D.C. Gheewala, J.
1. As these two petitions involve an identical question and as they are challenging the proceedings arising from the same incident, they are being disposed of by a common judgment.
2. The petitioners were working as Rakshaks in the Railway Protection Force under the Respondents at Kankaria loco-shed. They were charge-sheeted under Rule 44 of the Railway Protection Force Rules, 1959 by the Respondent No. 3 on an allegation that they had failed to prevent and detect the theft of 20 kgs. of steam coal and that they also failed to prevent the entry of a girl who had entered the shed with an intention to steal and who was detected in connection with the said offence of coal theft, which occurred during the duty-bit and duty hours of the petitioners. This incident took place on 26-8-1979. Both the petitioners were charge-sheeted on 18-9-1979. On 19-4-1980, the Enquiry Officer came to the conclusion that the charges levelled against the petitioners were not proved. He, therefore, exonerated them. However, on 15-5-1980 the Assistant Security Officer (Disciplinary Authority) gave a finding that he did not agree with the findings of the Enquiry Officer on the grounds of negligence and prevention. However, he agreed with the Enquiry Officer that the charge pertaining to failure of the petitioners' to detect the crime was rightly held not to have been proved. He imposed the penalty of stopage of two increments with future effect and issued a show cause notice regarding penalty. Thereafter, on 4-10-1980, the Second Respondent, namely, the Security Officer, Baroda, issued show cause notices to the petitioners for enhancing the penalty under Rule 60 of the Railway Protection Force Rules, as he disagreed with the penalty sought to be imposed by the Disciplinary Authority. The Second respondent proposed a penalty of removal from service. The petitioners filed replies to the above show cause notices and on 21-11-1980, the Second Respondent passed an order of removal from service against the petitioners. On 6-12-1980, the petitioners filed appeals before Respondent No. 4, namely, the Chief Security Officer. It appears that as the appeals were not disposed of for a long period, a Special Civil Application No. 1928/81 was filed and the High Court directed respondent No. 4 to dispose of the appeals within a month. On 30th July 1981, the appeals were disposed of by respondent No. 4 without giving personal hearing to the petitioners, though they had requested for the same and the order of removal from service was confirmed by him. On 10-9-81, the present petitions were filed and on 11-2-1982, the learned Single Judge (N. H. Bhatt J.) disposed of the petition as withdrawn on a statement made by the learned Counsel for the Railway Administration that if the petitioners filed a revision application under Rule 60 of the said rules, the Inspector General of Railways Protection Force, Delhi will consider the matter sympathetically having regard to the earlier precedents and dispose of the same as early as possible, but not latter than four weeks from the date of the receipt of the revision applications. Liberty to revive the petition was reserved to the petitioners. On 87-1982, the Inspector General of Railway Protection Force treated the same only as Mercy petitions and rejected the same. The petitioners, therefore, revived these petitions.
3. On behalf of the petitioners, Mr. Sanjanwala, the learned Advocate very frankly conceded that so far as the finding of guilt is concerned, he will not be in a position to assail the same. However, Mr. Sanjanwala urged that the Disciplinary Authority having imposed a penalty of stopage of two increments with future effect, the subsequent proceedings by the superior Officers enhancing the said penalty to the highest extreme was not warranted in the instant case. The offence of the delinquents was not such which would warrant an extreme penalty of economic death and Mr. Sanjanwala urged that while he would concede that the petitioners should be suitably punished this Court should interfere when all the attempts of the petitioners to invoke the sympathy of the superior officers have failed and who have mechanically endorsed the order regarding the removal of service without giving due weight to considerations which ought to have been given necessary weight.
4. As against this Mr. Bhatt, the learned Counsel appearing for the Railway urged that this Court will have no jurisdiction to interfere with the imposition of the penalty, as that would be entirely within the discretion of the authority and the courts very rarely, if ever would be justified in interfering with the quantum of penalty.
5. It is undoubtedly true that this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India will otn ordinarily interfere with the exercise of discretion by the Departmental authorities on the question of penalty. However, cases are not unknown, where the Courts have interfered or the courts have declared that they would interfere in a given case. For the reasons to be now recorded I feel that there are reasons which may persuade this Court to interfere even on the question of penalty in the present case and the self imposed fetters which the courts scrupulously observe and rarely transgress, should for once, be cast aside. While this Court would ordinarily be shy and chaggrined to expand its jurisdiction so as to encroach upon the area of imposition of penalty by the. Disciplinary Authority, there are no such fetters in the exercise of inherent powers of this Court to remove gross injustice and to do justice in a given case.
