Allahabad High Court
Brij Mohan Lal Saxena vs State Of U.P. And 4 Ors. on 26 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:157382-DB Judgment reserved on 12.09.2024 Judgment delivered on 26.09.2024 Case :- SPECIAL APPEAL No. - 752 of 2018 Appellant :- Brij Mohan Lal Saxena Respondent :- State Of U.P. and 4 Ors. Counsel for Appellant :- Shesh Kumar Srivastava Counsel for Respondent :- Baleshwar Chaturvedi,C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Shri Shesh Kumar Srivastava, learned counsel for the appellant and Shri Baleshwar Chaturvedi, learned counsel for the respondents.
2. Present Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been preferred against the judgment and order dated 19.07.2018 passed by learned Single Judge of this Court in Writ A No.31782 of 2013 (Brij Mohan Saxena vs. State of U.P. & 4 others).
FACTUAL MATRIX
3. In brief, the facts of the case are that appellant-petitioner was initially appointed as Routine Grade Clerk in Uttar Pradesh Power Corporation Limited1. At the relevant point of time, he was working as Cashier in the office of the Executive Engineer, Irrigation Division, UPPCL. On 25.02.2000 electricity dues of Rs.4,81,499/- were collected from the consumers in special camps organized for that purpose and it was kept in the chest maintained in Khandiya Karyalaya (Divisional Office) in presence of Sri Keshav Dev Pandey, Assistant Engineer (Revenue) and also some other officials. Thereafter, the petitioner and Sri Keshav Dev Pandey, Assistant Engineer went to their homes.
4. On the next date i.e. 26.02.2000 at 10.15 AM, the petitioner came to the office and Sukhram Singh, who was posted as Dafedar, opened the lock of the doors. Shri Keshav Dev Pandey, Assistant Engineer inserted the keys to open the lock of the chest but it did not turn. Sukhram Singh, Dafedar then pulled the handle and opened the lock of the chest, wherein it was found that the money, which was kept in the chest, was missing. A first information report was lodged on 25/26th February, 2000, on a preliminary enquiry conducted by Shri Ashok Kumar, the then Deputy General Manager, Electricity Distribution Division, Mainpuri against three persons i.e. the petitioner, Keshav Deo Pandey, Asstt. Engineer (Revenue) and Sukhram Singh, Dafedar, alleging that they are responsible for negligence on account of which Rs.4,81,499/- was stolen from the cash chest.
5. The appellant-petitioner, Keshav Dev Pandey, Assistant Engineer and Sukhram Singh, Dafedar were placed under suspension with immediate effect on 17.6.2000 under the U.P. State Electricity Board (now U.P. Power Corporation Ltd.) Officers and Employees (Conditions of Service) Regulations, 19752 in contemplation of departmental enquiry against them. Sri R.R. Singh, Executive Engineer (Sambadh) Electricity Distribution Division, Mainpuri was appointed as the Enquiry Officer vide order dated 22.06.2000 and he was directed to submit his inquiry report within 30 days. Subsequently, a chargesheet was issued by the Enquiry Committee on 23.06.2000, alleging that the appellant-petitioner had handed over the keys of the chest to Sukhram Singh while the keys were to be retained with him alongwith the Assistant Engineer (Revenue), and thus, he had violated the relevant rules.
6. The appellant submitted his reply to the charge sheet on 10.07.2000 stating therein that there were two keys of the chest. One key was in the custody of the petitioner and the other key was with Sri Keshav Dev Pandey, Assistant Engineer. The chest could be opened only when both the keys were pressed in it simultaneously. For last 20 years, both the keys were being kept with Sukhram Singh, Dafedar and the said fact was very well known to the Executive Engineer, Assistant Engineer and all the other concerned officers. Meanwhile, the petitioner received a letter dated 19.07.2000, wherein it was communicated that in the matter, the enquiry shall be conducted by the Enquiry Committee at Lucknow and no enquiry shall be made at local level.
7. Again a chargesheet was issued by the Enquiry Committee on 31.07.2000, which was received by the petitioner on 11.8.2000 and he was required to submit his reply by 25.08.2000. The appellant-petitioner submitted his reply alongwith documentary evidence and was allowed an opportunity of hearing wherein his statement was also recorded on 04.03.2002. In his reply, the appellant stated that since he had already submitted his reply to the charge sheet dated 23.06.2000, he has nothing more to say and his reply dated 23.06.2000 may be treated as his reply to the charge sheet dated 31.07.2000. He is not at all guilty of misconduct or embezzlement of Government money and as such, he cannot be awarded major penalty.
