Delhi High Court
Union Of India (Uoi) And Ors. vs Ram Dass Rakesh on 24 September, 2007
Author: A.K. Sikri
Bench: A.K. Sikri, Vipin Sanghi
JUDGMENT A.K. Sikri, J.
1. The respondent herein was issued charge sheet in August 1998 under Rule 14 of the CCS (CCA) Rules, 1965. The genesis of charge, on the basis of which three articles of charge were framed, was that while working as Postal Assistant, Amanpur Sub-Post Office during the month of December 1997 and January 1998, he performed the work of money order payments. Later it was found that money vouchers, in respect of which payments were made, were not genuine and payment of those money orders were not made to the payees and in this manner a sum of Rs. 12,000/- in respect of 8 money orders, particulars whereof were mentioned in the charge sheet, was misappropriated by him. Departmental inquiries were held pursuant to which charges were proved. Acting thereupon, the disciplinary authority had passed orders dated 31.7.2001 imposing the punishment of dismissal from service against the respondent. Appeal preferred by the respondent also failed and feeling aggrieved against these orders, the respondent preferred OA No. 824/2004 before the Central Administrative Tribunal (Principal Bench), New Delhi. The learned Tribunal held that the proceedings conducted against the respondent were legal and valid. However, the Tribunal interfered with the punishment holding that the same was discriminatory. Reasoning given by the Tribunal is that similar charge sheets containing these very allegations were served upon two other employees, namely, Shri Biri Singh and Shri Prem Singh, but in those cases the punishment imposed was lesser, i.e. reduction of pay by 5 stages and, therefore, the petitioner was discriminated by giving a harsher punishment. The relevant discussion in this behalf is contained in the following paragraphs of the order of the Tribunal:
17. A bare perusal of two above charges would disclose that imputation against Shri Prem Singh were no less graver than the present applicant but Disciplinary authority thought it adequate to impose the penalty of recovery of Rs. 22,500/-, i.e. the value of 15 money orders. While Sh. Biri Singh Sub Postmaster in a separate disciplinary proceeding has been imposed penalty of recovery of Rs. 90,000/- and reduction of pay by 5 stages to the minimum of the pay scale, i.e. vide order dated 25.12.2002. The applicant has been dismissed from service by the impugned order. According to the counsel for applicant the only distinguishing feature is that the penalty orders have been passed in the case of the applicant, on the one hand, and in the case of other delinquent officials including Sh. Biri Singh and Sh. Prem Singh, on the other hand, by two different disciplinary authorities.
18. In case the penalty order of the applicant is examined in isolation it may perhaps not be permissible for the Tribunal to interfere with the order unless it was shockingly disproportionate to the proven charges, as held by the Hon'ble Supreme Court in Balbir Chand v. Food Corporation of India Ltd. and Ors. and Secretary to Government Home Deptt. and Ors. v. Srivaikundathan which have been relied upon by the counsel for the respondent.
19. In the case of Balbir Chand (supra) and Secretary to Govt. Home Deptt. and another (supra) the penalty imposed in disciplinary proceeding was not held to be disproportionate to the charges and in the peculiar facts and circumstances the Hon'ble Supreme Court has declined to interfere with the penalty order. In the case of Balbir Chand (supra) all the delinquent officials were proceeded against, were before the Hon'ble Supreme Court and all the facts and circumstances and the charges and misconduct proved against them were also on the record and examined by the Court to deal with the cases of delinquent individually (sic).
20. In the instant case along with the rejoinder, applicant has filed a copy of the chargesheet in which disciplinary proceeding were held against Sh. Biri Singh Sub Postmaster which showed that the payment of certain money orders made by Sh. Biri Singh were also fictitious and the amount of M.O. Was misappropriated by him. Therefore, the nature of the charge and the misconduct against the applicant and Sh. Biri Singh Sub Postmaster does not seems to be different but they have been meted out different punishment. The penalty imposed on Sh. Biri Singh is for recovery of Rs. 90,000/- and reduction of his salary by 5 stages without cumulative effect whereas the applicant has been dismissed from service. Similarly, Sh. Prem Singh is given milder punishment without noting mitigating circumstances. As such the penalty imposed on the applicant seems to be shockingly discriminatory, which to our view could not have been imposed without giving proper reasons for it and distinguishing the case of Sh. Biri Singh and Sh. Prem Singh.
2. The Tribunal, accordingly, quashed the penalty imposed and remitted the case back to the disciplinary authority to pass fresh order of penalty after taking into consideration the penalty imposed on Shri Biri Singh and Shri Prem Singh. Challenging this judgment, the present writ petition is filed.
3. Case of the petitioner is that in the matter of disciplinary proceedings such a comparison cannot be made and the Tribunal could not have held the punishment imposed upon the respondent to be discriminatory only on the ground that the other two persons were given milder punishment. He further submitted that separate disciplinary proceedings were held against the three employees and the disciplinary authorities were also different. He also pointed out that the three were not of the same rank and the role of the three officials was of different nature, though it related to the same transaction.
4. We find force in this submission of leraned Counsel for the petitioner. At the outset, we may state that identical issue came up for consideration before the Full Bench of this Court in the case of Ravinder Kumar v. Union of India and Ors. 2002 VIII AD (Delhi) 252 and the Full Bench opined that meting out different punishments to different officials, who were served charge sheet on the basis of same allegations, would not amount to discrimination or violate equality clause. The Court took into consideration various judgments of the Supreme Court in arriving at the aforesaid conclusion, which is clear from the following extracts from the said judgment:
6.10 A writ of mandamus can be sought for by a person when there exists a legal right in himself and a corresponding legal obligation on the respondents.
