Gujarat High Court
Kashmira Arunkumar Thakkar vs Union Of India on 20 January, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria, Samir J. Dave
C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17189 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
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KASHMIRA ARUNKUMAR THAKKAR
Versus
UNION OF INDIA & 4 other(s)
==========================================================
Appearance:
MR SHALIN MEHTA, SR. ADVOCATE WITH MS ADITI S RAOL(8128) for
the Petitioner(s) No. 1
MR DEVANG VYAS, ADDL. SOLICITOR GENERAL (2794) for the
Respondent(s) No. 5
PRIYANK P LODHA(7852) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) By filling the present Special Civil Application, the petitioner employee has prayed to set aside order order 28th April, 2017 in Original Page 1 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Application No.429 of 2016 as also order dated 21st June, 2017 in Review Application No.13 of 2017 against the aforementioned order dated 28th April, 2017 passed by the Central Administrative Tribunal. It is prayed to allow the prayers in the Original Application and thereby to set aside order dated 29th October, 2012 passed by the Disciplinary Authority imposing penalty of removal from service of the petitioner. It is also prayed to set aside the orders dated 30th December, 2013 and 08th January, 2016 passed by the appellant authority as well as the revisional authority respectively confirming the order dated 29th October, 2012 of the disciplinary authority.
2. In the Original Application, the aforesaid order dated 29th October, 2012 issued by the Senior Superintendent off Post Office, Vadodara Division, order dated order dated 30th December, 2013 by the Appellant Authority-the Director of Postal Services, Vadodara, and also order dated 8th January, 2016 of the revisional authority-the Chief Post Master General, Gujarat were prayed to be set aside. It was a further prayer made to direct the respondents to reinstate the petitioner in service by imposing punishment lesser than the removal or dismissal.
3. The relevant facts which could be gathered from the record are inter alia that the petitioner was recruited as Postal Assistant in the year 1989 in Vadodara West Postal Division and thereafter, worked at various post offices in different divisions.
Page 2 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 While the petitioner was posted as Postal Assistant in Race Course Post Office, Vadodara, she was served with the chargesheet dated 16th December, 2012 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. At the end of the regular departmental inquiry, the competent authority passed order of removal from service against the petitioner dated 29th October, 2012. The departmental appeal came to be preferred by the petitioner against the aforesaid order of removal. which came to be dismissed by the Director of Postal Services, Vadodara region, which was the Appellant Authority. The petitioner thereafter preferred Revision Application before the Post Master General, which also came to be rejected.
3.1 It was thereafter that the petitioner invoked the jurisdiction of the Central Administrative Tribunal. The Original Application as well as the subsequent Review Application both came to be dismissed by the Tribunal to become the impugned orders in the present petition.
3.2 As could be noticed from the article of charges, the misconduct alleged against the petitioner was that while acting as a Postal Assistant, he permitted premature closure of two Senior Citizen Saving Scheme Accounts (SCSS) for Rs.12,48,935 and Rs.05,99,341/- without verifying the ledger and relevant particulars to permit double premature closure of the accounts. It was alleged that thereby the government authorities sustained Page 3 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 loss.
4. In course of the hearing, the Court was taken through the finding in the report of the inquiry officer about the petitioner having been found guilty on merits in respect of the charges levelled against him, as well as the contents of the decision of the appellate authority and the revisional authority. On careful consideration, the Court did not find any defects such as breach of principle of natural justice, non-consideration of relevant evidence, non-examination of material witness and in absence of any substantive infirmity, the finding of the inquiry officer holding the petitioner guilty of the charges could not be said to have been vitiated in any way.
4.1 Even otherwise, appearing on behalf of the petitioner, learned senior advocate Mr.Shalin Mehta with learned advocate Ms.Shikha Panchal did not seriously raise the submission in respect of the merits of the finding of guilt of the petitioner. His limited and only submission was that since the penalty imposed on the co-delinquent Mr.N.G. Parmar was a lesser punishment, proportionality ought to have been observed by imposing lesser penalty on the petitioner since the nature of charges were same against both. It was submitted that said Mr.Parmar faced the charges of similar kind and nature and was punished with order of removal at the conclusion of the inquiry, however the revisional authority took different view than that of the disciplinary Page 4 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 authority in the matter of punishment and revised the same by imposing substituted penalty of recovery from his pay to make good the loss sustained.
