Bhag Singh vs The Delhi High Court
2009 Latest Caselaw 5104 Del

*      HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment delivered on: December 09, 2009


+             W.P.(C) 6758/2008

Bhag Singh                                        ..... Petitioner


                         -versus-


The Delhi High Court                             ..... Respondent

Advocates who appeared in this case:

For the Petitioner       :     Mr.Saurabh Kripal, Ms.Alpna Poddar

For the Respondent       :     Mr.Rajiv Bansal


CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL


1.     Whether the Reporters of local papers may be allowed to
       see the judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in Digest?


Veena Birbal, J.

1. By way of present writ petition, petitioner has challenged the

order dated 12.03.2008 whereby punishment of removal from service

was imposed upon him.

2. Briefly the facts relevant for disposal of present petition are as

under:-

Petitioner since 1999 was working in this court as a Court

Attendant. In May, 2007, petitioner was posted in the court of

Mr.Justice J.M.Malik (as his Lordship then was) as a Court Attendant.

On 10.5.2007, petitioner was placed under suspension vide

suspension order dated 10.05.2007 issued by respondent in

contemplation of disciplinary proceedings against him. On

29.05.2007, petitioner was served with a Memorandum proposing to

hold an inquiry under Rule 14 of CCS (CCA) Rules, 1965 in respect of

Articles of charge framed against him which are as under:-

"Article-I

"That Shri Bhag Singh, Permanent Court Attendant while working in the Court of Hon'ble Mr.Justice J.M.Malik abused his office by obtaining a slip dated 04.05.2007 from Mr.Manmohan Khanna, Restorer requisitioning the Judicial file of W.P.(C) 2926/07 titled Shri K.L.Shroff Vs. Designated Authority for reference in W.P.(C) 2069/2004 from the Writ Branch of this Court on the pretext that the same was required for perusal by the Hon'ble Judge."

Article-II "That Sh.Bhag Singh, Permanent Court Attendant after the receipt of Judicial file of W.P.(C) 2926/07 by Mr.Manmohan Khanna, Restorer in the Court, took the second set of the said judicial record and carried it out from the Court House to the Private photocopying shop No.7 in the High Court Premises for its unauthorized photocopying."

Article-III

"That Sh.Bhag Singh, Permanent Court Attendant obtained the said judicial record and took the same out of the Court house in the manner aforesaid in violation of statutory provisions contained in High Court Rules and Orders, Volume-V and Original Side rules-1967."

Article-IV

"That Sh.Bhag Singh, Permanent Court Attendant obtained the record of Judicial file of W.P.(C) 2926/07 with an ulterior motive to make the unauthorized photocopy of the same and deliver that to a third person i.e a clerk of an advocate for his personal gain."

Accordingly, the said Shri Bhag Singh, Restorer by his above acts of omission and commission has acted very irresponsibly and tried to misuse his official position for

his personal gain and thus committed violation of Rule 3(1) of CCS (Conduct) Rules, 1964 and that such a conduct on his part is unbecoming of a servant of this Court.

In case the above charges are substantiated, Shri Bhag Singh, Court Attendant would be guilty of grave misconduct unbecoming of a servant of this Court rendering him liable to disciplinary action under CCS (CC&A) Rules, 1965."

3. On 4th October, 2007, petitioner submitted his detailed reply to

the charges levelled against him. In reply to Article I of Charge

petitioner had stated that he got requisitioned the file of WP(C)

2069/2004 titled K.L.Shroff Vs. Designated Authority from the Writ

Branch of this court through Mr.Manmohan Khanna, Restorer of the

court, as one of his relatives i.e. Shri Ajay Kotnala wanted to see the

orders from the file. He denied that file was got requisitioned on the

pretext that same was required by the Hon'ble Judge. Petitioner also

stated in reply that there was only one set in the judicial file and there

was no second set nor the same was sent by the dealing clerk. Rest of

articles of charges were specifically denied by the petitioner.

4. Vide letter dated 24th July, 2007 of Registrar (Admn.) of this

court, petitioner was informed that a regular inquiry under Rule 14 of

CCS (CCA) Rules had been directed to be held against the petitioner

as well as Mr.Manmohan Khanna, Restorer of the court and was also

informed that common proceedings had been ordered against the

petitioner as well as the other official, namely, Mr.Manmohan Khanna.

