Shyam Babu Vaish vs State Of U.P.And Anr.
2019 Latest Caselaw 4855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 01.05.2019
 
Delivered on 22.05.2019
 
Court No. - 29
 

 
Case :- WRIT - A No. - 19813 of 2013
 
Petitioner :- Shyam Babu Vaish
 
Respondent :- State Of U.P.And Anr.
 
Counsel for Petitioner :- Tarun Agarwal,Ravi Kant,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Ranjan Srivastava,Yashwant Varma
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

The petitioner who was a member of the U.P. Higher Judicial Service and retired on 30.06.2006 as District Judge has preferred this writ petition questioning the punishment order dated 07.11.2012 passed by the Hon'ble Governor of U.P. (Annexure-14) withholding 50 per cent of his pension on the recommendation of the High Court.

The petitioner as District Judge, Barabanki got conducted examination for the selection of class-III (including clerks and stenographers) and class-IV employees of the Judgeship for which purpose he constituted two independent committees of 5 and 3 members respectively under the Chairmanship of two different Senior Judicial Officers of the district.

An advertisement inviting applications for the purposes of the above recruitment was published on 30.07.2004 in the newspapers. The examination for class-III and class-IV posts were held on 29.09.2004 in accordance with the provisions of U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947/Rules for Recruitment of Ministerial to the Subordinate Offices, 1950 and the provisions of U.P. Subordinate Civil Court Inferior Establishment Rules, 1955 respectively. The result of the class-III examination was prepared on 04.11.2004 and it was declared on the notice board on 05.11.2004. The result of the class-IV examination was prepared on 10.09.2004 and after sending a report to the High Court, the same was declared on 17.09.2004. The completion of the process of the selection for the above posts was duly notified on 27.11.2004 to the High Court.

The aforesaid selection was challenged by several persons by means of different writ petitions filed before the Lucknow Bench of this High Court. The said writ petitions i.e. Writ Petition No. 7021 (S/S) of 2004 (Dinesh Kumar Vs. State of U.P. And others) along with connected petition were decided vide judgment and order dated 19.01.2006. The entire selection process including the select list and the consequential appointment of class-III and class-IV employees was quashed and cost of Rs. 1 lakh was imposed upon the petitioner.

The said judgment and order on appeal was partly modified vide the Division Bench decision dated 19.07.2006. The Appellate Court affirmed the decision quashing the select list of class-III and class-IV employees but the appointments of the Stenographers and Drivers were saved and the cost of Rs. 1 lakh imposed upon the petitioner was deleted. The judgment and order of the learned Single Judge was accordingly modified with certain other little changes.

The petitioner was served with a charge-sheet dated 30.10.2008 by the High Court referring to the above judgment and orders. The petitioner was charged for misconduct as it was alleged that there was no transparency and fairness in the entire selection and the selection was an outcome of favouritism, nepotism, arbitrariness with malafide intention for extronious considerations. Along with the petitioner, similar charge-sheets were also given to the other judicial officers who were members of the committees responsible for conducting the recruitment examination of class-III and class-IV employees. A department Inquiry was conducted jointly against all the 6 officers including the petitioner. The inquiry report submitted on 22.09.2010 held all the officers including the petitioner guilty of the charges levelled against them.

The Administrative Committee of the High Court accepted the inquiry report insofar as it related to the petitioner and directed it to be placed before the Full Court. However, in respect of the other officers, it was not accepted and the proceedings against them were dropped vide resolution dated 12.05.2011.

The Full Court in its meeting held on 11.02.2012 resolved for withholding 50 per cent of the pensionary benefits payable to the petitioner with immediate effect as by that time the petitioner had retired. In respect to the remaining 5 officers, it was resolved that as they have been found guilty by the Inquiry Judge, the Administrative Committee should call for the explanation of the officers and thereafter consider the question of punishment, if any to be imposed upon them. Accordingly, the said 5 officers were given opportunity to submit their additional explanation and on consideration of the same, the Administrative Committee on 20.04.2012 resolved to place the matter before the Full Court. The Full Court in its meeting dated 02.02.2013 resolved to drop the proceedings against the said officers.

