P.D. Desai, J.
1. The petitioner joined service in the Police Department as unarmed police constable on December 1, 1958. On December, 30, 1976 the petitioner was served with a charge-sheet dated December 22, 1976. The substance of the charge levelled against the petitioner was: (1) that on June 14/15, 1976 an offence of house-breaking took 'place at village Makhalia in the house of one Rathod Kabhasinh Ratansinh, (2) that in connection with that offence a complaint was lodged at the Kothamba Police Station for offence punishable under Sections 457-380 of the Indian Penal Code, (3) that the petitioner, who was at the material time posted as unarmed police constable at the said police station, was entrusted with the investigation of the said offence on June 15, 1976 at 5.00 p m., (4) that one Jibhai Abhesing, Head Constable, who was also entrusted with the investigation along with the petitioner, had demanded bribe in the sum of Rs. 200/- from Kabhsinh Ratansinh in the presence of the petitioner stating that it would be necessary to pay the amount if the offence was to be detected, (5) that Kabhsinh Ratansinh had paid Rs. 100/- to Head Constable Jibhai Abhesing after borrowing the said sum from one Kabhsinh Chandusinh and the said payment was made in the presence of his brother Daharsinh Ratansiah and Kabhsinh Chandusinh, (6) that Head Constable Jibhai Abhesing having accepted the said amount handed over the same to the petitioner and (7) that the petitioner had in that manner abated Head Constable Jibhai Abhesing in accepting bribe in the sum of Rs. 100/-. A copy of the charge-sheet is at Annexure 'A'. At the enquiry which followed and which was held by the disciplinary authority himself, the Department as well as the petitioner led evidence both oral and documentary. At the conclusion of the enquiry, the petitioner filed his written statement, Annexure 'B' on June 13, 1977. The disciplinary authority recorded a reasoned order in the form of a summing up taking into consideration the entire material which was placed on record of the enquiry and came to the conclusion that the charge levelled against the petitioner was established. A copy of the said summing up is at Annexure 'C'. The disciplinary authority also tentatively formed the view that the petitioner was required to be dismissed from service. The petitioner was, therefore, served with a show cause notice dated June 30, 1977 (Annexure 'D') with a copy of the summing up annexed and he was called upon to show cause why he should not be dismissed from service as the charge levelled against him was proved. By a subsequent communication, Annexure 'E', dated August 8, 1977, the petitioner was informed that the show cause notice, Annexure 'D', was withdrawn and that it should be treated as cancelled inasmuch as the discussion on issues Nos. 3 and 4 in the summing up was not related to the allegations made against the petitioner. On August 17, 1977 another show cause notice, Annexure 'F', was issued to the petitioner and he was called upon to show cause why he should not be dismissed from service as the charge levelled against him was proved. The petitioner had meanwhile shown cause against the show cause notice, Annexure 'D', on July 25, 1977. By an order of October 24, 1977, the petitioner was dismissed from service. The said order is not on the record of the petition. However, a subsequent order dated November 1, 1977, Annexure 'H', which is in the form of erratum and which clarifies that in addition to the imposition of penalty of dismissal, the period spent by the petitioner under suspension was also decided to be treated as such by the disciplinary authority, is placed on record. The petitioner preferred an appeal against the said order of dismissal on December 31, 1977. By an order dated March 27, 1978, Annexure 'I', the appeal preferred by the petitioner was dismissed by the Deputy Inspector General of Police, Baroda. Thereafter the petitioner preferred a revision application to the Inspector General of Police which was dismissed on January 22, 1979, Annexure 'J'. The petitioner thereupon instituted the present writ petition on May 6, 1981. Rule was issued on October 1, 1981 and the petition has reached hearing now.
2. On behalf of the petitioner the following three submissions were urged for consideration at the hearing of the petition:
1. The show cause notice at Annexure 'D' having been withdrawn by the communication at Annexure 'E', it was not competent for the disciplinary authority to issue the fresh show cause notice, Annexure 'F' and to impose the penalty pursuant to such fresh show cause notice.
