Quantum of punishment

As soon as the act of misconduct is established and the employee is found guilty after due process of law, it is the prerogative of the employer to decide the quantum of punishment, out of the various penalties provided in law

The casual or unpremeditated observation that the penalty imposed is not proportionate with the seriousness of the act of misconduct is not adequate but the order must show that the court and tribunal has applied its mind and exercised its discretion in a structured and lawful manner

Court or tribunal in exceptional or appropriate cases or circumstances, may examine the quantum of punishment to figure out the proportionality and reasonableness and may also nullify or overturn such punishment if found out of proportion vis-à-vis the act of misconduct and in this scenario, the punishment awarded by the competent authority may be revisited and converted into some lesser or alternative punishment if provided under the law but in order to exercise such jurisdiction for mitigation, the set of circumstances of each and every case have to be considered minutely.

As soon as the act of misconduct is established and the employee is found guilty after due process of law, it is the prerogative of the employer to decide the quantum of punishment, out of the various penalties provided in law

The casual or unpremeditated observation that the penalty imposed is not proportionate with the seriousness of the act of misconduct is not adequate but the order must show that the court and tribunal has applied its mind and exercised its discretion in a structured and lawful manner

Court or tribunal in exceptional or appropriate cases or circumstances, may examine the quantum of punishment to figure out the proportionality and reasonableness and may also nullify or overturn such punishment if found out of proportion vis-à-vis the act of misconduct and in this scenario, the punishment awarded by the competent authority may be revisited and converted into some lesser or alternative punishment if provided under the law but in order to exercise such jurisdiction for mitigation, the set of circumstances of each and every case have to be considered minutely.

Instead of choice of the competent authority it is requirement of law that penalty should commensurate with gravity of allegation.

Court or Tribunal would ordinarily avoid substituting its own findings with that of the departmental authority, unless it appeared that the quantum of punishment was structured on unreasonable, irrelevant, extraneous considerations or on the face of it against the law

Concept of punishment to a delinquent public servant was founded on the principles of retribution, deterrence or reformation

Court or Tribunal, after being convinced with the findings of the departmental authority with regard to the guilt of the public servant had to concur with the quantum of punishment, unless it alarmingly did not commensurate with the charge(s)

Appellant (judicial officer) was proceeded departmentally on account of serious charges of misconduct and after holding preliminary inquiry, he was confronted with a regular departmental inquiry which followed the opportunity of personal hearing, wherein most of the charges leveled against him were duly established

Charges were very serious and keeping in view their seriousness, the appellant did not deserve any leniency

Penalty of dismissal from service was maintained

Appeal was dismissal, in circumstances.

In the present case, it was not determinable as to what was the real cause of occurrence and as to what had actually happened before the occurrence which resulted into the unfortunate incident

Conviction of accused in offence under S.302(b), P.P.C. for committing murder of the deceased was maintained but his sentence was altered from death to imprisonment for life, in circumstances

Appeal was dismissed with said modification in sentence.

Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person was died while two were injured

Act of the accused persons was gruesome and merciless, keeping in view the brutality of the crime, where one innocent person was murdered and two were injured on their lands when they were taking water of their share to irrigate the land

In presence of aggravating circumstances and the need to discourage such kind of offences, which were most common and remained so, a deterrent sentence was the appropriate one

Appeal against conviction was dismissed and Murder Reference was answered in affirmative, in circumstances.

Full Bench of NIRC had erred in disregarding the preponderance of uncontroverted evidence/record and rested its contrary findings upon the administrator/doctor not having been examined

Respondent had accorded his satisfaction in respect of the inquiry proceeding and appended his signature to the report without any manifest demur

Charge against the respondent was proven and it was for the petitioner-company (employer) to assess the quantum of punishment, permissible within the confines of law

Writ petition was allowed and the impugned judgment was set aside.

Record showed that the first and second accused pre-planned the occurrence with other accused persons and also participated in the commissions of offence during the whole transaction

Thus, both said accused were rightly convicted and sentenced for all the offences and their sentences, except the death sentences were maintained

Admittedly, both said accused were present with the other accused persons at the time of occurrence but did not fire at the deceased

Such fact could be considered as a mitigating circumstance to award a lesser punishment to them

Hence, their death sentences under S. 302, P.P.C. and under S. 7(1)(a) read with S. 21(1), Anti-Terrorism Act, 1997, were converted into life imprisonment

Whereas the co-accused was the person who had fired at the deceased and had hatchet a plan with the other accused persons to commit the murder of deceased Judicial Officer and thereafter carried out the whole murderous plan

Said fact was also admitted by the said co-accused in his confessional statement and he was rightly identified by the witnesses during the identification parade with the role played by him during the occurrence i.e. firing a bullet shot at the left flank of deceased

Hence, the case of said co-accused was not at par with other accused persons and he deserved no leniency and was rightly convicted and sentenced for all the offences

For said co-accused death sentence on two counts, one under S. 302(b), P.P.C. and one under S. 7(1)(a) read with S. 21(1) Anti-Terrorism Act, 1997 were maintained

Appeal was dismissed with said modification in sentences.

