Mohd. Saqub Naqi vs Union Of India & Others
2017 Latest Caselaw 7129 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                         Reserved on 3.11.2017
 
                                                        Delivered on 20.11.2017
 
Court No. - 35
 

 
Case :- WRIT - A No. - 697 of 2009
 

 
Petitioner :- Mohd. Saqib Naqi
 
Respondent :- Union Of India & Others
 
Counsel for Petitioner :- V.P. Shukla
 
Counsel for Respondent :- A.S.G.I.,Himkanya Srivastava,S.C.,S.K. Mishra,Triloki Singh
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon. Siddharth,J.)

Heard Shri V.P. Shukla, learned counsel for the petitioner and Ms. Himkanya Srivastava, learned counsel for the respondents.

Petitioner has filed the above noted writ petition challenging the order dated 13.10.2008 passed by respondent no.3 whereby petitioner has been awarded penalty of "withholding of one increment of pay for one year without cumulative effect" by the Deputy Inspector General (Personnel) CISF, New Delhi.

Petitioner was discharging his duties as Commandant, Central Industrial Security Force (CISF) at Shakti Nagar. As Chairman of Recruitment Board, CISF Unit, I.O.C. Barauni-I, w.e.f., 30.4.2006 to 19.5.2006 he conducted recruitment of constables in CISF. There were three other officers, who were members of the Board along with him.

After the selection, the petitioner was charge-sheeted for three charges. First charge was that two candidates, namely, Disco Kumar and Prabhu Kumar,who did not even appeared in the written test, got recruited as constables by the Board headed by him. The second charge was that he committed gross misconduct while making computation of the mark awarded to the candidates. The third charge against the petitioner was that when other members of the Board detected and produced the impersonators before the petitioner, he neither reported the matter to the higher authorities nor handed over them to the police.

A regular inquiry was held against him and only charge no.1 was found proved against him viz., that two candidates got illegally selected. The inquiry officer's report was forwarded to him for submitting his representation and he was finally awarded punishment of "withholding of one increment of pay for one year without cumulative effect."

A counter affidavit has been filed on behalf of the respondents stating that the petitioner, as the Chairman of Recruitment Board, failed in his supervisory duty and cannot be absolved of the charge. Shri N. Kispotta, Deputy Commandant, one of the members of the Recruitment Board, has been awarded penalty of 20% cut in monthly pension permanently (for life) vide order dated 11.3.2008.The constables, Disco Kumar and Prabhu Kumar, who were recruited through unfair means by the Recruitment Board headed by the petitioner were dismissed from the service by the separate orders dated 14.2.2008.

The petitioner was also subjected to departmental proceedings and then, after detailed inquiry and advise of the Union Public Service Commission he was awarded penalty of "withholding of one increment of pay for one year without cumulative effect". As the Chairman of the Recruitment Board it was his responsibility to see that only genuine candidates appear in the recruitment test and no unfair means were resorted to by any candidate. There was serious lapse of impersonation in the recruitment of two constables for which petitioner was responsible. The misconduct is in very wide term and it includes misdemeanor, delinquency, negligence or any act which is prejudicial or likely to be prejudicial to the interest of the department. It is fairly settled principle in the service jurisprudence, that misconduct would depend on the facts and circumstances of each case. Petitioner was provided defence assistant and as per his request all the listed documents were supplied to him and additional documents were also supplied to him which were found relevant. If the petitioner had any objection, he could have registered his objection during the course of inquriy, which he never did. After analysing the statements of the witnesses of both sides, documentary evidence on record, the inquiry officer submitted his report dated 26.10.2007 holding charge no.1 as proved and charges no. 2 and 3 as not proved. The petitioner was afforded opportunity to file objection thereto and thereafter punishment order was passed by the respondent no.3.

Learned counsel for the petitioner has argued that as per the judgement passed in the case Union of India Vs. S.K. Kapoor, 2011(4) SCC 589, the petitioner was entitled to the copy of the report of the Union Public Service Commission which was relied upon by the disciplinary authority while awarding the punishment to the petitioner. In the aforesaid authority it has been held that:-

"It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.

Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V. Patel, (2007) 4 SCC 785.

We do not agree.

In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3) (c)) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.

This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.

It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court. "

Learned counsel for the petitioner has further relied upon the judgement of this court dated 27.7.2016 in the case of Brijendra Kumar Agarwal Vs. State of U.P., Service Bench No. 1369 of 2010 which has relied upon of the case of Union of India Vs. S.K. Kapoor(Supra) and has set aside the punishment order awarded to the delinquent employee of that basis.

The leading authority on the subject is the Constitutional Bench judgment of State of U.P. Vs. Manbodhan Lal Srivastava, AIR 1957 SC 912, wherein the Apex Court has held that

12.We have already indicated that Art 320(3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32 It is not a right which could be recognized and enforced by a writ. On the other hand, Art.311 of the Constitution has been construed as confer- ring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Art. 311, have been complied with in this case and it has not been contended at any stage that they had not been complied with-he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320(3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.

"13.In view of these considerations, it must be held that the provisions of Art. 320(3) (c)are not mandatory and that non- compliance with those provisions does not afford a cause of action to the respondent in a court of law............"

The above judgement of the Apex Court clarifies that the provisions under Article 320(3) ( c) of the Constitution do not confer any right on a public servant to approach the high court under Article 226 of the Constitution for any irregularity in consultation with Union Public Service Commission in the matter of punishment order by the employer department. It is Article 311 of the Constitution which confers right on the civil servant to approach the court in case he is punished by the employer Union or State without opportunity of hearing and reasonable opportunity of being heard. Therefore, the Apex Court has held that the opportunity of hearing is not contemplated for the Government Servant under Article 320(3) (c)of the Constitution rather it is contemplated under Article 311 of the Constitution , against any proposed punishment .

