Jharkhand High Court
Writ vs The Union Of India Through The Director ... on 9 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 273 of 2021
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Ram Naresh Jha, aged about 62 years, son of Late Ram Bahadur Jha,
resident of Village-Sheikpura, P.O. Kanayala, P.S. Ojiyarpur, District-
Samastipur (Bihar).
... ... Writ-Petitioner/Appellant
Versus
1. The Union of India through the Director General of Central Industrial
Security Forces (CISF), Ministry of Home, having office at Boring
Road, P.O. GPO, P.S. Patliputra, District Patna (Bihar).
2. The Deputy Inspector General of Central Industrial Security Forces
(CISF), Ministry of Home, having office at Bokaro Steel Plant, Bokaro
Ispat Nagar, P.O. & P.S. Bokaro, District-Bokaro.
3. The Commandant cum Disciplinary Authority, office of the Deputy
Inspector General, Central Industrial Security Forces (CISF), Ministry of
Home, having office at Bokaro Steel Plant, Bokaro Ispat Nagar, P.O. &
P.S. Bokaro, District-Bokaro.
.. ... Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
For the Respondents : Mr. Jitendra Tripathi, Advocate
.....
C.A.V./Reserved on 01.08.2023 Pronounced on 09/08/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 20.04.2021 passed by the learned Single Judge of this Court in W.P.(S) No. 6215 of 2012 by which the order of punishment as contained in Letter No.1928 dated 23.05.2011, the appellate order dated 30.07.2011 and revisional order dated 30.04.2012 have been refused to be interfered with by dismissing the writ petition.
2 L.P.A. No. 273 of 20212. The brief facts of the case as per the pleading made in the writ petition, which require to be enumerated herein, read as under:
The writ petitioner while holding the post of Sub-Inspector/Exe., was put under suspension vide order dated 27.10.2010. The memo of charge was framed against the writ petitioner on 23.11.2010 by the respondent no.3.
The writ petitioner submitted his reply on 04.12.2010 denying all the charges levelled against him. Thereafter, enquiry officer was appointed by order dated 08.12.2010 to enquire into the charges levelled against the writ petitioner. Thereafter, the suspension of the writ petitioner was revoked vide order dated 05.01.2011.
The enquiry officer submitted the enquiry report on 23.04.2011 establishing both the charges to be proved. Thereafter, the disciplinary authority, vide impugned order dated 23.05.2011, imposed punishment upon the writ petitioner of reduction in his pay scale from 10890/- + 4200/- to 10020/- + 4200/- and passed the order to the effect that the same would be effective for three years and even after three years, the same may have cumulative effect of future increments of the writ petitioner.
Against the said order, the writ petitioner preferred appeal on 23.06.2011, wherein, the said appeal was rejected vide order dated 30.07.2011. Against the appellate order, the writ petitioner preferred revision which was also rejected on 30.04.2012.
Being aggrieved with the all the orders, the writ petitioner preferred writ petition being W.P.(S) No. 6215 of 2012 which has been dismissed vide order dated 20.04.2021, against which the instant intra- court appeal has been preferred.
3. It is evident from the factual aspect as referred hereinabove based upon the pleading made in the writ petition that the writ petitioner while posted as Sub-Inspector was put under suspension vide order dated 27.10.2010 in contemplation of a departmental proceeding.