8. Meanwhile, the appellant received a notice dated 28.12.2001, wherein he was informed that he was going to retire on 30.04.2002. Once he was kept under suspension for an indefinite period then he had preferred a Writ A No.2677 of 2002 (Brij Mohan Lal Saxena vs. The U.P. Power Corporation Ltd. & ors), which was disposed of finally on 24.01.2002. The operative portion of the said order dated 24.01.2002 is reproduced herein below:-
"In the fact and circumstances, looking to the date of retirement of the petitioner, it is directed that the departmental enquiry pending against the petitioner shall be concluded, if it has not been concluded so far, before 31st of March, 2002. In case the enquiry is not concluded before the aforesaid date, petitioner shall be re-instated with effect from 01.04.2002 but such reinstatement would not restrict the right of the respondents to conclude the enquiry expeditiously. The petitioner has given an undertaking to cooperate in the enquiry."
9. Since the Inquiry Committee could not complete the enquiry by 31.03.2002, the appellant was reinstated on his post with effect from 01.04.2002. In the meantime, he received a letter dated 31.03.2002 from the Executive Engineer, Enquiry Committee-I, whereby he was required to appear before the Enquiry Committee on 04.03.2002 at 11 AM and in case he does not appear before the Enquiry Committee on the said date, ex-parte proceeding would be taken. Sri Keshav Dev Pandey and Sri Sukhram Singh were also directed to appear before the Enquiry Committee on 04.03.2002 and they were also present there. The statement of the petitioner was recorded on 04.03.2002, wherein he denied the charges of embezzlement against him. The statements of Sri Keshav Dev Pandey, Assistant Engineer and Sri Sukhram Singh, Dafedar were also recorded but neither, the petitioner was given any opportunity to cross-examine them nor their statements were recorded in his presence.
10. Finally, the Enquiry Committee submitted the report on 22.03.2002, wherein it was found that when the petitioner was posted as Cashier in the office of Executive Engineer, Irrigation Division, UPPCL, Mainpuri, he was entrusted with a key of the cash chest and the other key of the double lock was entrusted with Sri Keshav Dev Pandey, Assistant Engineer (Revenue). Both the persons counted the cash in cash chest at Rs.4,81,499/- and had closed the chest on 25.2.2000. The petitioner gave his key alongwith the key of Assistant Engineer to one Sukhram Singh, Dafedar. Both the keys were given to Shri Sukhram Singh, Dafedar and the entire cash in the chest was stolen. The petitioner was charged with misconduct for failing to safely keep and secure the keys entrusted to him. Sri Keshav Dev Pandey, Assistant Engineer was also charged with misconduct for failing to keep the keys safely and securely, as was entrusted to him in pursuance to the order of the Board No.2820 dated 22.11.1974.
11. The Disciplinary Authority vide its order dated 27.04.2002 had dispensed with the services of the appellant on the alleged charges, just three days before his retirement. Feeling aggrieved and dissatisfied with the said order, he had preferred Writ A No.29116 of 2002 (Brij Mohan Saxena vs. State of UP and others), which was dismissed with liberty to the petitioner to seek his statutory remedy by way of appeal under Rule 6 (5) of Regulations, 1975. Thereafter he preferred an appeal on 22.12.2010, which was dismissed by the Appellate Authority vide order dated 31.10.2012. Feeling aggrieved with the aforesaid orders dated 27.4.2002 and 31.12.2012, the petitioner had preferred Writ A No.31782 of 2013 seeking re-instatement in service alongwith all service benefits and continuity of service. Finally, learned Single Judge has dismissed the writ petition vide impugned judgement and order dated 19.07.2018, which is under challenge in the instant Special Appeal. Relevant portion of the judgment is reproduced herein below:-
"In the present case also it is not denied by the petitioner that the electricity duties amounting to Rs.4,81,499/- which had been collected during special camps organized for that purpose had been kept by him in the cash chest, which was locked by him in the presence of Assistant Engineer, Keshav Dev Pandey and thereafter he had handed over the keys to Sukhram Singh, Dafedar. Once this gross act of negligence in handing over the keys of the cash chest to Sukhram Singh was admitted by the petitioner, this Court fails to see as to what prejudice could be said to be caused to him simply because the copies of the statement of Assistant Engineer, Keshav Dev Panday and Sukhram Singh had not been supplied to the petitioner nor has the petitioner shown anywhere in any paragraph of the writ petition that if the statements of these two witnesses had been supplied to him he might have able to show that a different conclusion might have been drawn by the Enquiry Officer.
