Rattan Singh Baffila S/O Sh. ... vs Syndicate Bank Through Chairman, ...
2007 Latest Caselaw 2264 Del

JUDGMENT

J.M. Malik, J.

1. Petitioner Rattan Singh Baffila, since deceased and five others were challaned for offences under Sections 420/468/471/120-B of Indian Penal Code. Petitioner and four others were acquitted for the above said offences vide order passed by the Metropolitan Magistrate on 27.05.2000. Hari Singh Bisht another accused was also acquitted along with the petitioner. The learned MM did not find even an iota of evidence against them. The learned MM was pleased to make the following observation in para 49 of his judgment:

I consider that offence of cheating or using as genuine a forged document does not stand proved against accused Rattan Singh, Charan Singh and Hari Singh as no wrongful gain or wrongful loss has taken place, the case of Sahib Singh stands on a different footing, if the best these can be dealt with by the department.

2. On 22.12.2000 chargesheet was served upon the petitioner in a departmental action. However, chargesheet wrongly mentioned that the accused was given the benefit of doubt. The respondent bank vide its order dated 29.05.2001 and 30.06.2001 imposed penalty of compulsory retirement upon the petitioner.

3. The petitioner filed an appeal before the Appellate Authority on 04.08.2001. The Appellate Authority vide its order dated 05.10.2001 enhanced the punishment from compulsory retirement with immediate effect to termination of his services with three months pay and allowances in lieu of notice.

4. Under these circumstances, the instant writ of mandamus to quash the impugned chargesheet dated 27.12.2000, to quash the order dated 29.05.2001, to quash the order dated 30.06.2001, whereby punishment of compulsory retirement with immediate effect was imposed upon the petitioner, to quash the punishment of termination dated 05.01.2001 and with the prayer that the petitioner be reinstated was filed before this Court.

5. In the counter affidavit the respondents have admitted that Sh. Hari Singh Bisht was issued the chargesheet dated 22.04.1997. He retired on 30.06.1997 on superannuation but his terminal benefits were not released. He was awarded the punishment of `warning' vide order dated 30.10.2000. This is not disputed that after the punishment of warning he was given the terminal benefits.

6. A four fold argument was advanced by the learned Counsel for the petitioner to assail the orders passed by the disciplinary and first appellate authority. To top it all, he submitted that the chargesheet wrongly mentioned that the accused was given the benefit of doubt. He pointed out that as no evidence at all was led against the accused/petitioner, therefore, the question of giving him the benefit of doubt did not arise as is apparent from the judgment delivered by the learned Metropolitan Magistrate, itself.

7. Secondly, the punishment awarded to the petitioner was shockingly disproportionate to the misconduct proved. He submitted that his co-delinquent/co-accused was let out with the punishment of warning simplicitor. He opined that the punishment awarded to the petitioner was harsher. He stressed that it is well settled that a judicial or quasi judicial decision cannot offend Article 14 of the Constitution particularly when Hari Singh Bisht and the present petitioner Rattan Singh Bisht were sailing in the same boat. He opined that they should have been treated to the equal punishment.

8. The next submission made by him was that the lower authority awarded the punishment of compulsory retirement to the petitioner but the appellate authority passed a further stringent order. The first appellate authority without giving him any notice terminated his services with three months pay and allowances in lieu of notice.

9. Lastly, it was submitted that the petitioner has since expired hence this factor must serve as an extenuation. He urged that the precarious conditions of his legal representatives must go a long way to mitigate the said punishment.

10. I find force in these arguments in a measure. I am of the considered view that the appellate authority had no power to enhance the punishment without serving a notice upon him. The order passed by the appellate authority is not legally tenable.

11. However, I find no force in other arguments.

12. The learned Counsel for the respondent cited a Full Bench case of this Court reported in Chanderpal v. N.C.T. of Delhi and Ors. 2003 (3) SLR 256, wherein, it was held:

6.4 The Tribunal, thus, held that production of false document (s) would itself amount to misconduct. Even before the learned Tribunal, the order passed by the disciplinary authority had not questioned on merit.

In this case reliance was placed on the following authorities:

6.10 xxx xxx xxx xxx xxx xxx xxx

So far as question of quantum of punishment is concerned recently in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386 : 2001 (1) SLR 299 (SC), it was held:

69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of arbitrariness of the order of punishment is questioned under Article 14.

70. In the context, we shall only refer to these cases. In Ranjit Thakur v. Union of India this Court referred to proportionality in the quantum of punishment but the Court observed that the punishment was shockingly disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham .

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can court substitute its own view as to the quantum of punishment.

The aforesaid decision has been followed in Commandant, IV Battalion, APSP Mamnoor Lines, Warangal and Anr. v. Jabbar Hussain and Anr. .

13. The facts of this case are wee bit different. There is no evidence that the punishment awarded to the petitioner was shockingly disproportionate when read in juxtaposition with that of his co-delinquent. The prevalent legal position does not lean on the side of the petitioner. I am able to locate few following authorities of the Apex Court which neatly dovetail with the facts of this case.

14. In Balbir Chand v. Food Corporation of India Ltd. and Ors. , it was held:

It is further contended that some of the delinquents were let off with a minor penalty while the petitioner was imposed with a major penalty of removal from service. We need not go into that question. Merely because one of the officers was wrongly given the lesser punishment compared to others against whom there is a proved misconduct, it cannot be held that they too should also be given the lesser punishment lest the same mistaken view would be repeated. Omission to repeat same mistake would not be violative of Article 14 and cannot be held as arbitrary or discriminatory leading to miscarriage of justice. It may be open to the appropriate higher authority to look into the matter and take appropriate decision according to law.

15. This authority was followed in another authority of the Apex court reported in Chairman & Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar , wherein, it was held:

9. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

10. To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/ Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.

11. In the case at hand the High Court did not record any reasons as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand v. Food Corporation of India Ltd. and Ors. AIR 1997 SC 229, even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different.

16. Under these circumstances, I find that the order passed by the first appellate court is not legally tenable, the same is, therefore, quashed. However, I see no illegality or invalidity in the order passed by the disciplinary authority. The said order stands restored. The petition stands allowed to the extent mentioned above.