UNION OF INDIA & ORS.versusCONST SUNIL KUMAR

                         [2023] 1 S.C.R. 961                           961


                    UNION OF INDIA & ORS.                              A
                                  v.
                     CONST SUNIL KUMAR
                   (Civil Appeal No. 219 of 2023)
                        JANUARY 19, 2023
           [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]                       B
      Service law – Dismissal from service – Allegation that
respondent consumed liquor while on duty and threatened senior
officers – CRPF dismissed the respondent from service – Order
confirmed by the Appellate Authority – Single Judge of the High
Court dismissed the writ petition filed by the respondent – However,
the Division Bench of the High Court reinstated the respondent – It    C
held that dismissal was disproportionate as when the misconduct
was committed the respondent was not on active duty – On appeal,
held: The charges and misconduct proved against the respondent
was of misbehaving with superior and giving threats of dire
consequences to the superior, may be under the influence of
intoxication – Misconduct was of very serious nature – Charges         D
and misconduct of indiscipline and insubordination proved – The
penalty of dismissal is not disproportionate to the gravity of the
wrong – Reasoning given by the Division Bench of the High Court
cannot be accepted – Thus, the impugned judgment and order of
the High Court dismissing the penalty and reinstating the respondent
set aside.                                                             E
      Allowing the appeal, the Court
      HELD 1. At the outset, it is required to be noted that the
disciplinary authority imposed the penalty of dismissal after
holding the departmental enquiry and after following the due
procedure as required under Rule 27 of the CRPF Rules, 1955
                                                                       F
and after having held the charges and misconduct proved. The
charges and misconduct held to be proved against the respondent
who was serving in CRPF – a disciplined force can be said to be
a grave and serious misconduct. The charges and misconduct
proved against the respondent is of misbehaving with superior
and giving threats of dire consequences to the superior, may be
under the influence of intoxication. He also misbehaved and gave       G
threats to the colleagues. The misconduct committed by the
respondent is of insubordination also. The misconduct of
misbehaving with the superior/senior officer and of
insubordination can be said to be a very serious misconduct and
cannot be tolerated in a disciplined force like CRPF and
therefore, as such the Division Bench of the High Court is not         H
                                 961
962            SUPREME COURT REPORTS                      [2023] 1 S.C.R.


A     justified in observing that on the proved charges and misconduct
      penalty of dismissal can be said to be disproportionate. [Para
      6][966-G-H; 967-A-C]
             2. While holding that the penalty of dismissal can be said to
      be disproportionate to the gravity of the wrong, what is weighed
      with the Division Bench of the High Court is that as the
B     respondent was found to be in a state of intoxication when not on
      duty and considering Section 10, he is deemed to have committed
      a less heinous offence. Whether a member of the force has
      committed a heinous offence or a less heinous offence as per
      Sections 9 and 10 of the CRPF Act, 1949 would have bearing on
      inflicting the punishment as provided under Sections 9 and 10
C     but has no relevance on the disciplinary proceedings/
      departmental enquiry for the act of indiscipline and/or
      insubordination. [Para 6.1][967-C-E]
             3. Applying the law laid down by this Court to the facts of
      the case on hand, it cannot be said that the punishment of dismissal
      can be said to be strikingly disproportionate warranting the
D     interference of the High Court in exercise of powers under Article
      226 of the Constitution of India. In the facts and circumstances
      of the case and on the charges and misconduct of indiscipline
      and insubordination proved, the CRPF being a disciplined force,
      the order of penalty of dismissal was justified and it cannot be
      said to be disproportionate and/or strikingly disproportionate to
E     the gravity of the wrong. Under the circumstances also, the
      Division Bench of the High Court has committed a very serious
      error in interfering with the order of penalty of dismissal imposed
      and ordering reinstatement of the respondent. [Para 6.3][968-
      B-D]
             4. At this stage, it is required to be observed that even
F     while holding that the punishment/penalty of dismissal
      disproportionate to the gravity of the wrong, thereafter, no further
      punishment/penalty is imposed by the Division Bench of the High
      Court except denial of back wages. As per the settled position of
      law, even in a case where the punishment is found to be
      disproportionate to the misconduct committed and proved the
G     matter is to be remitted to the disciplinary authority for imposing
      appropriate punishment/penalty which as such is the prerogative
      of the disciplinary authority. On this ground also, the impugned
      judgment and order passed by the Division Bench of the High
      Court is unsustainable. [Para 6.4][968-E-F]
             Union of India vs. R.K. Sharma; (2001) 9 SCC 592 :
H            [2001] 3 Suppl. SCR 664; Commandant, 22nd
    UNION OF INDIA AND ORS. v. CONST SUNIL KUMAR                               963


