Andhra Pradesh High Court - Amravati

Ch. Satya Prasad Rao vs The Appellate ... on 15 September, 2022

           THE HON'BLE SRI JUSTICE A.V.SESHA SAI
                            AND
            THE HON'BLE SRI JUSTICE V.SRINIVAS

                  WRIT PETITION No.42175 OF 2018
ORDER: (Per Hon'ble Sri Justice A.V.Sesha Sai)
      In the present Writ Petition, challenge is to the order of

dismissal of the petitioner from service passed by respondent No.2-

Disciplinary Authority-cum-learned Principal District Judge, East

Godavari District, Rajahmundry, vide D.E.FILE No: 53/13 :: Order

dated 23.01.2017, as confirmed in the appeal by respondent No.1

herein, vide Order in D(D)A.No.09/2017,C.4 (Con.), Dated

21.05.2018.

2. The petitioner herein joined in service as a Field

Assistant in the Court of the Junior Civil Judge, Alamuru, East

Godavari District, on 03.02.1997 and subsequently, on promotion,

he was posted on 14.06.2005 in the Court of the Junior Civil

Judge, Razole, East Godavari District. Subsequently, he was

posted in the Court of the Judicial Magistrate of the First Class,

Addateegala. As on the date of dismissal, the petitioner was

working as Field Assistant in the Court of the Junior Civil Judge,

Razole, East Godavari District.

3. In connection with a complaint made by a Placement

Agency, i.e., SBEUCC Society, Kakinada, stating that the ESI, EPF,

Insurance, etc., of the Outsourcing Employees were not received,

the learned Judicial Magistrate of the First Class, Addateegala,

submitted a report to respondent No.2 and the learned Principal

District Judge issued a show cause notice dated 13.06.2013,

calling upon the petitioner to show cause as to why disciplinary

action should not be initiated for the alleged misappropriation of

Rs.2,04,884/-.

4. In response to the aforesaid show cause notice dated

13.06.2013, the petitioner herein submitted an explanation on

28.08.2013.

5. Thereafter, respondent No.2-Disciplinary Authority

appointed the I Additional District Judge, Rajahmundry, as

Preliminary Enquiry Officer, who submitted a report on

30.01.2014.

6. Subsequently, respondent No.2-Disciplinary Authority

initiated regular departmental enquiry proceedings, by issuing a

Charge Memo dated 31.01.2014, framing the following Articles of

Charges against the petitioner and one Sri G.S.Sarma,

Superintendent:

"Firstly, that you, Ch.Satya Prasada Rao, formerly Field Assistant, Judicial Magistrate of First Class Court, Addateegala failed to remit the monthly deduction amounts i.e., EPF, ESI, Insurance, etc., of the outsourcing employees working in the court, to a tune of Rs.2,04,884/- to the placement agency i.e., Santhi Bheem VEULC Society, Kakinada, which act of yours, if proved or established would amount to misappropriation, fraud and unbecoming of a public servant and liable for punishment under A.P.C.S. (CCA) Rules, 1991.

Secondly, that you, Sri G.S.Sarma, formerly Superintendent of Judicial Magistrate of First Class Court, Addateegala failed to check the branch and registers before June, 2012 and failed to place the matter before the Presiding Officer, immediately, or within a reasonable period, which act of yours, if proved or established would amount to, misconduct, negligence and dereliction in discharging your duties and liable for punishment under A.P.C.S. (CCA) Rules, 1991."

7. In response to the said Charge Memo dated

31.01.2014, the petitioner herein submitted his explanation on

29.05.2014. Thereafter, respondent No.2-Disciplinary Authority

appointed the learned Principal Senior Civil Judge, Kakinada, as

the Enquiry Officer and after holding enquiry, he submitted a

report dated 20.03.2015, holding the charges as proved. After

receipt of the said report on 02.05.2015, the petitioner submitted

his written representation dated 28.05.2015. Then respondent

No.2-Disciplinary Authority, vide the order impugned dated

23.01.2017, dismissed the petitioner from service, while inflicting

the punishment of withholding one annual increment with

cumulative effect on the co-delinquent Sri G.S.Sarma,

Superintendent. As against the said order of punishment, the

petitioner herein filed appeal dated 06.03.2017 before respondent

No.1 and respondent No.1, vide order dated 21.05.2018, dismissed

the said appeal.

