JUDGMENT
Vineet Saran, J.
1. This writ petition is directed against the order dated 13.3.1994 passed by Senior Superintendent of Police, Varanasi, respondent No. 3, dismissing the petitioner from service and also the order dated 25/26.10.1995 passed by the Deputy Inspector General of Police, Varanasi Range, Varanasi respondent No. 2, whereby the appeal of the petitioner has been dismissed.
2. A preliminary objection has been raised by the learned standing counsel appearing for the respondents that the petitioner has not availed the alternative remedy of filing a revision against the appellate order, as provided under Rule 23 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 and thus this writ petition should be dismissed on the ground of alternative remedy. Sri C.B. Yadav, learned counsel for the petitioner, states that he is not disputing the facts of the case, and the factual position as has been dealt with by the respondent in the impugned orders may be taken to be correct. He stated that the petitioner is only pressing the prayer with regard to the quantum of punishment that has been awarded in the admitted facts of the case. In the said circumstances, as the petitioner is accepting the facts as given in the Impugned orders passed by the respondents and is only pressing the prayer regarding the quantum of punishment, I do not think It proper to dismiss this writ petition only on the ground of alternative remedy, specially in view of the fact that this writ petition has been pending since 1996, for more than seven years and counter and rejoinder-affidavits have also been exchanged.
3. I have heard Sri C.B. Yadav, learned counsel for the petitioner, as well as Sri R.K. Awasthi, learned standing counsel appearing for the State-respondents, at some length on the merits of the case, and have also perused the record.
4. A perusal of the impugned order shows that the charges on which the petitioners had been dismissed from service were that on 30.5.1992 at 14.00 hours the petitioner reached the police station in a state of intoxication ; that he tried to talk with the Superintendent of Police. Barabanki on the Wireless set and when the other employees of the police station stopped him, he abused them and even tried to break the Wireless set. On medical examination it was found that the petitioner had consumed liquor. On such charges the Senior Superintendent of Police, Varanasi dismissed the petitioner from service vide his order dated 13.3.1994, The appeal filed by the petitioner against the said order was also dismissed by the Deputy Inspector General of Police, Varanasi Range, Varanasi on 25/26.10.1995.
5. As already noticed above, since the charges on which the punishment has been imposed are to be taken as correct, what is now left to be considered and examined is as to whether the punishment imposed was commensurate with the said charges or not.
6. Learned counsel for both the parties have placed reliance on a large number of judgments. In certain decisions, which shall be dealt with in the foregoing paragraphs, the Courts have either reduced the punishment Imposed or set aside the same on the ground that the same was shockingly disproportionate to the charges. However, in certain cases, as have been relied upon by the learned standing counsel, the Apex Court, as well as the High Court, have held that if the finding of fact has been accepted to be correct by the Courts, it should not interfere with the punishment imposed.
7. In Mithilesh. Singh v. Union of India and Ors., 2003 (1) UPLBEC 911, the Apex Court held that absence from duty without proper Intimation and permission amounted to grave offence warranting removal from service. In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC) ; 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent, and held that the High Court ought not to have Interfered with the quantum of punishment in the facts of that case. The Supreme Court in the case of State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736, held that where the employee had absented himself from duty without leave on several occasions, the High Court was not correct in holding that his absence from duty would not amount to such a grade charge so as to impose the penalty of dismissal from service.
8. On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386, has held that “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 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-Marital, 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.”
9. In the case of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215, the Apex Court held that over-staying of leave subsequent to the order of rejection of application for extension of leave could not be considered to be a sever enough charge to warrant punishment of dismissal from service and the same was held to be harsh and disproportionate. A Division Bench of this Court in the case of Harpal Singh v. State Public Services Tribunal, Lucknow and Ors. 2000 (2) AWC 1075 : 2000 (86) FLR 334, held that where it was on account of negligence of the constable of the G.R.P. that one passenger was misbehaved with and was murdered, the same could not be a case of serious misconduct and held that the punishment of dismissal from service was totally disproportionate to the offence and thus directed reinstatement of the employee in service, with half back wages and also ordered that he be given a severe warning. Further, in the case of Alexandar Pal Singh v. Divisional Operating Superintendent, 1987 (2) ATC 922 (SC), the Supreme Court held that ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two Increments.
10. A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630, 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.
11. In the light of the law laid down by the Apex Court as well as this Court, in my view the broad principle which emerges is that normally, it is the disciplinary authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.
12. In the present case, the offence with which the petitioner has been charged is that he reached the police station after having consumed liquor. It is not a charge against him that he spoke to the Superintendent of Police on the Wireless set or misbehaved with him ; or that he had broken the Wireless set. What is alleged against him is that he tried to speak to the Superintendent of Police and tried to break the Wireless set. It is true that such misconduct should not be permitted in a disciplined force and a constable guilty of such offence should not be left scot free, but imposing the ultimate punishment of dismissal from service for the aforesaid offence is certainly not appropriate. Had the petitioner been charged with the offence of having actually misbehaved with the Superintendent of Police or had he actually destroyed the property in the police station, then the case may have been different. In my view, imposing the ultimate punishment of dismissal from service, in the present case, was shockingly disproportionate to the charges for which the petitioner has been found guilty, and as such the same was wholly unwarranted in the facts of the present case.
13. However, the petitioner having been found guilty of the offence, should definitely be punished. He has already remained out of service for nearly nine years from 1994 till date. Shri C.B. Yadav, learned counsel for the petitioner, has submitted that in case if the petitioner is reinstated in service, he shall not claim the wages for the period during which he remained out of service, i.e., from 13.3.1994 till the date of his reinstatement, if so directed.
14. Considering the entire facts and circumstances of the case, in my view, the punishment of withholding of three increments with cumulative effect and reinstatement in service without back wages would be sufficient and adequate punishment. Accordingly, it is directed that the petitioner shall be reinstated in service within two months from the date of filing of a certified copy of this order before respondent No. 3. However, three increments of the petitioner with cumulative effect shall be withheld, and he shall also not be entitled for salary from the date of his dismissal till the date of his reinstatement, but he shall be given continuity of service for all other purposes.
15. In the result, this writ petition is partly allowed. There shall be no order as to cost.