High Court as Appellate Court had the power under S.423 of the Cr.P.C. to examine quantum of punishment while hearing an appeal filed by the convict under S.410 of Cr.P.C.

Provision of S.439 of the Cr.P.C clearly empowered the High Court to take suo motu cognizance of the issue of quantum of punishment and even enhance the sentence after show cause notice under subsection (2) of S. 439 of the Cr.P.C. to the appellant/convict.

Accused were charged for snatching mobile phones, gold ornaments and cash from the house of the complainant, on resistance, one of the accused fired with pistol, which hit the brother of complainant who died

Trial Court while awarding sentence under S.544(A), Cr.P.C., in case of default of payment of compensation, had exceeded its jurisdiction by awarding two years imprisonment, whereas the maximum period provided under S.544-A(2), Cr.P.C. is six months

While maintaining the conviction and sentence, modified the part of sentence i.e. two years' awarded to the accused to that of six months in case of non-realization of compensation amount

Conviction and sentence awarded to the accused by the trial court through impugned judgment, with said modification, was maintained

Appeal was dismissed with said modification.

Although the Service Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily and capriciously exercised nor were powers of the Tribunal unqualified or unlimited

Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted, carefully calibrated and structured manner duly supported by legally sustainable reasoning.

Although the Service Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily and capriciously exercised nor were powers of the Tribunal unqualified or unlimited

Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted, carefully calibrated and structured manner duly supported by legally sustainable reasoning.

Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, badiah, mutalahimah, Public servant concealing design to commit offence which is his duty to prevent, public servant commits or attempt to commit criminal misconduct, common intention

Appreciation of evidence

Quantum of punishment

Scope

Accused were charged that they made reckless firing due to which brother of complainant and his two guards died, while his nephew and two other guards sustained injuries

Record showed that the motive was shrouded in mystery, non specific, vague, not proved and remained unsubstantiated by any material

Discrepancies in the statements of witnesses were available, report of the Forensic Science Laboratory to some of the cartridge cases regarding recovered pistol was negative, thus, the sentence of death was required to be altered into the imprisonment for life

Punishment of death was altered into imprisonment for life

Appeal against conviction was dismissed with said modification in punishment.

Trial Court was justified by awarding death sentence to the accused on the strength of the evidence led by the prosecution in the present case but had erred in law while awarding death sentence to the accused because he was empty handed and deceased was having pistol

Deceased took out the pistol and aimed at the accused, accused snatched the pistol and fired at the deceased with his (own) pistol

Circumstances established that it was lack of pre-meditation on the part of the accused and it was a case of self defence, hence appeal was partly allowed

Conviction of the accused was altered from S. 302(b) to S. 302(c) Penal Code, 1860 and as such his sentence was modified from death to imprisonment for fourteen years.

Hardened criminals could not be released in the name of leniency, which would seriously prejudice the other fold of object of punishment

Said fold of awarding punishment was to make a hardened criminal an example for others so that sense prevailed in minds of masses that a criminal would receive his due if he committed a crime

Reformation should not be introduced at the cost of peace, harmony and tranquility of the society as a whole; it was better to have an evil restrained/confined rather to leave him to make whole society a hell.

Such offender was not recognized as desperate or hardened offender.

