Allahabad High Court
Sukhu Ram vs State Of U.P.& 3 Ors. on 9 March, 2018
Bench: Arvind Kumar Tripathi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 05.01.2018 Delivered on 09.03.2018 Court No. - 32 Case :- WRIT - A No. - 29348 of 2013 Petitioner :- Sukhu Ram Respondent :- State Of U.P.& 3 Ors. Counsel for Petitioner :- Rajesh Nath Tripathi Counsel for Respondent :- C.S.C. Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra, J.)
1. The present writ petition filed by the petitioner Sukhu Ram under Article 226 of the Constitution of India seeks to challenge the order dated 22.2.2013 passed by the respondent No. 1 the Principal Secretary, Department of Home, Government of U.P., Lucknow (Annexure 8 to the writ petition), whereby a sum of Rs. 12,90,623/- has been directed to be recovered from the pension and other post retiral dues of the petitioner. A further prayer has been made for issuing a writ of certiorari to quash the consequential order dated 11.3.2013 passed by the respondent No. 3 the Finance Controller, U.P. Police Headquarters, Allahabad (Annexure 16 to the writ petition) in so far it directs that the entire amount payable to the petitioner towards gratuity and computation be adjusted towards the recovery of the amount directed to be recovered from the petitioner, vide order dated 22.2.2013. The petitioner has further prayed for a writ of mandamus commanding the respondents to calculate the correct post retiral and pensionary benefits of the petitioner by computing the same as per the recommendation of the VIth Pay Commission and consequently pay the amount so calculated without making any deduction. Lastly it has been prayed that the outstanding post retiral dues and pensionary benefits of the petitioner be paid with 18% compound interest.
2. We have heard Mr. Rajesh Nath Tripathi, the learned counsel for the petitioner and Mr. R. P. Dubey, the learned Additional Chief Standing Counsel representing the respondents.
3. The facts of the case so far they are necessary for the points involved may be very shortly stated. The petitioner Sukhu Ram was initially appointed as a Constable in the Provincial Armed Constabulary (P.A.C.) in the year 1962 i.e. on 13.11.1962. Accordingly, the petitioner joined as Constable in the 27th Battalion P.A.C. at Sitapur. Subsequently, the petitioner was promoted to the post of Head Constable in the year 1973. Upon promotion, the petitioner joined at 11th Battalion P.A.C. Sitapur. Thereafter, the petitioner was promoted to the post of Platoon Commander in the year 1978. This was followed by the promotion of the petitioner to the post of Reserve Inspector in the year 1984. The petitioner was thereafter transferred to the Civil Police. Again, the petitioner was transferred to the IXth Battalion, P.A.C. Mirzapur. In recognition of the commendable services rendered by the petitioner, the President of India awarded Police Medal to the petitioner. Thereafter, the petitioner was promoted to the post of Quarter Master and posted in the XXXIX Battalion P.A.C. Mirzapur. Ultimately, the petitioner was promoted to the post of Deputy Superintendent of Police. Upon promotion, the petitioner joined at XXXVIth Battalion P.A.C. Ram Nagar, Varanasi. In the year 1988, the petitioner was transferred to the Civil Police and posted at Jhansi. Thereafter, again the petitioner was posted as Assistant Commandant XXXIXth Battalion P.A.C., Mirzapur. Subsequently, the petitioner was transferred and posted as Deputy Superintendent of Police in Civil Police at District Ballia in the year 2001. Lastly, the petitioner was posted as Zonal Officer, Aligarh. Ultimately, the petitioner superannuated from his services upon attaining the age of superannuation on 30.11.2004 from the post of Deputy Superintendent of Police.
4. While the petitioner was in service an F.I.R. dated 7.5.2004 came to be lodged at Police Station Katra Kotwali, District Mirzapur, resulting in Case Crime No. 363/2004, under sections 409, 420, 467, 468, 471 I.P.C. P.S. Katra Kotwali, District Mirzapur. The aforesaid F.I.R. was lodged by Paramhans Singh, Assistant Commandant XXXIX Battalion P.A.C., Mirzapur against the sole named accused Ram Dhani Chaubey, Head Armourer XXXIX Battalion P.A.C. for misappropriation of 59145 rounds of ammunition.
5. It appears that the named accused Ram Dhani Chaubey was taken into custody. While the named accused Ram Dhani Chaubey was in custody, the Investigating Officer completed the statutory investigation of Case Crime No. 363/2004, under sections 409, 420, 467, 468, 471 I.P.C. P.S. Katra Kotwali, District Mirzapur in terms of Chapter XII Cr. P. C. The Investigating Officer formed an opinion that a charge sheet should be submitted in the aforesaid Case Crime Number. Accordingly, a charge sheet dated 28.8.2004 was submitted in the Court of the Special Judge, (Anti Corruption) Varanasi, whereby the named accused Ram Dhani Chaubey, the petitioner Sukhu Ram and 13 others were charge sheeted for an offence punishable under sections 409, 420, 467, 468, 471, 477A, 414, 120-B I.P.C. and section 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act. Upon receipt of the charge sheet, cognizance was taken by the Court concerned and accordingly, Case No. 171 of 2004 (State Vs. Ram Dhani and others) came into existence in the Court of the Special Judge (Anti Corruption) Varanasi. The same is said to be pending. Subsequent to the aforesaid the named accused Ram Dhani Chaubey was enlarged on bail, vide order dated 03.09.2004 passed by this Court.
6. Subsequent to the lodging of the F.I.R. dated 07.05.2004, the petitioner was placed under suspension in contemplation of enquiry vide order dated 04.06.2004, passed by the Secretary, Department of Home, Government of U.P. Lucknow. A perusal of the suspension order will go to show that the petitioner was suspended on the ground that from the records the petitioner was prima-facie found involved in the misappropriation of ammunition from the armoury of XXXIX Battalion PAC Mirzapur. The said misappropriation was alleged to have occurred at the time when the petitioner was posted as Shivirpal in the XXXIX Battalion PAC Mirzapur.
