1. Heard Mr. Anil Kumar, learned Additional Solicitor General of India and Mr. Ajit Kumar, learned senior counsel for the respondent.

2. This appeal is directed against the order dated 09.08.2021 passed by the learned Single Judge in W.P.(S) No. 1846 of 2014, whereby and whereunder the order dated 25.10.1999 removing the writ petitioner from service and all its subsequent orders have been quashed and set aside and the writ petitioner has been ordered to be reinstated in service and the matter has been remanded to the concerned authority (respondent no.3 in the writ petition) to pass a fresh order on the quantum of punishment.

3. The factual narrative, in brief, is that on 17.01.1985 the petitioner was appointed to the post of Constable and he was posted in Durgapur Steel Plant for training. The petitioner during his service period was posted at various places and lastly in the year 1997, he was posted as a Constable in Bokaro Steel Plant. Vide memo no. 15014 dated 29.04.1999, the petitioner was submitted a charge sheet in which he was charged with gross misconduct, indiscipline and dereliction of duty as on 09.03.1999 and 10.03.1999 during his ‘C’ shift duty, he had failed to prevent theft of about 100 kg. assorted 04 numbers of M.S. item from Bokaro Steel Plant. The petitioner had submitted his reply on 18.05.1999 denying the charges leveled against him. Initially, Shri S.K. Sinha, Inspector CISF was appointed as an Inquiry Officer vide letter dated 26.05.1999 and thereafter vide letter dated 24.06.1999, Shri Shyam Dutt, Inspector was appointed as an Inquiry Officer and lastly vide letter dated 03.07.1999, Shri B. Lakra, Inspector CISF was appointed as the third Inquiry Officer. It has been stated that on 30.08.1999, the enquiry report was submitted holding therein that the charge against the petitioner has been proved. The petitioner had submitted a reply on the enquiry report but vide order dated 25.10.1999, an order of removal from service was passed against the petitioner in exercise of the powers conferred under Rule 29-A, read with Rule 31(b) of the CISF Rules. The appeal preferred by the petitioner against the order of removal from service was dismissed on 19.05.2000. This was followed up by a revision preferred by the petitioner before the Director General of Police, CISF, North Block, New Delhi and since the same was not being disposed of, the petitioner preferred a writ application being C.W.J.C. No. 3253 of 2001 and pursuant to the order dated 25.07.2001 passed in the said writ application, the revision application was rejected vide order dated 26.11.2002. The order of removal of the petitioner from service dated 25.10.1999 and all its subsequent orders were challenged by the petitioner before this Court in W.P.(S) No. 1846 of 2014 and vide order dated 09.08.2021 all the orders under challenge were quashed and set aside and apart from the petitioner being ordered to be reinstated in service, the matter was remanded back to the concerned authority to pass a fresh order with respect to the quantum of punishment and the said order has been assailed before us by the Union of India.

4. It has been submitted by Mr. Anil Kumar, learned A.S.G.I that the learned Single Judge had committed an error in re-appreciating the evidence which it was precluded from doing. It has been submitted that no procedural lapses have been noticed and the principle of natural justice has also been diligently followed. The learned Single Judge has failed to appreciate that preponderance of probability is the hallmark of a departmental proceeding and in the context of the charges against the petitioner, it has been conclusively proved that a theft had indeed taken place and the same was during the duty hours of the petitioner. The petitioner cannot equate his case with that of Constable Dalbir Singh who was charged with a much lesser act of misconduct and was consequently given a lesser punishment. Learned A.S.G.I has further submitted that CISF being a disciplined Force, tolerance to such misconduct of the petitioner is always at a premium and the learned Single Judge should have considered the gravity of charges which has been proved against the petitioner and which rightly entailed removal from service.

5. Mr. Ajit Kumar, learned senior counsel appearing for the writ petitioner (respondent herein) has defended the impugned order dated 25.10.1999 while submitting that the learned Single Judge has taken into consideration the fact that a vague timing of theft was ascertained by the Inquiry Officer which finds support from the charge against Constable Dalbir Singh. It has been submitted that the punishment imposed upon the petitioner is harsh considering the gravity of charges as well as imposition of a lesser punishment to the other delinquent employee Constable Dalbir Singh which has rightly been taken note of by the learned Single Judge and therefore the present appeal is liable to be dismissed.