4.2 Learned senior advocate submitted that both the petitioner and the said Mr.Parmar were subjected to the same charges permitting premature closure of the postal accounts of the customers. What was alleged against them was that they failed to maintain secrecy of the password of the departmental software and allowed the private agent in the post office to use the password and work in the software. It was held to be lack of devotion to the duties, it was submitted, which was proved in the inquiry and the penalty was imposed stating that there was monetary loss to the government.
4.3 Further highlighting that the nature of charges were similar against both, learned senior advocate invoked the principle of parity in punishment to submit that the misconduct committed on comparable set of facts ought to have visited with uniform penalty. He submitted that the petitioner was removed from service, however, the said Mr.Parmar was imposed a penalty lesser than the removal. Learned senior counsel also took the Court through the findings and observations in the inquiry report to submit that the misconduct could not be said to be amounting to financial misappropriation as such, and that the petitioner did not derive any monetary benefit therefrom. It was, at the best, an act of negligence at the best in not maintaining the Page 5 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 password secrecy, it was submitted.
4.4 It was submitted by learned senior advocate that since the charges against the petitioner as well as against said Mr.Parmar were similar, instead of holding two different departmental inquiries, authorities ought to have conducted a joint inquiry so that evidence collected may be appreciated in a uniform manner and parallel approach could be maintained till the stage of imposition of penalty. It was submitted that petitioner was liable to be subjected to lesser penalty as was imposed upon Mr.Parmar. Learned senior advocate pressed into service the decision of the supreme court in Naresh Chandra Bhardwaj v. Bank of India [(2019) 15 SCC 786], wherein it was held that when the plea is raised about the parity in punishment, the Court can interfere in the aspect of penalty.
4.5 On the other hand, learned Additional Solicitor General Mr.Devang Vyas was emphatic in his submission that scope of judicial review in the matter of punishment or penalty imposed by the Disciplinary Authority pursuant to a departmental inquiry is very limited and the High Court in exercise of writ jurisdiction would not ordinarily substitute its own view in the matter of penalty. It was submitted that this proposition of law is well settled from the catena of decisions starting from B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749]. Learned Additional Solicitor General relied on decision in Chief Executive Officer, Krishna District Page 6 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Co-Operative Central Bank Limited and another v. K. Hanumantha Rao [(2017) 2 SCC 528].
4.6 Yet another recent decision of the Supreme Court in Union of India v. Ex. Constable Ram Karan [(2021) SCC on-line SC 104] was pressed into service for its paragraphs Nos.22 to 26 to submit that the well engrained principle of law is that it is the Disciplinary Authority or the Appellant Authority, who could only decide the nature of punishment to be imposed upon the delinquent employee. The observation was highlighted that keeping in view the seriousness of misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the Disciplinary Authority.
4.7 Learned Additional Solicitor General further submitted that the charges against the two may be similar in nature, however, their respective misconducts could be said to have been committed in their own background and set of circumstances and two acts though of about the premature closure of accounts only, could not be compared to justify the prayer for imposition the similar penalty. It was submitted that the inquiry officer considered the evidence against both and in the respective background came to the conclusion about the guilt and that the appellate and revisional authority thereafter considered the issue to arrive at their own conclusions. He further submitted that the aspect of different treatment in imposing penalty against the said Mr.Parmar was before the Central Page 7 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Administrative Tribunal while considering the challenge of removal order against the petitioner, however, the Tribunal did not find it fit to interfere with the penalty observing that both could be said to be in the different facts and circumstances.
4.8 From the contents of para-7 of the impugned order passed by the Tribunal, we find that the grievance of the petitioner about the discriminatory treatment in the matter of punishment was raised with regards to two similar situated employees. One Smt.A.N. Makwana and another said Shri N.G. Parmar. It is the details of case of Mr.Parmar that are placed on record of the present proceedings. However, it was not disputed that another co- delinquent Smt.Makwana had also faced similar charges and penalty lesser than the removal was imposed on her. Be as it may.
5. As the only plea is to be considered about imposition of penalty against the petitioner in view of his raising the ground of parity with another delinquent Mr.Parmar, it will be relevant to notice and compare the charges levelled against both.
5.1 The statement of Article of Charges against the petitioner contained in two Articles of Charges. Both pertained to similar kind of act and misconduct on part of the petitioner. It related to the period from 31st May, 2006 to 10th June, 2010. The allegations were about premature closure of Senior Page 8 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Citizen Savings Scheme Account No.70800189 for Rs.12,48,935/- on 08th May, 2010. Another charge was of similar kind and nature but pertained to Senior Citizen Savings Scheme Account No.70800260 of another account holder. Mr.Parmar also faced the similar charge about premature closure of SCSS account.
