Ram Narain vs Union Of India & Ors
2019 Latest Caselaw 1445 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on:    12.02.2019
                                        Pronounced on: 12.03.2019
+      W.P.(C) 2408/2012
       RAM NARAIN                                            ..... Petitioner
                          Through:      Ms. Manisha Singh, Advocate.

                          versus

       UNION OF INDIA & ORS                                ..... Respondents
                     Through:           Mr. Rajesh Gogna, CGSC with Ms.L.
                                        Gangmai, Advocate for R-1.
                                        Mr. Amitesh Kumar, Ms. Binisa
                                        Mohanty and Ms. Priti Kumari,
                                        Advocates for R-2 & R-3.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                   JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby

quashing memo dated 12.04.2005, order dated 17.05.2004 passed by the

disciplinary authority and appellate order dated 09.05.2011. Consequently,

directing the respondents to reinstate the petitioner with all consequential

benefits.

2. In the alternative, to pay the pensionary benefits to the petitioner with

effect from 17.05.2004.

3. The brief facts of the case are that the petitioner was initially

appointed as Stenographer Grade III on 25.08.1980 and was promoted to the

post of Stenographer Grade II on 29.09.1986, through DPC. The Petitioner

and Dr. K.K. Sidh had a history of acrimonious relation as the petitioner used

to oppose to Dr.Sidh and his associates regarding illegal activities and thus

had made several complaints against them. Respondent no.2 was fully aware

of the relations between the petitioner and Dr. Sidh which are evident from

the official notings at pg 16-17 of the petition. However, on 06.11.1989, at

about 11:00 a.m., when the petitioner was passing through the narrow

corridor near the Stenographer's room, he met Dr. Sidh, who was coming

from the opposite side. Due to the paucity of space, the petitioner requested

Dr.Sidh to make way for him. On this, Dr.Sidh got infuriated and not only

abused the petitioner but also slapped the petitioner, who on provocation

from Dr.Sidh, slapped him back which resulted in a scuffle. Accordingly,

the petitioner made a complaint on the same day about the incident of assault

by Dr.Sidh, to the Administrative Officer which is annexed as Annexure P-2.

But, without taking any cognizance of petitioner's complaint, Respondent

no.2 suspended the petitioner with immediate effect, on the complaint lodged

by Dr.Sidh against him. On 15/17th November, 1989, the petitioner was

issued an order stating that before deciding the quantum of the punishment,

petitioner to show cause as to why penal action should not be taken against

him. Vide letter dated 18.08.1990, the petitioner objected that no action is

being taken on his complaint. The petitioner also objected to Dr.K.L Dhar

and Mr. Ranjit Sinha being made member of the inquiry committee since

they were prejudice against him who had once made complaints against

these two officers to the Chairman, in connection with the malpractices of

Housing Society as well as certain other administrative lapses. However, the

disciplinary authority did not take any action.

4. On 21.08.1991, the petitioner was shocked to receive an order of

compulsorily retirement from service w.e.f. 21.08.1991. On receipt of the

same, the Petitioner filed appeal before the appellate authority and the same

was rejected vide order dated 19.08.1992. Being aggrieved, the petitioner

filed writ petition before this Court vide W.P (C) No.2872/1996 and the

same was allowed vide its judgement dated 23.09.2002 and directed

reinstatement of petitioner with all consequential benefits. The respondents

filed an appeal, against the said judgement being LPA No.818/2002 and vide

its judgement dated 14.10.2003, the Division Bench of this Court modified

the order passed in the writ petition thereby the respondents were granted

liberty to proceed with the inquiry against the petitioner, after considering

the representation of the petitioner against the enquiry report. During the

pendency of appeal, enquiry report was provided to the Petitioner. The

respondents issued Memo dated 12.04.2004 to the petitioner to show cause

as to why the penalty of compulsory retirement from service should not be

imposed upon him. Finally, vide order dated 17.05.2004, the disciplinary

authority imposed the penalty of compulsory retirement on the petitioner.

But by taking lenient view, it was decided to pay back wages to the

petitioner, from the date of suspension till the date of issue of order

mentioned above. However, it is directed that the period of suspension will

not count towards pensionary benefits. Being aggrieved, the petitioner

preferred an appeal against the order dated 17.05.2004, however, the same

was rejected by an authority lower than the statutory appellate authority, the

Chairman. Having no alternative left, the petitioner filed another writ

petition before this Court, being W.P (C) No.20994/2005 challenging

interalia the order dated 17.05.2004 and 13.09.2004. The said writ petition

was disposed of by this Court vide order dated 25.07.2007, directing the

respondents to decide the appeal of the petitioner in accordance with law.

