Nathu Ram Raikwar vs State Of U.P. And Others
2015 Latest Caselaw 1415 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 7
 
Case :- WRIT - A No. - 48187 of 2012
 
Petitioner :- Nathu Ram Raikwar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Ajal Krishna,Deepti Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. By means of present writ petition, the petitioner has prayed for following reliefs:-

"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 9.7.2012 passed by the respondent no.2 i.e. District Magistrate, Jhansi (Annexure No.1 to the writ petition) and impugned order dated 18.8.2011 passed by the respondent no.3 i.e. Up-Ziladhikari, Jhansi (Annexure No.2 to the writ petition);

(ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to make any deduction from the salary of the petitioner and pay him the full salary as he was getting prior to the passing of the impugned order dated 18.8.2011 (Annexure No.2 to the writ petition);

(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to refund the difference of salary deducted in pursuance of the impugned order dated 18.8.2011 (Annexure No.2 to the writ petition);

(iv) issue a writ, order or direction in the nature of mandamus commanding the respondents to make the payment of salary in the pay band admissible to the petitioner and also grant him time bound scale as his counterparts are getting."

3. Brief facts giving rise to the present writ petition are that the petitioner was appointed as Office Peon in the office of Collection Department, Collectorate, Jhansi vide order dated 6.5.1980 in pursuance of the order dated 28.4.1980 of the District Magistrate, Jhansi.  The appointing authority of the petitioner is District Magistrate, Jhansi.  The petitioner was transferred from Collectorate, Jhansi to several other places in District Jhansi and since July, 2003 he is performing his duties as Collection Peon in Tehsil Jhansi, Distt. Jhansi.   It is categorically averred in the writ petition that the services of the petitioner since the year 1980 till date has been totally unblemished and the petitioner has served the department with sincerity, honesty and dedication.  The petitioner was served a chargesheet on 25.7.2009 for the irregularity committed by him on 4.2.2009.  The Naib Tehsildar, Babina, Distt. Jhansi was appointed as the enquiry officer in the matter.  The petitioner was required to submit his reply within fifteen days.  The petitioner asked for some relevant documents from the Up-Ziladhikari, Jhansi vide letter dated 13.8.2009.  The same were provided to the petitioner except the photocopy of the Dak Bahi of CRA Office.  It is averred that the petitioner has demanded the Dak Bahi of CRA Office several times but the same was not provided to him.   Due to non-supply of the relevant documents as demanded by the petitioner he could not submit his reply to the chargesheet and the enquiry officer as such proceeded exparte and finally submitted his report on 1.4.2010 to the Up-Ziladhikari, Jhansi. Thereafter, a show cause notice dated 15.4.2010 along with the copy of the enquiry report dated 1.4.2010 was served upon the petitioner. 

4. It has been averred that the show cause notice, which had been given by the Up-Ziladhikari, Jhansi on 15.4.2010 cannot be sustained on the ground that the appointing authority of the petitioner was District Magistrate, Jhansi and as such the impugned order cannot be sustained on the basis of such chargesheet, which is wholly illegal and without jurisdiction.  The punishment order based upon the finding of enquiry officer is unsustainable in the eyes of law.

5. The petitioner after receiving the show cause notice dated 15.4.2010 had submitted his reply on 3.5.2010 to the Up-Ziladhikari, Jhansi denying the charges levelled against him. 

6. In the matter an explanation was called from Shri Rajesh Kumar, Collection Peon, Tehsil Jhansi with regard to the charge levelled against the petitioner.  In reply Shri Rajesh Kumar has submitted his letter/ explanation dated 20.2.2009 informing that he has received the salary from the petitioner and he has also given Rs.2000/- to the petitioner.  As such the request was made by the petitioner that in view of the explanation submitted by Shri Rajesh Kumar, there was no occasion for giving chargesheet to the petitioner and to proceed into the matter for any further departmental enquiry. 

7. In the matter the sole allegation was levelled against the petitioner that on 4.2.2009 the petitioner was given cheque of all the employees working in the collection department along with the account number of all the employees of the concerned bank and from the said list the petitioner had removed the name and account number of Shri Rajesh Kumar-II, Collection Peon and his salary amounting to Rs.7373/- had been deposited in his own account. The petitioner was entitled for salary of Rs.6987/-.  Instead of depositing the said amount he has made certain interpolations in the pay bill and deposited an amount of Rs.14,360/- in his account and as such he was guilty of interpolation in the record.

8. The petitioner had denied all the allegations specially on the ground that Shri Rajesh Kumar, Collection Peon himself has sent a letter/ explanation on 20.02.2009 informing that he had received the salary from the petitioner and had also averred that he has given Rs.2000/- to the petitioner, which is to be given by him to the petitioner. 

9. Finally the respondent no.3 vide order dated 18.8.2011 had imposed major penalty downgrading the petitioner to the lowest pay scale.  Against the impugned order dated 18.8.2011 the petitioner had filed a Writ Petition No.58976 of 2011 (Nathu Ram Raikwar v. The State of U.P. & Ors.), which was dismissed on 13.10.2011 on the ground of alternative remedy. Thereafter, the petitioner preferred an appeal before the District Magistrate, Jhansi under Rule 11 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred as 'Rules of 1999').  The same was rejected by the appellate authority i.e. District Magistrate, Jhansi vide order dated 9.7.2012.