8. Challenging the validity and the legal sustainability of

the orders passed by the Disciplinary and Appellate Authorities,

referred to supra, the present Writ Petition came to be instituted.

9. A counter affidavit is filed by respondent No.2, denying

the averments and the allegations made in the writ affidavit and in

the direction of justifying the impugned action.

10. Heard Sri J.Sudheer, learned counsel for the petitioner,

and Sri S.Srinivasa Rao, learned Standing Counsel for the

respondents, apart from perusing the material available on record.

11. Submissions/Contentions of the learned counsel for the

petitioner:

11.1 The orders impugned in the Writ Petition are highly

erroneous, contrary to law, opposed to the very spirit and object of

the provisions of the Andhra Pradesh Civil Services (Classification,

Control and Appeal) Rules, 1991, and the basic principles of service

jurisprudence.

11.2 The punishment awarded is not in commensurate with

the charge leveled against the petitioner.

11.3 The Disciplinary and the Appellate Authorities failed to

take into consideration that the Enquiry Officer traveled beyond the

scope of the charge by recording a finding about the past conduct

of the petitioner without any basis and foundation.

11.4 Respondent Nos.1 and 2 failed to take into account that

Ex.P.8-letter dated 23.09.2012 was obtained by P.W.1 and Charged

Officer No.2 under threat of criminal prosecution and by undue

influence, coercion and pressure and not out of free will.

11.5 The respondents ought to have seen that the petitioner

already remitted the amount by April, 2013, i.e., much prior to the

initiation of the disciplinary proceedings, by issuing charge memo

dated 31.01.2014.

11.6 The respondents ought to have seen that there is

discrimination in imposing the punishment and the co-delinquent,

i.e., Charged Officer No.2, was inflicted with stoppage of one

increment with cumulative effect, whereas the respondents inflicted

the petitioner with the harsh and disproportionate punishment of

dismissal from service and the said action is violative of Article 14

of the Constitution of India.

11.7 Since the very charge framed against the petitioner

being vague and not in consonance with the Rules 20(3)(ii) and

20(5) of the A.P.C.S. (CCA) Rules, 1991, the entire disciplinary

proceedings stood vitiated.

11.8 Once the regular enquiry was initiated by issuing a

charge memo dated 31.01.2014, the respondents ought not to have

placed reliance on Ex.P.8-letter dated 23.09.2012, in the absence of

any proof to believe the same as voluntary.

11.9 The report of the Enquiry Officer suffers from patent

perversity.

11.10 The respondents ought to have seen that though the

petitioner submitted a representation dated 29.09.2014, requesting

the Disciplinary Authority to change the Enquiry Officer, no

response was given.

11.11 The respondents ought to have seen that the Charged

Officer No.2 also sought pardon and prayed that he would pay the

entire amount, as such, Ex.P.11 and mere payment by the

petitioner should not be construed as admission of guilt by the

petitioner.

11.12 No criminal prosecution was launched against the

petitioner.

11.13 No document was produced to show that the amount

was credited to the account of the petitioner.

12. In support of his submissions and contentions, learned

counsel for the petitioner places reliance on the following

judgments:-

(1) M.V.Bijlani v. Union of India and others1. (2) Rajendra Yadav v. State of Madhya Pradesh and others2.

13. Submissions/Contentions of Sri S.Srinivasa Rao,

learned Standing Counsel for the respondents:-

13.1 There is no illegality nor there exists any infirmity in

the impugned orders, as such, the same are not amenable for any

judicial review under Article 226 of the Constitution of India.

13.2 The petitioner herein initially admitted the guilt, vide

Ex.P.8-letter dated 23.09.2012, i.e., before commencement of the

regular departmental enquiry and in view of the subsequent letter

of denial, i.e., Ex.P.30 dated 28.08.2013, the regular enquiry was

initiated by issuing charge memo dated 31.01.2014.

13.3 Since the guilt of the petitioner could be established by

adducing cogent and convincing evidence, the orders of the

Disciplinary and Appellate Authorities warrant no interference of

this Court by way of judicial review.

(2006) 5 SCC 88

(2013) 3 SCC 73

13.4 Strict principles of criminal law are not applicable to

departmental proceedings and only the existence of preponderance

of probabilities is sufficient.

