V Vikraman vs Union Of India & Ors
2017 Latest Caselaw 1864 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Judgment Reserved On:    10th April, 2017
                                   Judgment Pronounced On: 18th April, 2017
+       W.P. (C) 2328/2007
        V VIKRAMAN                                           .... Petitioner
                            Through :    Petitioner in person

                            versus

        UNION OF INDIA & ORS                             ..... Respondents
                      Through :          Mr.Bhagwan Swarup Shukla, CGSC
                                         with Mr.Shambhu Chaturvedi, Adv.

CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J.

1. Challenge in this writ petition is to the order dated 25.10.2005 passed by the respondents imposing a penalty of reduction to the lowest stage in the time-scale of pay for a period of two years, with further directions that he will not earn increments of pay during the period of such reduction and that the reduction will have the effect of postponing the future increments of his pay upon the petitioner as well as the consequential reliefs of granting special duty allowance and senior time scale w.e.f. 04.04.2001.

2. This matter was heard by a Division Bench of this Court. Since there was a difference of opinion, two separate judgments were pronounced and in view thereof, this matter was referred to this Court.

3. I have heard the petitioner, who argued in person, and the learned counsel for the respondents and considered their rival contentions.

4. The necessary facts to be noticed for the disposal of the present writ

petition are that the petitioner at the relevant point of time was the Officer In-charge of „C‟ Company („Coy‟) at Jang, Tawang District. On 15.02.1996, the petitioner presided over a Line Committee in connection with purchase of ration stores from M/s.S.D. Gupta against Bill dated 16.02.1996 and from M/s.K.S. Gupta against Bill dated 15.02.1996. The ration items were inspected by the Line Committee and finding the items to be satisfactory, the line committee report, receipt voucher and the endorsement on the body of the bills were made. The bills were endorsed that the stores had been received correctly in good condition and taken on ration stock book at page 163.

5. Later on 20.12.1996, the „C‟ Coy was shifted from Jang to Bomdila and consequently, the ration balance of Jang Company was handed over to „E‟ Coy. During handing over, very substantial stock of ration items were found due from M/s S.D. Gupta against the Bill dated 16.02.1996. Further in course of audit inspection at Tawang by an accounts officer on 24.05.1997, it transpired that ration stocks were short. The relevant portion of the audit report reads as under:

"However, as on today, ie. 24.5.97 the following ration items are still to be supplied by the firms against above bill pertaining to the year 95-96 for which payment already [has] been made.

                 S.No Ration            Qty(Kg.)         Rate       Amount
                           Item                       (per Kg.)
                 1.      Onion :         1.500 Kgs         8.90          13.35
                 2.      F/Potato:      36.000 Kgs         5.65         203.40
                 3.      F/Veg.      7409.500 Kgs          5.50      40,752.25
                 4.      Dry Fruit     157.000 Kgs       230.00      36,110.00
                                                                 Rs. 77,079.00
                ...

It is revealed that Line Committee report, stock entry certificate and balance of stock register are seemed to be fictitious which need through investigation and responsibility may be fixed for the above lapses."

6. Investigation followed and a charge sheet dated 14.09.2001 was issued to the petitioner. The petitioner was charged with endorsing fictitious certificate on the body of the Bill dated 16.02.1996 and also preparation of fictitious Line Committee report and the receipt voucher causing financial loss to the exchequer. A second charge was issued pertaining to the false endorsement on the Bill dated 15.02.1996 of M/s K.S. Gupta to the effect that the items had been taken on ration stock book at page 163; while there was no entry on page 163.

7. The petitioner denied the charges against him and an inquiry officer was appointed. The inquiry officer in his report returned the finding that both the articles of charge stood proved beyond doubt. The petitioner made a detailed representation against the enquiry report which did not find favour with the disciplinary authority. The matter was then referred to the UPSC for recommendations on the quantum of punishment. The UPSC rendered its advice on 28.06.2005 and in accordance therewith, the impugned penalty order dated 25.10.2005 was passed. Owing to the pendency of the disciplinary proceeding, the petitioner was not granted senior time scale or promotion as the sealed cover procedure was adopted by the DPCs.

8. The petitioner then preferred an appeal before the appellate authority dated 28.12.2005 which was rejected on 05.06.2007.

9. In this factual background, two questions arise for the consideration of this Court:

(i) Whether the finding of guilt of the petitioner has been correctly returned by the inquiry officer and disciplinary authority?