7. Thereafter, the Secretary, Department of Home, Govt. of U.P., Lucknow issued a charge-sheet dated 29.09.2004 to the petitioner containing as many as ten charges alleged against the petitioner.
8. After having served the petitioner with a charge-sheet, the State Government initiated departmental enquiry against the petitioner, vide order dated 01.10.2004 passed by the Secretary Department of Home, Govt. of U.P. Lucknow. The DIG, PAC, Sector Varanasi was appointed as the Enquiry Officer in terms of Rule 7 (1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, to enquire into the charges alleged against the petitioner.
9. The Enquiry Officer issued a letter dated 15.02.2007 to the petitioner fixing 22.02.2007 as the date of enquiry. It is the case of the petitioner that he appeared before the Enquiry Officer on the aforesaid date but no enquiry proceedings were held. Thereafter, the Enquiry Officer issued the letter dated 12.10.2007 fixing 24.10.2007 as the date of the enquiry. However, the Commandant XXIVth Battalion, PAC, who was also to appear before the Enquiry Officer to get his statement recorded expressed his inability from appearing on the aforesaid date as 24.10.2007 was the date fixed for holding the selections against the vacant Class-IV posts at Dr. Bheem Rao Ambedkar, Police Academy, Moradabad. Accordingly the next date of enquiry was preponed to 23.10.2007 by the Enquiry Officer.
10. Upon the receipt of the charge sheet dated 29.9.2004, the petitioner had sent a letter dated 14.10.2007 addressed to the Enquiry Officer asking him to supply the copies of the documents referred to in the charge sheet and proposed to be relied upon against the petitioner. According to the petitioner, in response to the aforesaid only the copy of the enquiry report dated 18.6.2004 submitted by the Commandant 20th Battalion P.A.C. namely Navin Arora was supplied to him.
11. On 23.10.2007, the petitioner duly appeared before the Enquiry Officer, but according to the petitioner no enquiry proceedings were held on that date.
12. Thereafter, the petitioner submitted his reply dated 01.11.2007 before the Enquiry Officer. Upon the receipt of the reply submitted by the petitioner, the Enquiry Officer submitted the enquiry report dated 06.11.2007 to the State Government just after four days from the date of submission of the reply of the petitioner to the charge-sheet dated 29.09.2004. All the charges alleged against the petitioner were found to be proved by the Enquiry Officer. No copy of the enquiry report was supplied to the petitioner.
13. A perusal of the enquiry report will go to show that in the enquiry proceedings undertaken by the Enquiry Officer, firstly the statement of the departmental witnesses was got recorded and thereafter the reply to the charge sheet was demanded from the petitioner. We shall deal with this aspect of the matter in the later part of the judgement.
14. After the submission of the enquiry report dated 06.11.2007 a show cause notice dated 14.10.2008 (Annexure 13 to the writ petition) was issued to the petitioner asking him to show cause as to why he should not be awarded a major punishment in terms of Rule 3 (1) read with Rule 9 (4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and further why deduction should not be made from the pension of the petitioner in terms of Regulation 351 A of the Civil Service Regulations.
15. In response to the aforesaid show cause notice dated 14.10.2008, the petitioner submitted his reply dated 25.11.2008 (Annexure 14 to the writ petition), praying therein that the show cause notice issued to the petitioner be cancelled and the enquiry proceedings initiated against the petitioner be closed. It was specifically urged by the petitioner that he has superannuated from his services on 30.11.2004 and as such no deductions/recovery can be made from the pension and other post retiral benefits of the petitioner in terms of Regulation 351 A of the Civil Service Regulations. It was further pleaded that in respect of the charges alleged against the petitioner Criminal Case No. 171 of 2004 (State vs. Ram Dhani and others) under sections 409, 420, 467, 468, 471, 477A, 414, 120-B I.P.C. and section 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act, P.S. Katra Kotwali, District Mirzapur is already pending in the Court of the Special Judge (Anti Corruption) Varanasi. As such the departmental proceedings initiated against the petitioner are liable to be deferred in view of the judgement of the Apex Court in the case of Captain M. Paul Anthony vs. Bharat Gold Mines Limited as reported in 1999 (3) SCC, 679. Reliance was also placed upon the judgement of the Apex Court in the case of Kusheshwar Dubey (vs) Bharat Coking Coal Ltd. & Ors as reported in AIR 1988 SC, 2118 and the case of Tej Pal Singh Vs. State of U.P. as reported in 1999 (2) AWC, 1244. The petitioner further stated that one Aden Tiwari has been nominated as a departmental witness in the departmental enquiry initiated against the petitioner, whereas he is a co-accused in the criminal case referred to above. Consequently, it is patently illegal to nominate Aden Tiwari as a departmental witness against the petitioner in the enquiry proceedings initiated against the petitioner.
16. However, in spite of the fact that the departmental enquiry initiated against the petitioner was completed as noted herein above, the petitioner was neither paid his pension nor the post retiral dues, which were payable to the petitioner. As such the petitioner filed C.M.W.P. No. 46818 of 2011 (Sukhu Ram Vs. State of U.P. and others) before this Hon'ble Court, which was disposed of finally vide order dated 17.08.2011. For ready reference, the order dated 17.08.2011 is extracted herein under:-
"The petitioner is challenging the suspension order dated 04.06.2004. It is further contended that since then the inquiry has not been completed and, therefore, the petitioner is not getting the post retiral and pensionary benefits for which the petitioner is entitled.
The petitioner can not be allowed to challenge the suspension order dated 04.06.2004 after the expiry of seven years. However, the respondents are directed to conclude the inquiry expeditiously, preferably within a period of six months from the date of presentation of the certified copy of this order and thereafter pass the appropriate order in accordance to law.