By another letter dated 2nd August, 2007, petitioner was informed that

Shri J.R.Aryan, Joint Registrar of this court had been appointed as an

Inquiring Authority by the Disciplinary Authority. Petitioner

participated in the inquiry wherein seven witnesses were examined on

behalf of this court and two witnesses were examined by the

petitioner as defence witnesses. Upon conclusion of the inquiry,

petitioner also submitted written submissions. Inquiring Authority

vide his report dated 5th December, 2007 held that all the four

articles of charges against the petitioner have been established. A

copy of Inquiry Report dated 5.12.2007 was supplied to petitioner

vide Court Memo No. 30956 E-VIII/Estt./DHC/103 dated 22.12.2007.

Vide same memorandum petitioner was called upon to submit written

representation or submission, if he so desired, against the findings

recorded by the Inquiry Authority on the Articles of charge framed

against him.

5. Petitioner gave representation against the inquiry report dated

5th December, 2007 which was received in the office of respondent on

8th January, 2008. Thereafter, vide impugned orders dated 12 th

March, 2008, petitioner was informed that the Disciplinary Authority

being Hon'ble the Chief Justice of this court had been pleased to

direct the petitioner's removal from service w.e.f. 10th March, 2008.

Petitioner submitted mercy petition against the said impugned order

which was also rejected by the Disciplinary Authority vide orders

dated 23rd May, 2008. Aggrieved with the same, petitioner has filed

the present writ petition praying for quashing/setting aside of

impugned order dated 12.3.2008 whereby punishment of removal

from service has been imposed upon him and also the Inquiry Report

and all orders passed in pursuance thereof.

6. At the outset, learned counsel for the petitioner has submitted

that petitioner is not challenging the finding of the Inquiry Authority

in respect of charges against him. His only grievance is that

punishment of removal from service imposed upon him by the

Disciplinary Authority is very harsh and excessive. It is contended

that considering the nature of misconduct proved against him,

punishment is on higher side.

7. It is further contended that the other co-charged official, namely

Mr.Manmohan Khanna, Restorer is given lesser punishment as, vide

order dated 10.3.2008 he had been "compulsorily retired" from the

services of this court but thereafter, he had filed a petition being

W.P.(C) No. 7160/2008 before this court challenging the order dated

10.3.2009 of Disciplinary Authority wherein notice was issued to

respondent confining only to the quantum of punishment. This court

vide its order dated 2nd December, 2008 adjourned the case to

16.2.2009 for filing rejoinder and in the meantime left it open to the

Competent Authority to consider the aspect of quantum of punishment

in view of the fact that prayer before the court was confined to that

aspect by the learned counsel for the said petitioner and the

representations made were inclusive of merit of the case. Thereupon,

considering the response of said official, the Disciplinary Authority

vide order dated 16th March, 2009 has been pleased to reduce the

penalty from "Compulsory Retirement" from service to that of

reduction of pay by three stages in the pay band of Rs.5200-20200

with Grade of Pay of Rs. 2800 (PB-I) for a period of three years w.e.f

the date of imposition of earlier penalty i.e., 10th March, 2008

resulting in the reinstatement of Mr.Manmohan Khanna, Restorer in

the services of this Court.

It is contended that the mercy petition filed by the petitioner

prior to filing of present writ petition for reducing the punishment

was rejected by the Disciplinary Authority. It is further submitted

that during the pendency of present writ petition, petitioner had again

made a representation for review of penalty imposed upon him.

However, same has also been rejected by the Disciplinary Authority

vide orders dated 14th October, 2009.

It is further contended that punishment given to the petitioner is

disproportionate to the charges proved against him and it is also

discriminatory and violative of the petitioner's right to fair and equal

treatment as the other co-charged official named above was earlier

given lesser punishment i.e., he was compulsorily retired from

service. On his making representation, the punishment of

compulsorily retirement has been reduced to reduction of pay by

three stages.

8. On the other hand, learned counsel for the respondent has

submitted that role of co-charged official Mr.Manmohan Khanna, is

not as serious as compared to that of petitioner. It is contended that

the petitioner had taken the 2nd set of judicial file out of court

premises for getting the same photocopied for ulterior motives. It is

further submitted that all the four charges against the petitioner as

stated above have been proved against him. In the case of

Mr.Manmohan Khanna, out of four charges, only two charges were

proved. The first charge proved is that without verifying the facts

that concerned file was required by the Judge, he issued a slip for

requisition of same. The second charge proved against him is that he

did not place the file before Judge as was stated by him in the request

slip. The other two charges that he facilitated the removal of judicial

record and that gave the same to petitioner for unauthorized copying

is not established in the inquiry proceedings jointly held against him

and petitioner.

