ANIL KUMAR UPADHYAYversusTHE DIRECTOR GENERAL, SSB AND OTHERS

1106            SUPREME COURT
                          [2022]REPORTS
                                 2 S.C.R. 1106              [2022] 2 S.C.R.


 A                        ANIL KUMAR UPADHYAY
                                         v.
               THE DIRECTOR GENERAL, SSB AND OTHERS
                          (Civil Appeal No. 2707 of 2022)
 B
                                 APRIL 20, 2022
                [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
              Service Law: Indiscipline and misconduct – Removal from
       service – Appellant was serving as a Head Constable in Sashastra
 C     Seema Bal – He was charged with violation of good order and
       discipline u/s. 43 of 2007 Act for having entered the Mahila Barrack
       at mid-night to meet his alleged female friend – Appellant was held
       guilty of the charges and order of removal from service was passed
       against him – Appellant filed writ petition – Plea of appellant was
 D     that much lesser punishment was imposed against a female constable
       who allowed the entry of the appellant and same was discriminatory
       – On this ground, single judge set aside punishment of ‘removal
       from service’ and remitted the matter to the disciplinary authority to
       impose any lesser punishment which may facilitate the appellant to
       retain his job – Disciplinary authority successfully challenged the
 E
       order of single judge before Division Bench – Hence instant appeal
       by the delinquent – Held: The nature of misconduct committed by
       the appellant was grave in nature and unpardonable – Misconduct
       committed by a male Head Constable cannot be equated with the
       misconduct committed by female constable – Single judge
 F     committed grave error in comparing the case of female constable
       with that of the appellant 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 – Imposition of punishment/penalty on a
       particular employee depends upon various factors, like the
 G
       position of the employee in the department, role attributed to him
       and the nature of allegations against him – Punishment of removal
       from service cannot be said to be disproportionate at all to the
       misconduct held to be proved against the appellant – Sashatra Seema
       Bal Act, 2007 – s. 43.
 H
                                       1106
   ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                   1107


      Dismissing the appeal, the Court                                A
      HELD: 1. The appellant was imposed the penalty of
‘removal from service’ after the charges levelled against him
stood proved by the disciplinary authority in an enquiry held
against him after following the procedure prescribed under the
SSB Rules. The nature of allegations against the appellant are        B
grave in nature. He entered the Mahila Barrack in the midnight
at around 00:15 hours, may be to meet his alleged friend Rupasi
Barman, but such an indisciplined conduct leading to
compromising the security of the occupants of the Mahila Barrack
cannot be tolerated. The nature of misconduct which has been
committed by the appellant stands proved and is unpardonable.         C
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.        D
[Para 9][1117-G-H; 1118-B-C]
      2. The 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       E
Battalion in the midnight is more serious when committed by a
male Head Constable. Therefore, the Single Judge committed a
grave error in comparing the case of female constable with that
of the appellant – delinquent, male Head Constable. [Para
10][1118-E-F]
                                                                      F
      3. 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         G
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
                                                                      H
1108           SUPREME COURT REPORTS                      [2022] 2 S.C.R.


 A     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
 B
       occupants of the Mahila Barrack. Therefore, the disciplinary
       authority was absolutely justified in imposing the punishment/
       penalty of ‘removal from service’ by modifying the earlier
       punishment of dismissal. The same cannot be said to be
       disproportionate at all to the misconduct held to be proved against
 C     the appellant – delinquent. The present appeal fails and the same
       deserves to be dismissed and is accordingly dismissed. [Para 11
       and 12][1118-F-H; 1119-A-C]
             Om Kumar v. Union of India (2001) 2 SCC 386 : [2000]
             4 Suppl. SCR 693; Union of India v. G. Ganayutham
 D           (1997) 7 SCC 463 : [1997] 3 Suppl. SCR 549; Union
             of India v. Dwarka Prasad Tiwari (2006) 10 SCC 388
             : [2006] 7 Suppl. SCR 217 ; Union of India v. Diler
             Singh (2016) 13 SCC 71 : [2016] 4 SCR 473; B.C.
             Chaturvedi v. Union of India (1995) 6 SCC 749 : [1995]
             4 Suppl. SCR 644; Lucknow Kshetriya Gramin Bank
 E           (Now Allahabd, Uttar Pradesh Gramin Bank) v.
             Rajendra Singh (2013) 12 SCC 372 : [2013] 17 SCR
             309 – relied on.
                             Case Law Reference

