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2022 DIGILAW 1158 (JHR)

Uday Kumar Singh v. State of Jharkhand

2022-09-14

ANANDA SEN

body2022
JUDGMENT : Heard the parties. 2. In this writ application, petitioner has challenged the order dated 06.03.2013 whereby the petitioner has been punished in a departmental proceedings. The Appellate order dated 01.05.2015 bearing Memo No. 248 (Annexure-6) is also under challenge by which the appeal of the petitioner was dismissed. 3. Counsel for the petitioner submits that this petitioner along with nine other delinquents on the similar charge were punished but others were given a lesser punishment than the petitioner. He claims that at least there should have been parity in the quantum of punishment. 4. This is the only ground, the petitioner has taken while challenging the punishment order and the Appellate order. 5. Counsel for the State submits that petitioner without permission and without any information intentionally remained absent in the orderly room on 08.01.2013 when he along with others were called, so the petitioner has been inflicted with a greater punishment than the others. 6. After hearing the parties, I find that the facts are admitted in this case. A departmental proceeding was initiated against the petitioner and nine others. The petitioner was a member of the Railway Protection Force. On 08.01.2013 this petitioner and others were entrusted to escort and safeguard a passengers’ train from Madhupur to Giridih and from Giridih to Madhupur. When the train was returning from Giridih to Madhupur, this petitioner and the others went in the air conditioned compartment and sat there. In the meantime, some miscreants entered another compartment of the train and started looting the passengers and thereafter they fled. When the train reached near Mahesh Munda Station the passenger made a complain to the Station Master of Mahesh Munda and they made hue and cry. It was then found that this petitioner and his colleagues were sitting in the air conditioned compartment and did not take any steps either to prevent the occurrence or to confront the miscreants. On the aforesaid charge this petitioner and others were subjected to a departmental proceeding. In the departmental proceeding, inquiry officer submitted a report finding the occurrence to be true along with the guilt of the petitioner. Thereafter, receiving the reply to the show-cause notice, the punishment was inflicted upon petitioner and others co-delinquents. So far as this petitioner is concerned, the punishment was of forfeiture of increment of salary for six months with censor. In the departmental proceeding, inquiry officer submitted a report finding the occurrence to be true along with the guilt of the petitioner. Thereafter, receiving the reply to the show-cause notice, the punishment was inflicted upon petitioner and others co-delinquents. So far as this petitioner is concerned, the punishment was of forfeiture of increment of salary for six months with censor. Other delinquents were also punished but with forfeiture of increments of salary for three months. 7. The petitioner preferred an appeal which was also dismissed. 8. The disparity in the quantum of punishment, is the subject matter of this writ application. 9. The fact that the petitioner was inflicted with punishment of stoppage / forfeiture of increment of salary for six months and others were punished with the stoppage of three increments, has not been denied by the respondents. It is the case of the respondents that petitioner was awarded higher punishment just because the petitioner along with others, when were directed to remain present in the orderly room petitioner evaded. 10. The charge against the petitioner and the other delinquents was same. It is for not taking any steps to prevent the dacoity, and for not confronting the dacoits while they were assigned the work to escort the train. It is the allegation that they remained seated in the air condition compartment. The allegation and the charge are same so far as all delinquents including this petitioner. There was no additional charge against the petitioner for not attending the orderly room. Since there was no additional charge of not attending the orderly room, the petitioner could not have been punished with a higher degree of punishment on the ground that the petitioner did not attend the orderly room where he and others were called for. It is also admitted that for the same charge others were inflicted with punishment of stoppage of increments of salary for three months only. 11. The Hon’ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vrs. Rajendra Singh reported in (2013) 12 SCC 372 at paragraph 17 has held that if there is complete parity in two sets of cases, imposing different penalties would not be appropriate as infliction of any/ higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of the equality enshrined in Article 14 of the Constitution of India. It has also been held that if there is some difference, different penalty can be meted out. The quantum is left to be decided by Authority. The Hon’ble Supreme Court further held that in a situation where the co-delinquent is awarded lesser punishment by the Disciplinary Authority even when the charges of misconduct were identical, the punishment can be interfered. Para 19.5 of the said judgment deals with the exception of what has been held in 19.4. In Para 20 of the said judgment the Hon’ble Supreme Court has also held that that the comparison is permissible only when the other employees who have been given a lighter punishment was a co-delinquent. It is necessary to quote para nos. 17, 19.4, 19.5 and para 20 of the said judgment which reads as follows:- “17. If there is complete parity in the two wets of cases, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav Case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should be commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employees accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology. 19.4. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges 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. 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 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 charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable. 20. It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was a co-delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in altogether different departmental enquiries.” 12. In this case others where co-delinquents who was colleagues of the petitioner who was charged with the same allegation which arise out of the same transaction, but the penalty was lesser than the petitioner. 13. Thus from what has been held above and finding that the others co-delinquents have been given a lighter punishment. I am of the opinion that the similar standard should have been taken against the petitioner also. The ground taken by the respondents is not acceptable as the allegation that the petitioner did not appear in the orderly room is not even the charge for which he was proceeded. I am of the opinion that the similar standard should have been taken against the petitioner also. The ground taken by the respondents is not acceptable as the allegation that the petitioner did not appear in the orderly room is not even the charge for which he was proceeded. A delinquent cannot be punished for any act for which charge was not framed against him. Thus considering the facts that since the co-delinquents have been inflicted a lesser punishment, the punishment inflicted upon the petitioner is modified to the extent that the punishment would be that of stoppage / forfeiture of increment of salary for three months as it has been done the case of other co-delinquents. 14. With the aforesaid observation and modification in the aforesaid order this application stands allowed.