6. In the instant case, the Enquiry Officer on the evidence before him had initially exonerated the petitioners and the Disciplinary Authority while disagreeing with him had imposed a penalty of stop-page of two increments with future effect. This would mean that the decision of the Enquiry Officer was examined at large by the Disciplinary Authority and the penally which he thought to be commensurate with the gravity of the offending act of the delinquents was imposed by him. Thereafter the higher echelons of the Department feeling that the penalty was not adequate enhanced the same. With the concession of Mr. Sanjanwala, the only question which now remains to be determined is as to whether the act of the delinquents was such which would warrant such a harsh punishment. All channels of redressing the same have been exhausted and the highest authority was also approached by way of representation under the orders of the Court on a statement being made by the learned Counsel for the respondents that the said representation would be considered keeping in view the precedents. These representations were simply treated as mercy petitions and the same were rejected.
7. In all cases where the authority proceeds to impose a penalty, the only question which is ordinarily to be kept in mind is to impose adequate punishment which might deter the offender from repeating his misdeeds and to deter likeminded persons from doing the same. The idea of imposition of punishment also by the very nature of things includes within its ambit, attempts and efforts to improve the delinquents' ways. Be it a Criminal court which has to impose a sentence on an offender for doing a criminal act or be it a Disciplinary authority which proceeds to impose punishment on the delinquent for having done an act which would invite the wrath of the administration the main idea which should pervade the mind of the authority, which has to impose the penalty, should be that the punishment be neither too lenient nor too harsh. Too lenient punishment may make mockery of the system. Too Draconian a penalty might not only result in injustice but may be frought with other rammifications which might defeat the very end for which the penalty is imposed.
8. In the instant case the petitioners were charge-sheeted on the ground that while they were on duty a girl had stealthily entered the shed and had pilferred 20 kgs. of steam coal. Mr. Bhatt, the learned Counsel representing the respondents urged that the petitioners were occupying very sensitive positions and by the very nature of their duties they were required to protect the railway property and if they had failed in the same, their remaining on the force would be useless. One would undoubtedly agree that the petitioners were occupying sensitive posts. Their duties were onerous and utmost care and vigilance had to be displayed by them, in performance of their duties. However, can it be said by any stretch of imagination that the petitioners having been found guilty of negligence, which negligence had resulted in a loss of 20 kg. of steam coal to the Railway should be subjected to the severest penalty Or the penalty imposed by the Disciplinary Authority, while disagreeing with the finding of the Inquiry Officer can be considered to be just and proper penalty for the said offence The desire of the Administration, namely, the respondents to streamline the working of the protection force, may be commendable and even then the petitioners who had devoted best part of their lives in the service of the administration are not required to. be condemned to an economic death. Order Annexure-F whereby the Security Officer has enhanced the penalty, only reiterates that the Rakshaks i.e. the petitioners had failed to prevent the entry of criminals in the yard and also failed to prevent or detect the theft of steam coal and hence be found that they were not fit to be retained in the force. This finding is a mere confirmation of the finding of the Assistant Security Officer and no reasons seem to have been assigned as to why the petitioners were not considered to be fit to be retained in the Force, or that a lesser penalty would not suffice. While the Assistant Security Officer on the same finding had imposed a lighter punishment, rule of thumb seems to have been applied by the top-brass. The order does not even indicate that past records of the petitioners was taken into consideration or that the past records were so uneviable that the imposition of extreme penalty was called for.
9. Mr. Bhatt, the learned Counsel for the Respondents tried to argue that the previous records of the petitioners were not at all laudable. However, there is nothing on the record to indicate that while enhancing the penalty the petitioners were given opportunity to meet with the said ground of previous records which was proposed to be used for enhancing the penalty. In a case reported at : 4SCR540 The State of Mysore v. Manche Gowda the Supreme Court observed as under:.If the proposed punishment is mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it would mean that the main reason for the proposed punishment is withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him;
nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of this past record. what the Government servant is entitled to is not the knowledge of certain facts but the fact that these facts will be taken into consideration by the Government in inflicting punishment on him.
Thus, an opportunity is required to be given to the delinquent before the penalty inflicted by the Disciplinary Authority is sought to be enhanced to explain to the authority concerned the mitigating circumstances which would persuade the concerned authority either not to enhance the penalty or to enhance the penalty only to a particular extent and not to carry it to any illogical extreme.