       Battalion, CRPF vs. Surinder Kumar; (2011) 10 SCC                       A
       244 : [2011] 12 SCR 1189 – referred to.
                          Case Law Reference
[2011] 12 SCR 1189                referred to                Para 6.1, 6.2
[2001] 3 Suppl. SCR 664           referred to                 Para 6.2
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.219 of                   B
2023.
       From the Judgment and Order dated 01.09.2017 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D. B. Special Appeal
Writ No.303 of 2005.
       Mrs. Madhavi Diwan, A.S.G. R. Balasubramanian, R Bala, Sr.
Advs., Mrs. Nidhi Khanna, Vimla Sinha, Mrs. Praveena Gautam, C K               C
Sucharita, Arvind Kumar Sharma, Advs. for the Appellants.
       Abhishek Gupta, Ajatshatru, Nikhil Kumar Singh, Advs. for the
Respondent.
       The Judgment of the Court was delivered by
       M. R. SHAH, J.                                                          D
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 01.09.2017 passed by the High Court of Judicature for
Rajasthan Bench at Jaipur in D.B. Special Appeal Writ No. 303/2005,
by which, the High Court has allowed the said appeal preferred by the
respondent herein and has set aside the penalty imposed by the
disciplinary authority and has directed the appellant(s) to reinstate him in   E
service with notional benefits without any back wages, the Union of
India and others have preferred the present appeal.
       2. The facts leading to the present appeal in a nutshell are as
under: -
       2.1 That the respondent was serving in disciplined force – CRPF.
A departmental enquiry was initiated against him and was served with a         F
chargesheet alleging the charges as under: -
               “That No. 911120421 CT/GD Sunil Kumar Jat of F/118
           CRPF while functioning as CT/GD committed an act of gross
           misconduct and disobedience of orders in his capacity as a
           member of the Force under section 11(1) of CRPF Act, 1949           G
           in that he misbehaved, in subordinated with Shri Ajay Mishra,
           Dy. Comdt. (Adjutant), Dr. J.N. Trivedi, SMO and Sub
           Inspector Ramesh Chandra of 94 Bn. then attached with 118
           Bn. CRPF by consuming country liquor while on Govt. duty
           and threated Senior Officers with dire consequences on 26th
                                                                               H
964            SUPREME COURT REPORTS                          [2023] 1 S.C.R.


A               August, 02 and thus committed an act which is pre-judicial to
                good orders and discipline of the force.”
             2.2 On conclusion of the departmental enquiry and after following
      the due procedure as required under Rule 27 of the Central Reserve
      Police Force (CRPF) Rules, 1955 and in exercise of powers under Section
B     11 of the CRPF Act, 1949, the disciplinary authority/CRPF passed an
      order dismissing the respondent from service. The order of dismissal
      came to be confirmed by the Appellate Authority. That thereafter, the
      respondent filed a writ petition before the learned Single Judge of the
      High Court challenging the penalty order of dismissal being Writ Petition
      No. 2195/2004. The learned Single Judge by judgment and order dated
C     07.01.2005 dismissed the writ petition. Then, the respondent preferred
      D.B. Special Appeal Writ No. 303/2005 before the Division Bench of
      the High Court and by the impugned judgment and order the High Court
      has set aside the order of penalty of dismissal by observing that
      considering Sections 9 and 10 of the CRPF Act, 1949 and when the
      misconduct was committed the respondent was not on active duty and
D     therefore, the offences committed by the respondent can be said to be
      less heinous offence which does not warrant the extreme penalty of
      dismissal. Therefore, by observing that the order of penalty of dismissal
      can be said to be disproportionate to the gravity of the wrong, denying
      the back wages, the High Court has ordered reinstatement of respondent
E     in service with notional benefits. The impugned judgment and order
      passed by the Division Bench of the High Court is the subject matter of
      present appeal.
             3. Ms. Madhavi Diwan, learned ASG, appearing on behalf of the
      Union of India and others – appellant(s) has vehemently submitted that
      in the facts and circumstances of the case the Division Bench of the
F
      High Court has committed a very serious error in setting aside the order
      of penalty of dismissal and reinstating the respondent in service.
             3.1 It is vehemently submitted by Ms. Diwan, learned ASG that
      the penalty of dismissal from service inflicted upon the respondent was
      after conclusion of the departmental enquiry and after holding the charges
G     and misconduct proved against the respondent – delinquent. It is submitted
      that the charges and misconduct proved against the respondent –
      delinquent were very serious and not befitting a solider working in the
      disciplined force – CRPF. It is submitted that while under the influence
      of intoxication he misbehaved with senior and threatened him of dire
      consequences, thus, committed an act of insubordination. It is submitted
H
    UNION OF INDIA AND ORS. v. CONST SUNIL KUMAR                                965
                    [M. R. SHAH, J.]

