Ex No. 831530053 Inspector M A.A. ... vs Union Of India And Others
2019 Latest Caselaw 1081 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 
Case :- WRIT - A No. - 56750 of 2009
 
Petitioner :- Ex No. 831530053 Inspector M A.A. Khan
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Udayan Nandan,Dhawal Mohan,Sachindra Mohan,Shashi Nandan
 
Counsel for Respondent :- A.S.G.I.,Anil Dwivedi,Dr.A.K.Nigam,S.C.,Satish Kumar Rai
 

 
Hon'ble Suneet Kumar,J.

Heard learned counsel for the parties and perused the record.

By the instant petition, petitioner is assailing the order dated 13 August 2009 passed by the fifth respondent, Director General, CRPF, New Delhi, affirming the order passed by the appellate authority/fourth respondent, Inspector General of Police, Central Sector CRPF, Lucknow and the disciplinary authority/third respondent, Deputy Inspector of General, CRPF, Phaphamau, Allahabad, imposing penalty of compulsory retirement.

The facts, in brief, is that disciplinary proceeding came to be initiated against the petitioner while working as Inspector (Ministerial) at Allahabad, alongwith, Hawaldar, Ramesh Singh and Sipahi, P. Manjunath under the Central Reserve Police Force Act, 1949, read with, the Central Reserve Police Force Rules, 1955, framed thereunder. Charge came to be framed on 8 August 2007 against the petitioner and other personnel, wherein, it was alleged that petitioner was detailed for recruitment duty, as co-opted member in Recruitment Board No. 1, constituted for recruitment of constables; upon raid confidential documents/papers relating to recruitment was seized from their residential quarter. The imputation of misconduct against the petitioner and the other charged personnel was slightly different, assigning specific role of mal practice in the recruitment process to the petitioner and Ramesh Singh.

The charge reads thus:

"That the said No. 831530053 Insp (M) A.A. Khan G.C.CRPF, Allahabad. No. 037020341 HC(M) Ramesh Singh, 148 Bn. CRPF while functioning as Insp(M) and HC(M) respectively at GC CRPF Allahabad. committed an act of misconduct in their capacity as members of the Force u/s 11(1) of the CRPF Act 1949 in that when they were detailed for recruitment duty as co-opted members in Recruitment Board No. 1 for recruitment of CT/GD-2005 at GC Allahabad, were found in possession of confidential documents/papers relating to Recruitment of CT/GD-2005 at their residential Quarter unauthorizedly. No 913104664 CT/GD P. Manjunath of GC CRPF Allahabad was not detailed in recruitment duty but he was also found in possession of confidential documents/papers relating to Recruitment of CT/GD-2005 at his residential Quarter unauthorizedly. On 3-12-2005 at GC Allahabad when the evaluation of answer sheets of the candidates pertaining to Recruitment Board No. 1 were being evaluated it was found that No. 037020341 HC/M Ramesh Singh of 148 Bn was noting down the marks obtained by the candidates in written examination in a separate sheet which shows that he was trying to help some candidates with ulterior motive/malafide intention."

The enquiry officer upon conducting the common enquiry submitted enquiry report dated 15 July 2008, holding that the charge stood proved against all the delinquent employees. The disciplinary authority upon considering the reply submitted by the petitioner to the show cause notice, passed the impugned order dated 11 September 2008, imposing punishment of compulsory retirement upon the petitioner, whereas, the other delinquent personnel came to be dismissed from service. The order of the disciplinary authority insofar it relates to the petitioner and Ramesh Singh came to be affirmed in appeal and revision, whereas, the revisional authority set aside the punishment of removal imposed on Constable Manjunath for want of evidence.

Learned counsel for the petitioner has made two fold submission: (i) that Defence Assistant was not provided to the petitioner; (ii) one of the delinquent employee (Constable Manjunath) was exonerated of the same charge and has been reinstated in service by the revisional authority vide order dated 25.12.2009. In short, petitioner claims parity with Manjunath.