10. In a case reported at 23(1) G.L.R. p. 233 S.M. Sharma v. South Gujarat University the Division Bench of this Court, (P. D. Desai, J. as he then was and D. H. Shukla J.) in para 46 of the judgment observed as under:
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 circumstance. 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.
In the said case before the Division Bench, the petitioner who was a candidate appearing at the F.Y. B.A. examination of the South Gujarat University was proceeded against for having impersonated at the examination. After the conclusion of the inquiry, a penalty was imposed and that penalty was debarment of the petitioner from appearing at any examination held by the University for a period of five years. In the initial round of the challenge against the said decision, the learned Single Judge while dismissing the petition expressed a view that penalty of debarment for a period of one year would meet the ends of justice and had recommended to the University to review the penalty accordingly. Even the Division Bench at the stage of the admission of L.P.A. had made a similar recommendation. On both the occasions, the University refused to review the penalty substantially on the ground that the petitioner was visited with penalty similar to that imposed in identical cases and that to treat him more leniently might give rise to the charge of discrimination against the University. The Division Bench while allaying this apprehension in the mind of the University observed as under:
The question of penalty has to be examined in each case on the basis of the peculiar facts and circumstances present therein. Minimum and maximum penalty may be prescribed within reasonable limits. Within those parameters, the quantum of penalty may, and more often than not, will differ from case to case depending upon its varying features. To believe, therefore, that to treat one errant student differently from another in the matter of imposition of penalty, where both are found to have committed a similar malpractice, would necessarily expose the University to the charge of discrimination, betrays ignorance of the true principle governing the exercise of discretionary powers in the penological field. In fact, imposition of uniform penalty in all cases involving a similar malpratice, without regard to the presence or absence of relevant circumstances bearing on the quantum, may sometimes invite the charge of non-application of mind or arbitrary exercise of power. Under the circumstance?, if the case had not been decided on merits on favour of the petitioner the grossly dispropirtionate pently imposed upon the petitioner would have been certainly interfered with and the impugned decision in so far as it related to penalty would have been quashed and the University would have been precluded from reconsidering the question of penalty and directed to treat the chapter as closed having regard to the penalty already undergone.
The above observations clearly go to indicate that there is nothing to prevent this Court from interfering with a penalty which is disproportionate to the offending act. In the present case also the learned Single Judge white disposing of the petition withdrawn, has made it clear in his order, that the petition was withdrawn On a Statement being made by the learned Counsel for the respondents that the question of penalty shall be reconsidered by the authorities keeping in view the precedents in that behalf. The petitioners' representations do not seem to have been considered on those lines.
11. In another case reported at 23(1) GLR P. 352 R.M. Parmar v. Gujarat Electricity Board Baroda, the another Division Bench of this Court consisting of M. P. Thakkar C.J. (as he then was) and myself, speaking through M. P. Thakkar C.J. laid down certain guide lines for striking just balance between the offending act and the penalty. The Division Bench of course in the said case was concerned with the true import of Section HA of the Industrial Disputes Act. On a reference being made to the Labour Court, the Labour Court disposed of the said reference and came to the conclusion that it was not a case where lesser punishment deserved to be awarded in exercise of the powers under Section 11 A of the Act. The main ground which had weighed with the Labour Court was that the delinquent employee had not admitted the charges and hence the benefit of Section 11A would not be available to such an employee. While remanding the matter to the Labour Court, this Court laid down certain guide lines, most important amongst them are the following:
1. In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.
2. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or mis-guided child.
3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.
12. Mr. Bhatt, also urged that if this Court comes to the conclusion that the penalty imposed upon the petitioner is harsh then once again the matter may be sent for the reconsideration to the authorities. This has been done and has proved to be futile. The petitioners have under-gone inordinately long time of mental torture and have been out of any profitable employment for long time. In the instant case, therefore, it would be unduly harsh and unjust to do so.
13. Under the circumstances, I feel that this is a fit case in which this Court should interfere and set aside the order enhancing the penalty. The penalty which was passed by the Disciplinary Authority of stoppage of two increments shall, therefore, be restored. The petition is, therefore, allowed and the order passed by the Disciplinary authority of stop page of two increments with future effect is restored and that of enhancement of the penalty to removal from service is set aside. The petitioners shall therefore, be reinstated in service within a period of four weeks from today with all consequential benefits except that two increments shall be stopped with future effect. Rule is made absolute to the above effect. There shall be no orders as to costs.