6. We have heard the learned counsel for the respective sides and have also perused the records of the case.

7. On the issue of doctrine of proportionality, we may refer to the case of Chairman-cum-Managing Director, Coal India Ltd. & Anr. versus Mukul Kumar Choudhuri & Ors. reported in (2009) 15 SCC 620 wherein it has been held as follows:-

                  “19. The doctrine of proportionality is, thus, well- recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision- maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

                  20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

                  21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.”

8. Similarly in Chandra Kumar Chopra versus Union of India & Ors. reported in (2012) 6 SCC 369 it has been held as follows:-

                  35. To appreciate the submission, we may advert to certain authorities in the field. In Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1] it has been held thus: (SCC p. 620, para 25)

                  “25. … 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 martial, 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.”

                  38. In Bhagat Ram v. State of H.P. [(1983) 2 SCC 442 : 1983 SCC (L&S) 342] it has been held that: (SCC p. 453, para 15)

                  “15. … penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.”

                  39. In Coal India Ltd. v. Mukul Kumar Choudhuri [(2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499 : AIR 2010 SC 75] this Court adverted to the concept of doctrine of proportionality and eventually opined that the imposition of punishment is subject to judicial intervention if the same is exercised in a manner which is out of proportion to the fault. If the award of punishment is grossly in excess of the allegations made, it cannot claim immunity and makes itself amenable for interference under the limited scope of judicial review. The test to be applied while dealing with the question is whether a reasonable employer would have imposed such punishment in like circumstances. The question that has to be studiedly addressed is: whether the punishment imposed is really arbitrary or an outrageous defiance of logic so as to be called irrational and perverse warranting interference in exercise of the power of judicial review?”

9. In Ranjit Thakur versus Union of India & Ors. reported in (1987) 4 SCC 611 it has been held as follows:-

                  25. Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process”. 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-martial, 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. In Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 WLR 1174 (HL) : (1984) 3 All ER 935, 950] Lord Diplock said:

                  “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community;. . .”

                  26. In Bhagat Ram v. State of Himachal Pradesh [(1983) 2 SCC 442 : 1983 SCC (L&S) 342 : AIR 1983 SC 454] this Court held: [SCC p. 453, SCC (L&S) p. 353, para 15]

                  “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.”

                  The point to note, and emphasise is that all powers have legal limits.

                  27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.”

10. On the question of parity reference has been made by Mr. Ajit Kumar, learned senior counsel for the writ petitioner to the case of Bhagat Ram versus State of H.P & Ors. reported in (1983) 2 SCC 442 and the relevant paragraph reads thus:-

                  “15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held? After all what is the purpose of holding a fresh enquiry? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fairplay demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela v. A.K. Roy [(1969) 3 SCC 513 : AIR 1970 SC 1401 : (1970) 3 SCR 343 : (1970) 1 LLJ 228] where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal. It is possible that on such a remand, this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair to or conducive to the interest of the parties. This Court in such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach. Keeping in view the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50 percent of the arrears from the date of termination till the date of reinstatement.”

11. According to the learned senior counsel for the writ petitioner / respondent herein, the punishment imposed upon the petitioner is shockingly disproportionate to the charges leveled against him. As held in the case of Coal India Limited (supra) before imposing punishment, the measure, magnitude and degree of misconduct and all other relevant circumstances have to be taken into consideration. In the said case the factual aspects revealed of the delinquent employee remaining absent continuously for six months and he had given a justifiable explanation to such absence which led to a conclusion i.e. removal from service was unduly harsh and in excess to the allegations.

12. In Ranjit Thakur (supra) which arose out of an order of dismissal from service from the armed forces for disobeying a command given by a superior officer the same was set aside on the ground that the punishment was strikingly disproportionate.

13. The ratio laid down in the case of Ranjit Thakur (supra) and Coal India Limited (supra) has been considered in the case of Chandra Kumar Chopra (Supra).