The next submission of the petitioner is that the punishment is very harsh and disproportionate to the charges levelled against him. In respect of his contention the petitioner has placed reliance upon a judgment of the Supreme Court in the case of Bhagat Ram Vs. State of Himanchal Pradesh and Others reported in (1983) 2 SCC 442.
In my opinion, the said judgment has absolutely no application to the facts of the present case. In the present case the petitioner through his negligence has caused loss of government money amounting to Rs.4,81,499/- and this act of his cannot be said to be a mere minor misconduct warranting a minor punishment.
The petitioner has also relied upon the judgment of the Full Bench of this Court in 2003 (2) UPLBEC 1726, Asha Ram Verma and Others Vs State of U.P. and Others wherein it was held that in case oral evidence is relied upon in a departmental enquiry, the person concerned should be given opportunity to cross examine and if a document is relied upon, he should be given opportunity to explain it.
This judgment also has absolutely no application to the facts of the present case since the petitioner has admitted that he had handed over keys of the cash chest to Sukhram Singh, Dafedar.
Learned counsel for the petitioner next submitted that the order of the appellate authority is a non-speaking order and does not show any application of mind.
In my opinion, that is absolutely incorrect. The order dated 31.12.2012, Annexure-14 to the writ petition, is a detailed order which extensively deals with the facts of the case and clearly records a finding that under the departmental instructions the Cashier is required to retain the keys of the cash chest which was not done by the petitioner. He had handed over the keys of the cash chest to Sukhram Singh, Defedar and this has resulted in theft/embezzlement of government money. Therefore, this plea of the petitioner is also rejected.
Learned counsel for the petitioner next submitted that he has been removed from service three days prior to his retirement and in support of his contention reliance has also been placed upon a judgment of the Supreme Court reported in AIR 1991 SC 1067 (Kartar Singh Gerwal Vs. State of Punjab). In that case the Supreme Court noted that when the enquiry was completed and the papers were sent to the Public Service Commission for consultation, the Public Service Commission did not agree with the proposal for dismissal but the Government did not accept the recommendation of the Public Service Commission and got a further probe conducted and thereafter dismissed the appellant three days prior to his retirement. The Supreme Court, however, noted that even the evidence in support of the two charges which led to appellant's dismissal was not very strong.
The facts of the case of Kartar Singh Gerwal are completely different from that of the present case of the petitioner and therefore the judgment of the Supreme Court in the case of Kartar Singh Gerwal (supra) has absolutely no application to the facts of the present case, which is a case resulting in theft/embezzlement of government money amounting to Rs.4,81,499/-.
For reasons aforesaid, I do not find any illegality or infirmity in the impugned order. The writ petition lacks merit and is accordingly dismissed."
SUBMISSIONS ON BEHALF OF THE APPELLANT
12. Sri Shesh Kumar, learned counsel for the appellant vehemently submitted that admittedly, the cash chest was used to be locked by two keys and out of these two keys, one key was kept by Sri Keshav Dev Pandey, Assistant Engineer and the other key was to be kept by the appellant. Both the keys were handed over to Sukhram Singh, Dafedar. He submitted that there is no allegation of embezzlement or theft against the petitioner and as such, he cannot be held solely responsible for the loss of Rs.4,81,499/-. He has unblemished service record and as such, he could not be awarded extreme punishment of removal from service just three days before his retirement. The action on the part of the respondent Corporation to dismiss the appellant-petitioner from service is not only vindictive but also disproportionate to the alleged guilt committed by the petitioner.
13. Sri Shesh Kumar further submitted that the appellant was chargesheeted with the charge of negligence alongwith two other persons namely Keshav Dev Pandey, Assistant Engineer and Sukhram Singh, Dafedar. The charges levelled against the appellant-petitioner and Sri Keshav Dev Pandey, Assistant Engineer were almost identical in nature regarding handing over the keys to Sri Sukhram Singh, Dafedar but in the departmental proceeding, Sri Keshav Dev Pandey was only given punishment of withholding of 5% gratuity and for forfeiture of balance salary from the date of suspension to the date of superannuation. The appellant has been awarded extreme punishment of removal from service and more so, the punishment was awarded at the fag end of his service.