It may be pertinent to mention here that as the petitioner had retired on 30.06.2006, the disciplinary proceedings against him were initiated after receiving the sanction of the Hon'ble Governor in terms of Article 351-A of the C.S.R.1 which was accorded on 21.10.2008 in respect of holding an Inquiry in the matter of irregularities and illegalities in the recruitment of class-III employees but not with regard to recruitment of class-IV employees.

It is on the basis of the above decision of the High Court to withhold 50 per cent of the pension of the petitioner that the Hon'ble Governor has passed the impugned order dated 07.11.2012.

We have heard Sri Ashok Khare, Senior Counsel for the petitioner and Sri Manish Goyal, learned counsel appearing for High Court of Judicature at Allahabad and learned Standing Counsel.

The affidavits exchanged between the contesting parties have also been perused.

Sri Khare had made three submissions.

The first is that in respect of an incident which had taken place 4 years before the initiation of proceedings, no disciplinary proceedings could have been initiated, not even with the sanction of the Hon'ble Governor. The sanction of the Hon'ble Governor is only in respect of holding an inquiry in the matter of recruitment of class-III employees and not with regard to recruitment of class-IV employees.

Secondly, some of the findings recorded by the Inquiry Judge are contrary to the findings returned by the Division Bench on the judicial side and cannot be sustained.

Lastly, it has been urged that the charges against all the officers including the petitioner were identical and common and as a joint inquiry was conducted and a common report was submitted, there was no justification to accept the report only in respect of the petitioner and to punish him and at the same time, to exonerate the others. This is clearly a case of discrimination for no justifiable reason.

Sri Manish Goyal has defended the punishment order by contending that the sanction dated 21.10.2008 of the Hon'ble Governor is not under challenge and that no findings of the Inquiry Judge are in conflict with the findings returned on the judicial side. The disciplinary proceedings were drawn against the petitioner well within time and that if some other officers have gone unpunished, it does not mean that the petitioner is innocent and the punishment inflicted upon him is illegal or discriminatory in nature.

Article 351-A of the C.S.R. authorizes the Hon'ble Governor to withhold or withdraw pension or any part of it either permanently or for a fixed period and to recover from the pension, the whole or the part of pecuniary loss caused to the Government, if a Government employee is found in a departmental or judicial proceedings to be guilty of grave misconduct or has caused pecuniary loss to the Government by his misconduct or negligence, but such departmental proceedings can only be instituted, if he has retired, with the sanction of the Hon'ble Governor in respect of an incident which took place not more than 4 years before institution of such proceedings.

To put it differently and in simple words, the departmental proceedings can be initiated against a retired employee only with the sanction of the Hon'ble Governor and that too only in respect of an incident which had taken place not more than 4 years earlier to the institution of such proceedings.

The petitioner got the advertisement for the recruitment of class-III and class-IV employees published on 30.07.2004 and the result of class-III employees was declared on 05.11.2004 and that of class-IV employees on 17.09.2004. A report regarding the completion of the process of the selection was submitted to the High Court on 27.11.2004.

In view of the above, the event of recruitment of class-III employees stood completed on 05.11.2004 and that of class-IV employees on 17.09.2004.

It is legally accepted position that the departmental proceedings commences with the issuance of the charge-sheet2. It was issued on 30.10.2008 in this case. So, in respect of the matter of recruitment of class-IV employees which was completed with the declaration of result on 17.09.2004, the initiation of departmental proceedings was ex-facie beyond the period of 4 years and as such could not have been initiated in view of proviso (a) (ii) of Article 351-A of the C.S.R. In addition to above, no sanction from the Hon'ble Governor was taken to initiate departmental proceedings with regard to the matter of recruitment of class-IV employees. The sanction of the Hon'ble Governor on record dated 21.10.2008 is very specific and it states that the result of recruitment of class-III employees was declared on 05.11.2004 and that the sanction is in reference to the said recruitment. The said sanction order nowhere even impliedly establishes that it concerns the matter of recruitment of class-IV employees as well. Thus, the allegations of misconduct levelled against the petitioner in respect of the recruitment of class-IV employees could not have been inquired into by way of disciplinary proceedings after the petitioner had retired.