 F     [2000] 4 Suppl. SCR 693        relied on              Para 4.1
       [1997] 3 Suppl. SCR 549        relied on              Para 4.1
       [2006] 7 Suppl. SCR217         relied on              Para 4.1
       [2016] 4 SCR 473               relied on              Para 4.1
 G     [1995] 4 Suppl. SCR 644        relied on              Para 4.2
       [2013] 17 SCR 309              relied on              Para 4.2




 H
    ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                              1109


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2707                         A
of 2022.
      From the Judgment and Order dated 11.04.2018 of the High Court
of Gauhati in Writ Appeal No.346 of 2017.
      Ms. Ankita Patnaik, Ms. Astha Sharma, Ms. Mantika Haryani,
Advs. for the Appellant.                                                          B

    Ms. Vaishali Verma, Ms. Rashmi Malhotra, Adit Khorana, Arvind
Kumar Sharma, B. V. Balaram Das, Advs. for the Respondents.
       The Judgment of the Court was delivered by
       M. R. SHAH, J.                                                             C
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 11.04.2018 passed by the Division Bench of the Gauhati
High Court in Writ Appeal No. 346/2017, by which the Division Bench
of the High Court has allowed the said appeal preferred by the
respondents herein – Disciplinary Authority and has quashed and set               D
aside the judgment and order 02.05.2017 passed by the learned Single
Judge of the High Court in Writ Petition No. 3576 of 2014, by which the
learned Single Judge allowed the said writ petition and interfered with
the order of punishment of ‘removal from service’ inflicted upon the
original writ petitioner and remitted the matter to the Disciplinary Authority,
                                                                                  E
the original writ petitioner – delinquent has preferred the present appeal.
       2. The appellant herein was serving as a Head Constable
(Ministerial) in the 15th Battalion of the Sashastra Seema Bal (SSB),
Bongaigaon. He was charged with violation of good order and discipline
under Section 43 of the Shashastra Seema Bal Act, 2007 (hereinafter
                                                                                  F
referred to as the ‘SSB Act’), for having entered the Mahila Barrack of
the Battalion at around 00:15 hours, on the intervening night of 14th –
15th April, 2013. He was charged with indiscipline and misconduct leading
to compromising the security of the occupants of the Mahila Barrack.
He was apprehended inside the Mahila Barrack by six female constables.
The matter was reported to the superiors. He was placed under                     G
suspension. A departmental enquiry was initiated against him. The
appellant pleaded not guilty to the charges and the Deputy Commandant
of the Battalion was ordered to ensure the Record of Evidence (ROE).
During the ROE, the statements of prosecution and defence witnesses
were recorded. He was afforded an opportunity to cross-examine the
                                                                                  H
1110             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


 A     prosecution witnesses. That the ROE was submitted by the Deputy
       Adjutant and after due consideration of the same, the Battalion
       Commandant heard the appellant and under the SSB Rules, the Summary
       Force Court (SFC) was ordered against the delinquent – Head Constable.
              2.1 Before the SFC, the appellant pleaded not guilty to both the
 B     charges and accordingly the evidence was recorded. Thereafter, the
       SFC found the appellant guilty of the charges and initially ordered for his
       dismissal on 29.04.2013. But, subsequently, the penalty of dismissal was
       converted to ‘removal from service’ on 21.06.2013 by the Commandant
       of the Battalion. The departmental appeal filed by the delinquent – Head
       Constable came to be rejected at first, as time barred on 06.12.2013, but
 C     later on, the Appellate Authority upheld the disciplinary action under its
       order dated 24.01.2014.
              2.2 Feeling aggrieved and dissatisfied with the order of removal
       from service passed by the disciplinary authority, the appellant –
       delinquent preferred a writ petition before the High Court. Number of
 D     submissions were made before the learned Single Judge on the legality
       and validity of the ROE and the SFC procedures. It was also submitted
       on behalf of the appellant that a female constable, Rupasi Barman, who
       was on sentry duty and who allowed entry of the delinquent during her
       sentry duty and against whom parallel proceedings were drawn up was
 E     also found guilty, she was inflicted the penalty of forfeiture of two years
       seniority in the rank of constable and also forfeiture of two years’ service
       for the purpose of promotion only. Therefore, it was submitted that when
       a much lesser punishment was imposed against a female constable
       whereas her partner in crime (the appellant herein) was given the
       punishment of ‘removal from service’, the same can be said to be
 F     discriminatory and disproportionate punishment.
               2.3 The learned Single Judge specifically observed and held that
       all due opportunities were afforded to the delinquent and the finding of
       guilt is found to have been based on cogent material and the evidence of
       both sides received due consideration and hence under the test of
 G     preponderance of probability, the delinquent has been held guilty.
       Therefore, the learned Single Judge opined that no prejudice was caused
       and it cannot be described a case of unreasonable procedure as there
       was due adherence to the SSB Rules. However, thereafter the learned
       Single Judge interfered with the order of punishment imposed by the
 H     disciplinary authority of ‘removal from service’ solely on the ground that
   ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                            1111
                   [M. R. SHAH, J.]