that therefore, the order of penalty of dismissal which was passed after        A
following the due procedure as required under Rule 27 of the CRPF
Rules, 1955 cannot be said to be disproportionate to the charges and
misconduct proved.
        3.2 It is further submitted by Ms. Diwan, learned ASG, that order
of penalty of dismissal was imposed upon the delinquent – respondent in         B
exercise of powers under Section 11 of the CRPF Act, 1949. It is
submitted that Section 11 of the CRPF Act, enables the authority to
impose minor penalties/punishments other than suspension or dismissal.
It is submitted that reliance placed upon Sections 9 and 10 of the CRPF
Act, 1949 by the Division Bench of the High Court while interfering
with the order of penalty of dismissal imposed by the disciplinary authority    C
on the ground that the respondent – delinquent was not on active duty
when he committed the misconduct and therefore, the same can be said
to be a less heinous offence and therefore, the order of penalty of
dismissal is disproportionate, is absolutely misplaced. It is submitted that
as such the consideration of heinous offence or less heinous offence
would have bearing on order of imprisonment as provided under Sections          D
9 and 10 of the CRPF Act, 1949. It is submitted that it would not have
any bearing on the imposition of penalty of dismissal under Section 11 in
an appropriate case after holding the disciplinary proceedings. Reliance
is placed upon the recent decision of this Court in the case of Union of
India Vs. Ram Karan; (2022) 1 SCC 373 (paragraphs 16 to 21 and                  E
30).
        3.3 It is further submitted by Ms. Diwan, learned ASG, that even
on merits also the Division Bench of the High Court has committed a
very serious error in observing that penalty of dismissal imposed was
disproportionate to the proved charges and misconduct. It is submitted
                                                                                F
that the respondent was working in a disciplined force – CRPF and he
misbehaved with the superior and he threatened the senior officers with
dire consequences and the act of respondent was of insubordination. It
is submitted that therefore, the misconduct of disobedience of the orders
of the superior and insubordination and giving threats to the senior officers
for dire consequences cannot be tolerated in a disciplined force.               G
        3.4 It is further submitted by learned ASG that in the case of
Commandant, 22nd Battalion, CRPF Vs. Surinder Kumar; (2011)
10 SCC 244, it is observed and held by this Court that even in a case
when a CRPF personnel is awarded imprisonment under Section 10(n)
for an offence which though less heinous he can be dismissed from
                                                                                H
966             SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A     service after holding departmental enquiry if his conduct is found to be
      prejudicial to good order and discipline of CRPF. It is submitted that in
      the aforesaid decision, it is observed and held by this Court that the High
      Court in exercise of powers of judicial review, Courts should be slow in
      interfering with the punishment of dismissal on the ground that it was
      disproportionate. It is submitted that punishment should not be merely
B     disproportionate but should be strikingly disproportionate to warrant
      interference by the High Court under Article 226 of the Constitution of
      India and it is only in an extreme case, where on the face of it there is
      perversity or irrationality that there can be judicial review under Articles
      226 or 227 or under Article 32 of the Constitution of India.
C            3.5. Making the above submissions and relying upon the above
      decisions, it is prayed to allow the present appeal.
             4. Present appeal is vehemently opposed by Shri Abhishek Gupta,
      learned counsel appearing on behalf of the respondent – delinquent.
             4.1 It is submitted that in the present case the offences and
D     misconduct was committed by the respondent while he was not on active
      duty. It is submitted that therefore, as per Section 10 of the CRPF Act,
      1949, a member of the force who is in a state of intoxication when not
      on duty is deemed to have committed a less heinous offence. It is
      submitted that therefore, the Division Bench of the High Court is
      absolutely justified in interfering with the order of penalty of dismissal
E     imposed by the disciplinary authority by observing that the penalty of
      dismissal for committing a less heinous offence can be said to be
      disproportionate to the gravity of the wrong.
             4.2 It is further submitted by the learned counsel appearing on
      behalf of the respondent that looking to the fact that the respondent had
F     worked for 11 years, a lenient view may be taken and any other
      punishment lessor than the penalty of dismissal may be imposed.
      Therefore, it is prayed to take a lenient view looking to his past 11 years
      of service.
             5. We have heard learned counsel appearing on behalf of the
      respective parties at length.
G
             6. At the outset, it is required to be noted that the disciplinary
      authority imposed the penalty of dismissal after holding the departmental
      enquiry and after following the due procedure as required under Rule 27
      of the CRPF Rules, 1955 and after having held the charges and
      misconduct proved. The charges and misconduct held to be proved against
H
    UNION OF INDIA AND ORS. v. CONST SUNIL KUMAR                                967
                    [M. R. SHAH, J.]