14. It was submitted that Sri Keshav Dev Pandey, Assistant Engineer had filed Writ A No.20206 of 2004. The Division Bench had allowed the writ petition on 08.11.2012 and set aside the punishment order. The amount deducted from his pension was ordered to be paid back alongwith simple interest of 8% per annum. Sri Sukhram Singh, Dafedar also raised an industrial dispute against his removal from service and the said order of punishment has also been set aside by the Presiding Officer, Labour Court vide award dated 20.11.2012 passed in Adjudication Case No.131/2006. Against the said award, the department has preferred Writ C No.32120 of 2014, which is still pending. The petitioner has not embezzled the said amount and the charges against all the three persons were almost identical and similar. All the three persons were collectively responsible for the loss of Rs.4,81,499/- and therefore, the appellant alone cannot be held responsible.
15. He lastly submitted that the Appellate Authority has not assigned any reason for upholding the order of punishment. Learned Single Judge has failed to consider the material facts that the appellant was not provided the copies of statement of Keshav Dev Pandey, Assistant Engineer and Sukhram Singh, Dafedar, which caused serious prejudice to him. As such, the order of learned Single Judge is unsustainable in the eyes of law and the same is liable to be set aside. In support of his submission, he has placed reliance on the judgement in Kartar Singh Girwal vs. State of Punjab reported in AIR 1991 SC 1067.
SUBMISSIONS ON BEHALF OF RESPONDENTS
16. Refuting the submissions made by learned counsel for the appellant-petitioner, Sri Baleshwar Chaturvedi, learned counsel for the respondents raised a preliminary objection regarding maintainability of the Special Appeal, which is being filed against the judgement and order dated 19.07.2018 passed in Writ A No.31782 of 2023 seeking to quash the removal order from service as well as the order by which his appeal has also been rejected by the Appellate Authority. He submitted that under Section 5 of the Electricity (Supply) Act, 19483 the State Electricity Boards were required to be constituted and accordingly, the U.P. State Electricity Board has been constituted. Section 79 of the Act, 1948 enabled the Board to make regulations with respect to the matters specified therein. Accordingly, the Regulations, 1975 were made in exercise of the powers conferred by sub-section (c) of Section 79 of the Act, 1948 to Uttar Pradesh State Electricity Board.
17. Learned counsel for the respondents further submitted that the appellant-petitioner filed an appeal under Rule 6 (5) of the Regulations, 1975 and the Appellate Authority vide order dated 31.12.2012 had rejected the appeal. As such, the instant Special Appeal is not maintainable in view of provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. In support of his submission, he has placed reliance on the Full Bench judgement of this Court in Sheet Gupta vs. State of UP and anothers4.
18. Even on merits, he submitted that the appellant-petitioner committed acts of negligence. The Enquiry Officer found all the charges against the petitioner as proved, which were rightly accepted by the Disciplinary Authority. The penalty was imposed upon the petitioner commensurate with the gravity of the charges proved against the delinquent employee. The petitioner was provided all the opportunities to defend his case. It was submitted that the appellant was served with the enquiry report and thereafter he was given the opportunity by the Disciplinary Authority. After considering the detailed representation by the delinquent employee against the findings recorded by the Enquiry Officer, the Disciplinary Authority imposed the punishment, which was rightly affirmed by learned Single Judge. The judgment and order passed by learned Single Judge is liable to be approved and the instant appeal is liable to be dismissed.
19. We have considered the submissions made by learned counsel for the parties on the aspect of maintainability of the Special Appeal.
QUESTION AS REGARD TO MAINTAINABILITY
20. The instant appeal has been preferred under the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 19525 inter alia, which read as under:
"5. Special Appeal: - An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award - (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
21. A Full Bench of this Court, in the case of Sheet Gupta (supra), while determining the conflict in two Division Bench judgements of this Court including in M/s Vajara Yojana Seed Farm, Kalyanpur and others vs. Presiding officer, Labour Court-II, U.P. Kanpur and another6, came to the following conclusion:
"18. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
"1. The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2. The order made by one Judge in the exercise of revisional jurisdiction;
3. The order made by one Judge in the exercise of the power of Superintendence of the High Court;
4. The order made by one Judge in the exercise of criminal jurisdiction;
5. The order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by (i) the Tribunal, (ii) Court or (iii) Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6. The order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of (i) the Government, or (ii) any Officer or (iii) Authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e., under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."