3 L.P.A. No. 273 of 2021Memorandum of charge was served upon the appellant on 23.11.2010 levelling therein the following charges:
vkjksi dk vuqPNsn&1 ^^cy la[;k 844120021 mi fu0@dk;Z] vkj0 ,u0 >k] dsvkSlqc bdkbZ ch,l,y cksdkjks] dks fnukad 20-10-2010 dks jk=h ikyh le; 1700 cts ls fnukad 21-10-2010 dks le; 0500 cts rd lh-bZ-tsM xsV ij ikyh izHkkjh ds :i esa rSukr fd;k x;k FkkA mDr rSukrh ds nkSjku mlus in ,oa "kfDr dk nq:I;ksx djrs gq, vlekftd rRoksa ds lkFk lafyIr gksdj le; yxHkx 1840 ls 1900 cts ds chp Jh izeksn dqekj ¼flfoy O;fDr½] LdwVj ctkt la[;k BR-20-B 2060 rFkk Jh eqUuk fdLdq ¼flfoy O;fDr½] LdwVj la[;k BR-20-D 1551 dks fcuk oS/k dkxtkr ,oa vuqefr ds gh vukf/kd`r :i ls lh0bZ0tsM xsV }kjk la;= a ds vanj izos'k djk dj la;= a dh lEifr dks pksjh djk;kA bl izdkj mi fu0@dk;Z] vkj0 ,u0 >k }kjk fd;k x;k d`R; mlds inh; dRrZO; ds izfr ?kksj ykijokgh] nqjkpkj] vuq"kklughurk ,oa mPpkf/kdkfj;ksa ds }kjk fn;s x;s vkns'kksa@funs"Z kksa ds vogsyuk ds d`R; dks iznf"kZr djrk gSA vr% vkjksi gS**A vkjksi dk vuqPNsn&2 ^^cy la[;k 844120021 mi fu0@dk;Z] vkj0 ,u0 >k] dsvkSlqc bdkbZ ch,l,y] cksdkjks] dks mlds lsok nLrkost ds vuqlkj fofHkUu vuq"kklughu d`R;ksa ds fy, dqy 12 NksVh ltkvksa ls nf.Mr fd;k tk pqdk gS ftlesa 01 cM+h ltk rFkk 11 NksVh ltkvksa ls nf.Mr fd;k tk pqdk gSA bl izdkj mi fu0@dk;Z vkj0 ,u0 >k] vuq"kklughu d`R; djus dk vknh gSA vr% vkjksi gSA** The writ petitioner submitted his reply denying the charges but the reply having not been found to be satisfactory, the enquiry officer was appointed to enquire into the charges levelled against the appellant. The charges have been found to be proved. The same has been accepted by the disciplinary authority and after following due procedure, has passed the order of punishment of lowering down the scale to two stages. The writ petitioner has carried out the said order before the appellate authority but the appeal had also been dismissed vide order dated 30.07.2011 against which the writ petitioner preferred revision which was also dismissed vide order dated 30.04.2012.4 L.P.A. No. 273 of 2021
The writ petitioner being aggrieved with the order of the administrative authorities, has challenged the same before this Court by filing writ petition being W.P.(S) No. 6215 of 2012 taking the ground that the order of punishment is perverse and contrary to the material available on record but without taking into consideration the aforesaid aspect of the matter, the writ petitioner has been dismissed.
The respondent-Union of India had appeared and filed counter affidavit. The learned Single Judge after taking into consideration the entire aspect of the matter and considering the power to be exercised by the writ court under Article 226 of the Constitution of India, has dismissed the writ petition against which the instant appeal has been filed.
4. Mr. Manoj Tandon, learned counsel for the appellant-writ petitioner has submitted by pointing out the infirmities wherein additional argument which was not there in the pleading has been taken, i.e., regarding the implication of Rule 34(v) of the CISF Rules, 2001 wherein it has been mentioned "reduction to a lower stage...", the word 'a' clarifies that only one scale can be lowered down but herein, the scale has been lowered down to two stages and hence, the said punishment is not in the list of punishment, as such, the same is not sustainable in the eyes of law on the basis of settled position of law that the punishment which is not mentioned in the list of punishment, the same cannot be inflicted.
The ground has been taken at the time of argument that the identically placed co-delinquent employee has been dealt with by inflicting the lesser punishment even though the charges are same and similar.
It has been contended that the learned Single Judge has not appreciated the aforesaid legal issues and has given the finding that the word 'a' under Rule 34(v) of the Rules, 2001 will not be construed to be lowering down of the pay scale only to one stage. Further, the consideration so given by the learned Single Judge with respect to the applicability of inflicting punishment has also not been answered even 5 L.P.A. No. 273 of 2021 though the same has been taken note in the impugned order/judgment by the learned Single Judge at paragraph-16 thereof.