In the case of Ram Kishan Singh3, a retired Assistant Sales Tax Officer of the Trade Tax Department was charge-sheeted and a departmental inquiry was instituted against him without the order of the Hon'ble Governor permitting initiation of departmental inquiry against him. The Hon'ble Governor was stated to have granted permission under Article 351-A of the C.S.R. on 22.11.2005 by which time a period of more than 4 years from the incident had already lapsed. It was, therefore, held that the Hon'ble Governor could not have granted permission for any departmental proceedings against the said officer and that the entire proceedings stood vitiated in law as they were not initiated against the retired officer within 4 years of the incident.

In the case of Durga Prasad Pachouri4, another Division Bench of this Court while dealing with the disciplinary proceedings against a retired Assistant Engineer held that since he had retired, no disciplinary proceedings could be initiated against him in respect of an event which had occurred 4 years prior to the institution of the departmental proceedings.

Accordingly, we are of the opinion that the inquiry which was conducted against the petitioner in respect of charges of misconduct in the recruitment of class-IV employees was not only barred by limitation but was also without the sanction of the Hon'ble Governor as contemplated under Article 351-A of the C.S.R.

The result of class-III employees was declared on 05.11.2004 and the charge-sheet was issued on 30.10.2008. Thus, the initiation of departmental proceedings in respect of irregularities in the recruitment of class-III employees was within four years of the incident on the basis of sanction of the Hon'ble Governor.

The second submission advanced on behalf of petitioner that some of the findings of the Inquiry Officer are contrary to the Division Bench decision is of no force. The petitioner has not specifically challenged the inquiry report rather only the order of punishment.

A feeble attempt was made to demonstrate that the finding of the Inquiry Judge turning down the contention of the petitioner that up to the stage of codification there was no wrong is in conflict with the finding of the Court of Special Appeal wherein it has been held that there was no wrong with the selection process up to the stage of answer sheets being coded by the District Judge is of such a minor contradiction that it is of no avail to invalidate the entire inquiry. The other contradiction pointed out in fact goes against the petitioner inasmuch in relation thereto, the Appellate Court has held that as the learned District Judge himself had conducted the interview with the assistance of the Chairman of the Committee, then no other person can be blamed for the correction and reduction of marks except the District Judge himself.

Moreover, no other specific findings of the inquiry report have been pin pointed to be contrary to the findings returned by the Division Bench on the judicial side.

With this, we move to the last aspect of the matter that all of the officers including the petitioner faced the same charges in respect of the same incident and there was a common inquiry report, the petitioner could not have been segregated so as to inflict punishment and to exonerate the others.

There is no dispute to the fact that all the officers were proceeded against departmentally in respect to the same recruitment of class-III and class-IV employees in the Judgeship of Barabanki. A common inquiry report was submitted against them holding all of them to be guilty of the charges levelled against them. The Inquiry Judge has not differentiated between the role of the petitioner and that of the other judicial officers and has collectively found all of them to be guilty. In view of the above, all the charged officers stood on the same pedestal and were not differently located. All of them were collectively responsible for conducting the aforesaid recruitment examination rather the members of the committee were more directly concerned with the holding of the examination and the declaration of the result then the petitioner who only played the role of the supervisor. Therefore, apparently no distinction could have been made between the role played by the petitioner and the other charged officers. No reason or distinction is implicit either from the inquiry report, the resolution of the Administrative Committee or the Full Court or even from the order of punishment.

Sri Manish Goyal has tried to distinguish the case of the petitioner from other petitioners by contending that the tabulation chart which forms the basis of the selection was the creation of the petitioner with which the other officers were not concerned and that the result was declared by the petitioner after recording his personal satisfaction.

No doubt that the result was declared after the petitioner as District Judge was satisfied with the preparation of the same, nonetheless, the responsibility to conduct the examination and of preparing the result vested with the committees. The petitioner in his capacity as a District Judge or as the Appointing Authority rightly played the role of a supervisor and kept on guiding the officers and on being satisfied that the selection process had been conducted in a fair and a clean manner and that there is no discrepancy or illegality in the preparation of the result approved for its declaration. Therefore, the satisfaction recorded by the District Judge in no way means that he had played some kind of pivitol role in the illegality, if any, committed in the entire recruitment process. His role cannot be distinguished from that of the others though he may be having a higher responsibility.