22. A perusal of the above would reveal that a Special Appeal under Chapter VIII Rule 5 of the Rules, 1952, against the order made by one Judge in the exercise of jurisdiction conferred by Article 226, in respect of any judgement, order or award by (i) the Tribunal, (ii) Courts or (iii) Statutory Arbitrator, made or purported to be made in exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India and the order made by one Judge in the exercise of jurisdiction by Article 226 of the Constitution of India in respect of any judgment, order or award of (i) the Government or (ii) any Officer or (iii) Authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e., under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India, would not be maintainable.
23. In the present case, the services of the appellant-petitioner were dispensed with vide order dated 27.04.2002 passed by the Adhyaksha Evam Prabandh Nideshak, U.P. Power Corporation Ltd. against which he had filed a departmental appeal under Para 6 (5) of the Regulations, 1975. The Chairman and Managing Director of UPPCL vide order dated 31.12.2012 had dismissed the appeal. Both the orders were challenged by the appellant-petitioner in Writ A No.31782 of 2013, which has been dismissed by learned Single Judge vide impugned judgment. The order dated 31.12.2012 would fall neither in the category of judgment, order or award passed by the Tribunal, Court or Statutory Arbitrator nor an order passed in exercise of appellate or revisional jurisdiction by the Government or Officer or Authority under the Central or State Act. Therefore, it cannot be said that the present appeal, against the order passed by learned Single Judge, would not be maintainable. The issue raised about the maintainability has no substance as the present case does not fall in any of the categories, wherein the Special Appeal has been held to be not maintainable. Hence, the present Special Appeal is held maintainable under Chapter VIII Rule 5 of the Rules, 1952.
ANALYSIS ON MERIT & CONCLUSION
24. We have carefully gone through the record as well as the judgment and order dated 19.07.2018 passed by the learned Single Judge under challenge. We find that admittedly, the appellant-petitioner was an employee of the Board and his service conditions were governed by the Regulation, 1975. The UPPCL had taken over all the liabilities of the Board. The UPPCL was the employer and the Board of Directors was the Appointing Authority of the petitioner on the date of alleged misconduct. The petitioner and Sri Keshav Dev Pandey, Assistant Engineer were charged with misconduct for failing to safely keep and secure the keys entrusted to them, which resulted into loss of Rs.4,81,499/- to the Corporation. Sukhram Singh, Dafedar was also charged for the alleged misconduct. The charges levelled against them were duly proved during the course of inquiry proceedings and thus, they were held guilty of committing acts of gross negligence. By the order dated 27.04.2002 the petitioner's services were dispensed with on the alleged charge just three days before retirement period of the appellant, which is disproportionate.
25. During the pendency of the disciplinary enquiry, Sri Keshav Dev Pandey, Assistant Engineer had retired on 30.09.2000, on attaining the age of superannuation. In the disciplinary enquiry, he was also found guilty of misconduct under the Regulations and was required to submit an explanation as to why he should not be punished in proceedings after his retirement under Article 351A of the Civil Services Regulations. Finally, the Board of Directors of UPPCL vide order dated 26.4.2003 had imposed punishment of deduction of 5% of pension and not to pay any gratuity to him. He had also approached this Court by preferring Writ A No.20206 of 20047 for quashing the order dated 26.4.2003, communicating the decision of the Board of Directors of UPPCL imposing punishment of deduction of 5% of pension; not to pay any gratuity to him and for treating the period from 17.6.2000 to 30.9.2000 as break in service. By the judgement and order dated 08.12.2012, a Division Bench of this Court had proceeded to allow the writ petition. Relevant portion of the judgement is reproduced hereinafter:-
"18. The disciplinary powers come to an end with the cessation of employer-employee relationship, unless the statutory rules expressly confer the power to punish the employee or to forfeit the pension, or to recover from the pension the loss caused to the employer, the employer cannot withheld or forfeit the pension. The pension is not bounty but valuable right given to an employee. In the absence of any statutory rule the pension cannot be withheld, forfeited or reduced. The service regulations may provide for deduction from pension, when an employee, who retires from service, before the completion of departmental proceedings, initiated prior to such department is found guilty of misconduct. Art.351A of the CSR authorises the appointing authority to recover from pension the pecuniary loss caused, on account of gross misconduct or negligence of the government servant.