Learned counsel appearing for the petitioner on being confronted with the enquiry report, wherein, the enquiry officer noted that though the petitioner desired for a Defence Assistant but did not provide the name of the person to be appointed Defence Assistant and, thereafter, participated in the enquiry without protest. In view thereof, the learned counsel for the petitioner does not press the point and submits that the issue primarily involved in the present writ petition is confined to the discrimination meted to the petitioner in awarding punishment. In other words, petitioner claims parity with the delinquent employee who was subsequently exonerated in a common enquiry, whereas, petitioner came to be compulsorily retired.

Sri S.K. Rai, learned counsel appearing for the respondents submits that petitioner and Ramesh Singh are the main culprits being members of the Recruitment Board, whereas, Manjunath was held guilty by the enquiry officer on mere suspicion of his involvement, though he was not connected with the recruitment. Certain phone numbers and roll numbers of candidates appearing in the recruitment process was recovered from the premises of Manjunath, however, the said material nowhere connects or involves Manjunath with the misconduct committed by the other two delinquent employees, in particular, the petitioner. Manjunath though was held guilty on mere suspicion, but the enquiry officer, in the opinion of the revisional authority, was unable to prove his involvement alongwith others in manipultating the recruitment process, aiding and assisting the candidates participating in the recruitment.

The enquiry officer noted that the premises of the petitioner was raided and searched by a team headed by Sri J.K. Gupta, Deputy Commandant, along with several other officers; petitioner resisted the raid and did not cooperate with the officers, however, the premises (quarter) was searched in his presence seizing incriminating material pertaining to the recruitment process; which include, the question paper of the written examination, admit cards of several candidates, and unaccounted cash; petitioner had duplicate call letters of the participating candidates. The recovery memo was duly countersigned by the petitioner. Upon considering the evidence and material available on record and the statement of the witnesses, the enquiry officer held that the petitioner, along with Hawaldar Ramesh Singh, was primarily involved in manipulating the recruitment process, being the co-opted member of the Recruitment Board.

I have carefully gone through the enquiry report with the assistance of the learned counsels for the contesting parties. The involvement of the petitioner in the malpractice of the recruitment process came to light when Ramesh Singh was apprehended red handed by Smt. Seema Dhundia, Commandant, while noting unauthorizedly the written examination marks of the candidates; Ramesh Singh disclosed the name of the petitioner and Manjunath alleging that the list of the candidates was provided to him by the petitioner. Thereafter, on the direction of the superior officer, a team comprising of Shri J.K. Gupta, Deputy Commandant, CRPF, Allahabad alongwith five other officers searched the premises of the petitioner and other delinquent employees. It is noted in the enquiry report that petitioner resisted and reluctantly agreed for the search of the premises in his presence. Upon search the following incriminating documents/ material was recovered. The recovery memo was duly countersigned by the petitioner.

(1) Copy of written test Papers part-A & B (Photostate Copies).

(2) Copies of Admit Card in r/o Md. Fariduddin Khan

( Roll no. 0509502004394)

(3) Copies of Admit Card in r/o Ashok Kumar Bhatiya

(Roll No. 0509502009658).

(4) Copies of Admit Card in r/o Satya Dev Yadav

(Roll No. 0509502004357)

(5) One application written by Shri Ashok Kumar

(6) 3 Papers wherein Roll No. and name of Candidates have been written.

(7) 4 Slips showing Roll No. and name of candidates.

(8) Unaccounted money worth Rs. 73,692/-

Whereas, the following documents was seized from the premises of co-delinquent Manjunath:

(1) 12 Slips/Papers showing phone No., Roll No., Names of candidates and various addresses.

(2) One small diary containing 16 pages.

Documentary and oral evidence was led to prove the charge. The Head and some of the members of the search team appeared and deposed in the departmental enquiry proceedings supporting the charge. Sri J.K. Gupta, Deputy Commandant, head of the team, in detail narrated the facts and the involvement of the petitioner and Ramesh Singh. Ramesh Singh confessed his involvement in the malpractice, at the behest of the petitioner. It is on his statement that the premises of the petitioner came to be searched. It is noted that petitioner resisted the search, ran away from the spot; reluctantly countersigned the seizure memo. Upon the statement of the witnesses, duly supported by documentary evidence all the delinquent employees were held guilty of the charge. Ramesh Singh and Manjunath came to be dismissed. The revisional authority, Director General, C.R.P.F. affirmed the punishment order of the petitioner and Ramesh Singh but exonerated Manjunath. It is informed by the learned counsels that Ramesh Singh did not participate in the enquiry.