2. The disciplinary authority has not taken into consideration at all the defence evidence led by the petitioner and his decision is based solely on one-sided or partial view of the evidence on record.
3. The charge of abetment levelled against the petitioner is not established even if all the allegations are held proved; in any case, the penalty is grossly disproportionate to the delinquency of which the petitioner is found guilty.
I shall deal with the above submissions seriatim.
3. There is no substance in the first submission urged on behalf of the petitioner because the withdrawal of the show cause notice at Annexure 'D' under the communication at Annexure 'E' was not on the ground that the disciplinary authority was satisfied that the case against the petitioner was not established. As pointed out earlier, the disciplinary authority himself conducted the enquiry and in the course of summing up found the petitioner to be guilty of the charge levelled against him. The finding of guilt is recorded in no uncertain terms in the summing up. Under the circumstances, it would be going too far to hold that the withdrawal of the show cause notice (Annexure 'D') by the communication issued by the same authority (Annexure 'E') was based on the premise that the petitioner was not guilty. Besides, the communication at Annexure 'E' makes clear in terms that the show cause notice, Annexure 'D', was withdrawn because it was founded on the discussion in the summing up in regard to issues which were not relatable to the petition. In other words, the show cause notice was withdrawn because it was found that it suffered from the vice of having been based on extraneous or irrelevant material. Whether or not this presumption was correct is another matter. Even assuming that the presumption is not correct, it would not be legitimate to hold that the withdrawal reflected the considered view of disciplinary authority that the petitioner was not required to be dealt with any further in the exercise of disciplinary jurisdiction. In my opinion, therefore, the petitioner cannot plead any bar on the basis of the action of the disciplinary authority withdrawing the show cause notice at Annexure 'D' by the communication at Annexure 'E'.
4. The grievance that the finding of guilt is based on the one-sided view of the evidence is not well-founded. In the concluding portion of the summing up, the disciplinary authority has not only referred to and set out a gist of the evidence led on behalf of the petitioner but he has in terms observed that the defence evidence was not required to be taken into consideration because the defence witnesses had failed to give any reliable version and that they appeared to have deposed at the enquiry solely with the end in view of helping the petitioner. This would go to show that the defence evidence was considered but it was rejected because it was not found to be reliable or satisfactory. One cannot overlook that the enquiry officer is not a trained judicial officer and that his report is not expected to be like a judgment of the Court. It need not be as elaborate or precise as the decision of a court of law. All that has to be seen in the exercise of writ jurisdiction is as to whether the defence evidence has been taken into consideration. In the light of what has been stated above, it would be difficult to hold that the defence evidence has been ignored altogether.
5. The last grievance made on behalf of the petitioner, however, appears to be more than justified. The charge levelled against the petitioner is that he abetted the Head Constable under whom he was working in accepting the bribe. It requires to be recalled that according to the statement of allegations, the Head Constable demanded the bribe in the presence of the petitioner and when it was offered to him, he accepted the same and passed on or handed over the amount to the petitioner who was present on the occasion. It is not the case that the petitioner had played an active role in procuring or demanding the bribe. It is also not alleged that the petitioner had any share in the booty or that he had retained any amount which was passed on to him by the Head Constable. It is true that when the Head Constable demanded the bribe and handed over the amount to the petitioner, he played a passive role and made no protest. The possibility cannot be altogether ruled out that the petitioner, who was a subordinate of the Head Constable, may not have mustered courage to protest when the bribe was demanded or to refuse to accept the amount when it was banded over to him by his superior. In the absence of something more than his mere presence and acceptance of the amount under the aforementioned circumstances, the petitioner could not be treated as an active and wilful agent or participant in the procurement of bribe on the facts found, it may not be possible to infer conclusively that he instigated the commission of the offence of bribery or engaged in a conspiracy to commit the said offence or intentionally aided the commission of the said offence. His mere presence, without something more, when the bribe was demanded or his noninterference at that stage cannot necessarily be construed as an intentional aid or omission for the reason already given, namely, that the person demanding the bribe was his superior and he may not have mustered courage to protest. For the selfsame reason, the failure on his part to refuse to accept the amount when it was handed over to him superior may not amount to intentional aid or intentional omission. There may be some substance in the grievance of the petitioner, therefore, that the charge of abetment levelled against the petitioner is not stricto sensu established.
