Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1292 (ALL)

SURENDRA KUMAR SHARMA v. UNION OF INDIA

2018-05-22

SURYA PRAKASH KESARWANI

body2018
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri L.P. Singh, learned counsel for the petitioner and Dr. Mukteshwar Upadhyay, learned counsel for the respondents. 2. This writ petition has been filed praying for the following relief: “I) issue a writ, order or direction in the nature of certiorari quashing orders dated 27.9.2003, 3.12.2003 and 18.3.2004 served on 8.4.2004 passed by respondent Nos. 5,4 and 2 respectively (Annexures 6,9 and 11 of the writ petition). (II) issue a writ, order or direction in the nature of mandamus directing the respondents to give joining to the petitioner in the department and pay his salary month to month. (III) issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (iv) award cost of the petition”. 3. Briefly stated facts of the present case are that the petitioner was a constable nursing. He was posted in 25th Bn. of C.R.P.F., Pahadiya Mandi, Varanasi (U.P.). 4. On 23.7.2002, he was sitting in the vehicle bearing registration No. DL-4CA 6075 which was being driven by the other delinquent employee Force No. 911331208 constable/driver of CRPF Sri Surendra Kumar. It is alleged that the petitioner persuaded the aforesaid other delinquent employee/driver and sat on the driving seat and started driving the vehicle which met with an accident in which Force No. 921274868 constable/GD Shyam. H. Vairale of G/21 died and the vehicle was damaged. 5. A joint inquiry was directed against the petitioner and the aforesaid delinquent employee/driver by memorandum dated 12.11.2002 issued by the office of the Commandant 25Bn. CRPF. N.P. Mandi, Varanasi (U.P.). The charges against both the aforesaid delinquents were imputation of disobedience, neglect of duty and remissness in the discharge of duty or other misconduct in their capacity as a member of the Force. The charge-sheet was issued under Section 11(1) of the CRPF Act 1949 read with Rule 27 of Central Reserve Police Force Rule 1955. 6. The inquiry officer conducted the inquiry and found the charges proved against the petitioner and the other delinquent employee i.e. the driver. The charge-sheet was issued under Section 11(1) of the CRPF Act 1949 read with Rule 27 of Central Reserve Police Force Rule 1955. 6. The inquiry officer conducted the inquiry and found the charges proved against the petitioner and the other delinquent employee i.e. the driver. The inquiry officer in his inquiry report dated 22.5.2003 concluded that the petitioner by his pursuation influenced the driver (the other delinquent employee) with command to learn driving and shifted to driving seat without having any driving license and in process of his attempt to learn driving, took the vehicle in his control and started driving it which met with an accident in which the constable Shyam. H. Vairale died and thus, the petitioner is guilty of dereliction in duty and negligence. The inquiry officer drawn the conclusion against the other employee/driver and found the charges of dereliction in duty to be proved against him. 7. By an order dated 27.9.2003, the petitioner was awarded punishment for dismissal from service while the other employee (driver) was awarded punishment for reduction in pay-scale for three years with cumulative effect w.e.f. 27.9.2003. The appeal filed by the petitioner, was dismissed by the appellate authority, Deputy Inspector General of Police, CRPF, Khatkhati Range, Assam by order December, 2003. 8. Against the aforesaid order, the petitioner filed a revision before the Inspector General CRPF Eastern Sector, Central Reserve Police Force, Shillong (Meghalaya), which was dismissed by order dated 12.1.2004. 9. Aggrieved with the aforesaid order, the petitioner has filed the present writ petition. 10. Learned counsel for the petitioner submits that the petitioner was charged with offence attracting minor punishment which does not include dismissal from service, which is a major punishment while the other delinquent employee/driver has been awarded minor punishment. Therefore, the petitioner at best, could have been awarded similar punishment. He submits that even on principles of parity the punishment similar to the punishment awarded to the other delinquent employee could have been awarded to the petitioner. 11. Therefore, the petitioner at best, could have been awarded similar punishment. He submits that even on principles of parity the punishment similar to the punishment awarded to the other delinquent employee could have been awarded to the petitioner. 11. In support of this submissions learned counsel for the petitioner has relied upon a decision of this Court in Giriraj Sharma v. Union of India and others, (1989) 1 UPLBEC 351 (Paragraph No. 12) in which the Division Bench has explained the provisions of Section 11(1) of the Act, and held that the punishment specified therein could have been awarded to a person against whom an enquiry is instituted under Section 11(1) of the Act. 12. In Director General of Police and others v. G. Dasayan, (1998) 2 SCC 407 , Hon’ble Supreme Court while considering the case of a police constable, held that “where the other constables was compulsorily retire on the identical charge, modified the order of dismissal to compulsory retirement”. 13. In State of U.P. and others v. Nand Kishore Shukla and another, AIR 1996 SC 1561 , Hon’ble Supreme Court considering the scope of interference under Article 226 of the Constitution of India and held that the Court is not a Court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the proved misconduct against him. Its proportionately also cannot be gone into by the Court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the Court would loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him from seeking any appointment elsewhere. 14. In another judgment in Indian Oil Corporation and another v. Ashok Kumar Arora, 1997 (3) SCC 72 , the Apex Court held as under : “At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate Court/authority. 14. In another judgment in Indian Oil Corporation and another v. Ashok Kumar Arora, 1997 (3) SCC 72 , the Apex Court held as under : “At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate Court/authority. The jurisdiction of the High Court in such cases is very limited for instance where It is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee.” 15. The legal proposition is well-settled that this Court does not act as a Court of appeal and would be reluctant to interfere in the matters where the report of the enquiry officer has been affirmed by the punishing authority. But the question still remains to be decided is as to whether the petitioner is entitled to parity with the other co-delinquents ? The charges were identical. They arose out of the same incident and dereliction of duty was common. 