It is contended that lesser punishment to a co-charged official is

not a ground for interference by this court. It is further contended

that considering the charges proved against the petitioner,

punishment imposed by the Disciplinary Authority is neither excessive

nor the same is so disproportionate so as to shock the conscience of

the court, as such this court ought not interfere with the same. In

support of his contention, learned counsel for the respondent has

relied upon (i)State of Meghalaya & ors Vs. Mecken Singh N

Marak : AIR 2008 SC 2862 and (ii) Chairman & Managing

Director, United Commercial Bank and Ors Vs. P.C.Kakkar : AIR

2003 SC 1571.

9. We have considered the submissions made and perused the

material on record. As mentioned above petitioner has not

challenged the findings of Inquiring Authority in respect of charges

framed against him. However, in order to find out as to whether fair

and proper inquiry has been conducted, we have gone through the

inquiry proceedings including statement of witnesses examined

during inquiry, inquiry report etc. Principles of natural justice have

been complied with by the Inquiring Authority. Petitioner has been

given full opportunity to participate in the inquiry proceedings. He

has cross examined witnesses of the Department and has also led

defence evidence by producing two defence witnesses. The only

ground raised in the petition on which finding of the inquiry report is

challenged is that evidence of defence witnesses was entirely ignored

by the Inquiring Authority as well as Disciplinary Authority. It may

be noticed that the Inquiring Authority as well as Disciplinary

Authority have considered the statements of defence witnesses and

have not found them worthy of credence. After going through the

same, we are of the view that same has been rightly rejected.

Considering the material on record, charges against the petitioner

are satisfactorily proved.

10. As regards contention of petitioner in treating him at par with

co-charged official Manmohan Khanna is concerned, it is held in

Balbir Chand Vs. Food Corporation of India : (1997) 2 LLJ 879

SC that even if a co-delinquent is given lesser punishment, it cannot

be a ground for interference. In any event, considering the charges

proved against petitioner, he cannot claim parity with co-charged

official. Charges proved against petitioner are of a more serious

nature. As per charges proved against him, petitioner has taken the

judicial record to a private photocopier for its unauthorized copying

for personal gain. The court file was also found at the photocopier

shop. Petitioner being a permanent Court Attendant was aware of

statutory provisions and Rules that no part of judicial record was

supposed to be taken out of court building/premises without

permission /approval. A Court Attendant carries important files from

Court to Registry as well as to the concerned Branch and vice versa.

By taking the file outside the court, he has lost confidence and faith

of employer. Petitioner is guilty of serious misconduct. The charges

proved against co-charged official Manmohan Khanna are that

without verifying facts stated by petitioner that file was required by

the Hon'ble Judge, he issued a slip for requisition of the file and after

receipt of file, he did not place it before the Hon'ble Judge. His case

is that under the bonafide belief that judicial file was requisitioned by

the Judge he requisitioned the same through petitioner. He is

exonerated of charge that he gave the judicial record to petitioner for

its unauthorized copying. He is also exonerated of the charge that he

facilitated removal of judicial record. Petitioner cannot claim parity

with him as regards punishment. The contention raised in this

regard is rejected.

11. The other contention raised is that punishment of removal from

service is excessive and the same be reduced. It is now well settled

that the High Court in exercise of power under Article 226 of the

Constitution of India does not interfere with the quantum of

punishment unless there exists sufficient reasons thereof. The

punishment imposed by the Disciplinary Authority, unless shocking to

the conscience of the court, cannot be subjected to judicial review as

has been held in State of Meghalaya Vs. Mecker Singh N Marak

(supra).

12. In Chairman and Managing Director, United Commercial

Bank and Ors. v P.C. Kakkar (supra) scope of interference by High

Court in the quantum of punishment has been dealt with. It is held

that interference by High Court is not called for unless the

punishment is so shockingly disproportionate so as to shock the

conscience of the court. Various judgments of Supreme Court in the

above context have been discussed in the said case. After discussing

the same, Supreme Court held as under:-

"........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."

13. As noted above, charges proved against petitioner are grave in

nature as compared to co-official Mr Manmohan Khanna. Twice,

petitioner has made representations to Disciplinary Authority for

reducing punishment and, twice, the same have been rejected.

Petitioner has committed serious misconduct. He has lost confidence

reposed in him by the High Court. Taking into account facts and

circumstances of the case, no interference of this court is required in

the punishment imposed upon the petitioner.

Petition stands dismissed. There is no order as to costs.

VEENA BIRBAL, J.

BADAR DURREZ AHMED, J.

December 9, 2009 ssb