6. Even assuming, however, that the charge is established, the further grievance of the petitioner with regard to the quantum of penalty appears to be fully justified. From the circumstances just considered, it would follow that complicity, if any, on the part of the petitioner in the whole affair was not such as to justify his being treated on a par with the principal offender, namely, the Head Constable. The considerations which must weigh with the disciplinary authority, in determining the quantum of penalty and the power of judicial review in the context of penalty procedure have been the subject matter of consideration in two recent decisions of this Court to which it would be proper to advert at this stage.
7. In S.M. Shah v. South Gujarat University 23(1) G.L.R. 233, it was observed that the doctrine that every statutory power must be exercised reasonably is too firmly entrenched in our jurisprudence to brook any refutation and that the exercise of disciplinary power is not free from the said inhibition or limitation. The quantum of penalty, if it assumes disproportionate dimensions, may bear upon the reasonableness of the exercise of the disciplinary power and, in the result, it may, vitiate, at least, the ultimate decision on penalty. Having regard to the wide perspective and pervasiveness of Article 14, the penalty imposed in any disciplinary proceeding cannot be so disproportionate to the misconduct proved that no reasonable person would have ever imposed in like circumstances. The arbitrary, unjust and unfair exercise of penal powers would be manifest under such circumstances and such an action would not constitute a 'right and just and fair' decision. If there is any statutory instrument prescribing minimum penalty for any specified misconduct, which is grossly disproportionate and which leaves no discretion with the disciplinary authority, such instrument and the action thereunder will both be exposed to the risk of a challenge under Article 14; in the absence of such an instrument, the order imposing the disproportionate penalty will be laid bare to a similar challenge.
8. It is further observed in the said decision that the age, maturity, antecedents, family background, motivation, socio-economic factors, role played in the commission of malpractice or unfair practice, etc. are all factors which must enter into account in the quantification of penalty in disciplinary jurisdiction. Besides, though penalties are imposed with the end in view of creating a deterrent effect, the current thinking in penology even in the context of hardened criminals is that reformation and curative technology are also as much a part of penalty procedures as retribution. This thinking must be reflected with greater force in the disciplinary jurisdiction.
9. Another Division Bench of this Court in R.M. Parmar, Pethapur, Dist. Gandhinagar v. Gujarat Electricity Board, Baroda, Special Civil Application No. 3740 of 1981, decided on December 1, 1981 (23(1) G.L.R. 352 : 19 GLT 53), has observed with regard to the imposition of penalty by the statutory authority created under Section 11A of the Industrial Disputes Act that some of the important dimensions which are required to be kept before the mind while imposing penalty are as follows:
1. Widespread unemployment
2. No provision for social benefits like unemployment allowance
3. Enlightened approach must be observed in imposing punishment
4. Punishment is not and cannot be the end' in itself.
5. Punishment must not be in order to seek retribution
6. Purpose of a punishment should be corrective
7. Penalty of dismissal against every guilty employee not expedient even in the interest of administration; it may prove counter-productive.
8. Penalty must be commensurate with the magnitude of the fault; the same penalty cannot be imposed for giving a slap as would be imposed for homicide.
9. Unless the disciplinary authority reaches the conclusion that it would be absolutely unsafe to retain the employee in service, the maximum penalty of dismissal cannot be imposed. Disciplinary authority must ask his inner voice and rational faculty why a lesser penalty cannot be imposed.
10. Imposition of maximum penalty results in total ruination of the delinquent in recourse to costly legal proceedings and payment of back wages if they terminate successfully.
11. Harsh order of removal creates bitterness and arouses a feeling of antagonism and results in agitation approach and conflict.
12. Taking of a petty article by a worker in a moment of weakness does not call for an extreme penalty of dismissal from service when tax evasion and possession of black money by the rich is not regarded as dishonest by and large.