Petitioner claims parity with Manjunath i.e. he seeks exoneration. The enquiry report reflects that Manjunath was posted at the Public Call Office (PCO), the witnesses, including Shri. J.K. Gupta, the team leader, stated that Manjunath informed them that he received calls from Shri Malkiyat Singh, member of the Recruitment Board requesting him to connect the call line to Ramesh Singh. That apart, two documents, referred to earlier, was recovered from his premises. None of the witnesses were able to prove the acts of commission or omission of Manjunath in the mal- practice in the recruitment process. The revisional authority in this backdrop was of the opinion that there was no evidence against Manjunath. Phone call details of some of the candidates was found from his premises which became the basis of the presumption drawn by the enquiry officer that constable Manjunath may have been involved alongwith the other delinquent employees in the manipulation of the recruitment process. In other words, the charge against Manjunath was proved on mere presumption as against the petitioner whose involvement in the misconduct was duly proved.

On specific query, learned counsel for the petitioner submits that no procedural irregularity in conducting the disciplinary enquiry was made nor any prejudice was caused, however, he submits that in a common enquiry on the same charge two of the delinquent personnel came to be punished, whereas, one of the delinquent employee was subsequently exonerated by the revisional authority.

The sole point that arises for consideration is whether petitioner is entitled to parity with Manjunath.

The Supreme Court in Rajendra Yadav Vs. State of M.P. and others1, held that where in a given case the delinquent employee who had a more serious role was inflicted comparatively a lesser punishment as against the other delinquent employee who had a passive role in the incident was inflicted a more serious punishment (dismissal) is clearly arbitrary and discriminating. Para 11 and 12 of the judgment is extracted.

"11. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.

12. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences."

The principle stated above is seen applied in few judgments of the Supreme Court. The earliest one is Director General of Police and Others v. G. Dasayan2, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. Supreme Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents.

In Anand Regional Coop. Oil Seedsgrowers' Union Ltd. v. Shailesh Kumar Harshadbhai Shah3, the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, Supreme Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.

The principle laid down in the above mentioned judgments would, however, not apply to the facts of the present case.

The Supreme Court in a recent judgment rendered in State of Tamil Nadu and another Versus M. Mangayarkarasi and etc4. has held that the principle of parity as a yardstick cannot be applied mechanically. The disciplinary authority while applying the principle of parity must assess the gravity of misconduct of the delinquent employees. The quantum of punishment is dependent on the degree of seriousness of the nature of the misconduct and its consequence and not on the similar language of the charge.

"Learned counsel for the respondents also submitted that there is no case of misappropriation against the two employees involved in the present appeals. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. .................................................

.................... The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority.

Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous."

Learned counsel for the petitioner is unable to point out any parity with regard to the authority, role and allegation against the petitioner and insofar as it relates to constable Manjunath. The enquiry officer has in detail discussed the incriminating material recovered from the possession of the petitioner and returned a finding that the petitioner was found in liaison with the candidates participating in the recruitment for the post of constables. However, in respect of Manjunath no such finding has been recorded, therefore, Manjunath came to be exonerated. Further, petitioner was co-opted member of the Board and primarily responsible for the recruitment. His position was such that he could manage/mismanage and influence the recruitment process. Manjunath was not connected directly with the recruitment process.

Learned counsel for the petitioner failed to point out the parity with Manjunath from the material/evidence recorded by the enquiry officer. He is unable to point out any illegality, infirmity or perversity in the impugned order.

The writ petition being devoid of merit is accordingly dismissed.

It is clarified that no other point or ground was pressed by the counsels of the respective parties.

No cost.

Order Date :- 13.3.2019

K.K. Maurya