So far as the claim for the post retiral and pensionary benefits is concerned, the petitioner may file a fresh representation raising his grievance before the respondent no.3, Finance Controller, U.P. Police Head Quarter, Allahabad and in case, if any such representation is being filed by the petitioner, the respondent no.3 is directed to dispose of the same expeditiously, preferably within a period of three months thereafter.
With the aforesaid observation, the writ petitions stands disposed of"
17. A perusal of the order dated 17.08.2011 will go to show that the answering respondents were directed to conclude the enquiry pending against the petitioner expeditiously preferably within a period of six months from the date of the presentation of the certified copy of the order dated 17.08.2011 and thereafter pass an appropriate order in accordance with law. Secondly regarding the payment of post retiral and pensionary benefits the petitioner was directed to file a fresh representation before the respondent no. 3 the Finance Controller U.P. Police Headquarters, Allahabad who in turn was to decide the same within a period of three months thereafter.
18. The order dated 17.08.2011 referred to above was not complied with as according to the petitioner neither the enquiry proceedings were concluded nor an order required to be passed upon completion of the enquiry proceedings was passed nor the petitioner was paid his post retiral and pensionary benefits. Accordingly, the petitioner filed Civil Misc. Contempt Application No. 1450 of 2012 on 26.03.2012. Thereafter, vide letter dated 30.4.2012 the matter was placed before the U.P. Public Service Commission for the grant of approval regarding the recovery proposed to be made from the pension and other post retiral benefits of the petitioner. In response to the aforesaid the U.P. Public Service Commission accorded its approval to the proposed action to be taken against the petitioner, vide its order dated 31.8.2012. Furthermore, during the pendency of the aforesaid Contempt Application, the respondent No. 3 the Finance Controller, U.P. Police Headquarters, Allahabad, passed the order dated 30.4.2013, whereby the representation submitted by the petitioner pursuant to the order dated 17.8.2011 was decided. The aforesaid order contains a recital that the matter relating to the payment of pension of the petitioner has not been received by the Police Headquarters, Allahabad. Therefore, the issue regarding the payment of pension of the petitioner shall be considered upon the receipt of the pension papers as well as the service book of the petitioner. In the aforesaid contempt application various affidavits of compliance were filed. Along with one such compliance affidavit, an order dated 22.02.2013 passed by the Principal Secretary, Department of Home, Govt. of U.P., Lucknow was appended, whereby a sum of Rs. 12,90,623/- (which is the value of 32764 rounds of ammunition alleged to have been misappropriated) was directed to be recovered from the pension and other post retiral dues of the petitioner. Subsequently, the consequential order dated 11.3.2013 came to be passed by the respondent No. 3 the Finance Controller, U.P. Police Headquarters, Allahabad, whereby it was directed that the entire amount payable to the petitioner towards gratuity and computation be adjusted towards the recovery of the amount directed to be recovered from the petitioner, vide order dated 22.2.2013. It is these two orders which have been challenged in the present writ petition.
19. It is the case of the writ petitioner as evident from the reply to the show cause notice that the answering respondents have awarded punishment only to the petitioner which amounts to selective punishment even when as many as 15 persons including the petitioner have been charge-sheeted in Case Crime No. 363/2004, under sections 409, 420, 467, 468, 471 I.P.C. P.S. Katra Kotwali, District Mirzapur. As a consequence of the aforesaid a criminal case is pending before the Special Judge (Anti Corruption), Varanasi. The decision in the aforesaid case will ultimately decide whether the petitioner has actually committed the wrong alleged to have been committed by him. The charge alleged against the petitioner is almost similar to the allegations made in the F.I.R. dated 7.5.2004 giving rise to the criminal case arising out of the aforesaid F.I.R. Further, the petitioner in his reply dated 01.11.2007 categorically stated that on account of the pendency of the criminal case referred to above, the departmental proceedings should be stayed in view of the law laid down by the Apex Court in the Case of Captain M. Paul. Anthony Vs. Bharat Gold Mines Limited as reported in 1999 (3) SCC 679. It was further stated by the petitioner that since the petitioner has already superannuated from his services on 30.11.2004 no recovery or deductions could be made from the pension or post retiral benefits of the petitioner by placing reliance upon the provisions contained in Regulation 351A of the Civil Service Regulations. Further more the manner in which the enquiry proceedings were conducted by the Enquiry Officer were also challenged by the petitioner.
20. From the facts as noted above and the materials brought on record, the following are established:
A. The petitioner has superannuated from his service on 30.11.2004 from the post of Deputy Superintendent of Police.
B. While still in service the petitioner was placed under suspension vide order dated 04.06.2004 and the departmental charge-sheet was issued to the petitioner on 28.08.2004.
C. In respect of the charge alleged against the petitioner in the suspension order dated 04.06.2004 an FIR dated 07.05.2004 had already been lodged by Paramhans Singh, Assistant Commandant, XXXIXth Battalion PAC Mirzapur with Police Station Katra Kotwali District Mirzapur resulting in Case Crime No. 363 of 2004 under sections 409, 420, 467, 468, 471,. P.S. Katra Kotwali, District Mirzapur.
D. The Investigating Officer upon completion of the statutory investigation as contemplated under Chapter XII Cr.P.C. submitted the charge-sheet dated 28.04.2004 against the named accused Ram Dhani Chaubey, the petitioner and 13 other persons for an offence punishable under Sections 406, 409, 420, 467, 468, 471 477A, 414, 120B I.P.C and Section 13 (1) C. D. read with Section 13 (2) Prevention of Corruption Act.