19. The respondents have not placed on record the decision of the Board, by which Art.351A of the CSR was alleged to be adopted for the purposes of continuing the disciplinary enquiry, after retirement or to initiate disciplinary proceedings against the retired employee within four years of the incident, with the permission of the employer and with the sanction of the Board. The Board's Circular dated 19th February, 1964, refers to the 72nd meeting held on 26th December, 1963, in which the Board decided in principle to adopt the U.P. Government Rules and Regulations viz. qualifications, control and appellate rules, Government Servant Conduct Rules, Traveling Allowance Rules; Medical Attendance Rules, and the Pensionary Rules as amended from time to time and accordingly directed that the Rules and Regulations shall apply mutis mutandis to all categories of officers, and staff of the Board other than those, who are governed by separate agreement or covenance. The U.P. State Electricity Board (Officers and Servants) (Conditions of Services) Regulation, 1975, were made after the issuance of the Circular of the Board dated February 19th, 1964. These Regulations of 1975, provide for Rules regarding the authority competent to remove, dismiss, all matters on conduct and discipline (including matters relating to punishment, constitution of committee) to enquire into the case and the appeal and representation to the Chairman of the Board. They, however, do not provide for applicability of the Rules stated to have been adopted by the Board on 26th December, 1963, nor do they specifically authorised the Board to continue with the departmental proceedings after the employee attained the age of superannuation and retires. The Regulations of 1975, also do not mention of any adoption or incorporation of the Classifications, Control, and Appeal rules, Government Servant Conduct Rules etc. We thus find that with the enforcement of the Regulations of 1975, w.e.f. October 18th, 1975 all the rules relating to conditions of service including discipline and appeal were consolidated and thus only these resolutions of the Board relating to the conditions of service, which are incorporated in the Regulations of 1975, were made applicable to the employees.
20. The Regulations of 1975 in so far as it applies the Rules applicable to government servants or the employees, who were originally employee of the State Government and after resignation in the services of the Board in pursuance to the State Government order dated July 1st, 1971, do not apply to the employees of the Board. This Rule gives powers to the Board to initiate or recommend disciplinary proceedings in respect of such State Government employee and does not give any powers to apply Rules applicable to the State Government to the employees of the Board.
21. The writ petition is allowed. The order dated 28.4.2003 passed by the U.P. Power Corporation is set aside. The entire amount, which have been deducted from the pension shall be paid back to the petitioner with simple interest at 8% per annum within three months. The petitioner will also be paid the entire amount of gratuity with 8% interest from the date the gratuity was due to be paid to the petitioner, within the same period."
26. At the outset, it is required to be noted that the Enquiry Officer held the appellant-petitioner/delinquent employee alongwith Sri Keshav Dev Pandey, Assistant Engineer (Revenue) and Sukhram Singh, Dafedar to be guilty for the alleged misconduct and the charges levelled against them of causing monetary loss to the extent of Rs.4,81,499/-, which were held to be proved. Thereafter, the Disciplinary Authority imposed the punishment after giving the appellant-petitioner alongwith two other employees opportunity to meet the findings recorded by the Enquiry Officer and thereafter imposed the punishment. The Division Bench vide judgement and order dated 08.11.2012 set aside the order of punishment imposed by the Disciplinary Authority on Keshav Dev Pandey, Assistant Engineer (Revenue). Further, the Presiding Officer, Labour Court had also set aside the order of punishment imposed against Sukhram Singh, Dafedar vide award dated 20.11.2012 passed in Adjudication Case No.131/2006.
27. In the instant matter, what we find that the appellant-petitioner, who had played a passive role, was inflicted with the major punishment of dismissal from service, whereas two other similarly situated persons were exonerated by the Division Bench of Court & Labour Court. The judgement passed by the Division Bench has attained finality as there was no challenge. In the instant matter, what we notice that the orders passed by the High Court and Labour Court in favour of the other two delinquent employees had been complied with by the department. Therefore, we find that the Doctrine of Equality applies to all, who are equally placed and 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. Therefore, the finding returned by learned Single Judge to the extent that the matter is distinguishable with other co-delinquent Keshav Dev Pandey is unsustainable as the department itself had accorded different punishment to Keshav Dev Pandey and later on, the judgement passed by the High Court had attained finality. Even in the case of other delinquent employee Sukhram Singh, the Labour Court has already set aside the termination order and later on, he was also accorded benefits. Therefore, the observation made in this regard by learned Single Judge is unsustainable and accordingly, the same stands rejected.