female constable, Rupasi Barman, who allowed the entry of the                  A
delinquent during her sentry duty, after holding her guilty, was inflicted a
lesser penalty, whereas the appellant herein was inflicted the punishment
of ‘removal from service’, which can be said to be disproportionate and
therefore the learned Single Judge set aside the order of punishment
imposed by the disciplinary authority of ‘removal from service’ and
                                                                               B
remitted the matter to the disciplinary authority to impose any lesser
punishment which may facilitate the appellant herein - Head Constable
(Ministerial) to retain his job.
       2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the disciplinary authority preferred
                                                                               C
writ appeal before the Division Bench. By the impugned judgment and
order, the Division Bench of the High Court has set aside the judgment
and order passed by the learned Single Judge.
       2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court in quashing
                                                                               D
and setting aside the judgment and order passed by the learned Single
Judge interfering with the order of punishment imposed by the disciplinary
authority and remanding the matter back to the disciplinary authority to
impose the lesser punishment, the delinquent has preferred the present
appeal.
                                                                               E
      3. Ms. Ankita Patnaik, learned counsel has appeared on behalf of
the appellant and Ms. Vaishali Verma, learned counsel has appeared on
behalf of the respondents – disciplinary authority.
       3.1 Ms. Ankita Patnaik, learned counsel appearing on behalf of
the delinquent has made submissions on merits of the disciplinary              F
proceedings and on the order of Summary Force Court (SFC) and has
submitted that the convening order of SFC records no reasons/basis for
conducting SFC. She has also submitted that no proper procedure was
followed by conducting the SFC against the appellant and that the same
was in breach of principle of natural justice. However, even the learned
Single Judge had held against the appellant on the disciplinary proceedings.   G
In paragraph 8, the learned Single Judge had specifically observed that
all due opportunities were afforded to the delinquent; the finding of guilt
is found to have been based on cogent material and the evidence of both
sides received due consideration. The findings recorded by the learned
Single Judge on the disciplinary proceedings had attained finality. Even
                                                                               H
1112            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


 A     otherwise, the findings recorded by the learned Single Judge as well as
       Division Bench of the High Court on the disciplinary proceedings are on
       appreciation of evidence on record which are not required to be re-
       appreciated by this Court in exercise of powers under Article 136 of the
       Constitution of India.
 B            3.2 It is then submitted by the learned counsel appearing on behalf
       of the appellant that the learned Single Judge, while allowing the writ
       petition, had rightly held that all the attending circumstances including
       the evidence on record and the fact that a lesser punishment was inflicted
       upon the female constable Rupasi Barman, while the appellant’s services
       were terminated, was grossly disproportionate and therefore the learned
 C     Single Judge had rightly remitted the matter back to the disciplinary
       authority to impose a lesser punishment which will enable the delinquent
       to retain his job.
              3.3 It is submitted that the charges inflicted upon the appellant –
       delinquent as well as the female constable – Rupasi Barman were identical
 D     in nature and warranted similar punishments. It is submitted that the
       punishment of ‘removal from service’ awarded by the Commandant in
       the same facts and circumstances of the instant case is disproportionate
       to the charges levelled against the appellant. It is submitted that the
       female constable – Rupasi Barman has been awarded punishment of
 E     forfeiture of two years’ seniority in the rank of constable and forfeiture
       of two years’ service for the purpose of promotion. She was also tried
       by the SFC for an offence under Section 43 of the SSB Act. It is submitted
       that therefore the learned Single Judge rightly interfered with the
       punishment of ‘removal from service’ awarded by the disciplinary
       authority – Commandant holding that the same was disproportionate to
 F     the charges levelled against the appellant.
             3.4 It is further submitted by the learned counsel appearing on
       behalf of the delinquent that during the service period up to 2013, the
       delinquent has received three cash rewards from the senior officers for
       good conduct. It is submitted that therefore to remove the appellant
 G     from service for a single delinquency would be too harsh and/or
       disproportionate to the charges and the misconduct held to be proved.
              3.5 Learned counsel appearing on behalf of the appellant has
       submitted that as such the female constable – Rupasi Barman was the
       friend of the delinquent and the delinquent went to meet her in order to
 H     offer her a gift on New Year eve and therefore he entered the Mahila
    ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                            1113
                    [M. R. SHAH, J.]