13.5 Since it is a proved case of misappropriation of

amounts, the punishment of dismissal from service cannot be said

to be disproportionate.

14. In the above background, now, the issues that emerge

for consideration and adjudication by this Court in the present Writ

Petition are as follows:

(1) Whether the order of punishment of dismissal dated 23.01.2017 passed by respondent No.2, as confirmed in appeal by respondent No.1, vide order dated 21.05.2018, is sustainable and tenable?

(2) Whether the impugned orders warrant any interference of this Court under Article 226 of the Constitution of India by way of judicial review?

15. The material available on record reveals that initially

when the present issue, as regards non-remittance of the amount,

surfaced pursuant to a complaint made by an outsourcing agency,

the petitioner submitted Ex.P.8-letter dated 23.09.2012 to the

learned Judicial Magistrate of the First Class, Addateegala,

admitting the guilt. It is equally true that, vide Ex.P.11-letter dated

16.10.2012, addressed to the Judicial Magistrate of the First Class,

Addateegala, while indicating that he already paid Rs.1,38,000/-

out of the total sum of Rs.1,83,793/-, the petitioner herein sought

two months' time for payment of the balance amount. However, the

reality remains that thereafter, the petitioner herein submitted

Ex.P.30-representation dated 28.08.2013, stating that he handed

over the cash, after collection, to delinquent officer No.2-

Superintendent, and that the learned Presiding Officer, Addateegala

Court and the Superintendent-delinquent officer No.2 conspired

together and issued office memorandum dated 18.09.2012 and

they forcibly obtained his signature on Ex.P.8-letter dated

23.09.2012 and he further stated that he did not sign in the said

letter out of free will and consent. In this context, it may be

appropriate to extract the contents of Ex.P.30-letter dated

28.08.2013. The said letter to the extent of its relevance reads as

under:

"Under these circumstances I used to get the cash relating to the amount in respect of E.P.S., E.S.I., and S.T., etc., amounting to Rs.24,104/- from out of the salaries of out sourcing employees direct from the yelswaram Bank and handed over the cash every

month to the Superintendant of the court to arrange for the payment of the said amount to the placement agency at Kakinada. Like wise I have handed over a total amount of Rs.2,16,000/- to the Superintendent of J.F.C.M.Court, Addateegala for being remitted to the placement agency at Kakinada i.e., 9 months at Rs.24,104/- P.M. I am under impression that the superintendent of J.F.C.M.Court, Addateegala might have (remitted) paid the said subscri0ption amount to the placement agency at Kakinada every month, since he used to attend the court once in every week from Kakinada and the said fact is also known to the officer.

While things being so the placement agency i.e., the S.B.V.E.U.L.C.Society, Kakinada sent a letter dated 18.06.2013 informing the J.F.C.M.Court, Addateegala that the subscription amount of E.P.F., E.S.I., and S.T., etc., recovered from the salaries of out sourcing employees was not received from the court. On being received the said letter from placement agency, the Superintendent of the court got issued an official Memo to me calling for me to account for the said amount on 06-07-2012. On being received the official memo I have informed the Hon'ble J.F.C.Magistrate, Addateegala stating that I handed over the amount in cash every month to the superintendent of that court for being remitted to the placement agency, at Kakinada since it has become difficult for me to obtain Demand Draft

from State Bank of India, Yeleswaram by going over there time and again. It is further relevant to bring it to the notice of the Hon'ble District Judge that in addition to Accounts branch I was also placed in-charge of criminal branch of that court. As the Officer of Addateegala court was kept vacant, I used to go over to Rampachodavaram In-charge Magistrate Court in connection remands and bail petitions.

The learned J.F.C.Magistrate and Superintendent of Addateegala court having conspired together got issued another Official Memo dated 18-09-2012 to me calling for me to explain as to why suitable disciplinary action should not be recommended against me for my action in the matter for the alleged miss-management of the funds of out sourcing employees. When tried to apprise the fact of handing over the said amount to the Superintendent of that court, the Learned Magistrate and the Superintendent prevailed upon me and threatened me with dire consequences of implicating me into criminal prosecution. They have forcibly obtained my signature on the alleged explanation said have been given by me on 23-09-2012 by pressure and coercion. The signature on the said explanation was not signed by me out of free will and consent. I submit that the contents in the said explanation are false and incorrect and they are not admissible in evidence. Had, I committed misappropriation of the alleged amount,

the Magistrate would have reported the matter to the Hon'ble District Judge, E.G. Dt., Rajahmundry, then and there would not have waited till the entire amount is recovered from my salary. The attitude of the Magistrate through a cloud of doubt whether he shouldered the superintendent who received the amount from my salary.