Show-cause notice was issued to the appellant by dispensing with regular inquiry and he was imposed minor penalty of stoppage of three annual increments for unauthorized shifting of telephone

Validity

Departmental authorities had choice in law to determine quantum of punishment in the light of nature of misconduct

Penalty should be commensurate with the magnitude of misconduct committed by the civil servant

Unauthorized shifting of telephone from one place to another was not a penal offence

Penalty in such like case was only disconnection of unauthorized shifted telephone

Shifting of telephone was a trivial infraction of rules

Purpose of deterrent punishment was not only to maintain balance with the gravity of wrong done but also to make an example for others as a preventive measure for reformation of society

Concept of minor punishment was to make an attempt to reform the individual wrong-doer

No allegation was on record with regard to mala fide, ill-will or ulterior motive for shifting of telephone

Nothing was on record that appellant had taken benefit from a private person by shifting of telephone

Unauthorized shifting of telephone might be construed as negligence and that too of a small nature which did not breach the discipline of service

Said negligence although did deserve minor punishment but not stoppage of three increments

Mercy in the Islamic Jurisprudence was a rule where the wrong was trivial

Doctrine of proportionality of sentence had been recognized in law even in modern jurisprudence

Punishment of stoppage of three increments did not commensurate with the gravity of charge in the present case which was converted into censure

Appeal was partly allowed in circumstances.

Plea of convict that he was in death cell for 17 years, which period of custody exceeded a full term of imprisonment for life, therefore he deserved leniency in quantum of his punishment

Validity

Long detention alone was not a valid ground for reducing the sentence of accused

In cases of convicts on death row for a lengthy period of time, the court while reducing the sentence was duty bound to advert to all other material pieces of evidence.

Underlined concept behind imposition of major penalty is that not only offender is brought to justice but also to make it an example for the others

Where gravity of charges is of lesser degree and circumstances reflected absence of bad faith and willfulness then minor punishment might be a preferred course.

No mitigating circumstance was available in favour of accused, as he had committed a shocking, callous and cold blooded murder of his wife

Accused, therefore, did not deserve any leniency and no extenuating circumstance was available in his favour for extending him any benefit regarding his sentence; his conviction and sentence under S.302(b), P.P.C. were maintained and his appeal was dismissed

Death sentence awarded to accused was confirmed and murder reference was answered in the affirmative.

Competent authority enhancing punishment to major penalty without giving reasons for disagreeing with recommendations of inquiry officer, and after relying on a report which was prepared after show-cause notice had been issued to civil servant

Legality

Civil servants were only charged for paying excess advances to a contractor

No charge of corruption was made against them nor was there any allegation against them of making personal gain

Findings recorded by inquiry officer indicated that act of civil servants could be described as "contributory negligence"

Inquiry officer recommended withholding of promotion of civil servants for a specific period of time and recovery of Rs. 2.76 million which had been paid to the contractor

Competent authority issued show cause notices to civil servants, whereafter a report was called from the Chief Engineer

Competent authority enhanced penalty to dismissal from service after relying on the said report

Civil servants were never confronted with the findings of the said report, which was submitted after the inquiry thus it was neither part of the inquiry nor civil servants were given any notice of it

Enhancement of penalty by competent authority on basis of such report was unreasonable and based on extraneous material

Even otherwise quantum of sentence was disproportionate to the gravity of charge as admittedly there was no allegation of collusiveness with the contractor or of corruption

Additionally, competent authority disagreed with the recommendations of the inquiry officer without assigning any reasons

Since competent authority did not agree with recommendations of inquiry officer, it could have proceeded in terms of S.13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and either remanded the inquiry to the inquiry officer or could have directed de novo inquiry, instead of enhancing punishment to dismissal from service

Appeal was allowed, civil servants were awarded minor penalty of stoppage of promotion as recommended by the inquiry officer and finding of inquiry officer regarding recovery of money from contractor was set aside, as contractor was not associated with the inquiry proceedings

Supreme Court, however, observed that it would be open for the Department to take appropriate steps provided in law to effect recovery from the contractor.

Civil servants were dismissed from service on the charges of inefficiency and negligence but Service Tribunal converted the penalty from dismissal into reduction in pay scale

Validity

Definition of word "misconduct" in Punjab Removal from Service (Special Powers) Ordinance, 2000, was almost the same which had been assigned to it in Punjab Civil Servants (Efficiency and Discipline) Rules, 1999

Charges of guilty of misconduct or corruption were always considered at higher pedestal than the charge of inefficiency

Competent authority had jurisdiction to award any of the punishments mentioned in law to the Government employee but for the purpose of safe administration of justice such punishment should be awarded which commensurate with the magnitude of the guilt otherwise the law dealing with the subject would lose its efficacy

Civil servants were not guilty of the charge of misconduct or corruption, therefore, extreme penalty of removal from service for the charge of inefficiency or negligence was on higher side

Service Tribunal had rightly reduced the quantum of punishment awarded to the civil servants by the competent authority

Supreme Court declined to interfere with the judgment passed by Service Tribunal

Leave to appeal was refused.