Barrack and she herself unlocked the barrack gate. It is therefore              A
submitted that the intention of the appellant was not bad. It is submitted
that therefore the order of punishment of ‘removal from service’ can be
said to be disproportionate to the misconduct proved.
       3.6 Making the above submissions and relying upon the decision
of this Court in the case of Ranjit Thakur v. Union of India, AIR 1987          B
SC 2386, it is prayed to allow the present appeal and quash and set
aside the impugned judgment and order passed by the Division Bench of
the High Court and restore the well-reasoned judgment of the learned
Single Judge, remitting the matter to the disciplinary authority for imposing
a lesser punishment.
                                                                                C
       4. Ms. Vaishali Verma, learned counsel appearing on behalf of
the respondents, while supporting the impugned judgment and order
passed by the Division Bench of the High Court, has vehemently
submitted that in the present case, even the learned Single Judge held
that the disciplinary proceedings were conducted after following the due
procedure as required under the law. It is submitted that in the disciplinary   D
proceedings, a very serious charge and misconduct committed by the
appellant entering into the Mahila Barrack in the midnight has been
established and proved. It is submitted that only thereafter the disciplinary
authority after considering the seriousness of the misconduct passed an
order removing the appellant from service, which was not required to be         E
interfered with by the learned Single Judge.
        4.1 It is further submitted that the learned Single Judge interfered
with the order of punishment imposed by the disciplinary authority of
removing the appellant from service solely on the ground that in the case
of female constable – Rupasi Barman who allowed the entry of the                F
delinquent during her sentry duty, parallel proceedings were drawn up
and she was also found guilty of both the charges, however, she was
inflicted a lesser punishment and therefore the punishment of ‘removal
from service’ imposed on the delinquent can be said to be disproportionate.
It is submitted that the misconduct committed by the appellant by entering
the Mahila Barrack in the midnight cannot be equated with the misconduct        G
committed by the female constable. It is submitted that the appellant
was serving as a Head Constable in the disciplined force in the SSB.
Therefore, his indisciplined conduct leading to compromising the security
of the occupants of the Mahila Barrack cannot be tolerated. It is submitted
that when a conscious decision was taken by the disciplinary authority          H
1114             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