I submit that the allegation that I misappropriated the said amount is totally false and in correct. I submit that the superintendent who received the amount from me every month had him-self committed misappropriation of the said amount. The J.F.C.Magistrate and the Superintendent of that court have high handedly recovered the amount from my salary to a tune of Rs.2,04,884/- which is highly irregular and arbitrary.

I respectfully beg to submit that I have not miss- appropriated the alleged amount as noted in the proceedings of the Hon'ble District court and I may be absolved from the above allegation.

I beg to remain."

16. Obviously, pursuant to the aforesaid Ex.P.30-letter

dated 28.08.2013, the Disciplinary Authority, in order to find out

the ground realities, decided to hold regular departmental enquiry

and issued a charge memo dated 31.01.2014, framing the charges

1 and 2 against the petitioner and Superintendent respectively. In

response to the said charge memo dated 31.01.2013 and the

charge contained therein, the petitioner herein submitted his

written statement of defence/explanation on 29.05.2014, denying

the charge while, inter alia, stating that the learned Magistrate and

the Superintendent of Judicial Magistrate of First Class Court,

Addateegala, conspired together and issued an office memorandum

dated 18.09.2012 and that when he tried to apprise the fact of

handing over the amount to the Superintendent (charged officer

No.2), the learned Magistrate and the Superintendent prevailed

upon him and threatened him with dire consequences of

implicating him in criminal prosecution and they forcibly obtained

his signature on the alleged explanation said to have been given on

23.09.2012, i.e., Ex.P.8, by pressure and coercion and that the said

signature was not signed by him out of his free will or consent and

that the contents in the said letter are not correct and not

admissible in evidence. The petitioner herein further stated in the

said explanation that the Superintendent, who received the amount

from him every month, had himself committed misappropriation of

the said amount and the learned Magistrate and the

Superintendent of the Court have highhandedly recovered the

amount from him to a tune of Rs.2,04,884/-.

17. Being dissatisfied with the said explanation, the

Disciplinary Authority appointed the learned Principal Senior Civil

Judge, Kakinada, as Enquiry Officer. During the course of enquiry,

on behalf of the Department, P.Ws.1 and 2 were examined and

Exs.P.1 to P.32 were marked and the petitioner herein examined

himself as D.W.1 and filed Ex.R.1. The Enquiry Officer submitted

his report on 20.03.2015, stating that the charges framed against

the petitioner and the Charged Officer No.2 (Superintendent) stood

proved. Enclosing a copy of the Enquiry Officer's report, the

Disciplinary Authority issued a final show cause notice and in

response thereto, the petitioner herein submitted his explanation

dated 28.05.2015, pointing out various issues, including Exs.P.8

and P.11 and also brought to the notice of the Disciplinary

Authority the law laid down by the composite High Court of Andhra

Pradesh in the case of K.Abdul Gafoor v. High Court of A.P., rep. by

its Registrar, Hyderabad and others 3. In the said explanation, the

petitioner herein also stated that he handed over the cash to

1996 (3) ALT 368

Charged Officer No.2 after collection. The following paragraphs in

the said explanation are relevant:

"The charged employee further beg to submit that the charges framed against him discloses that he did not remit the monthly deduction amounts i.e., EPF, ESI, P.T., etc., of the out-sourcing employees to a tune of Rs.2,04,884/- to the placement agency, Kakinada. But the said placement agency was not examined by the prosecution. Non examination of the placement agency to whose accounts, the charged employee alleged to have not remitted the subscription amount and thereby alleged to have misappropriated the amounts is fatal to the prosecution and would go against prosecution and in such circumstances the enquiry authority would have drawn an adverse inference against the case of the prosecution.