10. Against the background of ibis judicial dicta, there is no doubt, in my opinion, that the penalty with which the petitioner is visited in the instant case is grossly disproportionate to the misconduct of which he is found guilty. The dismissal of the Head Constable may or may not have been justified. I am not called upon to go into that question and I do not wish to express any opinion on the question. So far as the petitioner is concerned, however, dismissal is not the punishment which could have been reasonably imposed upon him on the totality of facts and circumstances of the case. The petitioner joined service of the Police Department in 1958. On the date on which he was dismissed from service, he had put in 19 years of service. There is nothing on record to show that he was found to be guilty of misconduct on any past occasion or that his past record of service warranted a strict view being taken of his instant misconduct, In other words, the antecedents are not such as would warrant an extremely harsh view being taken in the matter of imposition of penalty in regard to his present misconduct. The role played by the petitioner in the incident giving rise to the disciplinary proceedings has been discussed earlier and the possibility cannot be ruled out that the petitioner be may not have mustered courage to protest when the bribe was demanded in his presence or to refuse to accept the amount of bribe which the Head Constable had passed on to him. As pointed out in both the decisions referred to earlier, penalty is not the 'end' in itself and its only aim is not to seek retribution. Reformation and curative technology have also their place in penalty procedures and every departmental authority exercising disciplinary jurisdiction is required to have an informed mind about the same. The circumstances of the present case do not justify the inference that the petitioner himself is guilty of corruption; in fact, that is not even the charge against him. It cannot, therefore, be concluded that it is unsafe to retain the petitioner in service and that the maximum penalty of dismissal is the only alternative. On an overall view of all the relevant circumstances of the case, it appears to me that the penalty of dismissal imposed upon the petitioner is so disproportionate to the misconduct proved that no reasonable person would have imposed it in like circumstances. The decision on the question of penalty is not right, just, fair and reasonable and it is vitiated due to arbitrary exercise of the penal powers. Under the circumstances, the impugned order of dismissal requires to be' quashed and set aside.
The question then is as to what final order should be made on this petition consequent upon the setting aside of the penalty of dismissal imposed on the petitioner. Ordinarily, under such circumstances, it would have to be left open to disciplinary authority to reconsider the question of penalty in accordance with law and in the light of the observations made in this judgment. To do so in the present case, however, would be unduly harsh and unjust for it will prolong the misery of the petitioner. The petitioner is out of job since the date of his dismissal, that is to say, since the month of October 1977. For a period of four and half years, the petitioner has been deprived of his source of livelihood. Besides, the petitioner must have undergone menial agony and suffered social stigma. To subject him to the rigors of any further proceeding solely for the purpose of imposition of penalty would not be right and just and proper on the facts and in the circumstances of this case. The petitioner's suffering on different fronts is adequate penalty in itself. Under the circumstances, it appears to me to be right and just and fair to direct that no further proceeding for the imposition of penalty shall be taken and that the petitioner shall be reinstated in service and that the period from the date of the petitioner's dismissal till the date of his reinstatement pursuant to this order shall be treated as period spent by him under suspension by way of penalty. In other words, from the date of his dismissal till the date of his reinstatement pursuant to this judgment, the petitioner shall be treated as having undergone the penalty of suspension. It has been made clear on behalf of the petitioner that he agrees to abide by this penalty and claims no benefit by way of suspension allowance, even assuming that he is entitled to such allowance. Under the circumstances, the petitioner will not be entitled to any monetary benefit or compensation for the entire period spent under such suspension. The petitioner shall, however, be treated as having continued in service throughout without any break for all other purposes.
11. Rule is accordingly made absolute by giving the following directions:
1. The impugned order of dismissal is quashed and set aside.
2. The petitioner will be reinstated in service on or before April 1, 1982.
3. The period of the petitioner's absence from duty pursuant to his dismissal till the date of his reinstatement will be treated as period spent under suspension by way of penalty and the petitioner will not be entitled to any monetary benefits by way of back wages or suspension allowance for the said period.
There will be no order as to costs.
12. A writ of this order shall be sent forthwith to the Inspector General of Police, Gujarat State, who will ensure implementation of the writ in terms of the order.