16. The Apex Court in B.C. Chaturvedi v. Union of India and others, AIR 1996 SC 484 , (Paragraph 18) laid down, as under : “A review of the above legal position would establish that 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 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 authority to reconsider the penally imposed, or to shorten the litigation, it may itself. In exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 17. In paragraph 25 in B.C. Chaturvedi (supra), Hon’ble Supreme Court, held, as under: “No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. In exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 17. In paragraph 25 in B.C. Chaturvedi (supra), Hon’ble Supreme Court, held, as under: “No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court’s view regarding appropriate punishment is not permissible. But for this constraint. I would have thought that the law makers do desire application of Judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act. 1947 was amended to insert Section 11A in it to confer this power even on a Labour Court/Industrial Tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power under Section 11A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice, in this background, I do not think if we would be Justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to Government employees or employees of the public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reasons to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ Court Interference is permissible only when the punishment/penalty is shockingly disproportionate.” (Emphasis supplied by me) 18. The Apex Court in Director General of Police and others v. G. Dasayan, 1998 (2) SCC 407 , while considering the case of a police constable, where the other constable was compulsorily retired on the identical charge, modified the order of dismissal to compulsory retirement. The Apex Court in Director General of Police and others v. G. Dasayan, 1998 (2) SCC 407 , while considering the case of a police constable, where the other constable was compulsorily retired on the identical charge, modified the order of dismissal to compulsory retirement. The relevant part of the judgment is extracted below : “..... The third ground that the co-delinquents except the Head Constable were let off though the charges were identical, it is stated by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged alongwith the respondent, was compulsorily retired by the Disciplinary Authority..... We find merit in the arguments of the learned counsel for the appellants. At the same time, we are of the view that as pointed out by the learned counsel for the respondent that a punishment of compulsory retirement in the case of the respondent as well would meet the ends of justice on the facts and circumstances of this case. Accordingly, we set aside the order of the Tribunal and in the place of order of dismissal passed by the Disciplinary Authority, the order of compulsory retirement Is substituted.....” (Emphasis supplied by me) 19. In Rajendra Yadav v. State of Madhya Pradesh and others, (2013) 3 SCC 73 (Paragraph Nos. 8, 9, 10, 11 and 12) Hon’ble Supreme Court considered the question of parity amongst co-delinquents for the purposes of imposition of punishment and held as under : “8. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both the appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. Both the appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained. 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. 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. 10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan, (1998) 2 SCC 407 , wherein one Dasayan, a police constable, alongwith two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. 11. In Shailesh Kumar Harshadbhai Shah case the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit. 12. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit. 12. We are of the view that the principle laid down in the above mentioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on 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. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs”. 20. In view of the law laid down by Hon’ble Supreme Court, as aforenoted, it appears well-settled that normally this Court, should not substitute its own view on imposition of penalty or the penalty imposed. But the Court is not precluded from interfering in exceptional circumstance. When it finds any disturbance to the rule of law and fair play, it can always restore the balance. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The petitioner and the other co-delinquent employee are similar. 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. 21. 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. 21. Applying the aforesaid settled principles of law to the facts of the present case, I have no difficulty to hold that the doctrine of equality is applicable on the facts of the present case in the matter of the petitioner. The joint inquiry was conducted against the petitioner and the co-delinquent employee and the charges levelled against both of them, were similar and both the employees were party to the same incident. Therefore, following the law laid down by Hon’ble Supreme Court, as aforenoted, particularly, the judgment in Rajendra Yadav’s case (supra), I find that in order to meet the ends of justice, it would be appropriate to apply the doctrine of equality in the matter of the petitioner. Consequently, the impugned orders deserve to be modified and the punishment awarded to the petitioner is reduced to the punishment as has been awarded to co-delinquent employee. 22. In view of the above discussions, the writ petition is partly allowed. The quantum of punishment, i.e. dismissal from service awarded to the petitioner is modified. The petitioner is held to be liable for the similar punishment as has been awarded to co-delinquent, namely, Force No. 911331208 constable/driver Sri Surendra Kumar. The consequential order shall be passed by the authority concerned within six weeks from the date of presentation of a certified copy of this order.