In this context I rely on the decision reported in 2006(1) ALT (Crl.)368 AP Public prosecutor High Court of A.P., Hyderabad v/s P.Hanumantha Rao. Out of the witnesses PWs1 and 2 examined by the prosecution the witness PW2 Sri S.S.M.L.V.Prasad, Superintendent, I st Additional District Court, Rajahmundry on being cross examined has deposed that he did not know any thing about the alleged misappropriation and he is deposing as per records only. So no credence can be given to his evidence. Hence there remains the evidence of PW1.

The witness PW1 on being cross examined has denied the suggestion that the charged employee No.1 after getting the cash from S.B.I., Yeleswaram handed over the same to the superintendent i.e., charged employee No.2 for remittance to the placement agency. The witness further stated that the mode of mis-

appropriation instead of D.D. application charged employee No.1 attach the Pay-in-slips to his account the amount credited into his S.B. Account instead of crediting into the account of placement agency. The charged employee No.1 respectfully begs to submit that the charged employee did not handed over the cash to charged employee No.2. The charged employee No.1 while deposing himself a DW1 has categorically stated that aspect of handing over the cash to charged employee No.2. The witness PW1 also deposed that he being a Judicial Officer while holding court proceedings he will not aware of what is going on the office.

The charged employee No.1 further begs to submit that the allegation that he attached the Pay-in-slips to his account instead of D.D. application and thereby credited into his S.B. account is far from truth as the same is not possible except with the DDO's signature and his endorsement to the Bills. Further it is for the prosecution to examine the bank officials to substantiate that contention. So it is evident that the charged employee No.1 handed over the cash to charged

employee No.2 Had the charged employee No.1 did not handed over the cash to charged employee No.2 PW1 and charged employee No.2 would have questioned charged employee No.1 much earlier to the date on which the placement agency wrote letter Ex.P1 dt.18- 06-2012 to PW1. All these aspects would goes to create a doubt as to whether the charged employee No.1 is liable for the allegation of mis-appropriation. As in criminal trial the benefit of doubt should go to the accused, so as the case in departmental enquiry where the accusation is made on the employee and the evidence adduced in support of the accusation created a doubt the benefit of such reasonable doubt on law and facts must go to the delinquent employee."

18. The Disciplinary Authority, while concurring with the

views expressed in the enquiry report and obviously placing strong

reliance on Exs.P.8 and P.11, arrived at the conclusion against the

petitioner and inflicted on the petitioner the punishment of

dismissal from service, vide orders dated 23.01.2017 and on

appeal, respondent No.1 confirmed the same, vide order dated

21.05.2018.

19. For the purpose of assailing the said orders of the

Disciplinary and Appellate Authorities, the petitioner herein is

pressing into service a number of contentions, as narrated supra.

One of the principal contentions is that the Enquiry Officer

travelled beyond the scope of the charge and the enquiry entrusted

to him and recorded a finding against the petitioner, while referring

to the earlier conduct of the petitioner. In this context, it may be

apt to refer to paragraph No.27 of the Enquiry Officer's Report,

which reads as follows:

"27. The very evidence of D.w.1 goes to show two coloured versions, one is whenever P.w.1 handover cash to him, he used to get demand drafts and another version that the entire amount of Rs.2,04,884/- misappropriated by him and repay back the same to the State which caused delay for one year. According to him even assuming Ex.P8 was obtained by P.w.1 and delinquent No.2 by force and coercion, but he admitted in Ex.P11 that he paid part of the amount of Rs.1,38,000/- and he sought time for two months for payment of balance amount, as such the very evidence of D.w.1 that P.w.1 and delinquent No.2 obtained Ex.P8 by force and coercion is totally false and in correct. The previous conduct of delinquent No.1 shows that he is not performing his legitimate duties to the satisfaction of the Presiding Officer in the past and present. It is relevant fact for taking into consideration. In such circumstances,

when the delinquent No.1 deposited the entire misappropriated amount of Rs.2,04,884/- in bit by bit on 8 dates spread over an interval of 4 months, it clearly shows that he himself used the said amount for his own use that itself shows that he had dishonestly misappropriated the amount and committed the offence not only breach of trust by playing fraud on the court and mere deposit of entire amount with interest and penalty either before framing of charges or not, he has not escaped from the liability. All the same acts of delinquent No.1 comes at the worst of offence of defalcation."