the respondent who was serving in CRPF – a disciplined force can be             A
said to be a grave and serious misconduct. The charges and misconduct
proved against the respondent is of misbehaving with superior and giving
threats of dire consequences to the superior, may be under the influence
of intoxication. He also misbehaved and gave threats to the colleagues.
The misconduct committed by the respondent is of insubordination also.
The misconduct of misbehaving with the superior/senior officer and of           B
insubordination can be said to be a very serious misconduct and cannot
be tolerated in a disciplined force like CRPF and therefore, as such the
Division Bench of the High Court is not justified in observing that on the
proved charges and misconduct penalty of dismissal can be said to be
disproportionate.                                                               C
        6.1 While holding that the penalty of dismissal can be said to be
disproportionate to the gravity of the wrong, what is weighed with the
Division Bench of the High Court is that as the respondent was found to
be in a state of intoxication when not on duty and considering Section 10,
he is deemed to have committed a less heinous offence. Whether a
member of the force has committed a heinous offence or a less heinous           D
offence as per Sections 9 and 10 of the CRPF Act, 1949 would have
bearing on inflicting the punishment as provided under Sections 9 and 10
but has no relevance on the disciplinary proceedings/departmental enquiry
for the act of indiscipline and/or insubordination. In the case of Surinder
Kumar (supra), it is observed that even in a case when a CRPF personnel         E
was awarded imprisonment under Section 10(n) for an offence which
though less heinous, he can be dismissed from service, if it is found to be
prejudicial to good order and discipline of CRPF. Under the circumstances,
the reasoning given by the High Court that as the respondent is deemed
to have committed a less heinous offence, the order of penalty of
dismissal can be said to be disproportionate is not required to be accepted.    F
        6.2 Even otherwise, the Division Bench of the High Court has
materially erred in interfering with the order of penalty of dismissal passed
on proved charges and misconduct of indiscipline and insubordination
and giving threats to the superior of dire consequences on the ground
that the same is disproportionate to the gravity of the wrong. In the case      G
of Surinder Kumar (supra) while considering the power of judicial
review of the High Court in interfering with the punishment of dismissal,
it is observed and held by this Court after considering the earlier decision
in the case of Union of India Vs. R.K. Sharma; (2001) 9 SCC 592
that in exercise of powers of judicial review interfering with the
                                                                                H
968              SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A     punishment of dismissal on the ground that it was disproportionate, the
      punishment should not be merely disproportionate but should be strikingly
      disproportionate. As observed and held that only in an extreme case,
      where on the face of it there is perversity or irrationality, there can be
      judicial review under Article 226 or 227 or under Article 32 of the
      Constitution.
B
              6.3 Applying the law laid down by this Court in the aforesaid
      decision(s) to the facts of the case on hand, it cannot be said that the
      punishment of dismissal can be said to be strikingly disproportionate
      warranting the interference of the High Court in exercise of powers
      under Article 226 of the Constitution of India. In the facts and
C     circumstances of the case and on the charges and misconduct of
      indiscipline and insubordination proved, the CRPF being a disciplined
      force, the order of penalty of dismissal was justified and it cannot be
      said to be disproportionate and/or strikingly disproportionate to the gravity
      of the wrong. Under the circumstances also, the Division Bench of the
      High Court has committed a very serious error in interfering with the
D     order of penalty of dismissal imposed and ordering reinstatement of the
      respondent.
              6.4 At this stage, it is required to be observed that even while
      holding that the punishment/penalty of dismissal disproportionate to the
      gravity of the wrong, thereafter, no further punishment/penalty is imposed
E     by the Division Bench of the High Court except denial of back wages.
      As per the settled position of law, even in a case where the punishment
      is found to be disproportionate to the misconduct committed and proved
      the matter is to be remitted to the disciplinary authority for imposing
      appropriate punishment/penalty which as such is the prerogative of the
      disciplinary authority. On this ground also, the impugned judgment and
F
      order passed by the Division Bench of the High Court is unsustainable.
              As observed hereinabove as the order of penalty/punishment
      cannot be said to be disproportionate, there is no question of remanding
      the matter back to the disciplinary authority.
              7. In view of the above and for the reasons stated above the
G     present appeal succeeds. The impugned judgment and order passed by
      the High Court setting aside the order of penalty of dismissal and
      reinstating the respondent is hereby quashed and set aside. No costs.

      Ankit Gyan                                                     Appeal allowed.
H     (Assisted by : Abhishek Pratap Singh, LCRA)