The contention has been raised that the question of proportionality and quantum of punishment has not properly been considered since the allegation of theft of a meagre amount is there for which major punishment should not have been inflicted. Learned counsel, on the aforesaid premise, has submitted that the order impugned passed by the learned Single Judge suffers from error, hence, is not sustainable in the eyes of law.
5. Per contra, Mr. Jitendra Tripathi, learned counsel for the respondent has submitted by defending the impugned order by making submission that thoughtful consideration has been given regarding the implication of the punishment as enshrined under Rule 34(v) of the Rules, 2001 since the consideration has been given that once the aforesaid punishment as under Rule 34(v) has been earmarked under the major penalties head, it will be the prerogative of the disciplinary authority to impose the punishment of lowering down the pay scale to more than one stage.
It has further been submitted that although the learned Single Judge has not given a finding regarding the applicability of parity in punishment but if the memorandum of charge of co-delinquent employee, namely, S.S. Mishra, will be considered, then it would be evident that the gravity of charge levelled against the appellant is serious in comparison to that of the nature of charge levelled upon the co-delinquent employee who has been inflicted with the punishment of lowering down the pay scale to one stage without any cumulative effect.
Further, the learned Single Judge has also considered the fact by not accepting the ground or proportionality and the quantum of punishment since the charge is of theft which directly relates to the integrity and moral turpitude of the concerned employee. The learned Single Judge after taking into consideration the aforesaid aspect has 6 L.P.A. No. 273 of 2021 given the finding as such, the impugned order suffers from no infirmity and the same may not be interfered with.
6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
7. The fact which is not in dispute in this case is that the writ petitioner while posted as Sub-Inspector was subjected to a departmental proceeding by issuance of memo of charge alleging therein the commission of theft of the property of the unit as would appear from the charges levelled hereinabove being charge no.1 and 2.
The writ petitioner participated in the enquiry proceeding and defended himself but the enquiry officer has found the charges proved and the same was forwarded to the disciplinary authority. The disciplinary authority after accepting the finding recorded by the enquiry officer and following the due procedure has passed the order of punishment as reduction in pay-scale. The aforesaid order was affirmed by the appellate authority and revisional authority. The writ petitioner being aggrieved thereto, has filed the writ petition being W.P.(S) No. 6215 of 2012 but the same has also been dismissed against which the present appeal has been filed.
8. Learned counsel for the appellant has raised the only issue in the pleading of perversity. However, it appears from the impugned order that the issue of punishment of lowering down to a lower stage has been considered by the learned counsel for the appellant to be singular and as such, it is contended that the punishment of lowering down to one stage was required to be passed but without considering the legal position, punishment of lowering down to two stages has been inflicted. The ground has also been taken regarding the parity in punishment and proportionality in imposition of punishment.
9. This Court, therefore, is required to consider the following issues:
7 L.P.A. No. 273 of 2021(i) Whether the stipulation made in the provision of Rule 34 (v) of the Rules, 2001 that reduction to a lower stage in the time scale of pay for a specified period can be construed to be reduction of the pay scale only to one stage or more than one stage considering the word 'a' mentioned therein;
(ii) Whether the benefit of parity in punishment can be extended in favour of the writ petitioner in comparison to that of the co-
delinquent employee;
(iii) Considering the nature of allegation, can it be a fit case to interfere with the order of punishment for consideration afresh on issue of quantum.
10. Issue No.1: So far as the issue no.1 is concerned, it would be appropriate for this Court to refer the provision of Rule 34 of the Rules, 2001 which contains both major penalties and minor penalties. For ready reference, the said rule is being referred as under:
"34. Nature of Penalties - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on an enrolled member of the Force, namely:-
Major Penalties: -
(i) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;
(ii) removal from service which shall not be a disqualification for future employment under the Government;
(iii) compulsory retirement;
[(iv) reduction to a lower time scale of pay, grade, post or service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the enrolled member of the Force during such specified period to the time scale of pay, grade, post or service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period -
(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent, and
(b) the enrolled member of the Force shall regain his original seniority in the higher time scale of pay, grade or service;]
(v) save as provided for in clause (viii) below, reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the enrolled member will earn increments of pay during 8 L.P.A. No. 273 of 2021 the period of such reduction and whether on the expiry of such period, the reduction will have the effect of postponing the future increments of his pay.