In the aforesaid judgment it is also stated that "Chapter II, containing Article 320 does not in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in Chapter -I of that part particularly Article 311. Article 311, therefore, is not, in any way, controlled by the provisions of Chapter II of part XIV with particular reference to Article 320 of the Constitution".

It is also to be noted that after the advise of the Union Public Service Commission is accepted by the disciplinary authority of civil servant it merges with punishment order which is always open to challenge before the appellate / higher authority and there is no separate existence of advice of the Union Public Service Commission so that it can be separately objected and challenged on the ground of violation of Article 14 of the Constitution of India.

The judgement in the case of Union of India Vs. T.V Patel (2007) 4 SCC 785 is based on the Constitution Bench judgment of State of U.P. Vs. Manbodhan Lal Srivastava(Supra) and judgement of Ram Gopal Chaturvedi Vs. State of M.P. 1969(2) SCC 240.The judgements in the case of Union of India Vs. S.K. Kapoor(Supra) of the Apex Court and in the case of Brijendra Kumar Agarwal of this court (supra) do not consider the binding authority of Constitutional Bench in the case of State of U.P. Vs. Manbodhan Lal Srivastava(Supra) and are based only on the principal of natural justice. Principles of natural justice has been unduly applied in the context of of Article 320(3) (c) of the Constitution, when Article 311 of the Constitution is already in accordance with Article 14 of the Constitution and clearly protects the civil servant from any arbitrary order of punishment being passed against him, without opportunity of hearing. Even otherwise the U.P.S.C's functions under Article 320 (3) (c) is only advisory as decided in the case of D'Sliva A.N. Vs. Union of India, 1962 SC 1130.

However, a recent decision in the case of Union of India and others Vs. R.P. Singh (2014), 7 SCC, 340 has affirmed the view in the case of Union of India Vs. S.K. Kapoor(Supra).

We do not intend to enter into the above controversy in view of the judgement of Apex Court in the case of State Bank of Patiala Vs. S.K. Sharma, AIR, 1996, SC 169, wherein principles of natural justice were examined in the context of disciplinary proceeding and was held that the order of punishment consequent to departmental inquiry should not be set aside automatically only on the allegation of violation of rights/regulations/statutory provisions governing such inquiry. The court should examine whether the violation is of substantive or procedural nature. Substantial compliance with the Rule and in the absence of any prejudice caused, by some violation of procedural provisions, there will be no cause of action before the court of law. In case procedural provision is not mandatory in character, the complaint or violation has to be examined from the stand point of substantial compliance. Further in case of violation of procedural provision, which is mandatory in character, it has to be ascertained that provision is in the interest of the person proceeded or in the public interest. Ultimate test is prejudice caused to the person proceeded against as held by the Constitution Bench of the Supreme Court in the case of Managing Director Ecil Hyderabad Vs. B. Karunakarn, (1993) 4 SCC, 727.

In the present case, even if it is assumed that the petitioner was not granted opportunity to object to the advice of the Union Public Service Commission given to the disciplinary authority , no prejudice can be said to have been caused to him because for his lapse he has only been awarded a minor punishment of stopping one increment of pay for one year without cumulative effect.

In view of the gravity of charge proved against the petitioner such punishment , on the advice of Union Public Service Commission cannot be said to be disproportionate to the charge proved against him.

Learned counsel for the petitioner has tried to assail the impugned order of punishment on some other grounds of technical flaw in disciplinary inquiry which in our view should not be gone into keeping in view the courts' limited power of judicial review. We are satisfied, that the procedure of inquiry against the petitioner was substantially correct and once it is so, we are not required to interfere with the result of the inquiry unless something glaring and shocking to our conscience is disclosed.

Before parting, we find that the interference with punishment order is also uncalled on any technical ground because due to misconduct of the petitioner. Two constables, who never appeared in the recruitment got selected on account of the fault on the part of the petitioner and in order to dismiss them, the employer had to conduct elaborate inquiry against them. This must have consumed time, energy and waste of public money for which petitioner was required and, has rightly been made, to share the blame. The departmental proceedings against him has, likewise, been an extensive and expensive exercise, time wise and money wise both. For all this, petitioner was punished only with denial of one increment for one year but without cumulative effect.

We have also restrained ourself from any interference in the impugned order of punishment because the petitioner is a member of disciplined force and was found negligent in discharge of his duties by the Disciplinary Authority. The Apex Court in the case of State of U.P. and others Vs. Ashok Kumar Singh and another, (1996) 1 SCC, 302.

"8.We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having notices the fact that the first respondent has absented himself from duty without level on several occasions, we are unable to appreciate the High Court's observation that 'his absence from duty would not amount to such a grave charge'. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."

Similar view has been taken in the subsequent judgement of Mithlesh Singh Vs. Union of India and others (2003) 3 SCC 309; Union of India and others Vs. Gulam Mohd. Bhat, 2005 SC4289 and in the latest judgment of Union of India Vs. Balwant Singh (2015) 14 SCC 389.

Taking into consideration the entire factual and legal position of the case and the fact that the impugned punishment order is not disproportionate to the charge proved against the petitioner, who is member of a disciplined force, nor it has caused any undue prejudice to him, we do not wish to interfere with the same.

The writ petition is devoid of merit and is dismissed accordingly, but without any costs.

Order Date :- 20.11.2017

Atul kr. sri.