 A     to impose the punishment of ‘removal from service’, which was after
       the charges and misconduct held to be proved against him, thereafter it
       was not open for the learned Single Judge of the High Court to interfere
       with the same in exercise of powers under Article 226 of the Constitution
       of India. Reliance is placed on the decisions of this Court in the cases of
       Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v.
 B
       G. Ganayutham, (1997) 7 SCC 463; Union of India v. Dwarka
       Prasad Tiwari, (2006) 10 SCC 388; and Union of India v. Diler
       Singh, (2016) 13 SCC 71, on the test of proportionality.
              4.2 Learned counsel appearing on behalf of the disciplinary
       authority has also relied upon the decisions of this Court in the cases of
 C     B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749; and Lucknow
       Kshetriya Gramin Bank (Now Allahabd, Uttar Pradesh Gramin
       Bank) v. Rajendra Singh, (2013) 12 SCC 372, on the jurisdiction of
       the courts interfering with the order of punishment imposed by the
       disciplinary authority.
 D            4.3 It is further submitted that, apart from the fact that the case of
       the appellant cannot be compared with the misconduct committed by
       the female constable – Rupasi Barman, even otherwise merely because
       the female constable, who allowed the entry of the delinquent in the
       Mahila Barrack, was inflicted with the lesser punishment, cannot be a
 E     ground to impose a lesser punishment on the delinquent. The misconduct
       conducted by the appellant, being a member of the disciplined force, by
       entering the Mahila Barrack in the midnight and such an indisciplined
       conduct leading to compromising the security of the occupants of the
       Mahila Barrack can be said to be a grave and serious misconduct and
       therefore the disciplinary authority was absolutely justified in imposing
 F     the punishment of ‘removal from service’. It is therefore submitted that
       the learned Single Judge erred in interfering with the order of punishment
       imposed by the disciplinary authority, which is rightly set aside by the
       Division Bench of the High Court.
              5. We have heard learned counsel for the respective parties at
 G     length.
              6. The appellant herein, who at the relevant time was serving as a
       Head Constable, was subjected to disciplinary proceedings for having
       entered the Mahila Barrack of the Battalion at around 00:15 hours on
       the intervening night of 14-15th April, 2013. He was charged with an
 H     indisciplined conduct relating to compromising the security of the
   ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                          1115
                   [M. R. SHAH, J.]

occupants of the Mahila Barrack. He was apprehended inside the Mahila        A
Barrack by six female constables. Thereafter he was subjected to the
disciplinary proceedings. All due opportunities were afforded to him. He
was found guilty based on cogent material and evidence and on
appreciation of evidence led by both the sides. Only thereafter, the
disciplinary authority initially imposed the punishment of dismissal,
                                                                             B
however, subsequently, the penalty of dismissal was converted to
‘removal from service’. The punishment of ‘removal from service’ was
challenged by the delinquent before the High Court. The learned Single
Judge, though held that the disciplinary proceedings were conducted
after following due procedure under the SSB Rules and due opportunities
were afforded to him, thereafter interfered with the order of punishment     C
imposed by the disciplinary authority by observing that as the female
constable who allowed the appellant – Head Constable to enter the
Mahila Barrack and who was also found guilty of both the charges was
inflicted with the lesser punishment and the appellant was inflicted the
punishment of ‘removal from service’, which can be said to be
                                                                             D
disproportionate and thereby the learned Single Judge interfered with
the order of punishment imposed by the disciplinary authority and set
aside the punishment of ‘removal from service’ and remitted the matter
back to the disciplinary authority to impose a lesser punishment. The
same has been interfered with by the Division Bench of the High Court
and the order of punishment imposed by the disciplinary authority has        E
been restored.
       7. Therefore, the short question which is posed for the
consideration of this Court is, “whether the learned Single Judge was
justified in interfering with the order of punishment imposed by the
disciplinary authority on the ground that the same was disproportionate      F
as the female constable against whom also the disciplinary proceedings
were initiated and the two charges were held to be proved against her,
was inflicted with the lesser punishment?”
      8. On the judicial review and interference of the courts in the
matter of disciplinary proceedings and on the test of proportionality, few   G
decisions of this Court are required to be referred to:
      i) In the case of Om Kumar (supra), this Court, after considering
      the Wednesbury principles and the doctrine of proportionality,
      has observed and held that the question of quantum of punishment
      in disciplinary matters is primarily for the disciplinary authority    H
1116      SUPREME COURT REPORTS                           [2022] 2 S.C.R.


 A     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
 B     that when a statute gave discretion to an administrator to take a
       decision, the scope of judicial review would remain limited. Lord
       Greene further said that interference was not permissible unless
       one or the other of the following conditions was satisfied, namely,
       the order was contrary to law, or relevant factors were not
       considered, or irrelevant factors were considered, or the decision
 C     was one which no reasonable person could have taken.
       ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this
       Court observed and held as under:
          “18. A review of the above legal position would establish that
 D        the disciplinary authority, and on appeal the appellate authority,
          being fact-finding authorities have exclusive power to consider
          the evidence with a view to maintain discipline. They are
          invested with the discretion to impose appropriate punishment
          keeping in view the magnitude or gravity of the misconduct.
          The High Court/Tribunal, while exercising the power of judicial
 E        review, cannot normally substitute its own conclusion on penalty
          and impose some other penalty. If the punishment imposed by
          the disciplinary authority or the appellate authority shocks the
          conscience of the High Court/Tribunal, it would appropriately
          mould the relief, either directing the disciplinary/appellate
 F        authority to reconsider the penalty imposed, or to shorten the
          litigation, it may itself, in exceptional and rare cases, impose
          appropriate punishment with cogent reasons in support
          thereof.”
       iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in
 G     paragraph 19, it is observed and held as under:
          “19. The principles discussed above can be summed up and
          summarised as follows:
             19.1. When charge(s) of misconduct is proved in an enquiry
             the quantum of punishment to be imposed in a particular
 H           case is essentially the domain of the departmental authorities.
   ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                             1117
                   [M. R. SHAH, J.]