Minor penalties: --
(vi) Censure;
(vii) withholding of his promotion;
(viii) Reduction to a lower stage in the time scale of pay by one stage for a period of not exceeding three years, without cumulative effect and not adversely affecting his pension;
(ix) withholding of increment of pay;
(x) fine to any amount not exceeding of 7 days' pay."
11. It is evident from the aforesaid provision that the penalties are under two heads, i.e., (i) major penalties and; (ii) minor penalties. Under the major penalties, dismissal, removal, compulsory retirement and reduction to lower time scale of pay, grade, post or service for a period to be specified in the order of penalty is there. The fifth punishment under the major penalties head is that reduction to a lower stage in the time scale of pay for a specified period with further direction as to whether or not the enrolled member will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will have the effect of postponing the future increments of his pay.
12. While, under the minor penalties head, the punishment is of censure, withholding of his promotion, reduction to a lower stage for a period of not exceeding three years, without cumulative effect and not adversely affecting his pension.
13. The core issue which is to be decided is that what would construe reduction to a lower stage in time scale of pay, whether it is only to one stage or more than one stage.
Admittedly, the aforesaid punishment is under the major penalties head and all the punishment either dismissal or removal or compulsory retirement or reduction to a lower time scale is under the major penalties head which suggest that all the punishment from (i) to
(iii) are grievous in nature since the concerned employee is to be 9 L.P.A. No. 273 of 2021 separated from service. However, the punishment no.(iv) which speaks about reduction to lower time scale of pay is the reversion from the higher post to lower post.
14. If the contention of the appellant will be considered reduction to a lower stage, it will mean reduction to the next lower stage, as such, it will be said to be in consonance with the list of punishment. But, this Court is not in agreement with the aforesaid submission for the reason that if it will be restricted to only one stage then the question will be how the delinquent employee will be inflicted with the punishment of committing grievous irregularity for which there may not be an order of dismissal or removal or compulsory retirement or reversion rather the misconduct warrants the punishment of reduction to lower stage. If the word 'a' will be construed to be reduction of the pay scale only to one stage, then the disciplinary authority will have no option except to inflict punishment lowering the pay scale to only one stage even though the employee who has been found to be committing irregularity/misconduct and in that circumstances, even though the nature of allegation is grievous, but, there cannot be any punishment like dismissal or removal or compulsory retirement. Then, such delinquent employee cannot be dealt with properly by imposition of punishment of reduction of the pay scale only to one stage.
15. It is settled position of law that separation from service either by way of dismissal or removal or compulsory retirement is a major punishment, that is extreme punishment to be inflicted in extreme cases if the nature of allegation is so serious that retaining the services of the concerned employee will be detrimental to the interest of the employes, if the nature of allegation is not so grievous warranting separation from service or reversion in the rank, then, the disciplinary authority will have no option but to reduce the scale only to one stage and in that view of the matter, the same will be said to be minor in nature.
However, stipulation is there under Rule 34(v) that such punishment will be for specified period with further direction as to whether or not the enrolled member will earn increments of pay during 10 L.P.A. No. 273 of 2021 the period of such reduction and whether on the expiry of such period, the reduction will have the effect of postponing the future increments of his pay but the fact remains that even accepting the case where the employer is willing to inflict punishment under Rule 34(v) restricting it only to one stage with a further decision that he will not earn increment during the period of such reduction and with further direction that will have the effect of postponing the future increments of his pay, the same will be construed to be cumulative and the said cumulative effect will only be of lowering down the pay scale only to one stage.
