S/L 38 13.06.2025 Court. No. 19 Suvayan/ Sourav WPA 9744 of 2010 Malle Boina Raj Kumar Vs. Union of India & Ors. Mr. Mohinoor Rahaman Mr. Imdadul Biswas Mr. Iqra Rahaman …for the petitioner. Mr. Swapan Kumar Nandi Mr. Anjan Chakraborty …for U.O.I. 1. By filing the instant writ petition the writ petitioner has prayed for issuance of the appropriate writ/writs against the respondents/authorities for quashing of charge dated 03.12.2008, the entire disciplinary proceeding as conducted against him as well as the order of dismissal dated 20.03.2009 as passed by the disciplinary authority and the order or rejection of appeal dated 04.02.2010 as passed by the appellate authority. 2. In course of his submission Mr. Rahaman, learned advocate appearing on behalf of the writ petitioner at the very outset took me to page no. 44 of the instant writ petition being a copy of the charge-sheet as has been submitted against the present writ petitioner and one Satnam Singh, a Constable of BSF. Drawing attention to page no. 87 of the instant writ petition being a copy of the order dated 20.03.2009 as passed by the respondent no. 5, it is submitted by Mr. Rahaman that from the said order dated 20.03.2009 2 it would reveal that finding the guilt of the present petitioner and a co-delinquent Satnam Singh in a disciplinary proceeding, the respondent no. 5 by a common order passed an order of dismissal from service against both the delinquent with effect from the said day. 3. It is further submitted that challenging the said order of dismissal two separate appeals have been preferred, one by the present petitioner and another by the said Satnam Singh, however, the said two appeals were dismissed. 4. At this juncture, Mr. Rahaman draws attention of this Court to Annexure-P10 of the affidavit-in-reply as filed by the writ petitioner. It is submitted that the another co-delinquent Satnam Singh challenged the said order of dismissal as well as the said order of the appellate authority in a writ petition before the High Court of Delhi wherein by a judgment and order dated 22.02.2011 the High Court of Delhi while disposing the said writ petition quashed the order of dismissal dated 20.03.2009 as passed by the respondent no. 5 as well as the order dated 13.11.2009 as passed by the appellate authority in an appeal preferred by co-delinquent Satnam Singh and thus directed the said co-delinquent Satnam Singh to be reinstated in service with all consequential benefits. 5. It is thus contended by Mr. Rahaman that since High Court at Delhi has set aside the order of punishment dated 20.03.2009 in its entirety, there cannot be any 3 hesitation to hold that the order of dismissal as passed against the present writ petitioner has also become non-est and, therefore, the instant writ petition may be allowed directing the respondents/authorities to reinstate the present writ petitioner in his service with all consequential benefits as prayed for. 6. Per contra, Mr. Nandi, learned advocate appearing on behalf of the Union of India and its functionaries opposes such contention. It is argued by Mr. Nandi that by no stretch of imagination it can be said that the entire order of dismissal dated 20.03.2009 has been set aside inasmuch as the present writ petitioner was not a party in the writ petition as disposed of by the High Court at Delhi. It is further submitted by Mr. Nandi that on careful perusal of the judgment and order dated 22.02.2011 as passed in WP (C) 2432 of 2010 by the High Court at Delhi it would reveal that footing of the writ petitioner of the said writ petition is quite distinguishable from the footing of the writ petitioner of the instant writ petition. 7. It is further submitted by Mr. Nandi that though a common order of punishment was passed by the respondent no. 5/authority but in connection with two separate appeals two separate orders have been passed by the appellate authority. 8. On careful consideration of the entire materials as placed before this Court and after hearing the learned advocates for the contending parties it appears to this 4 Court that admittedly on 03.02.2008 a common charge-sheet was submitted against the present petitioner and one Satnam Singh. Materials have been placed before this Court both the delinquents were found guilty in a common disciplinary proceeding and thereafter by a common order the respondent no. 5/authority imposed a punishment that is dismissal from service as against both the delinquent. 