One of the submission of Sri Manish Goyal is that it is not a case of discrimination and the petitioner cannot claim negative equality. In other words, what he is trying to say is that if some other officers have been left unpunished, it is no ground to leave the petitioner also.

The respondents are not pleading and contending that the other 5 officers have been illegally exonerated from the charge of misconduct in relation to the incident of recruitment of class-III and class-IV employees of the Judgeship. Therefore, it is not a case of claiming parity with something which has been done illegally. In a situation where the other officers and the petitioner are being charged identically in respect of the same incident, they stand equal to one another and their actions cannot be discriminated unless separate roles are assigned to each of them distinguishing misconduct on their part which has not been done in the case at hand. Thus, it is not a case of claiming equality with an illegality rather a case of victimisation or singling out the petitioner by arbitrarily picking him and choosing him for punishment and treating him differently with the other officers.

In the case of Rajpal5, the High Court had considered the nature of charges levelled against the 5 employees who were charged on account of incident that happened on the same day and came to the conclusion that since the gravity of the charges was the same, it was not open for the disciplinary authority to impose different punishments upon different delinquent employees. The said reasoning was approved by the Hon'ble Supreme Court and it was held that as the State has failed to indicate any difference between the role of the employees, there is no fault in the order of the High Court.

A similar view has been taken by the Hon'ble Supreme Court in a case of Pawan Kumar Agrawal6. The Hon'ble Supreme Court in the said case after giving thoughtful consideration to the rival contentions urged before it held that imposing a lesser punishment of withholding one increment to one of the delinquent employees and a higher punishment to another amounts to discrimination and treating them differently which is violative of Article 14 of the Constitution of India.

In the case of Man Singh7, the Apex Court reiterated that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally. In the said case, after observing as above, it held that imposing of punishment upon one employee and letting of completely his subordinate was arbitrary and unfair when both of them were similarly situated and were accused of misconduct in relation to the same incident.

In the case of Jitendra Prasad Singh8, three workmen of the company were charged on almost identical grounds and all of them were found guilty of misconduct in respect of the same incident. One of the employee was punished with one month suspension, the other was dismissed from service whereas the punishment imposed upon the third was set aside and he was directed to be reinstated under the orders of the Court. The question arose whether the workman who had been dismissed has been meted out discriminatory treatment. The Apex Court held that the High Court is justified in holding that his dismissal amounts to denial of justice and that the action to dismiss him and to punish the other by one month suspension is arbitrary and discriminatory and as such is violative of Article 14 and 16 of the Constitution of India.

In view of the above, the action of the High Court in recommending withholding of 50% pension of the petitioner and in exonerating all the other five officers is nothing but discrimination between equals who fall under the same class, for no recorded reasons and as such the punishment imposed upon the petitioner by the Hon'ble Governor is not tenable in law.

This apart, as already discussed, the aforesaid punishment was inflicted upon the petitioner finding him guilty of misconduct in conducting the recruitment of class-III and class-IV employees. Thus, the punishment was on the cumulative effect of the misconduct in respect of both the recruitments and if one of them is deleted, it would certainly not have the same impact so as to impose a punishment which had been inflicted upon the petitioner. In respect of the recruitment of class-IV employees, the inquiry has been held to be without jurisdiction as it was barred by time and was without the proper sanction of the Hon'ble Governor. Accordingly, the gravity of the misconduct stands reduced and in that respect of the matter, the punishment ex-facie turns out to be excessive and disproportionate to the charge proved.

In the overall facts and circumstances of the case, our considered conclusion is that the order of punishment dated 07.11.2012 withholding 50% of the pension of the petitioner is unsustainable and deserves to be quashed.

It is accordingly quashed and the writ of certiorari to that effect is directed to be issued.

The writ petition is allowed with no order as to costs.

Order Date-22.05.2019

Nirmal