16. The question will again arise that how to deal with grievous irregularity if committed by one or the other enrolled member. Further, if the stipulation made under Rule 34(v) will be read along with Rule 34(viii), it would be evident that same words are there, i.e., "reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years". The word 'one' is of paramount importance in order to make difference in between Rule 34(v) and 34(viii) since in Rule 34(v) there is no word that reduction of pay by one stage rather the word appears the reduction to a lower stage in the time scale of pay for a specified period while under Rule 34(viii), it is stipulated as reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years. Therefore, if the word 'one' is there in the minor punishment then the same being a minor penalty and in absence of the word 'one' under Rule 34(v), the same cannot be construed to be for one stage only. The word 'a' will be construed to be any lower stage.
17. The aforesaid reason finds support from the memorandum dated 06.02.2014 wherein it has been referred that while inflicting punishment of reduction to a lower stage in the time scale of pay for a specified period as provided under Rule 11(v), the only caution is to be taken that while imposing such punishment, the pay would not fall below the minimum of the pay band attached to the post. It has further been clarified that a pay band may cover Government servants in different Grade Pays or holding posts at several levels in the hierarchy, 11 L.P.A. No. 273 of 2021 as such, it needs to be kept in mind that the reduction to lower pay scale or grade is a distinct penalty under Rule 11(vi). Therefore, while imposing a penalty of reduction to a lower stage in the time scale of pay under Rule 11(v) of the CCS (CCA) Rules, 1965, the disciplinary authority should weigh all factors before deciding upon the quantum of punishment, i.e., by which the pay is to be reduced. For ready reference, the part of the memorandum which contains implication of Rule 11(v) is being referred as under:
No.6/3/2013-Estt. (Pay-I) Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training .....
North Block, New Delhi Dated the 6th February, 2014 OFFICE MEMORANDUM ...
C. Reduction to a lower stage in the time-scale of pay for a specified period {Rule 11(v)} The process of imposition of penalty of reduction by one stage under Rule 11(iii a) explained above shall be repeated for every additional stage of reduction by taking the pay arrived at notionally as pay for the second reduction, and so on. Grade pay shall remain unchanged.
NOTE 1: It is not permissible to impose a penalty under this rule if the pay after imposition of the penalty would fall below the minimum of the Pay Band attached to the post.
NOTE 2: A Pay Band may cover Government servants in different Grade Pays or holding posts at several levels in the hierarchy. It needs to be kept in mind that reduction to lower pay scale or grade is a distinct penalty, under Rule (vi). Therefore, while imposing a penalty of reduction to a lower stage in the time-scale of pay under Rule 11(v) of the CCS (CCA) Rules, 1965, the disciplinary authority should weigh all factors before deciding upon the quantum of punishment, i.e., the number of stages by which the pay is to be reduced.
18. The same has further been reiterated in the office memorandum dated 18.06.2019 issued by the Department of Personnel and Training, Ministry of Personnel Public Grievance and Pensions, Government of India. For ready reference, stipulation made with respect to the punishment as enshrined under Rule 11(v) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is being referred as under:
No.11012/15/2016-Estt A-III Government of India Ministry of Personnel, Public Grievances and Pensions 12 L.P.A. No. 273 of 2021 Department of Personnel & Training Establishment A-III Desk .....
North Block, New Delhi - 110001 Dated June 18, 2019 OFFICE MEMORANDUM ...
C. Reduction to a lower stage in the time-scale of pay for a specified period [Rule 11(v)] The process of imposition of penalty of reduction by one stage under Rule 11(iii a) explained above shall be repeated for every additional stage of reduction to the lower vertical cell in the same level of pay in the Pay Matrix.
NOTE 1: It is not permissible to impose a penalty under this rule if the pay after imposition of the penalty would fall below the first cell of the same Level.
NOTE 2: Disciplinary Authority may weigh all factors before deciding upon the quantum of penalty i.e. the number of stage by which the pay is to be reduced.
19. Both the circulars although are in connection with the provision of Rule 11 of CCS Rules, 1965 but the punishment of reduction to a lower stage is pari materia as that of Rule 34(v) of the CISF Rules, 2001.
