2023 (1) TMI 1411 - SC - Indian Laws

Setting aside of penalty imposed by the disciplinary authority - direction to Appellant(s) to reinstate him in service with notional benefits without any back wages - HELD 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 the Respondent who was serving in CRPF, a disciplined force can be said to be a grave and serious misconduct - 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 justified in observing that on the proved charges and misconduct penalty of dismissal can be said to be disproportionate. 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 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 2011 (10) TMI 684 - SUPREME COURT , it is observed that even in a case when a CRPF personnel 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. 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 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 order passed by the Division Bench of the High Court is unsustainable. 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. 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 - Appeal allowed.

Summary

Issues:
Appeal against High Court's decision setting aside dismissal and ordering reinstatement with notional benefits without back wages.

Analysis:
The case involved the dismissal of a CRPF member for gross misconduct and disobedience of orders, including misbehaving and consuming liquor on duty. The disciplinary authority dismissed the respondent, which was upheld by the Appellate Authority. The High Court set aside the dismissal, citing that the respondent was not on active duty during the misconduct, making it a less heinous offense. The appellant argued that the dismissal was justified due to serious misconduct, including insubordination and threats to superiors, and that the High Court erred in considering the offense as less heinous under Sections 9 and 10 of the CRPF Act, 1949.

The appellant contended that the penalty of dismissal was imposed after due process and was proportionate to the gravity of the misconduct. They argued that the High Court's reliance on Sections 9 and 10 was misplaced, as these sections pertain to imprisonment, not dismissal. The appellant cited the case of Union of India v. Ram Karan to support their argument.

The respondent argued that the offense was less heinous as the misconduct occurred while not on active duty, invoking Section 10 of the CRPF Act, 1949. They requested leniency due to the respondent's 11 years of service. The Court noted that the respondent's actions, including threats and insubordination, were serious and not acceptable in a disciplined force like CRPF.

The Court held that the High Court erred in finding the dismissal disproportionate and ordering reinstatement. They emphasized that the penalty of dismissal was justified given the gravity of the misconduct. The Court cited the case of Commandant, 22nd Battalion, CRPF v. Surinder Kumar to highlight that dismissal can be warranted even for less heinous offenses if prejudicial to discipline. The Court concluded that the High Court's interference was unwarranted and set aside the reinstatement order, stating that the penalty was not disproportionate.

In conclusion, the Court allowed the appeal, quashing the High Court's decision to set aside the dismissal and reinstate the respondent. The Court highlighted that the penalty was not disproportionate, and there was no need to remand the matter for reconsideration.