5.1.1 Charge in Article No.1 against the petitioner read thus, "Smt. K. A. Thakkar while functioning as SCSS counter PA Chemical Industries PO Vadodara on 8.5.2010 is alleged to have transacted the Premature closure of SCSS account No. 70800189 for Rs. 12,48,935/- on 8.5.2010 standing the name of Smt. Vatsala G. Bhat. She is alleged to have permitted depositor of the said account production and process of said premature closure in withdrawal form SB.7 instead of form E and without Pass Book required vide para 2 of said form E and thus violated sub Rule (1) of Rule 9 of Senior Citizen Savings Scheme Rules 2004 Chapter-9 of POSB Manual Vol.III, Ist Edition (Corrected upto 31.12.2006) read with procedural rule 180 of POSB Manual Vol I, IInd Edition (corrected upto 31.12.2006).
This account was already prematurely closed on 7.7.2008 by payment of Rs. 12,37,500/-. She is alleged to have failed to verify and checked the SCSS ledger for noting particulars of it's premature closure of this account as required by sub Rule 3 of Rule 173 of POSB Manual Vol-I Second Edition (Corrected upto 31.12.2006). It is therefore alleged that the failure to check the ledger by Smt. Thakkar resulted into double premature closure on 8.5.2010 and the Govt. has sustained loss of Rs. 12,48,935/- due to negligence on the part of charged official.
It is further alleged that she did not pay an amount of premature closure of Rs. 12,48,935 to depositor concerned on 8.5.2010 and thereby violated the provision of SB order No. 03/2008 communicated under DG Post New Delhi Memo No 113-11/2003-SB dated 19.2.2008 circulated in division under SSPO's Vadodara West Dn. endorsement dated 23.2.2008 It is alleged that she failed to keep the secrecy of the pass work of computer on which she was functioning and further she failed to performed the job asigned to her in the software personally contravening instruction no. 47 and 118 respectively for security policy and backup Page 9 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 police devised for computerised post office contained in DG post New Delhi communication dated 21.1.2008 circulated under CO Ahmedabad endorsement no. Techno/35- 11/2007-2008 dated 24.1.2008.
It is therefore alleged that by acting in aforesaid manner, Smt. K. A. Thakkar while functioning as PA Chemical Industries PO Vadodara on 8.5.2010 has violated provision of sub Rule (1) of Rule 9 of SCSS Rules 2004 chapter 9 of POSB Manual Vol III, Ist edition (corrected upto 31.12.2006) read with procedural rule 180 and sub rule 3 of Rule 173 of POSB Manual Vol I, II nd Edition (corrected upto 31.12.2006) she is further alleged to have contravened instructions no 47 and 118 of security policy and backup police devised for computerised post office contained in DG post New Delhi communication dated 21.1.2008 circulated under CO Ahmedabad endorsement no. Techno/35-11/2007-2008 dated 24.1.2008 and further contravened provision of SB order No. 3/2008 dated 19.2.2008 and thereby the said Smt. Thakkar is alleged to have failed to maintain devotion to duty as required of her vide Rule 3(1)(ii) of CCS (Conduct) Rules, 1964."
5.1.2 As stated above, the second charge was identically worded but related to the account of another depositor Shri R. Krishnamoorty, therefore not repeated.
5.2 Said Mr.Parmar faced three Articles of Charges, all of similar nature. The first Article of Charge wherein the misconduct related to the period between 21st June, 2008 and 21st September, 2010, is reproduced hereunder.
"Shri N. G. Parmar while functioning as SCSS counter PA Chemical Industries PO Vadodara on 8.6.2010. He is alleged to have transacted the Premature closure of SCSS account No. 70800271 standing in the name of Shri Shankarbhai A Patel and Smt. Hansaben S. Patel to the tune of Rs. 5,03,407/-. He is alleged to have permitted depositor of the said account production and process of said premature closure in withdrawal form SB.7 instead of form E and without Pass Book required vide para 2 of said form E and thus violated sub Rule (1) of Rule 9 of Senior Citizen Savings Scheme Rules 2004 Chapter-9 of POSB Manual Vol.III, Ist Edition (Corrected upto 31.12.2006) read with procedural rule 180 of POSB Manual Vol I, IInd Edition (corrected upto 31.12.2006).Page 10 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022
C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 This account was already prematurely closed on 1.10.2008 to the tune of Rs. 4,95,000-. He is alleged to have failed to verify and checked the SCSS ledger for noting particulars of it's premature closure of this account as required by sub Rule 3 of Rule 173 of POSB Manual Vol-I Second Edition (Corrected upto 31.12.2006). It is therefore alleged that the failure to check the ledger by Shri Parmar resulted into double premature closure on 8.6.2010 and the Govt. has sustained loss of Rs. 5,03,407/- due to gross negligence on the part of charged official.