20. This Court, therefore, is of the view that the clarification as has been referred in the Office Memorandum dated 06.02.2014 and 18.06.2019 of the Department of Personnel and Training with respect to the effect of the punishment of reduction to a lower stage in the time scale of pay for specified period has been dealt with as in both the office memorandums as referred hereinabove and hence, by taking into consideration the aforesaid clarification, we are of the view that it can be reduced even for more than one stage subject to only condition that the same be not fall below the minimum of pay band attached to the post.
21. This Court, therefore, is of the view that the argument which has been advanced on behalf of the appellant of reduction to a lower stage only to one stage, is having no substance.
Further, it is not the case of the appellant that by reduction to a lower stage, the appellant has been kept in the pay scale below the 13 L.P.A. No. 273 of 2021 minimum of the pay band attached to the post. Accordingly, the issue no.1 is, hereby, answered.
22. Issue no.2: So far as the issue of parity is concerned, the argument has been advanced on behalf of the appellant that the co-delinquent employee, namely, S.S. Mishra is identically placed against whom the identical charges have been framed but lesser punishment has been imposed upon him to reduction of the pay scale only to one stage while the appellant has been inflicted with the punishment of reduction of the pay scale to two stages for the period of three years.
23. It is not in dispute that in imposition of punishment, the principle of parity is to be followed as has been held by the Hon'ble Apex Court in Rajendra Yadav v. State of Madhya Pradesh and Others [(2013) 3 SCC 73] but the parameter which is to be considered while considering the issue is that the charge against the person with whom lesser punishment has been claimed to be inflicted is to be seen. Paragraphs-9 & 10 of the said 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. 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, 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 co- delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India."
24. This Court, therefore, in order to come to the rightful conclusion on the issue has considered the charge of the appellant as also the charge of 14 L.P.A. No. 273 of 2021 S.S. Mishra as available in the paperbook. For ready reference, the charges so far as it relates to the appellant is being referred as under:
vkjksi dk vuqPNsn&1 ^^cy la[;k 844120021 mi fu0@dk;Z] vkj0 ,u0 >k] dsvkSlqc bdkbZ ch,l,y cksdkjks] dks fnukad 20-10-2010 dks jk=h ikyh le; 1700 cts ls fnukad 21-10- 2010 dks le; 0500 cts rd lh-bZ-tsM xsV ij ikyh izHkkjh ds :i esa rSukr fd;k x;k FkkA mDr rSukrh ds nkSjku mlus in ,oa "kfDr dk nq:I;ksx djrs gq, vlekftd rRoksa ds lkFk lafyIr gksdj le; yxHkx 1840 ls 1900 cts ds chp Jh izeksn dqekj ¼flfoy O;fDr½] LdwVj ctkt la[;k BR-20-B 2060 rFkk Jh eqUuk fdLdq ¼flfoy O;fDr½] LdwVj la[;k BR-20-D 1551 dks fcuk oS/k dkxtkr ,oa vuqefr ds gh vukf/kd`r :i ls lh0bZ0tsM xsV }kjk la;a= ds vanj izos'k djk dj la;= a dh lEifr dks pksjh djk;kA bl izdkj mi fu0@dk;Z] vkj0 ,u0 >k }kjk fd;k x;k d`R; mlds inh; dRrZO; ds izfr ?kksj ykijokgh] nqjkpkj] vuq"kklughurk ,oa mPpkf/kdkfj;ksa ds }kjk fn;s x;s vkns'kks@ a funsZ"kksa ds vogsyuk ds d`R; dks iznf"kZr djrk gSA vr% vkjksi gS**A vkjksi dk vuqPNsn&2 ^^cy la[;k 844120021 mi fu0@dk;Z] vkj0 ,u0 >k] dsvkSlqc bdkbZ ch,l,y] cksdkjks] dks mlds lsok nLrkost ds vuqlkj fofHkUu vuq"kklughu d`R;ksa ds fy, dqy 12 NksVh ltkvksa ls nf.Mr fd;k tk pqdk gS ftlesa 01 cM+h ltk rFkk 11 NksVh ltkvksa ls nf.Mr fd;k tk pqdk gSA bl izdkj mi fu0@dk;Z vkj0 ,u0 >k] vuq"kklughu d`R; djus dk vknh gSA vr% vkjksi gSA**
25. It is evident from the charges as referred hereinabove that two charges have been framed against the appellant, i.e., first charge is that while working as Sub-Inspector/Works the appellant while deputed at CEZ Gate as the pali prabhari, by sheer misutilization of his post and power with the connivance of the external elements in between 18:40 to 19:00 has allowed one Pramod Kumar (civilian) scooter no. BR-20-B-2060 and one Munna Kisku (civilian) scooter no. BR-20-D-1551 without any valid document permitted them to enter into the gate unauthorizedly and found involved in theft of property of the unit. The allegation, therefore, is that the same denotes gross dereliction in duty, misconduct, indiscipline and not following the direction of the higher authorities.