20. In this context, it would be highly pertinent to refer to

the judgment of the Hon'ble Apex Court in M.V.Bijlani's case (1

supra). The Hon'ble Apex Court in the aforesaid judgment, at

paragraph Nos.25 and 28, held as follows:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the

charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

28. The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-1970. The Appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that, he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs.5000/-."

21. In the considered view of this Court, the law laid down

in the above referred judgment is squarely applicable to the case on

hand. The Enquiry Officer, in the definite opinion of this Court,

went beyond the scope of the charge and accordingly, made

recommendations to the Disciplinary Authority.

22. Yet another contention sought to be pressed into

service by the learned counsel for the petitioner is that in view of

Ex.P.30 letter dated 28.08.2013, Exs.P.8 and P.11 lost their

significance. In fact, the Enquiry Officer, while referring to Exs.P.8

and P.11, categorically recorded a finding that in view of the

contents of the said documents, necessarily it needs to be

concluded that the petitioner herein committed misappropriation of

money collected by him. At the same time, this Court cannot be

oblivious of the fact that in Ex.P.30-letter, the petitioner herein, at

the earliest point of time, i.e., anterior to the initiation of the

regular departmental enquiry by issuing a charge memo dated

31.03.2014, stated that after collection of the amounts, he handed

over the same to the delinquent employee No.2 and that P.W.1

(Presiding Officer of Judicial Magistrate of First Class Court,

Addateegala) and charged officer No.2 colluded with each other and

pressurized him to sign on Ex.P.8. It is not in dispute that the

Enquiry Officer in his report categorically recorded a finding as

regards the misconduct, negligence and dereliction on the part of

the charged officer No.2 also, but respondent No.2-Disciplinary

Authority, though arrived at a conclusion in the order of

punishment that there is a serious lapse on the part of the charged

officer No.2, respondent No.2-Disciplinary Authority inflicted on

charged officer No.2 the punishment of stoppage of one annual

increment with cumulative effect. It is also significant to note that

the charged officer No.2 also sought pardon and prayed that he

would pay the entire amount with interest, but the same was not

taken as admission of guilt. But coming to the letter submitted by

the petitioner, Ex.P.11, where the petitioner sought time for

payment of balance amount, it was taken as admission of guilt.

P.W.1 during the course of cross-examination also deposed that he

never came across any other allegations against the petitioner

during his tenure except the present one. P.W.2 also pleaded lack

of knowledge with regard to the allegations of misappropriation. In

his evidence, the petitioner as D.W.1 stated that during the

relevant period, he used to do work pertaining to criminal branch

and also the accounts branch and that the distance between the

Court of Judicial Magistrate of First Class, Addateegala and the

State Bank of India, Yeleswaram is 40 kms and further stated that

besides attending Criminal Court work and Accounts, he used to

travel to Yeleswaram in order to get demand drafts while

experiencing lot of inconvenience and he further deposed that the

bank authorities used to inform that the demand drafts were

available with them and the same resulted in delay. Having regard

to the terrain of the subject area, the said explanation cannot be

brushed aside and ruled out completely. Though it is the

submission of the learned counsel for the petitioner that, vide letter

dated 29.09.2014, the petitioner requested the Disciplinary

Authority for change of Enquiry Officer, the Disciplinary Authority

did not consider, this Court is not inclined to consider the same, as

the petitioner never agitated in his explanation submitted to the

final show cause notice. It is also pertinent to refer to the judgment

of the Hon'ble Apex Court in Rajendra Yadav's case (2 supra),

wherein the Hon'ble Apex Court, while dealing with the doctrine of

proportionality, held at paragraph Nos.9 and 12 as follows:

"9. 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.

12. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re- instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."

23. In the instant case also, both the charged officers were

involved in the same incident, but against Charged Officer No.2, the

Disciplinary Authority imposed the punishment of stoppage of one

increment with cumulative effect, whereas the petitioner herein

suffered the order of dismissal from service.

24. In the above background and after giving thoughtful

consideration to various issues pertaining to the matter and also

having regard to the law laid down by the Hon'ble Apex Court in the

above referred judgments and having regard to the facts and

circumstances of the case, this Court deems it appropriate to

modify the punishment of dismissal from service to that of

compulsory retirement.