E. Upon the submission of the charge sheet dated 28.4.2004 cognizance was taken by the Court concerned. Consequently, Case No. 171 of 2004 (State Vs. Ram Dhani and others) under sections 406, 409, 420, 467, 468, 471 477A, 414, 120B I.P.C and Section 13 (1) (C) (D) read with Section 13 (2) Prevention of Corruption Act is pending trial in the Court of the Special Judge (Anti Corruption) Varanasi.
F. The petitioner was in service from 1962 to 2004. During the course of employment the petitioner worked in the XXXIXth Battalion PAC in the following periods. Firstly as Quarter Master and secondly as Assistant Commandant (Shivirpal) from 8.10.1993 to 01.09.1997.
G. The Secretary Department of Home, Govt. of U.P., Lucknow issued a charge-sheet dated 29.09.2004 to the petitioner. The petitioner submitted his reply dated 01.11.2007. Just after five days, the Enquiry Officer submitted the enquiry report dated 06.11.2007.
H. From the perusal of the enquiry report, it is not clear as to how the Enquiry Officer proceeded to conduct the enquiry that is a fact finding enquiry in five days and also prepared the enquiry report.
21. The answering respondents have filed a counter affidavit wherein the same averments have been repeated again and again. The specific pleas raised by the petitioner in paragraphs 14 and 16 of the writ petition relating to the manner of enquiry, the non supply of the enquiry report and the selective punishment awarded by the answering respondents with which we shall deal later have not been specifically denied in the counter affidavit.
22. Thus on the challenge raised by the learned counsel for the petitioner to the impugned orders which primarily revolves around the procedure adopted and the jurisdiction of the respondents to pass the impugned orders as well as the pleadings raised by the parties coupled with the materials brought on the record, the following questions arise for determination in the present writ petition:
1. Whether the provisions of Regulation 351A of the Civil Service Regulations are applicable in the facts and circumstances of the case.
2. Whether the failure on the part of the answering respondents in not giving the copy of the enquiry report prior to the issuance of the show cause notice dated 14.10.2008 is manifestly illegal in view of the law laid down by the Apex Court in the Case of Union of India and others Vs. Mohd. Ramzan Khan, AIR 1991 SC, 471.
3. Whether the impugned order dated 22.2.2013 passed by the respondent No. 1 is wholly illegal, unjust and arbitrary as the respondent No. 1 has completely omitted to consider and decide the various pleas raised by the petitioner in his reply dated 25.11.2008 to the show cause notice dated 14.10.2008.
4. Whether the enquiry proceedings conducted against the petitioner are contrary to the mandatory provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
5. Whether the departmental proceedings initiated against the petitioner were required to be deferred on account of the pendency of the Criminal case wherein the same issue was involved in view of the law laid down by the Apex Court in the Case Captain M. Paul Anthony Vs. Bharat Gold Mines Limited as reported in 1999 (3) SCC 679.
6. Whether the case of the petitioner falls within the category of selective punishment inasmuch as the petitioner alone has been punished whereas persons similarly situate like the petitioner have been awarded full pension and also paid other dues, whereas the petitioner alone has been selected for awarding a major punishment.
7. Whether in view of the finding recorded by the respondent No. 1 in the impugned order dated 22.2.2013 that the petitioner is an accomplice in misappropriation of 32764 rounds of ammunition, the value of ammunition alleged to have been misappropriated that is Rs. 12,90,623/- was required to be apportioned amongst the persons who along with the petitioner are said to have misappropriated the aforesaid.
23. We shall first proceed to consider the question Nos. 1, 2, 3, 4 and 7 framed by us as our answer to the aforesaid questions will decide the necessity of deciding the remaining questions framed by us.
24. According to the learned counsel for the petitioner, it has been submitted that no recovery could be made from the pension and other post retiral benefits payable to the petitioner in terms of Regulation 351A of the Civil Service Regulations. To answer the said submission, it will be useful to reproduce the provisions of Regulation 351A of the Civil Service Regulations for ready reference. The same are reproduced herein below.
"351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his Service, including service rendered on re-employment after retirement.
Provided that-
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment-
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
[Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission].
Explanation?For the purposes of this article-
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date;
25. According to the learned counsel for the petitioner, the petitioner has superannuated from his service on 30.11.2004, whereas the impugned order has been passed on 22.02.2013 directing to recover a sum of Rs.12,90,623/- from the pension and other post retiral dues of the petitioner. This is followed by the consequential order dated 11.03.2013 directing the adjustment of the entire amount of gratuity and commutation payable to the petitioner towards the adjustment of the amount sought to be recovered. Learned counsel for the petitioner submits that since the petitioner had already superannuated from his services no recovery from his pension or other post retiral benefits could be directed without obtaining the prior approval of the Governor as required by Regulation 351A of the Civil Service Regulations itself. As no sanction of the Governor has been obtained prior to the passing of the impugned order referred to above the same is liable to be quashed by this Court.
26. The issue raised before us is no longer res-integra. The matter stands settled by the judgement of the Apex Court in the case of State of U.P. and Others Vs. R.C. Misra, as reported in (2007) 9 SCC 698. Considering the provisions of Regulation 351-A and 470 of the Civil Service Regulation, the Apex Court has observed as follows in paragraphs 8,9 and 10:-
"8. The substantive part of Regulation 351A confers the power upon the Government of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.
9. There is a proviso appended to the Regulation which circumscribes the power conferred by the substantive part of the Regulation. Clause (a) of the proviso with which we are concerned here uses the expression if not instituted while the officer was on duty either before retirement or during re-employment. Clause (a) of the proviso will, therefore, get attracted only when the departmental proceedings are instituted against the officer after his retirement or when he is not in re- employment. If the departmental proceedings are instituted before an officer has attained the age of superannuation and before his retirement, proviso (a) can have no application. In order to remove any doubt regarding the date of institution of enquiry or the judicial proceedings an Explanation has been appended after the proviso. According to Explanation (a), departmental proceedings shall be deemed to have been instituted (i) when the charges framed against the officer are issued to him, or (ii) if the officer has been placed under suspension from an earlier date, on such date. By incorporating the explanation, the rule framing authority has notionally fixed two dates as the date on which the departmental proceedings shall be deemed to have been instituted against an officer.