(ii) Whether the penalty imposed warrants interference by this Court on the ground of proportionality?

10. In respect of the first question, it is settled law that the this Court does

not act as the second court of first appeal, but may intervene in the findings of guilt only if the case comes in the narrow class of „no evidence‟. A Division Bench, of which I was a member, of this Court in the case of North Delhi Municipal Corporation v. Qaiser Javed & Anr., MANU/DE/0662/2017 recently held as under:

"31. It is settled law that the Courts should be hesitant in interfering with a finding of facts, but at the same time are duty-bound to interfere in cases of 'no evidence', i.e. where there is no evidence to sustain the findings or the findings are such that no man acting reasonably and with objectivity could have arrived at that finding. We may take note of the following observation of the Supreme Court in Bank of India & Anr. v. Degala Suryanarayana, (1999) 5 SCC 762:

"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."

(Emphasis Supplied)

32. In order to avoid prolixity, we may only mention Rattan Singh (Supra); B.C. Chaturvedi v. Union of India

and Ors., (1995) 6 SCC 749 (paragraphs 12 and 13); Kuldeep Singh v. The Commissioner of Police and Ors, (1999) 2 SCC 10 (paragraphs 8 and 9); Sher Bahadur v. Union of India and others, (2002) 7 SCC 142 (paragraph

7); Government of A.P. and Ors. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373 (paragraph 12); State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 (paragraph 6); and P. Gunasekaran (Supra). We may also take note of the following observations of the Supreme Court recently in Allahabad Bank and Ors. v. Krishna Narayan Tewari, 2017 SCC OnLine 2 decided on 02.01.2017:

"7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non- application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. ..."

(Emphasis Supplied)"

11. The Apex Court has summarized the principles in Union of India v. P.

Gunasekaran, (2015) 2 SCC 610 as under:

"12. ... In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into

reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience."

(Emphasis Supplied)

12. The present case is by no means a case of „no evidence‟, on the contrary there is ample evidence upon which the guilt of the petitioner was established.

13. Since there has been a divergence of opinion amongst the Division Bench, I deem it appropriate to examine the evidence. There is no quarrel to the fact that on 15.02.1996 a Line Committee comprising of the petitioner, Inspector Harilal and Hd. Const. D.R.Sharma inspected the ration items received from M/s.S.D. Gupta and M/s K.S. Gupta. The report of the Line Committee is on record and the following stores were verified to have been received from M/s S.D.Gupta:

                      1. Dry Fruit:               300 Kg
                      2. Meat on hoof             2000 Kg
                      3. Fresh Onion              1000 Kg
                      4. Fresh Potato             2000 Kg
                      5. Fresh Vegetables         10000 Kg

14. The petitioner in his own statement has confirmed that the stores were "physically checked by all members." Subsequently, when the „C‟ Coy was shifted and the charge was given to „E‟ Coy at Jang, the discrepancies were noticed. Three witnesses, being Ins.N.K.Tamta (PW-1), SI Pasang Dangey (PW-2) and SI Khandu Glow (PW-4) have unequivocally stated that while taking charge from „C‟ Coy, the stores were substantially short. Even as on 24.05.1997, the following ration items were still to be supplied :

                      1. Dry Fruit                157 Kg
                      2. Fresh Onion              1.5 Kg
                      3. Fresh Potato             36 Kg
                      4. Fresh Vegetable          7409.5 Kg

15. Even one of the other members of the Line Committee Hd. Const. D.R.

Sharma has deposed that at the time of handing over the ration stores in December, 1996 the items were short. The contractor M/s S.D. Gupta had also issued a due slip and has even made good the short supplies

over time. Thus, there cannot be any doubt that the supplies were infact received short and as a necessary consequence, the Line Committee report and the receipt voucher were patently false. Further the entry in the ration stock book was not at page 163, but at page 189. It is clear that there is ample evidence on record before this Court and much more before the inquiry officer to return a finding of guilt.

16. Even though no loss was occasioned to the Government exchequer, the same cannot purge the guilt of the petitioner inasmuch as the supplies received were short and consequently, the certification by the petitioner to the contrary was false. As regards the incorrect entry in the ration stock book, the same is also made out. Accordingly, this Court has no inhibition in finding that the charges were duly proved against the petitioner.