It is further alleged that she did not pay an amount of premature closure of Rs. 5,03,407 to depositor concerned on 8.6.2010 and thereby violated the provision of SB order No. 03/2008 communicated under DG Post New Delhi Memo No 113-11/2003-SB dated 19.2.2008 circulated in division under SSPO's Vadodara West Dn. endorsement dated 23.2.2008 It is alleged that he failed to keep the secrecy of the pass work of computer on which he was functioning and further he failed to performed the job asigned to him in the software personally contravening instruction no. 47 and 118 respectively for security policy and backup police devised for computerised post office contained in DG post New Delhi communication dated 21.1.2008 circulated under CO Ahmedabad endorsement no. Techno/35- 11/2007-2008 dated 24.1.2008.
It is therefore alleged that by acting in aforesaid manner, Shri N. G. Parmar while functioning as PA Chemical Industries PO Vadodara on 8.6.2010 has violated provision of sub Rule (1) of Rule 9 of SCSS Rules 2004 chapter 9 of POSB Manual Vol III, Ist edition (corrected upto 31.12.2006) read with procedural rule 180 and sub rule 3 of Rule 173 of POSB Manual Vol I, II nd Edition (corrected upto 31.12.2006). He is further alleged to have contravened instructions no 47 and 118 of security policy and backup police devised for computerised post office contained in DG post New Delhi communication dated 21.1.2008 circulated under CO Ahmedabad endorsement no. Techno/35-11/2007-2008 dated 24.1.2008 and further contravened provision of SB order No. 3/2008 dated 19.2.2008 and thereby the said Shri Parmar is alleged to have failed to maintain devotion to duty as required of her vide Rule 3(1)(ii) of CCS (Conduct) Rules, 1964."
5.2.1 While the aforesaid charge No.1 recorded transaction of premature closure of SCSS account bearing No.70800271 in the name of customer Shri Shankerbhai A. Patel and Smt. Harshaben S. Patel Page 11 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 involving Rs.05,03,409/-, the second article of charge identically worded was about the premature closure transaction of another SCSS account bearing No.70800172 involving an amount of Rs.03,06,125/- in the name of other customer Shri Parfulchandra V. Shan and Smt.Kusumben P. Shah. Yet there was a third charge, which related to premature closure of account Nos.70800332 and 7080035 standing in the name of Smt.Lilavati S. Amin. The total amount involved was Rs.05,03,333/-.
5.3 The chargesheet against both the above delinquents included the list of documents, copies of which figure on record of petition along with the copies of the chargesheet, to be noticed therefrom that most of the documentary evidences listed including the witnesses examined were the same in the two departmental inquiries separately conducted.
5.4 Now considering the grievance of the petitioner about penalty not being at par with said Mr.Parmar in light of the above premise of basic facts and the submission canvassed, it may be noticed at the outset that the Tribunal while negativing the said contention about discriminatory treatment in respect of penalty, observed not only generally that involvement of the two was not based on uniform set of circumstances and that both were at variance. The Tribunal, however, did not give any details or supplied discussion as to how the circumstances in committing misconduct by both delinquents were different. It could be submitted that the Tribunal Page 12 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 was also not right in observing that "involvement of individual in the scam is not uniform". It was sought to be highlighted that the petitioner and said Mr.Parmar faced similar charges and the set of facts involving them in the misconduct in premature closure of SCSS Accounts were same. In our present exercise, we are not inclined to delve into details on this score.
5.5 While appreciating the case of said Mr.Parmar, the revisional authority took view that revision in the penalty by way of reduction was justified. According to the revisional authority, charges proved against said delinquent did not amount to failure of maintaining integrity. The conduct of delinquent was in the nature of dereliction of duty and negligence in his working to end up with premature closure of accounts.