15 L.P.A. No. 273 of 2021Charge no.2 is regarding the punishment already inflicted, 12 in number, out of which one punishment is major and other 11 punishments are minor and hence, the charge is that the appellant is habitual in committing indiscipline.
26. The charge which has been levelled against S.S. Mishra is being referred as under:
"आरोप का अनुच्छेद - 1 बल संख्या 843110081 प्रआ / जीडी एस०एस० मिश्रा, केऔसुब इकाई बीएसएल बोकारो, को मदनां क 20.10.2010 को रात्री पाली सिय 1700 बजे से मदनां क 21.10.2010 को सिय 0500 बजे तक सी.ई.जेड गेट के पैदल इन गेट पर कततव्य हे तु तैनात मकया गया था। उक्त तैनाती के दौरान उसने सिय लगभग 1903.12 बजे से पैदल इन गेट से अनुपस्थथत पाया गया मजसके कारण मबना जााँ च पड़ताल के ही सीईजेड गेट से श्री प्रिोद कुिार (मसमिल व्यस्क्त) स्कूटर बजाज संख्या BR-20-B 2060 तथा श्री िुन्ना मकस्कु (मसमिल व्यस्क्त), स्कूटर संख्या BR-20-D 1551 संयंत्र के अंदर प्रिेश मकया । इस प्रकार प्रआ/जीडी एस०एस० मिश्रा, द्वारा मकया गया कृत्य उसके पदीय कर्त्तव्य के प्रमत घोर लापरिाही, अनुशासनहीनता एिं उच्चामिकाररयों के द्वारा मदये गये आदे शों/मनदे शो के अिहे लना के कृत्य को प्रदमशतत करता है । अतः आरोप है " ।"
27. It is evident from the allegation levelled against S.S. Mishra that while he was posted as a Constable in the general duty deputed at the Gate, he was found absent at about 19.03.12 while his duty was from 17:00 to 05:00 due to which one Pramod Kumar (civilian) scooter no. BR-20-B- 2060 and one Munna Kisku (civilian) scooter no. BR-20-D-1551 had entered into the unit premises which is gross negligence in duty, indiscipline and violation of the direction of the higher authorities.
28. It is, thus, evident from comparison of both the charges and the designation of both the delinquent that the appellant was holding the post of Sub-Inspector and was posted as in-charge of the Gate and apart from that he has been found to be habitual in committing indiscipline. On the other hand, the allegation against S.S. Mishra is that he was absent from duty at about 19.03.12.
29. This Court, therefore, is of the view that the charges against both the delinquent cannot be said to be identical taking into consideration the 16 L.P.A. No. 273 of 2021 nature of duty and the post which were being held by both the delinquent.
Apart from that, the allegation against the appellant is that he has allowed Pramod Kumar (civilian) Munna Kisku (civilian) along with their scooters to enter into the premises and had misutilized his post and power as also has allowed the civilians to commit theft of the property of the unit, while on the other hand, it has been alleged against S.S. Mishra that he was found absent from duty due to which the civilians along with their scooters have entered into the premises.
