IN WPA 10975 OF 2003 - CALCT HC- Wednesbury Principles --Question of quantum of punishment in disciplinary matters is primarily for disciplinary authority, jurisdiction of High Courts under Article 226 is limited: Calcutta High Court while upholding punishment of removal from service imposed on CRPF constable by Disciplinary Authority
Justice Krishna Rao [22-06-2023]

Read more: Mir MajiburRahaman v. Union of India

Simran Singh

New Delhi, June 27, 2023:  The Calcutta High Court opined that the Disciplinary Authority as well as the Appellate Authority had rightly imposed punishment upon the petitioner for removal of service of the Central IndustrialSecurityForce (CISF) after he was found to have committed gross misconductby failing to react by using his weapons and fleeing from the spot during an attack by militants, thereby leaving his colleagues and the ONGC staff they were protecting in grave danger. 

The respondent authorities have passed the order of removal of the petitioner from service after following due process of law without actuated by malafides, this Court is not inclined to interfere with the impugned orders, the High Court said.

The Court further noted that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-kwon principles known as “Wednesbury Principles” namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken.

The Single Judge Bench of Justice Krishna Raoheld that the petitioner was found to have committed gross misconduct as he had failed to react and fire from his automatic service weapon to counter attack the militants and fled away from the spot after throwing away his service SMG carbine with three magazines full of 90 live around of 9 mm ammunition, leaving his colleagues and ONGC staffs into the “mouth of death”.

The Bench was of the view that the respondent authorities had passed the order of removal of the petitioner from service after following due process of law without actuated by malafides, thus was not inclined to interfere with the impugned orders.

In the matter at hand, the petitioner was a Constable in CISFand was promoted to the post of Head Constable,  CISF Unit, ONGC, Jorhat. On 24-06-2002, the petitioner was detailed for escorting of field party and the convoy was embraced and attacked by the suspected militants who started firing at random. It was averred that the petitioner had fallen down and gotten chest injury which made him feel giddy thus, he took possession in a bush which was at the distance of 100 m from the site of the militant’s attack and subsequently became unconscious.

By way of a Memo, the Commandant, being the Disciplinary Authority issued a Memorandum along with Article of charges under Rule 36 of CISF Rule, 2001, on the allegation that the petitioner had fled away from the scene of incident leaving his colleagues and ONGC employees when the convoy of the ONGC field party GP-33 was ambushed by the suspected militant group on their way back to base camp near Dhansiri railway crossing. The petitioner left his SMG Carbine 9 mm, 90 live rounds - 9mm with three magazines unattended in the bushes near the place of incident though he was deployed on escort duty. The Disciplinary Authority was not satisfied with the explanation offered by the petitioner and accordingly a regular enquiry was conducted by appointing Enquiry Officer. Thereafter, the Disciplinary Authority had passed final order of punishment of removal from service of the petitioner.

The Bench note the evidence of Prosecution Witness 1 (PW1), wherein it was sated that on enquiry at the place of incident it was found that the petitioner at the time of incident had fled away from the place of incident along with his arms and ammunition and the CISF personnel had searched the petitioner at the place of incident by calling his name to no avail. It was stated that the petitioner was in the last vehicle along with three other Constables who had informed PW1 that the petitioner had fled away along with his arms and ammunition without giving any protection to the colleagues and the civilian and hide himself at the unknown place due to fear and he had not taken any steps against the militants. The petitioner did not cross-examine P.W.1 and simply put his signature in the said statement as true.

The Court further took note of PW 10 which had stated that all 3 constables came down from the vehicle and took the position but the petitioner had fled away from the place of incident. Upon search of the place of incident, they could not find the arms and ammunition as the petitioner was not able to say in which place he had kept the arms but after long search it was found in the bushes. The petitioner did not deny the statement of PW10

The Court found from the record that 11 CISF personnel including the petitioner were on escort duty and out of 11 personnel in the escort party, 10 personnel had taken their position immediately on getting out their vehicle and retaliated by opening fire at the militants. The petitioner not only failed to react and fire from his automatic service weapon to counter attack the militants but also fled away from the spot after throwing away his service SMG carbine with three magazines full of 90 live around of 9 mm ammunition, leaving his colleagues and ONGC staffs into the mouth of death.

The Bench noted that as regard the opportunity of hearing, it was found from record that all the witnesses were examined in his presence and he had cross-examined many of the witnesses except some. With regard to supply of enquiry report, the petitioner had admitted that he had submitted his representation against the enquiry report and from the record of the disciplinary proceeding, it was found that by letter dated 13-01-2003, the enquiry report was served upon the petitioner and on 24-01-2003, the petitioner had submitted his representation against the enquiry report.

The Court took note of the fact that the petitioner had also suppressed the fact that the petitioner has filed a review against the order of the Appellate Authority and during the pendency of the review application, the petitioner had filed the present writ application. However, during the pendency of the writ application, the Appellate Authority had dismissed the review application but the said fact was not brought before this Court.

The Bench referred to the Constitution Bench case of State of Orissa v.Bidyabhushan Mohapatrawhich had observed that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment and the penalty was not open to review by the High Court under the Article 226 of the Constitution. The three-judge Bench in the case of B.C. Chaturvediv. Union of India had held that judicial review was not an appeal from a decision but a review of the manner in which the decision was made. Power of judicial review was meant to ensure that the individual received fair treatment and not to ensure that the conclusion which the authority reachedwas necessarily correct in the eye of the Court. When an inquiry was conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with.

The Court reiterated that after considering the ‘Wednesbury Principles’ and the doctrine of proportionality, held that the question of quantum of punishment in disciplinary matters was primarily for the disciplinary authority, and the jurisdiction of High Courts under Article 226 of the Constitution or of the Administrative Tribunals was limited and was confined to the applicability of one or the other of the well-kwon principles known as ‘Wednesbury Principles’ namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken.

The Bench referred to a three-judge Bench in case of Deputy General Manager (Appellate Authority) v. Ajai Kumar Srivastavawhich had circumscribed the power of judicial review by the ConstitutionalCourts and had observed that “it is thus settled that the power of judicial review, of the constitutional court, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusion upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued…it is thus settled that the power of judicial review, of the constitutional court, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusion upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued…”