5.6 The revisional authority observed following reasons for reducing the penalty.
"In the context of the discussion made above, I find that the Petitioner has been proved to be guilty of charges levelled against him. He has displayed serious dereliction of duty and his careless and negligent working has caused huge financial loss to the Department in form of a big fraud. It is also a fact that the charge against him is about his failure to maintain devotion to duty and there is no charge of failure to maintain absolute integrity. It can threfore be inferred that the Disciplinary Authority has not suspected his connivance in commitment of fraud by an outsider. I find that his record throughout his service has been clean except few minor penalties for overstayal of leave for two days and a "Censure" for minor irregularity in the SB/NSC work. It is felt that the penalty imposed on the petitioner seems to be very harsh especially looking to his retirement in 2019. I find it difficult to adopt an easy approach of accepting the line of thinking of both Page 13 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Disciplinary Authority and Appellant Authority. My conscious does not allow me to allow such a severe and harsh penalty to the petitioner who is responsible for the gross negligence."
5.7 The operative order which the revisional authority passed on 27th May, 2016 was as under, "(i) Shri N. G. Parmar, Ex. PA, Vaghodia PO (the Petitioner) be reinstated in Government Service with immediate effect.
(ii) The pay of Shri N. G. Parmar be reduced by two stages in the time scale of pay of Rs. 5200-20200 GP Rs. 2800 for a period of three years. It is further directed that Shri N. G. Parmar will not earn increments of pay during the period of reduction and that on expiry of this period there will not have the effect of postponing the future increment of his pay.
(iii) It is further ordered that the recovery of Rs. 4,00,000/- (Four Lakhs) will be made from his pay in 40 equal installments of Rs. 10,000/- each per month."
6. In Chief Executive Officer, Krishna District Co-Operative Central Bank Limited (supra), the Supreme Court stated that limited power of judicial review to interfere with the penalty is based on doctrine of proportionality. It was observed that "the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope of judicial review.". A caveat was put, however, that the penalty must appear to be disproportionate and would shock the conscience not to be tuned with doctrine of Wednesbary's Rule of Reasonableness (Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation (1948) 1 KB 223 : (1947) 2 AIR ER 680 (CA)]. The Supreme Court at the same time observed that the courts while exercising powers of judicial Page 14 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 review do not sit as an appellant authority. It was stated that the decision in respect of nature and quantum of punishment is a prerogative of the disciplinary authority.
6.1 The law about extending the equality in the matter of punishment to the two delinquents claiming to be similarly placed and the extent of true contrition by them, came to be delineated by the Supreme Court in Lucknow Kshetriya Gramin Bank v. Rejendra Singh [(2013) 12 SCC 372]. In that case also, the bank had issued chargesheet levelling identical charges against six employees including three respondents. Amongst the delinquents, though three accepted the guilt and tendered unconditional apology to the inquiry officer and therefore the penalty was reduced from dismissal to reduction of their basic pay by one stage for one year with cumulative effect. The Supreme Court reiterated that when the charges of misconduct were proved in inquiry, the quantum of punishment is initially a domain of departmental authorities. It was, however, stated that the judicial review of the quantum of punishment is available with a very limited scope and the court could frown upon only when the penalty imposed appear to be disproportionate to the nature of misconduct. It was stated that the court by itself cannot mandate what should be the penalty in such a case.
6.2 In Lucknow Kshetriya Gramin Bank (supra), the Supreme Court stated, "when it is found that the Page 15 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 employee concerned and the co-delinquent are equally placed, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminating and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution. 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.".
6.3 After considering various decisions on the issue, the following propositions were laid down,
(i) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
(ii) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
(iii) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; -
(iv) 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.
(v) The only exception to the principle stated in para
(iv) above, would be in those cases where the co- delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was 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 concerned Page 16 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 employee 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 co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable."
(para 19.1 to 19.5) (emphasis supplied) 6.4 The decision in Lucknow Kshetriya Gramin Bank (supra) was further considered in a more recent decision in Naresh Chandra Bhardwaj v. State Bank of India [(2019) 15 SCC 786] wherein the Supreme Court stated that though the scope of judicial review is limited, when the plea raised is of parity in punishment, the court may consider with pre-requisite that the parity has to be in the nature of charges made and established against the delinquent employee and conduct of employee post-incident. In Naresh Chandra Bhardwaj (supra), the punishment of removal from service was for causing loss to the bank to the tune of Rs.70.32 lakhs for sanctioning three loans and recommending two loans which came to be classified ultimately as Non-Performing Assets. At the same time, in the case of other two officers where loss incurred by the bank was to the tune of Rs.77.70 lakhs and Rs.39.74 lakhs respectively for sanctioning the loan, the punishment imposed was not of removal but they were punished with compulsory retirement.