9. It is undisputed that two separate appeals have been preferred by both the delinquents which ended into dismissal. The co-delinquent Satnam Singh filed a writ petition before the High Court of Delhi and the High Court of Delhi while disposing the said writ petition noticed that the enquiry authority, the disciplinary authority and the appellate authority while coming to a logical conclusion of the disciplinary proceeding and/or statutory appeal failed to consider some material evidence which are in favour of the said Satnam Singh and for non- consideration of such material evidence, decision making process of the enquiry authority, disciplinary authority and appellate authority have been vitiated and on that score the said writ petition was allowed by setting aside the order of punishment as well as the order of appeal as passed against the Satnam Singh. 10. In course of his argument Mr. Rahaman contended that since the order of punishment has been set aside by the High Court of Delhi in its entirety and thus 5 there cannot be any predicament in allowing the instant writ petition placing reliance upon the said finding of the High Court of Delhi. 11. In considered view of this Court, such argument as advanced by Mr. Rahaman is not at all convincing inasmuch as before the High Court of Delhi in the said writ petition the present writ petitioner was not a party. This Court has gone through the judgment dated 22.02.2011 as passed by the High Court of Delhi. This Court has noticed that the High Court of Delhi while disposing the said writ petition had considered the impediment of the writ petitioner before them in keeping vigil on the relevant night over the cows smuggling on account of distance of his posting at Naka no. 6. 12. It thus appears to this Court that the High Court of Delhi while disposing the said writ petition had concentrated themselves in assessing the evidence as available against Satnam Singh (the writ petitioner before that Court) and on that score, the said judgment came to be pronounced. It thus appears to this Court that the High Court of Delhi has got no occasion to consider the materials as available either in favour of the present writ petitioner or against him. 13. In view of such, this Court is of considered view that the present writ petitioner cannot take any advantage on account of pronouncement of judgment and order dated 22.02.2011 as passed in WP(C) 2432 of 2010 by the High Court of Delhi. 6 14. Coming to the factual aspects of this case, it appears to this Court that the materials have been placed before this Court that in course of enquiry proceeding, the enquiry officer found that the present writ petitioner being a ‘Jawan’ of B.S.F. was negligent inasmuch as he was found to be sleeping while discharging his duty and on account of such dereliction of duty smuggling of cow took place. 15. Further materials have been placed before this Court that the disciplinary authority as well as the appellate authority found no cogent reason to interfere with such factual finding as noticed by the enquiry authority. 16. It is settled position of law that in a judicial review, the High Court while exercising its writ jurisdiction is not supposed to act as an appellate authority and, therefore, it would not be proper for the High Court sitting in writ jurisdiction to revisit and/or re-weigh the evidence as recorded in course of enquiry proceeding. No materials could be placed on behalf of the writ petitioner that finding of the enquiry authority and/or disciplinary authority and/or appellate authority is otherwise perverse and/or based on non-consideration of available materials and/or consideration of some extraneous materials for which the decision making process has been vitiated. 7 17. In view of such, this Court finds no cogent reason to interfere with the orders impugned while sitting in a judicial review. 18. In course of his argument, Mr. Rahaman further contended that for the sake of argument, even if, this Court finds no reason to interfere with the orders under challenge but the quantum of punishment as imposed upon the writ petitioner may be minimized since the same is excessively harsh. 19. This Court is in agreement with Mr. Rahaman that disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration, inter alia, of this Court. 20. It is trite law that the Court may interfere with the quantum of punishment only when it shocks the conscience of the Court. 21. Coming to the factual aspects of this case, it appears to this Court that the present writ petitioner is found sleeping in discharge of his duty at his ‘naka’ and taking advantage of that cows’ smuggling took place on the relevant night. In such factual position, this Court considers that the punishment as imposed upon the writ petitioner is very much justified as well as adequate and, therefore, there cannot be any reason to interfere even with the quantum of such punishment. 22. This Court thus, finds no merit on the instant writ petition. 8 23. The instant writ petition being WPA 9744 of 2010 is thus dismissed. 24. There shall be, however, no order as to costs. 25. Urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all the necessary formalities. 1. (Partha Sarathi Sen, J.)