10. A combined reading of the proviso and the explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitations imposed by sub- clause (i) or sub-clause (ii) of clause (a) of proviso to Regulation 351A will not apply. It is only where an officer is not placed under suspension or charges are not issued to him while he is in service and departmental proceedings are instituted against him under Regulation 351A after he has attained the age of superannuation and has retired from service and is not under re-employment that the limitations imposed by sub-clauses (i) and (ii) of proviso (a) shall come into play."
Again in Paragraph 13, it was held as follows:-
"13. The provisions of Articles 351A and 470 of Civil Service Regulations have recently been examined by this Court in State of U.P. & Ors. v. Harihar Bhole Nath IT, 2006 (9) SC 567, and it is held as under in paras 14 and 15 of the report:-
14. The proceedings for recovery of the amount from a Government servant can be passed in the event he is held to be guilty of grave misconduct or caused pecuniary loss to Government by his misconduct or negligence during his service. Some procedural safeguards, however, have been laid down in terms of proviso appended thereto, including the requirement to obtain an order of sanction of the Governor. Such order of sanction, however, would not be necessary if the departmental proceedings have been initiated while the delinquent was on duty. Proviso appended to Regulation 351-A merely controls the main proceedings. The same would apply in the exigencies of the situation envisaged therein, namely, when the proceedings were initiated after retirement and not prior thereto.
15. Explanation appended to Regulation 351-A provides for a legal fiction in terms whereof departmental proceedings would be deemed to have been instituted when the charges are framed against the pensioner or issued or the delinquent has been placed under suspension from an earlier date, on such date."
27. The observations made by the Apex Court as noted herein above, are also attracted in the present case. Admittedly in the present case, the petitioner was placed under suspension, vide order dated 4.6.2004 and subsequently, the departmental charge sheet dated 29.9.2004 was served upon the petitioner. The petitioner superannuated from his services on 30.11.2004. Therefore, no sanction of the Governor in terms of Regulation 351 A of the Civil Service Regulation was required to be taken as the departmental proceedings had been initiated against the petitioner, while he was still in service. As such the submission urged before us that no recovery could be made from the pension or other post retiral benefits admissible to the petitioner by placing reliance upon Regulation 351 A of the Civil Service Regulations is without any substance.
28. This takes us to the second question relating to the challenge to the impugned order on the ground that the enquiry report was not supplied to the petitioner prior to the issuance to the show cause notice dated 14.10.2008. The petitioner has categorically stated in paragraph 14 of the writ petition that the copy of the enquiry report was never supplied to the petitioner. Paragraph 14 of the writ petition has been replied in paragraph 7 of the counter affidavit filed by the answering respondents. For ready reference paragraph 14 of the writ petition as well as paragraph 7 of the counter affidavit are quoted herein below:-
"14. That the petitioner was intimated by the enquiry officer for date of enquiry dated 23.10.2007 at 10.00 A.M. by the letter dated 12.10.2007 and the petitioner was appeared before the enquiry but the same was not proceeded on that day and thereafter no intimation was given for any further appearance, nor persons has been tried in the said enquiry by any two dates 22.02.2007 or 23.10.2007 fixed by the Enquiry Officer and ex-parte enquiry report was submitted on 06.11.2007 to the State Govt. without providing its copy to the petitioner and a letter/notice dated 14.10.2008 issued to the petitioner and a letter/notice dated 14.10.2008 issued to the petitioner for reply against not awarding the major punishment. The petitioner has submitted his reply by letter dated 25.11.2008 stating therein that he has not committed any misconduct and no such charge is levelled against the petitioner and on the same charges others above noted persons are also charge sheeted, but they are not awarded such punishment and the petitioner is a retired person and after passing of 11 years service this notice is issued to him without paying is post retiral and pensionary benefits and the copy of enquiry report dated 06.11.2007 notice dated 14.10.2008 and reply dated 25.11.2008 are being filed herewith and marked as Annexure-12, 13 and 14 respectively to this writ petition.
"7. That in reply to the contents of paragraph Nos. 11 to 20 of the writ petition, it is stated that when the petitioner was posted as Shivirpal in 39th Battalion, P.A.C., Mirzapur, he was charged for misembezzlement of cortege and therefore on the basis of the report an F.I.R. was lodged as Case Crime No. 363/2004 under Sections 409/420/467/468/471/477/120B I.P.C. read with 13 (2) Anti Corruption Act and 7/25 Arms Act. In the aforesaid case, the charge sheet has been filed by the Investigating Officer, which is still pending before the Special Judge, Anti Corruption, Varanasi.
It is further submitted that departmental proceedings were also initiated against the petitioner. The Enquiry Officer has submitted a report on 06.11.2007. Since the petitioner was retired after attaining the age of superannuation, therefore, a notice dated 21.10.2008 has been issued under Central Civil Services Regulation 351A. In it's response the petitioner has submitted reply and considering the reply of the petitioner, an order has been passed by the State Government under Rule 351 A deducting the amount of Rs.12,90,623 from retiral dues. In the present matter, the power provided under Central Civil Service Regulation 351A, the State Government passed order and deduct the amount, if, the employee concerned found guilty. Herein the present matter, the impugned order has been passed by the competent authority under Central Civil Service Regulation 351A."