             19.2. The courts cannot assume the function of disciplinary/       A
             departmental authorities and to decide the quantum of
             punishment and nature of penalty to be awarded, as this
             function is exclusively within the jurisdiction of the competent
             authority.
             19.3. Limited judicial review is available to interfere with       B
             the punishment imposed by the disciplinary authority, only
             in cases where such penalty is found to be shocking to the
             conscience of the court.
             19.4. Even in such a case when the punishment is set aside
             as shockingly disproportionate to the nature of charges            C
             framed against the delinquent employee, the appropriate
             course of action is to remit the matter back to the disciplinary
             authority or the appellate authority with direction to pass
             appropriate order of penalty. The court by itself cannot
             mandate as to what should be the penalty in such a case.
                                                                                D
             19.5. The only exception to the principle stated in para 19.4
             above, would be in those cases where the co-delinquent is
             awarded lesser punishment by the disciplinary authority even
             when the charges of misconduct were identical or the co-
             delinquent was foisted with more serious charges. This
                                                                                E
             would be on the doctrine of equality when it is found that
             the employee concerned and the co-delinquent are equally
             placed. However, there has to be a complete parity between
             the two, not only in respect of nature of charge but
             subsequent conduct as well after the service of charge-
             sheet in the two cases. If the co-delinquent accepts the           F
             charges, indicating remorse with unqualified apology, lesser
             punishment to him would be justifiable.”
       9. In the present case, the appellant was imposed the penalty of
‘removal from service’ after the charges levelled against him stood proved
by the disciplinary authority in an enquiry held against him after following    G
the procedure prescribed under the SSB Rules. The nature of allegations
against the appellant are grave in nature. He entered the Mahila Barrack
in the midnight at around 00:15 hours, may be to meet his alleged friend
Rupasi Barman, but such an indisciplined conduct leading to compromising
the security of the occupants of the Mahila Barrack cannot be tolerated.
                                                                                H
1118            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


 A     As a member of the disciplined force – SSB, he was expected to follow
       the rules. He was apprehended inside the Mahila Barrack by six female
       constables. As observed by this Court in the case of Diler Singh (supra),
       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
 B
       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
 C     disciplinary authority.
              10. From the judgment and order passed by the learned Single
       Judge, which has been interfered with by the Division Bench, it appears
       that what weighed with the learned Single Judge was that the female
       constable – Rupasi Barman, who allowed the entry of the delinquent
 D     and who was also subjected to disciplinary proceedings and was found
       guilty of both the charges, was inflicted with a lesser punishment and
       therefore punishment of ‘removal from service’ imposed on the delinquent
       official was disproportionate. However, 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
 E
       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. Therefore, the learned Single Judge committed a
       grave error in comparing the case of female constable with that of the
       appellant – delinquent, male Head Constable.
 F
              11. Even otherwise, 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
 G     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
 H
    ANIL KUMAR UPADHYAY v. THE DIRECTOR GENERAL, SSB                            1119
                    [M. R. SHAH, J.]

imposed by the disciplinary authority removing the appellant from service.      A
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.
Therefore, the disciplinary authority was absolutely justified in imposing
the punishment/penalty of ‘removal from service’ by modifying the earlier
                                                                                B
punishment of dismissal. The same cannot be said to be disproportionate
at all to the misconduct held to be proved against the appellant –
delinquent.
       12. In view of the above and for the reasons stated above, the
present appeal fails and the same deserves to be dismissed and is
accordingly dismissed. However, in the facts and circumstances of the           C
case, there shall be no order as to costs.

Devika Gujral                                               Appeal dismissed.

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