6.5 The Supreme Court came to the conclusion that there was no difference in the financial implications in two cases. The punishment of removal was ordered to be modified to compulsory retirement Page 17 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 for the appellant. Though the plea of parity in punishment could be considered by the court the pre- requisite would be that such parity has to be in the nature of charges faced by the delinquents and established against him and secondly the conduct of the employee after incident.
6.6 The Supreme Court in Lucknow Kshetriya Gramin Bank (supra) and further in Naresh Chandra Bhardwaj (supra) thus has taken view that even though scope of judicial review in respect of the penalty is limited, when the ground of parity of punishment is raised, the same is liable to be considered in its true factual perspective.
7. When a delinquent claims before the Court equal treatment in the matter of imposition of penalty raising a ground of proportionality in correspondence with penalty imposed against co- delinquent or another delinquent facing similar set of allegations and charges for misconduct, such claim stems from the tenets of Article 14 of the Constitution. Essentially it is a prayer to be treated equally in the matter of punishment. Doctrine of proportionality including proportionality to be maintained in the penalty to be imposed pursuant to departmental proceedings, is a facet of equality clause.
7.1 The set of facts and circumstances obtaining in the present case would have to be re-evaluated by applying the attendant facts in light of the position of law discussed above. The application of doctrine Page 18 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 of parity of punishment would have to be considered in case of the petitioner by finally gathering the facts and situation whether the petitioner could be said to be similarly placed in the manner and method of committing the kind and nature of misconduct vis- a-vis said other delinquent Mr.Parmar, for the purpose of imposing penalty. We have noted the charges levelled against both by reproducing hereinabove the Article of Charges verbatim.
7.2 In Lucknow Kshetriya Gramin Bank (supra), the Supreme Court has observed that there has to be complete parity between the two, which is to be considered in respect of the nature of charge, as well as of subsequent conduct. In the present case, the question of subsequent conduct would not arise to be applied. It is the nature of charge, similarity of misconduct in that context and other relevant considerations mentioned in this order which would have to be looked into in order to appreciating the plea of the petitioner that applying the parity with said Mr.Parmar, lesser punishment should have been given to him.
7.3 We have also noticed as above the reasoning supplied by the revisional authority on the basis of which it thought fit to revise and reduce the penalty imposed on said Mr.Parmar on the ground that in the misconduct, any adverse element of lack of integrity was not involved. It was a germane consideration.
8. An additional consideration was put forth on behalf of the petitioner that petitioner is due to Page 19 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 retire within two years.
9. Even as the above aspects emerge in the controversy, the court exercising writ jurisdiction cannot substitute its own view as to whether the penalty for the petitioner is required to be revised and if lesser, than what lessor penalty would be deserves to be imposed on him. However, considering the cumulative facts of the case, we remand the case of the petitioner to the Disciplinary Authority for consideration of plea of the petitioner about the discrimination for the penalty to be considered by the Disciplinary Authority.
9.1 The Disciplinary Authority shall go into the aspect of parity of penalty imposed on the petitioner in comparison with said Mr.Parmar by keeping in view the nature of charges levelled, oral and documentary evidence relied on and adduced in the inquiry and taking into account all other relevant circumstances including by complying the requisite principle as observed by the Supreme Court in Naresh Chandra Bhardwaj (supra) that "parity has to be in the nature of charges made and established".
9.2 The Disciplinary Authority is directed to take decision on the penalty of the petitioner within a period of eight weeks from the date of receipt of copy of the present order.
10. In view of the above, the impugned order order 28th April, 2017 in Original Application No.429 of 2016 as also order dated 21st June, 2017 passed in Page 20 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022 C/SCA/17189/2017 JUDGMENT DATED: 20/01/2022 Review Application No.13 of 2017 against the aforementioned order dated 28th April, 2017 passed by the Central Administrative Tribunal are hereby set aside. The order of the Disciplinary Authority dated 29th October, 2012 also stands set aside to enable him to decide anew on the penalty to be imposed on the petitioner in view of what has been discussed hereinabove.
11. The petition stands allowed in part as above.
(N.V.ANJARIA, J) (SAMIR J. DAVE,J) ANUP Page 21 of 21 Downloaded on : Sun Apr 24 10:16:36 IST 2022