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2017 DIGILAW 552 (ALL)

JAGDISH PRASAD SHARMA v. U. P. STATE PUBLIC SERVICES TRIBUNAL

2017-02-15

ANANT KUMAR, SUDHIR AGARWAL

body2017
JUDGMENT : 1. Heard Sri P.N. Singh, learned counsel for petitioner and Sri Ajeet Verma. Advocate, holding brief of Sri Ratnesh Chandra, counsel for respondents. 2. This writ petition under Article 226 of Constitution of India has arisen from judgment and order dated 21.11.1990 passed by U.P. Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") dismissing petitioner's Claim Petition no. 315/V/RM-1/81. 3. Petitioner was a Conductor employed in U.P. Government Roadways in 1960. After constitution of U.P. State Road Transport Corporation (hereinafter referred to as "UPSRTC"), his services were transferred and absorbed in UPSRTC. He was placed under suspension vide order dated 20.01.1978. A charge sheet dated 16/20.01.1978 was served upon him and after enquiry he was removed from service vide order dated 27.05.1978. His appeal was allowed by Regional Manager, Meerut vide order dated 21.05.1979 and the matter was remanded for denovo proceedings since proper oral enquiry was not conducted. A fresh charge sheet dated 20.06.1979 was served upon petitioner and again after holding enquiry he was removed from service on 30.01.1980. 4. The charge leveled against petitioner which has been found proved is that while working as Conductor in Bus No. 8884, running at the Kotdwar-Delhi route, on 10.01.1978, it was checked by a raid party of UPSRTC and in the counter foils and main foils, amount of fare was found differently mentioned. 5. The order of punishment and appellate orders were challenged before Tribunal but failed, hence this petition. 6. Learned counsel for petitioner has assailed order of Tribunal as well as punishment order only on the ground that considering nature of charges leveled against petitioner and found proved, the punishment imposed is excessive, unjust and disproportionate to the level of guilt. Reliance is placed on Rajendra Yadav v. State of Madhya Pradesh and others, (2013) 3 SCC 73 and this Court's judgment in Krishna Murari Singh Chauhan v. State of U.P. and others, 2013 (31) LCD 1887 , Vijay Prakash Mishra v. Regional Manager, UPSRTC and others, 2016 (34) LCD 1739 . 7. However, having gone through the aforesaid judgments and the facts of this case, we find no force in the submission. 8. In absence of anything to show that punishment is patently illegal and excessive so as to shock the conscience, no interference is called for. In the matter of quantum of punishment, interference in judicial review is very limited. 9. However, having gone through the aforesaid judgments and the facts of this case, we find no force in the submission. 8. In absence of anything to show that punishment is patently illegal and excessive so as to shock the conscience, no interference is called for. In the matter of quantum of punishment, interference in judicial review is very limited. 9. In cases where employees who are engaged in the duties involving Finance or Revenue, Courts have held that charge of misappropriation or attempt of misappropriation of funds of employer is a serious charge and no generosity should be shown in such matters. 10. In Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 SCC 187 , dealing with the question of quantum of punishment, Court held, "misappropriation of the funds by the delinquent employee was only Rs. 360.95 but it is not question of quantum of money misappropriated by delinquent employee but it is a question of loss of confidence and the basic aptitude of lack of integrity on the part of such person. Court said "This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating a Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment." (emphasis added) 11. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 , the amount found to be in possession of unaccounted money was only Rs. 93/, but dealing with the question of quantum of punishment, Court said; "............ question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal." (emphasis added) 12. In Niranjan Hemchandra Sashittal and another v. State of Maharashtra, (2013) 4 SCC 642 , Court in para 25 of judgment said; "In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law.........." (emphasis added) 13. In Rajasthan State TPT Corporation and another v. Bajrang Lal, (2014) 4 SCC 693 , Court said; "in cases involving corruption-there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." (emphasis added) 14. We do not propose to multiply authorities on this aspect and suffice it to mention that dishonesty, lack of integrity on the part of an official of Corporation, going to the extent of causing loss to Corporation, of which the official is holding position in trust, is a very serious matter. It is the aptitude of a person which leans towards dishonesty and corruption or bad conduct, that needs punished. The circumstances or quantum of loss or amount of misappropriation or other things cannot be considered as a justification for such misconduct on the part of official concerned, so as to justify a lenient view on the issue of punishment. 