10. Learned counsel for the petitioner submits that the orders impugned are illegal, passed without application of mind and the same is also hit by principle of natural justice inasmuch as the petitioner had not been given any reasonable opportunity of hearing.  Further the disciplinary proceedings had not taken place strictly in accordance with the procedure and while imposing major punishment an oral enquiry was also required.  For that purpose notice was required to be served to the employee intimating him the date, time and place of enquiry but the same has not been done in the present matter.  As such the same is in violation to Rule 7 (iv) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.  The Constitution of India under Art.311 (2) also contemplates that reasonable opportunity is required to be given to the employee to defend himself.  Learned counsel for the petitioner also submits that before imposing major penalty second show cause notice was also required to be given to the delinquent employee to plead for either no penalty or lesser penalty but no such show cause notice was given to the petitioner before imposing the major penalty vide impugned order dated 18.8.2011. It has also been urged that before passing the impugned order the respondent authority had actually not taken into consideration the gravity of charges levelled against the petitioner and the misconduct as alleged in the chargesheet, the same was also vague in nature. The petitioner was at the verge of his retirement and throughout his career his track record was unblemished and as such it was paramount responsibility of the authority concerned to go into the charges.  These aspects have not been examined or even considered by the respondent authority.  

11. Learned counsel for the petitioner further submits that even the appellate authority had also not applied his judicial mind and the same was decided on the basis of the report of the Tehsildar/ Up-Ziladhikari, Jhansi and no independent mind had been exercised.  He further submits that while agreeing with the finding of disciplinary authority the appellate authority as such is not required to give an elaborate reason but atleast brief reasons are to be given in support of conclusion, which is to indicate that the appellate authority has applied its independent mind.  As such the appellate order is also contrary to the settled proposition of law. 

12. Shri Pankaj Rai, Addl. Chief Standing Counsel submits that in the matter the entire enquiry was made strictly as per the Rules of 1999 and the charges, which were levelled against the petitioner were serious in nature and the enquiry officer found that the petitioner was guilty of committing forgery and as such the punishment was rightly awarded against the petitioner.  He further makes statement that the amount may be very meagre but that would not absolve the petitioner from such forgery.  He submits that Hon'ble the Apex Court has time and again emphasized in numerous cases the importance of integrity of an employee and for this reason  the impugned order is justified and the same is not disproportionate to the charges levelled against the petitioner.  He also submits that the appellate authority had also, after considering the entire material, evidence and keeping in mind the gravity of charges, affirmed the decision of the disciplinary authority and as such the writ petition is liable to be dismissed.

13. Heard rival submissions and perused the record. 

14. As per the record, the entire career of the petitioner was unblemished except the present solitary instance in which only the charge was levelled that the petitioner was assigned duty to submit salary bill to the bank and he has made certain interpolations in the bill.  The petitioner was held guilty for depositing the salary of Shri Rajesh Kumar, Collection Peon in his own account. However, an explanation was submitted that Shri Rajesh Kumar has taken categorical stand that the amount towards his salary had been given by the petitioner and even he had paid Rs.2000/- to the petitioner. At no point of time after submitting such an explanation the enquiry officer or the authority concerned had not made any endeavour to find out as to why he had given Rs.2000/- to the petitioner. Even from the counter affidavit nothing has been brought on record to indicate that the petitioner had ever indulged in any such kind of activity. The records also indicate that no such charges has ever been levelled regarding any corrupt practices or regarding his integrity. The Court has also come to the conclusion that in the matter the enquiry has also not been made strictly in accordance with Rules of 1999.

15. In case of Salahuddin Ansari v. State of U.P. & Ors., 2008 (3) ESC 1667 (All) (DB) the Hon'ble Court held that non-holding of oral enquiry is a serious flaw, which can vitiate the order of disciplinary proceeding including the order of punishment and has observed:-

"Non holding of oral enquiry in such a case is a serious matter and goes to the root of the case."

16. The Hon'ble Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and Anr. 2000 (1) UPLBEC 541 considering the question as to whether holding of an oral enquiry is necessary or not, held that if no oral enquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. In State of Uttaranchal & Ors. v. Kharak Singh, (2008) 8 SCC 236 the Hon'ble Supreme Court observed that the enquiries must be conducted bonafide and care must be taken to see that the enquiries do not become empty formalities. 

17. It also appears from the record that in the matter at no point of time the delinquent employee had been informed regarding the date, time and place for holding the enquiry by the enquiry officer and as such the same is also in violation to the principle of natural justice.

18. 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.

19. 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.

20. As already noticed above, since the charges on which the punishment has been imposed are to be taken as correct, what is now left to be considered and examined is as to whether the punishment imposed was commensurate with the said charges or not.

21. 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.

22. 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 recognised grounds of judicial review."

23. 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.

24. 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.

25. 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.

26. Considering the facts and circumstances of the case, the punishment awarded to the petitioner  is too harsh and totally discriminated of the charges for which he had been found guilty. The major punishment are restored only if there is very grave misconduct. The punishment imposed on the petitioner is too harsh and is liable to be set-aside. In my opinion, lesser punishment ought to have been awarded.

27. Considering the entire fact and circumstances of the case, in my view, the punishment of withholding of two increments with cumulative effect would be sufficient and adequate punishment.

28. Accordingly, it is directed that instead of punishment awarded by the impugned order, the two increments of the petitioner with cumulative effect shall be withheld. In the result, this writ petition is partly allowed, to the extent as stated above. The impugned punishment order as well as appellate order are set-aside.  The respondents are directed to calculate the salary of the petitioner as per the directions given above and pay the difference of the salary to the petitioner within a period of two months from the date of production of certified copy of this order. There shall be no order as to cost.

(Mahesh Chandra Tripathi,J.)

Order Date :- 23.7.2015

SP/