Q: Describe the relevancy of citation of S.R TEWARI V. UNION OF INDIA AND ANOTHER with present case?

Ans: S.R. TEWARI V. UNION OF INDIA AND ANOTHER

The appellant, an IPS officer of 1982 batch joined the service on 1-9-1982, promoted on the post of Deputy Inspector General (DIG), and subsequently as Inspector General of Police (IG) in his cadre of the State of Andhra Pradesh in May 2001. The appellant was on deputation and was posted as IG, Frontier Headquarters, Border Security Force (BSF) (North Bengal) from 23-6-2005 to 14-11-2006. 


The appellant was put under suspension vide order dated 13-11-2006 as the disciplinary authority decided to hold disciplinary proceedings. As a consequence thereof, a charge-sheet dated 23-3-2007 containing eight charges was served upon him. The appellant denied all the said charges and therefore, an inquiry officer was appointed. The Department examined a large number of witnesses and produced documents in support of its case. The appellant also defended himself and the inquiry officer submitted the report dated 23-12-2008 holding him guilty, as Charge 3 stood proved fully while Charges 4 and 6 stood proved partly. The disciplinary authority did not agree with one of the findings recorded by the inquiry officer on one charge and held that Charge 4 was proved fully. In response to the show-cause notice issued to the appellant by the Disciplinary Authority, he submitted a detailed representation against the disagreement note by the disciplinary authority on 10-11-2009.
3. On being sought, the Union Public Service Commission (hereinafter referred to as “UPSC”) gave its advice regarding the punishment on 20-8-2010. The Central Vigilance Commission (hereinafter referred to as “CVC”) also gave its advice in respect of the charges against the appellant on 18-2-2009. After considering all the material, the disciplinary authority passed the order of punishment of dismissal from service on 8-9-2010. Aggrieved, the appellant challenged the said order of dismissal by filing OA No. 3234 of 2010 before the Tribunal. It was contested and opposed by Respondent 1. The Tribunal set aside the order of punishment dated 8-9-2010 vide judgment and order dated 11-2-20113 and directed for reinstatement of the appellant in service with all consequential benefits.
Aggrieved, Respondent 1, Union of India challenged the said order of the Tribunal by filing Writ Petition (C) No. 4207 of 2011 before the High Court of Delhi. The High Court vide its judgment and order dated 1-2-2012 set aside the judgment and order dated 11-2-2011 passed by the Tribunal and directed Respondent 1 to pass a fresh order in respect of Charges 4 and 6 as in the opinion of the High Court only the said two charges stood proved.
4. The appellant filed Review Petition No. 102 of 2012 against the order dated 1-2-2012, however, the same was rejected vide order dated 15-2-2012. Aggrieved, Respondent 1 filed SLP (C) No. 14639 of 2012, challenging the said order of the High Court of Delhi dated 1-2-2012. However, the same was dismissed by this Court on 9-5-20124.
The appellant challenged the same order of the High Court dated 1-2-2012 by filing these appeals. In the meanwhile, Respondent 1 reinstated the appellant on 23-5-2012 and tentatively formed a decision to impose a suitable penalty on the said two charges in view of the order of the High Court dated 1-2-2012, a penalty of withholding two increments for one year without cumulative effect. Respondent 1 sought advice from UPSC, which vide letter dated 13-8-2012 advised that the appellant be compulsorily retired. The advice given by UPSC was served upon the appellant and he was asked to make a representation on the same. In the meanwhile, this Court vide order dated 5-10-20125 asked the appellant to file a detailed representation before Respondent 1, which was asked in turn to pass a speaking and reasoned order within a stipulated period in respect of the punishment. However, it was directed that the order of punishment would not be given effect to immediately and the same would be placed before this Court on the next date of hearing. In pursuance thereof, the appellant submitted the representation on 5-10-2012. Respondent 1 vide order dated 17-10-2012 passed the order imposing the punishment of compulsory retirement. The said order was given effect to and communicated to the appellant vide letter dated 19-11-2012.
Thus, the questions that arise for consideration of this Court are whether the punishment of compulsory retirement awarded by the disciplinary authority is proportionate to the delinquency proved and whether the respondents in the contempt petitions wilfully violated the order dated 5-10-2012 passed by this Court holding that the punishment should not be given effect to until it is produced before the Court at the time of the next hearing.
The honourable Supreme Court held that proved charges remained only Charges 4 and 6 and in both the cases the misconduct seems to be of an administrative nature rather than a misconduct of a serious nature. It was not the case of the Department that the appellant had taken the escort vehicle with him. There was only one vehicle which was an official vehicle for his use and Charge 6 stood partly proved. In view thereof, the punishment of compulsory retirement shocks the conscience of the Court and by no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by and proved against the appellant. The only punishment which could be held to be commensurate to the delinquency was as proposed by the Government of India to withhold two increments for one year without cumulative effect. It would have been appropriate to remand the case to the disciplinary authority to impose the appropriate punishment. However, considering the chequered history of the case and in view of the fact that the appellant had remained under suspension for 11 months, suffered the order of dismissal for 19 months and would retire after reaching the age of superannuation in December 2013, the facts of the case warrant that this Court should substitute the punishment of compulsory retirement to the punishment proposed by the Union of India i.e withholding of two increments for one year without having cumulative effect.
In view thereof, we do not want to proceed with the contempt petitions. The appeals as well as the contempt petitions stand disposed of accordingly.
Relevancy with our case: The honourable Supreme Court held in above case that the punishment was too harsh and was disproportionate to the charges framed on IG of BSF S. R. Tewari. 
Thus in our case also the bsf personnel fired in bushes having thrilling sensation of patriotism and thus the punishment is disproportionate and he must be reinstated considering the principles of natural justice.

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