15. There is no question of leniency or sympathy. The circumstances or quantum of loss or amount of misappropriation or other things cannot be considered as a justification for such misconduct on the part of official concerned, so as to justify a lenient view on the issue of punishment. 15. There is no question of leniency or sympathy. In fact any indulgence in such matter will make even Court a party to such dishonest action, which has to be avoided, prevented and is totally uncalled for. Court cannot be a party to a misdeed of a person. On the contrary, once a person had indulged in misconduct, shown lack of integrity or honesty etc., adequate preventive punishment, which may be a lesson to others also, is need of the day. 16. We have looked into authorities relied by petitioner. In Rajendra Yadav v. State of Madhya Pradesh and others (supra) he was a police constable. Enquiry Officer did not found charge of demand of bribe, gross negligence in discharge of duty proved. It observed that role of Rajendra Yadav was doubtful. Disciplinary authority disagreed with Enquiry Officer and held charge of demand of bribe proved. A supplementary charge sheet was also given to Rajendra Yadav. Later on punishment of dismissal was awarded to Rajendra Yadav along with one Jagdish Prasad Tiwari while one Lakhan Tiwari was demoted for three years from the post of ASI to Head Constable. Supreme Court as a matter of fact found that enquiry reveals that it was Arjun Pathak who demanded and received money though tacit approval of Rajendra Yadav was also proved in enquiry. The charge leveled against Arjun Pathak was much more serious than that of Rajendra Yadav but Arjun Pathak was inflicted a much lighter punishment of stoppage of increment with cumulative effect for one year while Rajendra Yadav was dismissed. Court said that this was clearly discriminatory and against doctrine of equality. Paras 9 and 12 of judgment reads as under: "9. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences. 12. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs." (emphasis added) 17. In taking above view, Court relied on its earlier decisions in Anand Regl. Coop. Oil Seeds growers Union Ltd. v. Shaileshkumar Harshadbhai Shah, (2006) 6 SCC 548 and DG of Police v. G. Dasayan, (1998) 2 SCC 407 . 18. The aforesaid judgment in view of its own different facts has no application to the case in hand. Here is not a case of discrimination or disparity in the matter of punishment. 19. Similarly in Krishna Murari Singh Chauhan v. State of U.P. and others (supra) also it was a case of discrimination in awarding punishment. Two Conductors were charged for similar offence but one was awarded lighter punishment while Krishna Murari Singh was awarded major penalty of dismissal. Relying on the aforesaid decision in Rajendra Yadav (supra) this Court applied Doctrine of Disparity in punishment. Hence this decision also does not help petitioner in any manner. 20. Two Conductors were charged for similar offence but one was awarded lighter punishment while Krishna Murari Singh was awarded major penalty of dismissal. Relying on the aforesaid decision in Rajendra Yadav (supra) this Court applied Doctrine of Disparity in punishment. Hence this decision also does not help petitioner in any manner. 20. In Vijay Prakash Mishra v. Regional Manager, UPSRTC and others (supra), Court found that punishment of removal imposed without holding any oral enquiry and therefore, punishment was in violation of principles of natural justice and relying on various aspect on the subject that if a major penalty is imposed, oral enquiry is must to interfere. This judgment also lends no support to petitioner. 21. In the present case, looking to seriousness of charge which has been found proved against petitioner, we have no hesitation in holding that punishment of removal is neither excessive, nor unjust, nor otherwise arbitrary justifying any interference. 22. No other point has been argued. 23. Writ petition lacks merit and is accordingly dismissed. No costs.