Ram Das Prasad vs State Of U.P. & Others
2013 Latest Caselaw 4887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 10517 of 2009
 

 
Petitioner :- Ram Das Prasad
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- B.P. Yadav, Pradeep Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Sri Pradeep Upadhyay, learned counsel for the petitioner and perused the record.

2. The petitioner was a Constable having been enrolled in Provincial Artillery Constabulary (hereinafter referred to as the "PAC") on 30.11.1981 and then was promoted as Head Constable in 1988, as Platoon Commander (Subedar) on 16.10.1993, as Reserve Sub-Inspector in 1998 and as Company Commander on 08.12.1999.

3. In 2006 while he was posted at 26th Battalion PAC, Gorakhpur, he was placed under suspension vide order dated 27.06.2006. A charge sheet was issued to him on 11.01.2007, whereto he submitted reply on 15.01.2007. Sri Jai Prakash Singh, Deputy Commandant, 26th Battalion PAC, Gorakhpur was appointed as Inquiry Officer and after conducting oral inquiry he held charges no. 3, 4, 5 and 6 proved against petitioner and recommended punishment of reduction at the minimum of pay scale of Company Commander for a period of three years. The competent disciplinary authority, i.e., the Commandant issued a show cause notice dated 29.12.2007 alongwith a copy of inquiry report, whereto petitioner submitted explanation dated 07.04.2008. The disciplinary authority, however, passed punishment order dated 29.02.2008 (Annexure-5 to the writ petition), imposing punishment of reversion at the minimum of pay scale for a period of three years. The petitioner, thereagainst, preferred an appeal, vide memo of appeal undated (Annexure-6 to the writ petition) before Deputy Inspector General, PAC, Varanasi, which has been rejected by Appellate Authority vide order dated 31.05.2008 and petitioner's revision, thereagainst, has also been rejected by Revisional Authority, i.e., the Director General (Eastern Zone), PAC, Lucknow vide order dated 22.11.2008. The writ petition has been filed assailing the order of punishment dated 29.02.2008, appellate order dated 31.05.2008 and revisional order dated 22.11.2008.

4. The incident which has caused the entire proceedings took place on 25.06.2006 when a Head Constable, Laxman Ram opened several rounds fire through Insas rifle which caused serious injuries to several PAC officials and also resulted in death of one Constable, Yogendra Saroj. The petitioner was chargesheeted with the allegations that he was already informed about the psychological and mental condition of Head Constable, Laxman Ram and a warning was also given that he should not be deputed on any sensitive duty yet the petitioner took him in Naxalite area, duly armed, and did not care for the medical advise in respect of Head Constable, Laxman Ram, as a result whereof aforesaid incident occurred. One of the charge also said that after firing incident, caused by Head Constable, Laxman Ram, petitioner attempted to conceal the facts by making overwriting in G.D. so as to make changes in respect of armed duty assigned to Head Constable, Laxman Ram. Six charges were levelled against petitioner out of which charges No. 3, 4, 5 and 6 were found proved.

5. Learned counsel for the petitioner contended that the proceedings are vitiated in law inasmuch as Head Constable, Laxman Ram was not examined as witness. He also contended that some other officials who were also charged in respect of aforesaid incident, in their cases, the authorities have revoked punishment awarded to them but in case of petitioner, his appeal and revision has been dismissed which shows discriminatory treatment met to him. He placed reliance on Apex Court's decision in Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Prasad Singh and another, 2001(10) SCC 530 so as to contend that if in the matter of punishment the employer has dealt with its employees discriminatory, such discriminatory punishment would be bad. Lastly he placed reliance on a decision of U.P. State Public Services Tribunal in Claim Petition No. 238 of 2009, Moti Chand Gupta Vs. State of U.P. and others, who was also a Constable in 26th Battalion PAC, Gorakhpur and in the same incident was punished but his claim petition was allowed by Tribunal vide judgment dated 10.01.2011.

