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2007 DIGILAW 827 (CAL)

UNION OF INDIA v. Subrata Biswas

2007-11-21

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

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JUDGMENT:- (1) THIS application is directed against an order of the learned Tribunal dated 6th May, 2005 whereby order of removal of services inflicted against the respondent/employee has been set aside and the learned tribunal itself has awarded lesser punishment of reduction of rank to the lower grade for a period of five years. (2) THE fact of the case is that the respondent/employee was charge-sheeted with two sets of Articles of charge, summary of which is that he has misappropriated railway money to the extent of Rs. 288/- for his personal gain. This charge has been admitted in his written defence. At the same time another employee was charge-sheeted on the similar articles of charges, however, the figure of misappropriated money was rs. 198/ -. The second employee denied the charges. Therefore, full fledged enquiry followed and the enquiry officer had found him guilty and submitted report in this regard and the disciplinary authority after considering the enquiry officers report inflicted punishment of reduction of grade for a period of five years. The respondent/employee herein preferred a departmental appeal against order of removal on the ground that he has been discriminated in the matter of inflictment of punishment as on the self-same charge one employee was inflicted a lesser punishment; whereas he has been awarded extreme punishment. The respondent/employee found favour of the learned tribunal to a great extent. (3) THE learned Tribunal found that indeed the respondent/employee has been discriminated in the matter of awarding punishment. (4) MR. Roy, appearing for the applicant submits that the concept of discrimination in the matter of inflicting punishment in domestic proceedings is not applicable. Awarding of punishment is the absolute domain of the employer and it depends on each and every individual cases. The concept of discrimination cannot be restored to negatively. Mr. Roy submits that in this case question of service of second show-cause does not and cannot arise as it is an admitted fact of misconduct, there was no enquiry, no question of supply of any report to the delinquent and no further representation is required to be invited for purpose of imposition of punishment. He further submits when there is no procedural lapses in conducting enquiry and holding the petitioner guilty, the learned Tribunal ought not to have interfered with the order of punishment and particularly it should not have awarded punishment by itself Mr. He further submits when there is no procedural lapses in conducting enquiry and holding the petitioner guilty, the learned Tribunal ought not to have interfered with the order of punishment and particularly it should not have awarded punishment by itself Mr. Roy has relied on two decisions of the Honble supreme Court reported in (1991)1 SCC 588 (Union of India and Ors. v. Mohd. Ramzan Khan) and reported in (1993)4 SCC 727 (Managing Director, ecil, Hyderabad and Ors. v. B. Karunakar and Ors.). (5) THE learned counsel for the respondent/employee, on the other hand, submits that the railway authority has not followed the established procedure, viz Clause (iii), Sub-Rule (a) of Rule 9 of The Railway Servants (Discipline and Appeal) Rules, 1968. Although there has been an admission but the order of punishment should not have been imposed straight way and that too without considering and examining each and every charges. He submits further that even for argument sake concept of discrimination in awarding punishment may not be applicable but the question of proportionalism in the matter of inflicting punishment would certainly arise here. He further submits that the disciplinary authority should have come to fact finding first holding him guilty thereafter order of punishment should have been inflicted. (6) THE decisions cited by Mr. Roy are not applicable in this case as there has been no enquiry in this matter and the case proceeded on the basis of an admission. The ratio laid down therein cannot be applied in this case particularly in The Railway Servants (Discipline and appeal) Rules, 1968 does not envisage for service of second show-cause before awarding punishment. (7) WE have gone through the charge-sheets and impugned order of punishment. We find that the detail Articles of charges have been served upon the delinquent respondent. The respondent in no uncertain term has accepted such charge. Therefore, there has been an admission. What course of action is to be followed in the case of admission of charges has been provided in Part IV, clause (iii), Sub-Rule (a) of Rule. We find that the detail Articles of charges have been served upon the delinquent respondent. The respondent in no uncertain term has accepted such charge. Therefore, there has been an admission. What course of action is to be followed in the case of admission of charges has been provided in Part IV, clause (iii), Sub-Rule (a) of Rule. 9 of The Railway Servants (Discipline and Appeal) Rules, 1968, which is quoted hereunder:- "where all the Articles of charge have been admitted by the railway servant in his written statement of defence, the disciplinary authority shall record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner laid down in Rule 10. " (8) FROM the language of the said clause it is clear that even if there is an admission that the disciplinary authority has to record its finding on each and every finding after taking such further evidence as it may think fit and shall act in the manner laid down in Rule 10. The order of punishment simply records that he has accepted the charge and the charge is serious and unbecoming of government servants. In our view, this is not compliance of the aforesaid clause. When there is admission that the disciplinary authority has to consider first whether the Articles of charges, prima facie, constituted any misconduct or not and then consider the supporting documents and come to a finding how the delinquent officer can be held to be guilty. In our view, this has not been followed in this case so there has been a procedural lapse. (9) THE learned Tribunal has applied the concept of discrimination in the matter of punishment. We are of the view that question of discrimination in inflicting punishment will arise when there is joint enquiry and degree of commission of misconduct is equal and conjoint. But in case of separate enquiry question of discrimination in inflicting punishment does not arise as it depends upon each and every individual set of facts and conduct of the person concerned. In one set of fact one type of punishment may be awarded and in another set of fact different type of punishment can be awarded. It is only the disciplinary authority/employer who can judge and none else. In one set of fact one type of punishment may be awarded and in another set of fact different type of punishment can be awarded. It is only the disciplinary authority/employer who can judge and none else. Therefore, the impugned order passed by the learned Tribunal on discrimination is not sustainable and the same is not accordingly approved by us. (10) AT the same time order of removal of the respondent/employee from services as awarded by the disciplinary authority cannot be sustained as the disciplinary authority has not recorded as to why this punishment is required to be inflicted particularly when on identical facts and circumstances lesser punishment was awarded. At least in the impugned order of punishment mind of the disciplinary authority should have been reflected why the respondent/employee has been imposed a harsher punishment and another person has been awarded a lesser punishment on identical facts and circumstances. Accordingly, we feel that the order of removal is glaringly disproportionate to the misconduct in the context of the punishment inflicted to another employee who has committed same misconduct. We fully agree with Mr. Roy that it is not the learned Tribunal or the Court who will ordinarily impose punishment substituting the decision of the employer/disciplinary authority but when it is found that the impugned order of punishment is glaringly disproportionate to the misconduct, certainly the Court or for that matter the learned Tribunal can interfere with the same. Awarding of punishment with a reasonable degree of proportion is part of Rule of law and when it is not followed, exercise of power of judicial review is an appropriate step by the Court of law. We, therefore, set aside order of dismissal. However, we give liberty to the disciplinary authority to consider the question of quantum of punishment after recording its own finding in accordance with Clause (iii), Sub-Rule (a) of Rule 9 of The Railway Servants (Discipline and appeal) Rules, 1968. The proportion of the punishment shall also be considered particularly in the context of order of lesser punishment awarded in favour of another employee on the same misconduct. Thus, this application is disposed of. The aforesaid direction shall be carried out completely within a period of eight weeks from the date of communication of this order.