29. On a conjoint reading of the aforesaid paragraphs it is explicitly clear that the factum regarding the non-supply of the enquiry report to the petitioner has not been denied in the counter affidavit. The failure on the part of the answering respondents in not supplying the copy of the enquiry report even prior to the issuance of the show cause notice dated 14.10.2008 has caused serious prejudice to the petitioner inasmuch as the petitioner has been prevented from challenging the procedure of enquiry as well as the findings recorded by the Enquiry Officer in the enquiry report dated 06.11.2007. What will be the effect in case action is taken against a delinquent employee without supplying the copy of the enquiry report had been answered by the Apex Court in the Case of Union of India and others Vs. Mohd. Ramzan Khan as reported in AIR 1991 Supreme Court 471. Paragraph 18 of the aforesaid judgement deals with the controversy in hand and the same is reproduced herein under:-
"18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter"
30. Thus in view of the aforesaid, the impugned order dated 22.02.2013 passed by the respondent No. 1 and the consequential order dated 11.03.2013 passed by the respondent No. 3 are therefore liable to be quashed.
(30A) This takes us to the third question involved in the present writ petition which relates to the impugned order dated 22.2.2013 being illegal, unjust and arbitrary. There is no dispute that the respondent No. 1 issued the show cause notice dated 14.10.2008 and in response to the same, the petitioner submitted his reply dated 25.11.2008. The same is on the record as Annexure 14 to the writ petition. A perusal of the reply to the show cause notice will go to show that the petitioner in his reply has categorically pleaded that the show cause notice issued to the petitioner be cancelled and the enquiry proceedings initiated against the petitioner be closed. It was specifically urged by the petitioner that he has superannuated from his services on 30.11.2004 and as such no deductions/recovery can be made from the pension and other post retiral benefits of the petitioner in terms of Regulation 351 A of the Civil Service Regulations. It was further pleaded that in respect of the charges alleged against the petitioner Criminal Case No. 171 of 2004 (State vs. Ram Dhani and others) under sections 409, 420, 467, 468, 471, 477A, 414, 120-B I.P.C. and section 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act, P.S. Katra Kotwali, District Mirzapur is already pending in the Court of the Special Judge (Anti Corruption) Varanasi. As such the departmental proceedings initiated against the petitioner are liable to be deferred in view of the judgement of the Apex Court in the case of Captain M. Paul Anthony vs. Bharat Gold Mines Limited as reported in 1999 (3) SCC, 679. Reliance was also placed upon the judgement of the Apex Court in the case of Kusheshwar Dubey vs Bharat Coking Coal Ltd. & Ors as reported in AIR 1988 SC, 2118 and the case of Tej Pal Singh Vs. State of U.P. as reported in 1999 (2) AWC, 1244. The petitioner further stated that one Aden Tiwari has been nominated as a departmental witness in the departmental enquiry initiated against the petitioner, whereas he is a co-accused in the criminal case referred to above. Consequently, it is patently illegal to nominate Aden Tiwari as a departmental witness against the petitioner in the enquiry proceedings initiated against the petitioner.
31. From the perusal of the impugned order dated 22.2.2013 we find that the respondent No. 1 has completely omitted to consider and decide the various pleas raised by the petitioner in his reply to the show cause notice as noted herein above. Reference in this regard be made to the judgement of the Apex Court in the case of State of U.P. and others Vs. Maharaja Dharmander Prasad Singh etc., as reported in AIR 1989 SC, 997. Paragraph 24 and 28 of the aforesaid judgement categorically deal with the consequences and effect arising out of the failure on the part of a Government Authority in deciding a matter otherwise. Paragraphs 24 and 28 of the aforesaid judgement are accordingly reproduced herein below:-
"24. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the Authority's discretion that is exercised, but someone else's. If an authority "hands over its discretion to another body it acts ultra vires". Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smith sums up the position thus:
"The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive."
28. It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion. It is true that amongst the many grounds' put forward in the show cause notice dated 19.1.1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such.
However, Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making-process. In Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail- sham said:
"The purpose "of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."
Lord Brightman observed:
" ..... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made ..... "
And held that it would be an error to think:
" ..... that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself."
When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.
It would, however, be appropriate for the statutory authority, if it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or misrepresentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must be specific so as to afford the Lessees an effective opportunity of showing cause.
............."
32. Accordingly, the impugned order dated 22.2.2013 passed by the respondent No. 1 cannot be sustained for the reason that the respondent No. 1 has failed to consider and decide the issues raised by the petitioner relating to the continuance of the enquiry proceedings, the propriety of the enquiry proceedings as well as the selective punishment proposed to be awarded to the petitioner, even when 14 other persons and the petitioner stood charge sheeted for the same wrong and were facing criminal trial. Admittedly the consideration of the issues raised by the petitioner in his reply to the show cause notice would have certainly restrained the respondent No. 1 from passing the impugned order in the same fashion as it exists. Therefore, we are of the considered view that the impugned order dated 22.2.2013 is not liable to be sustained.
33. Coming to the fourth question as to whether the departmental proceedings conducted against the petitioner are contrary to the mandatory provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, we find that the departmental witnesses were examined before and thereafter the reply to the charge sheet was demanded from the petitioner. We have already referred to paragraph 14 of the writ petition, wherein the petitioner has categorically pleaded that the entire enquiry was conducted ex-parte. To ascertain the veracity of the aforesaid allegation made by the petitioner we have ourselves examined the enquiry report. As many as 7 departmental witnesses were examined by the Enquiry Officer. The day, date and time on which the statements of the departmental witnesses were recorded is conspicuous by its absence in the enquiry report. The procedure followed by the Enquiry Officer in getting the statements of the departmental witnesses recorded before hand and thereafter calling for the reply from the petitioner to the charge sheet is alien to the procedure provided for conducting the departmental enquiry under the U.P. Government Servant (Discipline and Appeal) Rules, 1999. For ready reference, Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, which provides for the procedure to be followed for imposing major penalties is quoted herein below:-
"7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :
Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :
Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."
