconsider the quantum of punishment.

17.

The Indian legal system has accepted the Doctrine of Proportionality almost in all spheres where a decision making process is involved. Doctrine of proportionality is evolved as a check to the untrampled omnibus and unguided discretionary power are vested in the authorities. It is exercised to the control the possible abuse of discretionary powers by various administrative authorities. In the process the Court is not actually substituting the views of the authorities concerned but directing the authorities to reconsider the matter on the basis of relevant facts which might have been overlooked or ignored in deciding quantum of punishment. The Court can always find out that in making the decisions whether all relevant factors have been taking into consideration which could act as a mitigating factor in the event the misconduct is proved. 18.

The service rules categories punishment into major and minor and penalties have been appropriately

specified for such kind of misconduct. A person in the police force charged with bribery or misappropriation or insubordination to mention a few can be awarded with major penalty. However, a mistake committed by a constable in discharging lawful duties cannot be treated alike while deciding the quantum of punishment. 19.

Similarly where the petitioner has filed a suit for establishing his legal right over the land in question and thereby has put up a lawful defence for not vacating premise in question cannot be treated at par with a constable who has been charged with grave offences. The gravity of the misconduct is the decisive factor. The Court has evolved the "balancing test" and "necessity test" in applying Doctrine of Proportionality. The "balancing tests" permits scrutiny of excessive onerous penalties or infringement of right or interest and a manifest imbalance of relevant considerations where as the "necessity test" requires infringement of human rights to the least restrictive alternative.

20.

The question of reasonableness and fairness of the authority concerned in deciding the issue has to be considered with regard to the factual matrix in each case and cannot be put in a straight jacket formula. The authorities should have the flexibility in deciding the matter considering the nature of the misconduct and this flexibility is required while imposing punishment on an employee.

The courts have consistently held that if punishment imposed on a employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a Court to interfere with such penalty in appropriate cases. In the instant case the article of charge would show that proceeding have been initiated for the failure on the part of the writ petitioner in vacating the plot which is claimed by the respondent as a police land. In fact as observed earlier no proceedings initiated against nine persons for occupying and

raising construction on land claimed to have been the property of the respondents were dropped on dismantling of structures and vacating the encroached land. They were all reinstated in service. In the present world the question of survival is a great challenge, more so, after the COVID pandemic. Dismissal from service is akin to the civil death and for that reason, the authorities are required to be careful and circumspect in awarding such drastic punishment. The power to decide quantum of punishment should not be seen as manifestation of might is right. While strict discipline cannot suffer at the altar of sympathy but it cannot be overstretched to cover a situation of the present nature to visit the petitioner with such harsh decision.

21.

We have not come across any materials to show that he has committed any misconduct in discharging his official duty. There is nothing on record to show that he had any black spot in his service career excepting that he refused to vacate the premises on certain ground. He suffered a double jeopardy. On one hand he lost his service and he is now being compelled to withdraw the civil suit as it was unsure about the time within which it would be decided. However by reason of the order of dismissal he is now being compelled to withdrawn or abandon the civil suit as he may not have the means to continue with such civil suit. The order of dismissal has proceeded on the basis that the writ petitioner admitted that he had encroached upon the police land and the report of Tehsildar corroborates such encroachment.

However in the civil suit this report of Tehsildar was under challenge. In fact as recorded earlier the petitioner wants to buy peace and his willing to vacate the land as demanded by the authorities concerned for his survival. In the criminal proceeding nothing adverse was found against the petitioner and in fact he was acquitted.

behalf of the respondent that acquittal in a criminal proceeding may not be relevant factor when the disciplinary proceeding is pending.

22.

In the aforesaid circumstances, we are of the view that the impugned order of punishment by which the service of the petitioner was terminated is required to be revisited by the Disciplinary authority. It would be open for the Disciplinary Authority to exonerate the writ petitioner from the charges having regard to his undertaking before this court that he shall vacate the premises and shall abandon his suit and reinstate him in service like the nine other police constable. 23.

The orders of the dismissal passed by the Disciplinary authority and the Appellant Authority are hereby set aside and as consequence whereof, the order of the Tribunal is also quashed.

24.

We direct the Disciplinary Authority to consider the matter afresh, after giving a reasonable opportunity of hearing to the writ petitioner and taking into consideration his service record, social background, understanding of the consequence of breach of an undertaking, pendency of the civil suit etc. in deciding the matter afresh within two months from the date of communication of this order.

25.

The writ petition is accordingly disposed. However, there shall be no order as to costs.

( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )