"Member Of Disciplined Force Expected To Control Mind & Passion" : SC Upholds SSB Constable's Removal For Entering Women Barracks At Night

The Supreme Court on Wednesday affirmed the penalty of removal from service imposed on a Head Constable from the Sashastra Seema Bal(SSB) - a Central Armed Police Force guarding border - for entering the women barracks at midnight.

The punishment of "removal from service" was imposed on him for "violation of good order and discipline" by entering the Mahila Barack at midnight. He was charged with indiscipline and misconduct leading to the compromise of the security of the Mahila Barack. He had entered the Mahila Barack allegedly to meet a friend, when he he was apprehended by six women constables.

The woman constable, who had allowed the entry of the appellant, was given a punishment of forfeiture of two years seniority. The appellant approached the Guahati High Court challenging the punishment imposed on him. A single bench of the High Court ruled that the penalty of removal from service was disproportionate, especially considering the fact that the female constable was given a lesser penalty. Therefore, the single bench remanded the matter back to the authorities after settings aside the penalty.

In appeal by the disciplinary authority, the division bench set aside the single bench verdict. Aggrieved with this, the appellant approached the Supreme Court.

A Supreme Court bench comprising Justices MR Shah and BV Nagarathna, referring to a catena of precedents on the limited scope of judicial review over disciplinary actions, dismissed the appeal(Anil Kumar Upadhyay versus The Director General, SSB and others).

"...the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as 'Wednesbury principles'.

In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited", the Top Court observed.

The Court observed that the allegations against the appellant are "grave in nature".

"As observed by this Court in the case of Union of India versus Diler Singh, a member of the disciplined force is expected to follow the rules, have control over his mind and passion,guard his instincts and feelings and not allow his feelings to fly in a fancy", the Court stated.

It further said :

"The nature of misconduct which has been committed by the appellant stands proved and is unpardonable. Therefore, when the disciplinary authority considered it appropriate to punish him with the penalty of 'removal from service', which is confirmed by the appellate authority,thereafter it was not open for the learned Single Judge to interfere with the order of punishment imposed by the disciplinary authority"

Can't claim parity with the penalty imposed on female constable

The Supreme Court refused to accept the argument that the appellant should be given lesser penalty considering the lesser penalty imposed on the female constable.

"...the learned Single Judge did not appreciate that the misconduct committed by the delinquent official,being a male Head Constable cannot be equated with the misconduct committed by the female constable. The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable"

"...merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by the disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack".

Accordingly, the Court dismissed the appeal, holding that the punishment was not disproportionate.

Case Title : Anil Kumar Upadhyay versus The Director General, SSB and others

Citation : 2022 LiveLaw (SC) 392

Headnotes

Service Law - Scope of judicial review over quantum of punishment imposed by disciplinary authority limited -Paragraph 8

Service Law -Sashastra Seema Bal Service- SSB Head Constable removed from service for misconduct of entering Mahila Barack at midnight -A member of the disciplined force is expected to follow the rules, have control over his mind and passion,guard his instincts and feelings and not allow his feelings to fly in a fancy -The nature of misconduct which has been committed by the appellant stands proved and is unpardonable-Paragraph 9

Service Law - No negative discrimination just becuase another employee was given lesser penalty- The misconduct committed by the delinquent official,being a male Head Constable cannot be equated with the misconduct committed by the female constable - The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable -Merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him.- Paragraph 10 & 11

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