34. Thus, it is established that the procedure adopted by the Enquiry Officer in conducting the departmental enquiry against the petitioner is contrary to the procedure provided for in the 1999 Rules. It is by now well established that where the procedure to do a particular act has been provided for, the same can be done in the manner provided for or not at all. In this regard, reference be made to paragraph 11 of the judgement of the Privy Council in Nazir Ahmad Vs. King Emperor, AIR 1936 PC 253 (2).
11. To this contention it was answered that there was no ground for reading the word " may " in Section 164 as meaning " must" on the principle described in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. There is no need to call in aid this rule Of construction-well recognised in principle but much debated as to its application. It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts-Taylor v. Taylor (1875) 1 Ch. D. 426, 431 and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to Section 164.
35. In view of the aforesaid discussions, the entire enquiry proceedings conducted by the Enquiry Officer are held to be illegal.
36. From the perusal of the impugned order dated 22.2.2013, we find that the respondent No. 1 has recorded a categorical finding that the petitioner is an accomplice along with others in misappropriation of 32764 rounds of ammunition valued at Rs. 12,90,623/-. However, in spite of having recorded this finding, the entire money value of the misappropriated ammunition has been directed to be recovered from the petitioner by making adjustment from the pension and commutation of the post retiral dues of the petitioner. The conclusion so drawn by the respondent No. 1 to direct the recovery of the money value of the misappropriated ammunition from the petitioner alone does not commensurate with the finding recorded. The conclusion drawn is not analogous to the reasoning, but is antecedent to the reasoning so recorded. Accordingly, we are of the view that the entire money value of the misappropriated ammunition sought to be recovered from the petitioner is manifestly illegal.
37. We could have allowed the writ petition on the aforesaid findings recorded by us and remitted the matter to the respondent No.1 for decision afresh. However, we must observe that the petitioner in his reply to the charge-sheet as well as his reply dated 25.11.2008 to the show cause notice dated 14.10.2008 has categorically pleaded that the departmental proceedings initiated against the petitioner are in respect of the same charges which are engaging the attention of the criminal court in Case No. 171 of 2004 (State Vs. Ram Dhani and others) under Sections 409, 420, 467, 468, 471, 477A, 414, 120-B I.P.C. and section 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act pending in the Court of the Special Judge (Anti Corruption) Varanasi. We have ourselves perused the FIR dated 07.05.2004 and also the charge-sheet dated 24.09.2004 issued to the petitioner and find that the charges alleged against the petitioner are substantially similar to the allegations made in the FIR. However, the respondent no.1 while passing the impugned order dated 22.02.2013 has not recorded any finding regarding the propriety of continuing the departmental proceedings along with the pending criminal case. That apart the impugned order dated 22.02.2013 itself records a finding that the petitioner is found to be involved in the misappropriation of 32764 Rounds of Ammunition along with others. However in spite of recording this finding the apportionment of the value of the misappropriated rounds of ammunition has not been made. We could not find any such reason on the record to sustain the decision so taken. Apart from the above with regard to the procedure in which the enquiry was held the petitioner had categorically objected in his reply that one Aden Tiwari who has been nominated as a departmental witness in the enquiry proceedings is a co-accused along with the petitioner in the criminal case referred to above. Moreover, we further find that the answering respondents have chosen the petitioner alone for awarding punishment whereas the only punishment for stoppage of 2 and 3 increments or their reversion on the minimum scale for a period of three years has been awarded in the case of Aden Tiwari and Babu Lal by the order dated 09.09.2006 passed by the DIG PAC sector Varanasi and rest of the other persons have been reinstated in their service and getting their full salary till today without imposing any punishments, though they were also placed under suspension in the same incidents by the orders dated 06.11.2004, 13.07.2005, 03.06.2005, 28.11.2005 and 14.09.2005. The respondents have not been making any recovery from said persons. Aden Tiwari, Babu Lal, Head constable Armourer Ram Kripal Armourer Vijay Chaube, Hare Ram Singh, Surendra Nath Singh and Trilok Narayan Singh, whose reinstatement was allowed by orders dated 09.09.2006, 06.11.2004, 13.07.2005, 03.06.2005, 28.11.2005 and 14.09.2005 in the same incident as well as all, are implicated in the aforesaid case crime no. 363 of 2004 , Police Station Katra, Kotwali Mirzapur as well as case crime no. 171 of 2004 P.S. Chunar, Mirzapur and their trial is going on in the same court for the same charges.
38. In the case at hand, the question is as to whether this is a case in pari causa and, therefore, can the pari materia doctrine be pressed into service. The Court has come across a couple of decisions on this score in matters of disciplinary proceedings where parity in matters of punishment with co-delinquents was considered. The Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh & Others 2013 (3) SCC 73 paragraph nos. 9 to 12 as ruled 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 few judgments of this Court. The earliest one is Director General of Police and Ors. v. G. Dasayan MANU/SC/0059/1998 : (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 Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
(11) In Shaileshkumar Harshadbhai Shah case (supra), the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
(12) We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to 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. Appellant is, therefore, to be re-instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."
(38A) The issue came up before the Apex Court in another case Lucknow Kshetriya Gramin Bank & Another Vs. Rajendra Singh 2013 (12) SCC 372. Paragraph nos. 9 to 20 of the aforesaid judgement which are relevant for the issue in hand are extracted hereinunder:-
"(9) Mr. Mehta referred to the judgment of this Court in Obettee (P) Ltd. v. Mohd. Shafiq Khan MANU/SC/0661/2005 : (2005) 8 SCC 46 wherein identical features, as prevailing in this case, were held as distinctive features and different and higher punishment was held to be justified in the following manner:
"8. On consideration of the rival stands one thing becomes clear that Chunnu and Vakil stood on a different footing so far as the Respondent workman is concerned. He had, unlike the other two, continued to justify his action. That was clearly a distinctive feature which the High Court unfortunately failed to properly appreciate. The employer accepted to choose the unqualified apology given and regrets expressed by Chunnu and Vakil. It cannot be said that the employer had discriminated so far as the Respondent workman is concerned because as noted above he had tried to justify his action for which departmental proceedings were initiated. It is not that Chunnu and Vakil were totally exonerated. On the contrary, a letter of warning dated 11.4.1984 was issued to them.