14. Mr. Anil Kumar, learned ASGI has assailed the impugned order dated 09.08.2021 by submitting that the learned Single Judge has endeavored to re-appreciate the evidence which was beyond the purview of the law laid down by the Hon’ble Supreme Court in the case of Union of India versus P. Gunasekaran reported in (2015) 2 SCC 610 wherein it has been held as follows:-

                  “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

                  (a) the enquiry is held by a competent authority;

                  (b) the enquiry is held according to the procedure prescribed in that behalf;

                  (c) there is violation of the principles of natural justice in conducting the proceedings;

                  (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

                  (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

                  (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

                  (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

                  (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

                  (i) the finding of fact is based on no evidence.

                  13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

                  (i) reappreciate the evidence;

                  (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

                  (iii) go into the adequacy of the evidence;

                  (iv) go into the reliability of the evidence;

                  (v) interfere, if there be some legal evidence on which findings can be based.

                  (vi) correct the error of fact however grave it may appear to be;

                  (vii) go into the proportionality of punishment unless it shocks its conscience.”

15. He has also referred to the case of Registrar General, High Court of Judicature of Madras versus K. Muthukumarasamy reported in (2014) 16 SCC 555 wherein it has been held as under:-

                  “9. We have read and considered the elaborate order passed by the learned Chief Justice of the High Court, acting as the disciplinary authority, accepting the findings of the enquiry and imposing the punishment in question. The learned Chief Justice in his order has discussed the evidence of all the six witnesses examined in support of the charges and has categorically held that the evidence of PW 1 complainant and PW 2 her husband stood corroborated by the evidence of PW 3, PW 4, PW 5 and PW 6 who are co-employees of the delinquent. The learned Chief Justice had also specifically recorded his reasons for holding that the issue with regard to the similarity of the contents of dissertation with the contents of Exts. P-2 and P-3 would be immaterial in the present case.

                  10. Undoubtedly, in the exercise of the writ jurisdiction, the High Court would have the power and competence to disturb findings of fact so long such findings are opposed to the weight of the materials on record and the view taken cannot be sustained on a reasonable consideration of such materials. This wholesome power has to be exercised by the High Courts only on a careful appraisal of the facts of a given case. Care must be taken not to act as a Court of Appeal or in review of the decisions of the fact-finding authority. The decision of this Court in Yoginath D. Bagde v. State of Maharashtra [Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 : 1999 SCC (L&S) 1385] (SCC para 51) relied upon by the learned counsel for the respondent is coincidentally to the above effect. It also appears to us from the order of the High Court that additional materials not produced before the enquiry officer were also considered by the learned Judges in coming to the impugned conclusions. It is, therefore, clear that the High Court had exceeded its jurisdiction in coming to the impugned findings with regard to the culpability of the delinquent and in reversing the order of compulsory retirement.”

16. The learned Single Judge in the impugned order dated 09.08.2021 has delved into the timing of the theft and that it has not been conclusively proved that the theft had taken place during the duty time of the petitioner. This finding has, however, been contradicted by the finding that the petitioner had left the post 15 minutes prior to his duty hour. Admittedly, a theft was committed during the duty hours of the petitioner and re-appreciation of evidence in the backdrop of the procedural necessities having been followed diligently would be contrary to the law laid down in the case of P. Gunasekaran (supra).

17. So far as the order of punishment of removal from service is concerned, though the petitioner is a member of the disciplined Force expected to be diligent and attentive in his duty and such negligence was not expected from a member of the Force, but at the same time we cannot lose sight of the fact that there is nothing on record to suggest that the service career of the petitioner was not impeccable prior to his removal. It also appears that the petitioner has been selectively given such gross punishment. The punishment imposed should be in commensuration with the gravity of the offence and should also reflect other relevant considerations as held in Coal India Limited (supra) but neither the disciplinary authority nor the appellate authority or the revisional authority have embarked on such consideration. The learned Single Judge had rightly come to a conclusion directing the disciplinary authority to pass a fresh order on the quantum of punishment and having found no merit in this appeal, the same is hereby dismissed.

18. Pending interlocutory application(s), if any, stand(s) closed.