Therefore, against S.S. Mishra, there is no allegation that he, in any way, connived with the civilians in the commission of theft while the same is the allegation against the appellant and apart from that, past service record is also not good of the appellant since second charge is that he is habitual in committing indiscipline.
30. The charge, therefore, against both the delinquent, according to our considered view, cannot be said to be identical.
The law for following the principle of parity in punishment is that in case of identical charge only the ground of parity in punishment can be considered.
But, we, on the basis aforesaid discussion are of the view that it is not a case where the charges are identical in the case of the appellant and S.S. Mishra and hence, principle of parity will not be applicable.
Accordingly, the issue no.2 is answered.
31. Issue no.3: So far as the issue regarding proportionality is concerned, the law is well settled that the order of punishment must be commensurate with the nature of allegation. If any punishment is imposed which is grievous in comparison to the gravity of offence, then certainly the question of quantum in imposition of punishment is to be considered. But, in such circumstances conscience of the court is to be shocked and while considering the case on the question of quantum, a reason is to be assigned that what led the court in shocking the 17 L.P.A. No. 273 of 2021 conscience warranting interference with punishment. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Director General, RPF and Ors. Vs. Ch. Sai Babu, (2003) 4 SCC 331 wherein at paragraph-6 it has been observed that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer since the learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. Paragraph- 6 of the said judgment is being reproduced as under:
"6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works".
32. Herein, the allegation against the appellant is of dereliction in duty in the capacity of Sub-Inspector by mis-utilizing his post and power and of connivance with the civilians for the purpose of committing theft which is directly related to the integrity and moral turpitude. When the issue of integrity and moral turpitude will be under consideration for a member of disciplined force, more particularly, based upon the said conduct, if any punishment has been imposed, according to our considered view, there is no reason to go into the quantum of punishment.
18 L.P.A. No. 273 of 202133. Accordingly, the issue of proportionality, according to our considered view, by taking into consideration the gravity of offence related to the moral turpitude of the appellant, is having no substance, accordingly, the issue no.3 is answered.
34. In the matter of departmental proceeding, the law is settled regarding the scope of judicial review which is very least as has been held by the Hon'ble Apex Court in Union of India vs. P. Gunasekaran, AIR 2015 SC 545 wherein at paragraph 13 thereof, following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which read as under:
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;19 L.P.A. No. 273 of 2021
(vii). go into the proportionality of punishment unless it shocks its conscience."
35. The Hon'ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence.
36. In Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the extract of para-8 thereof, is referred hereinbelow:
"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".20 L.P.A. No. 273 of 2021
In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 : (AIR 2015 SC 545, Para 13), this Court held as follows:
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
37. This Court, considering the fact in entirety on the basis of the guideline propounded by the Hon'ble Apex Court, has found that none of the ground available so as to interfere with the order of punishment.
38. This Court after having discussed about the factual aspect in entirety and coming to the order passed by the learned Single Judge, has found that the learned Single Judge has given thoughtful consideration so far as it relates to the interpretation of the punishment as covered under 21 L.P.A. No. 273 of 2021 Rule 34(v) by holding therein that the meaning of pay will not be of singular.
So far as the issue of proportionality is concerned, the same has also been discussed as would appear from the discussion so made at paragraph-17 of the impugned judgment, hence, we are of the view that the same finding does not require any interference.
39. However, the ground which has been taken by the appellant regarding parity in punishment is concerned, although the same has been taken note as under paragraph-16 of the impugned judgment but there is no discussion which we have also dealt with hereinabove.
40. This Court, taking into consideration the fact in entirety as per the discussion made hereinabove, is of the view that the impugned judgment requires no interference.
41. Accordingly, the instant appeal fails and stands dismissed.
42. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Navneet Kumar, J.) (Navneet Kumar, J.)
Jharkhand High Court, Ranchi
Dated: 09/08/2023
Saurabh /A.F.R.