Equality clauses enshrined in Articles 14 and 16 of the Constitution of India would apply only when the petitioner has been deprived of a legal right. A delinquent officer in no circumstance can base his claim invoking equality clause where its foundation is based on illegality.
He cannot be permitted to urge that although he is guilty of commission of a misconduct he should not be punished only because others have been let off either by mistake or otherwise.
No case, thus, has been made out to interfere with the impugned judgment of the Tribunal.
So far as question of quantum of punishment is concerned recently in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386, it was held:
69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of arbitrariness of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India this Court referred to proportionality in the quantum of punishment but the Court observed that the punishment was shockingly disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham .
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.
The aforesaid decision has been followed in Commandant, IV Battalion, APSP Mamnoor Lines, Warangal and Anr. v. Jabbar Hussain and Anr. .
6.11 The Court in exercise of its power of judicial review has a limited role to play in this behalf. In A. Ratnam and Ors. v. Government of Andhra Pradesh, Education Department, Hyderabad , (of which one of us was a Member), it has been held thus:
51. It is also equally settled that a Court of judicial review would not ordinarily interfere with the finding of facts however grave they may be. This Court is only concerned with grave error of law, which is apparent on the face of record. The error of law for instance may arise when a Tribunal wrongfully rejects admissible evidence or considers inadmissible evidence and records a finding. However, as observed by Constitution Bench of the Supreme Court in Syed Yakoob v. Radhakrishnan, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record and the same must depend on the facts and circumstances of each case and upon the nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. The principles of judicial review of decisions of the Tribunals noticed hereinabove were accepted by the Supreme Court in Syed Yahoob's case (30 supra). It is opposite to except the following passage which is educative:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction or is in excess of it or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if, it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding.
52. The decision in Syed Yakoob's case was also followed in Jagdish Prasad v. Angoori Devi . In view of the binding authorities, the law is well settled that -
(i) The High Court is not an appellate authority over the decision of the Administrative Tribunals;
(ii) While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;
(iii) The petition for a judicial review would lie only on grounds of grave errors of law apparent on the face of the record and not on the ground of error of fact, however grave it may appear;
(iv) When the Tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that the Tribunal committed an error of fact, however, grave it may appear, unless it is shown that such a finding of the Tribunal is based on no evidence and the error of fact itself can be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence was relied on;
(v) The orders passed by the Tribunal by exercising discretion which judicially vests in it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal in the sense the Tribunal did not follow an earlier decision of the Tribunal or binding authority of the High Court with reference to finding of facts and law;
(vi) When the Tribunal disposes of the original application by applying the binding precedents of the High Court as well as the Supreme Court, it cannot be said that the Tribunal has committed any error of law apparent on the face of the record; in such cases the limited review before the High Court would be whether the binding principle has been appropriately applied or not; the Tribunal's decision which is rendered in ignorance of the statutory law including subordinate legislation as well as the law laid down by the Supreme Court must be held to suffer an error apparent on the face of the record and requires judicial review;
(vii) Whether or not an error is error of law apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision which is alleged to have been misconstrued or contravened;
(viii) The three parameters of judicial review of administrative action- illegality, irrationality and procedural impropriety with necessary changes are equally applicable to cases of judicial review of the Tribunal's decision; and
(ix) A mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 227; the supervisory jurisdiction conferred on High Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.
xx xx xx 7.0. ...Article 14 speaks of equality before law and equal protection of law. The claim of equality and the claim of equal protection thus must be claimed within the four corners of law. Furthermore, it is well settled that two wrongs do not make one right.
7.1. In that view of the matter, we are of the opinion that once it is held that the writ petitioners committed serious misconduct by producing a document for the purpose of obtaining employment, which was a forged and fabricated one, he is not a fit person to be retained in service, particularly in a disciplined force. It may not be a case where a question would arise as to whether vacancy should compulsorily be notified to the Employment Exchange or not, but the question is that the writ petitioners proceeded on the basis that they can obtain employment only when they produce the requisite certificate of the Employment Exchange. Keeping in view the provisions of Rule 9 of the Appointment Rules, production of such certificate is of great significance.
5. When we apply these principles to the present case, our conclusion would be that the approach of the learned Tribunal is not correct in law. No doubt, in the first blush it appears that allegations against all three officials are of similar nature, which related to non-payment of 8 money orders to the payees. However, the role of the three officials, it is natural, would be different. Depending upon that if the disciplinary authority in the case of other two officials decided to impose a particular punishment, that would not mean that same punishment is to be meted out to the respondent as well. Before the disciplinary authority of the respondent the charge against the respondent for misappropriation of a sum of Rs. 12,000/- is proved. The charge in itself is a very serious charge and punishment of dismissal on such a charge should not have been interfered with unless the penalty is shockingly disproportionate to the proven charge. Even if one proceeds with the assumption that other two officials are given lesser punishment wrongly, that would not mean that lesser punishment should have been given to the respondent as well, who had committed grave misconduct, and when such a case is treated in isolation, even as per the Tribunal, the misconduct justified imposition of this kind of penalty. The concept of discrimination would be alien in such a situation.
6. As a consequence of the aforesaid discussion, we set aside the impugned judgment passed by the Tribunal and dismiss the OA filed by the respondent thereby maintaining the punishment awarded to him by the disciplinary authority.