6. First I come to the question of discrimination. The petitioner was a Company Commander and incharge of group, he led, of which Head Constable, Laxman Ram was a member. It has been proved that on 22.06.2006 the psychological disorder of Head Constable, Laxman Ram was reported to petitioner. It is not the case where other Constables or Head Constables or Platoon Commander being subordinate to petitioner would have been authorised to prevent Head Constable, Laxman Ram from discharging any duty. The petitioner being competent authority, on his own, did not show to have taken any such preventive or precautionary steps in respect to assignment of duty to Head Constable, Laxman Ram. It is a culpable negligence since it has resulted in death of one Constable and serious injuries to others. Responsibility of petitioner being incharge of group was more serious and onerous than those who are lower in the hierarchy. A person occupying higher position cannot absolve himself of the superior, supervisory or administrative responsibilities inasmuch as degree of perfection in such case would have to be much higher, than those, lower in hierarchy. When entire hierarchical system has been provided, it has some purpose. A person holding higher office cannot wriggle out of something which has gone wrong by saying that he was not aware or that his duties are only supervisory in nature. In my view, the higher one goes in the hierarchical ladder, his degree of accountability becomes graver and more serious. He has to be answerable, if something has gone wrong, since he is provided higher pay, perks and status so as to discharge a better efficiency, and lesser defaulting supervisory duties, otherwise there would not have been any necessity of having a long hierarchical ladder. One has to be accountable for the lapses he has caused. In the present case, it is not a sheer excusable negligence but the consequences of such negligence is the determinative factor, and, is the demarcation line, to turn a mere negligence, amounting to an error of judgment and a gross negligence amounting to a serious misconduct. It cannot be doubted that lack of devotion to duty, conduct unbecoming of a Government servant and dereliction of duty, all constitute a serious misconduct. The degree of act and omission constituting misconduct varies from case to case. While examining it vis a vis the nature of duties involved, the organization with which the delinquent employee/officer is connected, the consequences of his act or omission etc., all contribute to determine, whether such act or omission constitute a serious misconduct. These tests are only illustrative. Those who have been exonerated from punishment in appeal or by Tribunal have got the advantage of some procedural error in the proceedings.

7. In the present case, learned counsel for the petitioner could not show any procedural error having the effect of denial of adequate opportunity of defence to petitioner. Scope of judicial review in such matters is extremely limited. The scope of judicial review and interference in the matter of disciplinary proceedings has been examined in detail by a Division Bench of this Court in Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. & Anr., 2006 (2) ESC 1153, and after considering a catena of decisions on the subject, this Court has crystallized the aspects which can be examined by the Court and which may justify judicial interference and not otherwise, which are reproduced as under:

"(1) The Tribunal exercising quasi judicial functions neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.

(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.

(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice.

(4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy or reliability of the evidence can not be looked into by the Court.

(5) The departmental authorities are the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the Court.

(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.

(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.

(8) It is not necessary that the Disciplinary authority should discuss material in detail and contest the conclusions of the Inquiry Office.

(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available."

8. The legal dictum with the passage of time has not gone under any substantial change and the subsequent authorities of Apex Court also have reiterated what has been noticed above. In A. Savariar Vs. The Secretary, Tamil Nadu Public Service Commission and another, 2013(3) SC 170 the Court has said:

"The scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court."

9. In the present case, neither I could find nor could be pointed out by learned counsel for the petitioner that any of the above factors is/are attracted in the case in hand so as to justify interference with the proceedings conducted against petitioner. The mere fact that in respect to some other persons, orders of punishment have been set aside in appeal etc., would make no difference for the reason that status, position, responsibility and duties of petitioner and others were totally different. Therefore, the question of discrimination does not arise at all.

10. Learned counsel for the petitioner also contended that the charge relating to overwriting has not been proved beyond doubt inasmuch as nobody has seen to petitioner making overwriting.

11. The submission in my view is quite shallow and lack substance. The charge speaks to the status of petitioner that he was incharge and responsible for the acts and omissions, if any, committed in the group as that amounts to failure on his part to discharge the duties of his position. Moreover the degree of proof in case of departmental inquiry is not akin to that of a criminal trial. Relying on this aspect on various decisions, namely, M.V. Bijlani Vs. Union of India and Ors., AIR 2006 SC 3475; Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Ors., AIR 2006 SC 1748; Roop Singh Negi Vs. Punjab National Bank and Ors., AIR 2008 SC (Supp) 921; and, Krushnakant B. Parmar Vs. Union of India and Anr., (2012) 3 SCC 178 etc. the Apex Court in a recent decision in Nirmala J. Jhala vs. State of Gujarat and another, 2013(4) SCC 301 said:

". . . . . disciplinary proceedings are not a criminal trial, and inspite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done."

12. In the present case, learned counsel for the petitioner could not point out that the findings recorded by Inquiry Officer holding the charges proved against him can be said to be based on purely surmises and conjectures and not the substantive evidence.

13. On the quantum of punishment also the scope of judicial review is very limited. I need not to detain myself on this aspect and do not propose to add bulk to this judgment by referring to catena of decisions dealing on the subject, and, suffice it to refer to a recent decision in S.R. Tewari Vs. Union of India and another, 2013(6) SCC 602, observing:

"The court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. . . . . ."

"In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. 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. The court has to record reasons as to why the punishment is disproportionate."

14. No other argument has been advanced. In view of above discussion, the writ petition lacks merit. Dismissed with cost, which I quantify to Rs. 10,000/-.

Order Date :- 05.08.2013

AK