Ravindra Kumar Singh vs State Of U.P. And Others
2014 Latest Caselaw 5113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 31
 

 
Case :- WRIT - A No. - 26111 of 2006
 

 
Petitioner :- Ravindra Kumar Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- M.D. Misra,Ashok Misra,Jayant Prakash Singh
 
Counsel for Respondent :- C.S.C.,K.R.Singh,V.C. Dixit
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Sri M.D. Misra, learned counsel for the petitioner and learned Standing Counsel for the respondents.

By means of the present writ petition, the petitioner has challenged the order dated 30.12.1999 passed by the Collector, Gorakhpur (anneuxre No. 8 to the writ petition) and order dated 12.04.2006 passed by the Commissioner Gorakhpur (annexure No. 14 to the writ petition).

Brief facts give rise to the present writ petition are as follows:-

The petitioner was suspended vide order dated 03.05.1999 and three charges  were levelled against the petitioner, namely, absence from duty, lesser collection and embezzlement of an amount of Rs. 4055.18.

As per record, an ex-parte inquiry had proceeded against the petitioner and the inquiry officer has submitted his report on 28.10.1999. Immediately a show cause notice dated 11.11.1999 was served upon the petitioner and the petitioner promptly submitted his reply to the show cause notice on 30.11.1999 and finally services were terminated vide order dated 30.12.1999.

Aggrieved with the said termination order, the petitioner has preferred writ petition and the same was dismissed on the ground of an alternative remedy. Thereafter the petitioner had preferred Special Appeal 206 of 2000 and  the said special appeal was dismissed with following observation:-

"We have heard Sri M.D. Mishra, learned counsel for the appellant and Sri Ran Vijay Singh, learned Standing Counsel for the respondents.

We are of the view that the order passed by the learned Single Judge does not call for any interference. The learned single judge has correctly held that since the termination took place after show cause notice and giving all opportunity of hearing. The question of alternative remedy of appeal is applicable in the instant case. We did not find any infirmity in the order under appeal. However, we fell that it is open to the appellant to seek the alternative statutory remedy of appeal and in the event he prefers such appeal, the question of delay shall not be taken into account. It is made clear that we have not adjudicate the matter on merits with regard to termination of service.

The special appeal is dismissed with the aforesaid observations."

In pursuance to the direction issued by the appellate court, the petitioner had preferred an appeal before the respondent No. 2 and the appellate authority had taken certain technical view and rejected the claim of the petitioner. Again, the petitioner had approached this Court by means of the Writ Petition No. 10788 of 2003. This Court vide order dated 10.09.2005 had passed the following order:-

"In spite of a stop order no counter affidavit has been filed. Accordingly, this petition is being decided on merit.

This court in special appeal no. 206 of 2000 passed the following order on 1.4.2002.

"However, we feel that it is open to the appellant to seek the alternative statutory remedy of appeal and in the event he prefers such appeal, the question of delay shall not be taken into account."

The petitioner in terms of the direction of the Division Bench of this court preferred an appeal on 1.7.2002. Paragraph 16 of the memo of appeal indicates that he had enclosed the order of the Court. The appellate court by an order dated 28.1.2003 has dismissed the appeal under Rule 11(4) of the Rules of 1999 on the ground that the appeal was preferred after stipulated period of limitation. The appellate court has not considered the order of the Division Bench dated 1.4.2002 wherein it was clearly held that the appellate authority will not go into the question of delay. Consequently, the order of the appellate authority is against the teeth of the judgment of the Division Bench of this court.

In view of the aforesaid, the writ petition is allowed. The order of the appellate court dated 28.1.2003 is quashed and the matter is remitted back to the Commissioner, Gorakhpur Region Gorakhpur, respondent no.2 to decide the appeal of the petitioner on merit within three months from the date of production of a certified copy of this order."

Finally the Commissioner, Gorakhpur Region, Gorakhpur had heard the matter in pursuance to the aforesaid direction and had rejected the claim of the petitioner vide order dated 12.04.2006. Aggrieved with the said order, the present writ petition has been filed.

Learned counsel for the petitioner submits that all the three charges which were levelled against the petitioner are vague in nature and unsustainable and authority concerned had passed the impugned termination order in utter defiance of settled principles of natural justice,  specially on the ground that the impugned suspension order dated 30.12.1999 was not served upon the petitioner. Further he submits that on account of serious ailment, he could not report to the authority concerned in spite of the fact that he had submitted complete medical report, and also informed to the Tehsildar by registered post regarding his absence alongwith application for leave and with medical certificates. He  further submits that on account of serious flood situation in the region revenue collection was little bit lesser. So far the third charge of embezzlement of Rs. 4,055.18 is concerned, he had deposited the said amount in the Treasury after due permission of the authorities concerned on 26.08.1999, and as such he had never intended to embezzle the said revenue collection and denied the charges.

Learned counsel for the petitioner submits that a sum of Rs. 20,056/- was remained with the authority concerned towards the arrears of salary of the petitioner for the year 1998 and the same was unpaid and was lying in the State Treasury and finally paid vide cheque No. 888553 on 30.12.1999. If the said admitted amount was unpaid to the petitioner, then there was no occasion for making such kind of charge of embezzlement of Rs. 4,055.18. He further submits that it is common practice that due to some unavoidable circumstances, some time, there is delay in depositing the revenue collection but the same cannot be termed as embezzlement.  He submits that the charges which were levelled against the petitioner were not  grave in nature, where the termination order could be justified. The termination order was unwarranted, disproportionate to the charges levelled against the petitioner. He further submits that the petitioner is suffering grave financial hardship since termination order, and the whole family is at the verge of starvation due to apathy shown by the authority concerned. He further submits that the petitioner is ventilating his grievances since his termination order at every forum and also suffered a lot due to pendency of the present writ petition since 2006.