9. In Union of India v. Parma Nanda the Administrative Tribunal had modified the punishment on the ground that two other persons were let off with minor punishment. This Court held that when all the persons did not stand on the same footing, the same yardstick cannot be applied. Similar is the position in the present case. Therefore, the High Court's order is clearly unsustainable and is set aside."
(10) Per contra Mr. Vishwanathan, learned Sr. Counsel and Mr. Rajeev Singh, the learned counsel appearing for the respondent in these appeals argued that the circumstances of the two sets of cases were almost identical and therefore in the facts of this case, the directions of the High Court were perfectly in order. They pointed out that the other three employees had also denied the charges in the first instance, in their replies to the charge sheets served upon them. For some curious reasons the Appellant-Bank did not hold any common enquiry even when the charges leveled in all six charge-sheets were identical. Instead the Bank first picked up only the Respondents herein, and held the enquiry against them. It is only after in the enquiry the charges were established against the Respondents and the punishment of dismissal was imposed on them, that the enquiry against the other three employees was commenced. That at this stage, knowing the fate of their cases, those three employees accepted the charges and tendered unconditional apologies.
(11) The learned Counsel argued that the Bank had given definite advantage to those three employees by deferring their enquiries enabling them to make up their mind after knowing the result in the case of the Respondents. They, thus, argued that it cannot be said that those three employees had accepted the charges at the outset. Their submission was that in such circumstances imposition of different and higher-penalty on the Respondents herein would clearly amount to invidious discrimination, as held by this Court in Rajendra Yadav v. State of M.P. In that case two employees were served with charge sheets who were involved in the same incident. A person who had more serious role was inflicted a comparatively lighter punishment than the Appellant in the said case. This was held to be violative of the doctrine of Equality Principles enshrined under Article 14 of the Constitution of India. The discussion which ensued, while taking this view, reads as under:
"8. We have gone through the inquiry report placed before us in respect of the Appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the Appellant was proved in the inquiry. The charge leveled against Arjun Pathak was more serious than the one charged against the Appellant. Both the Appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, It was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the Appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.
12. We are of the view that the principle laid down in the above mentioned judgments also would 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 to 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 re-instated from the date on which Arjun Pathak was re-instated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."
The learned Counsel for the Respondents made a fervent plea that the Respondents herein were also entitled to the same treatment.
(12) The question that falls for determination is as to whether the High Court is justified in giving such a mandamus or it should have referred the matter back to the Bank with the direction to take a fresh decision in the matter?
(13) Indubitably, the well ingrained principle of law is that it is the Disciplinary Authority, or the Appellate Authority in appeal, which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the Disciplinary Authority. In Apparel Export Promotion Council v. A.K. Chopra reported in 1999 (1) SCC 759 this principle was explained in the following manner:
"22 ..... The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the Respondent for his proven misconduct. .....The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone."
(14) Yet again, in State of Meghalaya v. Mecken Singh N. Marak reported in 2008 (7) SCC 580, this Court reiterated the law by stating:
"14. In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment-imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.
17. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the Respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted."
(15) As is clear from the above that the Judicial Review of the quantum of punishment is available with a very limited scope. It is only when the-penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/Appellate Authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment.
(16) In the present case, however, we find that the High Court has, on the one hand directed the appellate authority to take a decision and in the same breath, snatched the discretion by directing the Appellate Authority to pass a particular order of punishment. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above. The peculiar feature, however, is that the High Court has done so proceeding on the presumption that these three Respondents are equally and identical placed as the other three employees who had admitted the charges, though this parity is not spelled out in the impugned order. Whether this approach of the High Court is tenable, looking into the facts of this case, is the moot question.
(17) If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav's case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology.
(18) This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases.
(19) The principles discussed above can be summed up and summarized as follows:
19.1. 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;
19.2. 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;
19.3. 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;
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned 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 the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.
(20) It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was a co-delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries."
39. A perusal of the aforesaid judgment reveals that judicial review on this score is permissible where a co-delinquent has been either lay of or awarded a lesser punishment and on the same set of charges and equally placed delinquent has been punished. The Court has held that this parity should be borne out from the record, the nature of the charges and also the conduct of the delinquent during enquiry. What we find in the present case is that none of these aspects have been taken into account by the disciplinary authority and on the facts on record as discussed hereinabove. It is the petitioner alone who was selectively awarded the harsh punishment of the deductions referred to hereinabove whereas the other delinquents were either punished with stoppage of two or three increments or reversion on the minimum scale for a period of three years rest of them have been reinstated in service. There is no discussion by the authority concerned namely, the respondent no. 1 as to why the petitioner has been chosen to be awarded penalty separate and distinct from the others who were more or less equally responsible.
40. In view of the discussions made herein above, the writ petition succeeds and is allowed. The impugned orders dated 22.02.2013 passed by the respondent no.1 the Principal Secretary Department of Home, Govt. of U.P., Lucknow ( Annexure 8 to the writ petition) and the consequential order dated 11.03.2013 passed by the respondent no. 3, the Finance Controller, U.P. Police Head Quarters, Allahabad (Annexure 16 to the writ petition) are quashed. The answering respondents are directed to pay the entire amount of pension and other post retiral dues to the petitioner after fresh calculation within a period of two months from the date of the presentation of a certified copy of this order before the respondent No. 1. We however leave it open to the respondent no. 1 to proceed in the matter after the outcome of the criminal trial and only after supplying a copy of the enquiry report to the petitioner.
41. With the aforesaid directions, the writ petition is allowed. No order as to costs.
Order Date :- 9.3.2018 HSM