Read Judgment: Anil Kumar Upadhyay v. The Director General, SSB and Others 

LE Correspondent

New Delhi, April 21, 2022: Upholding the punishment of removal from service imposed upon a SSB constable who committed a serious misconduct of entering Women’s Barrack at night, the Supreme Court has held that as a member of the disciplined force- Sashastra Seema Bal(SSB), he was expected to follow the rules.

The Division Bench of Justice M.R.Shah and B.V. Nagarathna said, “The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him.”

The present appeal was preferred by the appellant(SSB constable) against the impugned judgment and order of the Division Bench of the High Court quashing the order of the Single Judge of the High Court wherein it was stated that the appellant should be awarded a punishment of removal from service as the same was harsh and disproportionate in nature. 

Brief facts of the case were that the appellant in the present case  was serving as a Head Constable (Ministerial) in the 15th Battalion of the Sashastra Seema Bal (SSB), Bongaigaon. He was charged with violation of good order and discipline under Section 43 of the Sashastra Seema Bal Act, 2007 (SSB Act), for having entered the Mahila Barrack of the Battalion at around 00:15 hours, on the intervening night of 14th – 15th April, 2013. He was charged with indiscipline and misconduct leading to compromising the security of the occupants of the Mahila Barrack. He was apprehended inside the Mahila Barrack by six female constables. The matter was reported to the superiors. He was placed under suspension.Later, a departmental enquiry was initiated against him. The Battalion Commandant heard the appellant and under the SSB Rules, the Summary Force Court (SFC) was ordered against the delinquent – Head Constable.

Thereafter, the SFC found the appellant guilty of the charges and initially ordered for his dismissal on March 29, 2013 . However, subsequently, the penalty of dismissal was converted to removal from service on June 21, 2013  by the Commandant of the Battalion. Pursuant to the same the  departmental appeal  instituted by the delinquent – Head Constable came to be rejected at first, as time barred on December 6, 2013.  The  Appellate Authority thereafter  upheld the disciplinary action under its order dated January 24, 2014.

Feeling aggrieved and dissatisfied with the order of removal from service passed by the disciplinary authority, the appellant – delinquent employee preferred a writ petition before the High Court and the  High Court  set aside the order of punishment imposed by the disciplinary authority of removal from service and remitted the matter to the disciplinary authority to impose any lesser punishment which may facilitate the appellant herein – Head Constable (Ministerial) to retain his job.

Feeling aggrieved and dissatisfied with this judgment the disciplinary authority preferred writ appeal before the Division Bench by which the judgement passed by Single Judge was set aside. Hence, the delinquent  preferred the present appeal.

The Apex Court dealt with the  question  as to whether the Single Judge was justified in interfering with the order of punishment imposed by the disciplinary authority on the ground that the same was disproportionate as the female constable against whom also the disciplinary proceedings were initiated and the two charges were held to be proved against her, was inflicted with the lesser punishment. In order to determine the scope of judicial review in the matter concerning disciplinary proceedings and on the test of proportionality , the Top Court referred to a catena of  precedents.

One of the judgements referred to was of Om Kumar v. Union of India,wherein this Court, after considering the Wednesbury principles and the doctrine of proportionality, held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as Wednesbury principles.

Further reliance was placed on B.C. Chaturvedi v. Union of India wherein it was held that 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.

In another case of  Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh, it was observed that limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court. 

Thus in the light of the precedents cited above, the Apex Court opined that from  the judgment and order passed by the Single Judge, which was interfered with by the Division Bench, it appeared that what  was taken into consideration by Single Judge was that the female constable – Rupasi Barman, who allowed the entry of the delinquent and was also subjected to disciplinary proceedings and was found guilty of both the charges but  she was inflicted with a lesser punishment . According to the Bench, the Single Judge failed to appreciate that the misconduct committed by the delinquent official, being a male Head Constable does not hold the same gravity as that to the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is  more serious in nature when committed by a male Head Constable, the Court remarked. Therefore, it was observed that the Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.

It was further observed that merely because one of the employees was inflicted with a lesser punishment, that cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment was  warranted and inflicted by the disciplinary authority after due application of mind.

The Bench said, “ The misconduct conducted by the appellant, being a member of the disciplined force, by entering the Mahila Barrack in the midnight and such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack can be said to be a grave and serious misconduct and therefore the disciplinary authority was absolutely justified in imposing the punishment of removal from service.”

It was further opined that a punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court was  absolutely justified in interfering with the judgment and order passed by the Single Judge and the same could not be said to be disproportionate to the misconduct proved against the appellant – delinquent, the Court observed. 

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