However, on the other hand, learned Standing Counsel submits that services of the petitioner were terminated only after full fledged inquiry, every opportunity had been afforded to him before passing the impugned order,  the chargesheet was served promptly,  which also indicates that all the three charges were proved and the punishment order was commensurate to the charges levelled against him, even the appellate authority had not intervened in the matter and upheld the termination order. He further submits that no indulgence may be given in favour of the petitioner under the present facts and circumstances of the case.

I have the rival submissions of learned counsel for the parties and perused the record.

In the present matter, mainly three charges were levelled against the petitioner, firstly his absence from the duty. Against the said charge, it is apparent that the petitioner had submitted application alongwith medical certificate but there were certain lapses on the part of the petitioner, therefore, the first charge is partially proved but the termination order on the basis of first charge is too harsh, excessive and disproportionate and petitioner was liable to get minor punishment. So far as the second charge is concerned, the same was levelled against the petitioner regarding lesser realization of revenue is unsustainable on the ground that  the petitioner had informed regarding serious flood situation in the region and it is also strange that a permanent Government employee is removed from the services on the ground of some lesser realization of revenue. In this regard some pragmatic approach had to be applied by the official regarding the ground realities, some times due to natural calamities like flood, drought etc. revenue collection in particular area deteriorate, this may not be taken as plea for ouster of a Government employee, the same is also unsustainable and accordingly rejected. So far as third charge regarding the embezzlement of Rs. 4,055.18 is concerned, the same is also unsustainable on the ground that the said amount had never been embezzled by the petitioner, in fact same had been deposited after some time. On this ground also, the impugned order is unsustainable. On all the three aforementioned charges, the department had taken very technical view and after perusal of the chargesheet and other relevant material, it is apparent that the termination order is disproportionate to the charges levelled against the petitioner.

As already notices the second and third charges are unsustainable and accordingly set aside but so far first charge is concerned the same is partially proved then what is not left to be considered and examined is as to whether punishment imposed was commensurate with the said charges or not.

Learned counsel for both the parties have placed reliance on a large number of judgments. In certain decisions, which shall be dealt with in the foregoing paragraphs, the Courts have either reduced the punishment imposed or set aside the same on the ground that the same was shockingly disproportionate to the charges. However, in certain cases, as have been relied upon by the learned standing counsel, the Apex Court, as well as the High Court, have held that if the finding of fact has been accepted to be correct by the Courts, it should not interfere with the punishment imposed.

In Mithilesh Singh v. Union of India and Ors., 2003 (1) UPLBEC 911, the Apex Court held that absence from duty without proper Intimation and permission amounted to grave offence warranting removal from service. In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC) ; 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent, and held that the High Court ought not to have Interfered with the quantum of punishment in the facts of that case. The Supreme Court in the case of State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736, held that where the employee had absented himself from duty without leave on several occasions, the High Court was not correct in holding that his absence from duty would not amount to such a great charge so as to impose the penalty of dismissal from service.

On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386, has held that "the question of the choice and quantum of punishment is within the Jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Marital, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."

In the case of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215, the Apex Court held that over-staying of leave subsequent to the order of rejection of application for extension of leave could not be considered to be a sever enough charge to warrant punishment of dismissal from service and the same was held to be harsh and disproportionate. A Division Bench of this Court in the case of Harpal Singh v. State Public Services Tribunal, Lucknow and Ors. 2000 (2) AWC 1075 : 2000 (86) FLR 334, held that where it was on account of negligence of the constable of the G.R.P. that one passenger was misbehaved with and was murdered, the same could not be a case of serious misconduct and held that the punishment of dismissal from service was totally disproportionate to the offence and thus directed reinstatement of the employee in service, with half back wages and also ordered that he be given a severe warning. Further, in the case of Alexandar Pal Singh v. Divisional Operating Superintendent, 1987 (2) ATC 922 (SC), the Supreme Court held that ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two Increments.

A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630, 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.

In the light of the law laid down by the Apex Court as well as this Court, in my view the broad principle which emerges is that normally, it is the disciplinary authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.

Considering the facts and circumstances of the case, the dismissal from service is too harsh and totally disproportionate to the charges which were levelled against him. The punishment of dismissal from service are resorted only if there is very grave misconduct. The punishment from dismissal from service imposed on the petitioner is too harsh and is liable to be set-aside. In my opinion, lesser punishment ought to have awarded.

Considering the entire fact and circumstances of the case, specially matter is pending since 2006, in my view, the punishment of withholding of three increments with cumulative effect and reinstatement in service without back wages would be sufficient and adequate punishment.

The impugned termination order as well as appellate order and revisional order are set-aside.

Accordingly, it is directed that the petitioner shall be reinstated in service within a period of one month from the date of filing of a certified copy of this order before respondent No. 2, i.e. Commissioner, Gorakhpur Division, Gorakhpur. However, three increments of the petitioner with cumulative effect shall be withheld, and he shall also not be entitled for salary from the date of his dismissal till the date of his reinstatement, but he shall be given continuity of service for all other purposes. In the result, this writ petition is partly allowed, to the extent as stated above.

There shall be no order as to cost.

Order Date :- 27.8.2014

Jaswant