17. While doing so, I am conscious that I have ventured outside the domain of proceedings under Article 226, but the same was only to bring home the point that there was ample evidence before the inquiry officer and the disciplinary authority. Thus to reiterate, the present case is by no means a case of „no evidence‟ warranting interference by a writ court under Article 226.

18. Second question to be considered is as to the proportionality of the penalty imposed. Again, the scope for interference by a writ court is narrow. Only if, the penalty imposed upon the delinquent officer „shocks the conscience‟ of the court, i.e. the penalty is wholly out of tune or arbitrary with respect to the charges proved that the court can intervene. Even when the penalty seems to be extreme, the ordinary course to be taken is to remand the matter back to the disciplinary authority to reconsider the penalty. The power to impose penalty remains within the domain of the disciplinary authority and it is only in

rare circumstances should the courts themselves impose appropriate punishment by recording reasons in support thereof.

19. I may only refer to few judgments of the Apex Court. The first being Kendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC 106, wherein it has been observed as under:

"8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad (2010) 5 SCC 775.) In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.

9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of

proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words:

"... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call „illegality‟, the second „irrationality‟ and the third „procedural impropriety‟. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of „proportionality‟."

10. An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that "all powers have legal limits" invoked the aforesaid doctrine in the following words:

"25. ... The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.""

(Emphasis Supplied)

20. A Division Bench of the Supreme Court in S.R. Tewari v. Union of

India, (2013) 6 SCC 602 has held as under:

28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide Union of India v. Bodupalli Gopalaswami (2011) 13 SCC 553 and Sanjay Kumar Singh v. Union of India AIR 2012 SC 1783.)

29. In Union of India v. R.K. Sharma AIR 2001 SC 3053, this Court explained the observations made in Ranjit Thakur observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds."

(Emphasis Supplied)

21. Recently in Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and Ors. v. K. Hanumantha Rao and Ors., (2017) 2 SCC 528, it has been held as under:

"(iii) The impugned order is also faulted for the reason that it is not the function of the High Court to impose a particular punishment even in those cases where it was found that penalty awarded by the employer is shockingly disproportionate. In such a case, the matter could, at the best, be remanded to the disciplinary authority for

imposition of lesser punishment leaving it to such authority to consider as to which lesser penalty needs to be inflicted upon the delinquent employee. No doubt, the administrative authority has to exercise its powers reasonably. However, the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority. ..."

(Emphasis Supplied)

22. Accordingly, the present case is also to be decided on the touchstone of the aforegoing principles of law.

23. The disciplinary authority has, in its wisdom, imposed the penalty of reduction to the lowest stage in the time-scale of pay for a period of two years, with further directions that he will not earn increments of pay during the period of such reduction and that the reduction will have the effect of postponing the future increments of his pay. Is the penalty of such an abhorrent nature to shock the conscience of this Court? I think not. The disciplinary authority had found the petitioner guilty of conduct unbecoming of a government servant and showing lack of integrity and devotion to duty. In P. Gunasekaran (Supra), the Apex Court has commented on „integrity‟ as under:

"20. ... In the instant case, the disciplinary authority has come to the conclusion that the Respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values."

24. The lapse of the petitioner is a serious concern and by no means can the

penalty imposed be said to be inappropriate. If anything, a lenient view seems to have been taken by not imposing harsher penalties of dismissal or removal from service.

25. The penalties which may be imposed upon a delinquent officer are enumerated in Rule 11 of the CCS (CCA) Rules, 1965. The penalty of censure is the lowest form of penalty and as per the instructions issued by the Government of India, whenever blame attaches to an officer, atleast censure should be imposed [See OM 22011/1/79-Estt.(A) dated 30.01.1982 and OM No. 11012/12/2016-Estt.A-III dated 06.12.2016]. Being the lowest form of penalty which can be imposed, it should not be imposed where heavy guilt attaches to the delinquent officer. Thus, in my view the penalty of censure as suggested by my learned brother would not be commensurate with the guilt of the petitioner.

26. Another reason I am unable to subscribe to the view taken by A.K.

Chawla, J. is that even if the penalty was wholly disproportionate to the guilt of the delinquent officer, the present case was not a fit case for the Court to trench upon the domain of the disciplinary authority and should have remanded the case back for reconsideration of penalty.

27. Accordingly, I concur with the view taken by Indira Banerjee J. in her decision rendered on 02.02.2017. The writ petition is dismissed.

G.S.SISTANI, J.

th APRIL 18 , 2017 //