28. The principle stated as above is seen to be applied in a series of judgments of the Apex Court. In Director General of Police and Others v. G. Dasayan8, one Dasayan, a Police Constable, along with 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 Head Constable. The Apex 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. The Apex Court held that it may, otherwise, violate Article 14 of the Constitution of India.
29. In Regional Co-operative Oil Seedsgrowers' Union Ltd., Vs. Shaileshkumar Harshadbhai Shah9 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, the Apex 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.
30. Similar view has also been reiterated in Rejendra Yadav Versus State of Madhya Pradesh10 wherein while dealing with similar situation pressed into motion the doctrine of equality the Apex Court held that it applies to all those who are equally placed even among the persons who are found guilty. The Apex Court further held that the persons, who were found guilty, can also claim equality of the treatment, if they can establish discrimination in imposition of punishment when all of them are involved in the same incident. Paras 9, 10 & 11 are relevant and reproduced herein below:
"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 the 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 earlier one is DG of Police v. Dasayan (1998) 2 SCC 407 wherein one Dasayan a police constable, along with 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 codelinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
11. In Anand Regl. Coop. Oil Seeds growers' Union Ltd Shaileshkumar Harshadbhai Shah case (2006) 6 SCC 548, the workman was dismissed from service for proved misconduct. However, few other workmen, again 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 squarely 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."
(Emphasis supplied)
31. It is trite law that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court. As already noticed above, since the charges, on which the punishment was imposed, are taken to be correct, what is now left at this belated stage to be considered and examined is, as to whether the punishment imposed was commensurate with the said charges or not.
32. Hon'ble Apex Court in the case of Ranjit Thakur v. Union of India and Ors.11, has held that "the question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Marital, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
33. In Union of India vs. J Ahmed12 the Apex Court opined as under:-
"11. .......It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd. [(1978) 19 Guj LR 108, 120] ). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
(Emphasis Supplied)
34. In U.P. SRTC v. Mahesh Kumar Mishra13 it was ruled that :-
"8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.
9. Another three-Judge Bench of this Court in ColourChem Ltd. v. A.L. Alaspurkar [(1998) 3 SCC 192 : 1998 SCC (L&S) 771] has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the court to interfere.
(Emphasis Supplied)
35. In the light of the law laid down by the Apex Court as well as this Court in Suresh Kumar Tiwari v. D.I.G., P.A.C. and another14, in our view the broad principle, which emerges is that normally, it is the Disciplinary Authority, which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.
36. In the present matter, the punishment of dismissal upon the appellant-petitioner appears to be harsh and disproportionate to the alleged misconduct and no reasonable employer could impose such punishment for the proved misconduct. In case the disproportionate severity of punishment pricks the conscience of the court. It is by now settled that the punishment order can be interfered with, if it is shockingly disproportionate. We are of the view that the principle laid down in the above mentioned judgments would also apply to the facts of the instant case.
37. Looking to the nature of charge and considering the long service rendered by the delinquent employee and the fact, that two other employees, who were also involved in respect of the same incident, were exonerated by the Division Bench vide judgement and order dated 08.11.2012 and by the Presiding Officer, Labour Court vide award dated 20.11.2012 and they have been paid all retiral benefits, we are of the considered view that the punishment imposed upon the appellant-petitioner was harsh and excessive. As such, the punishment of dismissal of the appellant-petitioner may be converted into compulsory retirement.
38. In view of above facts and circumstances of the case, the judgement and order dated 19.07.2018 passed by learned Single Judge is accordingly set aside. Consequently, the order of dismissal dated 27.04.2002 as well as appellate order are also set aside. The punishment of dismissal upon the appellant-petitioner is directed to be converted into compulsory retirement. As the appellant-petitioner is about 82 years' old, and upon converting the punishment of dismissal into compulsory retirement, it is hereby directed that all the consequential benefits shall be ensured to the appellant-petitioner in accordance with law within a period of six weeks from the date of production of certified copy of the order.
39. The present appeal is partly allowed to the aforesaid extent and the writ petition is disposed of.
Order Date :-26.09.2024 RKP