However, the respondents rejected the appeal of the petitioner by a cryptic

and non-speaking order dated 10.09.2007. The petitioner filed another writ

petition being W.P.(C) 9391/2007 and the same was disposed of vide order

dated 23.02.2011 thereby quashed the Appellate order dated 10.09.2007.

Consequently, directed the respondents to reconsider the matter afresh, in

view of the submissions made by the petitioner.

5. Learned counsel appearing for the petitioner submits that order dated

09.05.2011 of respondent no.2 pursuant to this court's order dated

23.02.2011, mischievously and deliberately did not deal with the

submissions of the petitioner and merely reiterates the old stand of the

respondents. Thus, the respondents failed to appreciate the fact that it was

Dr.Sidh who had first slapped the petitioner, which only provoked the

petitioner to slap him in return. Even the prosecution witness only saw a

scuffle and did not see the petitioner slapping Dr.Sidh which is evident from

the deposition of sole prosecution witness T.K. Majumdar. The enquiry

report wrongly disbelieved the testimony of defence eye-witness, Mr.Daulat

Ram, who had seen Dr.Sidh slapping the petitioner. The testimony of the

said witness is un-impeached as he was not cross-examined by Dr.Sidh. The

ey-witnesses named by Dr.Sidh in his complaint were never examined.

However, the disciplinary proceedings were biased and discriminatory in as

much as no action was taken on the complaint of the petitioner while

prosecuting the petitioner on the complaint of Dr.Sidh.

6. Learned counsel further submitted that even otherwise the punishment

meted out to the petitioner is extremely harsh and disproportionate to the

offence. The respondents ignored the fact that the incident in question of

alleged misconduct was on account of provocation, long standing inimical

relation between the parties and that the petitioner, was not otherwise, a

habitual offender.

7. Learned counsel for the petitioner has relied upon the case of Ex.

Constable/GD BS Mann vs. UOI & Ors, decided on 24.09.2014 in W.P.(C)

3824/2010 by this court whereby it is held that before imposing a severe

penalty of removal from service, one must keep in mind the effects of the

same as it may deprive a person of his livelihood. Besides, graver the charge

or likely penalty, the more would be the need to treat cautiously and

meticulously in appreciation of evidence.

8. In similar facts, in the case of Daya Shanker Rai vs. Union of India

& Ors, decided on 19.08.2015 in W.P.(C) 3747/2013 passed by this court

wherein a junior officer, on being provoked, was accused of misbehaving

with the superior authority and held that where authorities have ample

discretion in the matter of imposing penalty then for quantifying the

punishment on charges of misconduct, it is necessary that they must take into

account the magnitude of the misconduct, circumstance and the manner in

which it was committed.

9. He further relied upon the case of Wazir Singh Mour vs. Union of

India: 2013(3) AD (Delhi) 411, wherein it has been held by Division Bench

of this court that while deciding quantum of punishment, such factors which

mitigate the quantum of penalty or are relevant to determine the quantum of

the penalty also needs to be factored. Further held that if the wrong lacks a

moral turpitude, the same would be a mitigating factor.

10. Learned counsel for the petitioner further submitted that in case this

court upholds the order of compulsory retirement passed against the

petitioner, may not be denied pension from the date of his dismissal, for the

reason that it is expressly mentioned in the second last paragraph of the order

dated 17.05.2004 that the disciplinary authority was inclined to take a lenient

view in the matter. The compassion has been taken forward in the last

paragraph of the order by directing that for the entire period of suspension,

till the present order was passed, the petitioner would be paid back wages.

However, the last line of the order, directing the period in question not to be

counted towards pensionary benefits, has taken away everything.

Disciplinary authority, while directing so, overlooked the fact that the benefit

of compassion in the form of compulsory retirement resulting in entitlement

to pension was taken away.

11. Learned counsel for petitioner further submitted that in case of

dismissal an employee is entitled to compassionate allowance. Moreover,

vide judgement dated 23.09.2002 in W.P (C) No.2872/1996, this court had

set aside the suspension of the petitioner. Even otherwise, as per CCS

Pension Rules, an employee against whom penalty of compulsory retirement

is passed is entitled to receive pension, unless the same has been denied by

the competent authority by a separate order. In the present case, no order for

forfeiture of pension of the petitioner has been issued by the competent

authority. Thus the present petition deserved to be allowed.

12. On the other hand, learned counsel appearing on behalf of the

respondent nos.2 & 3 submitted that on 06.11.1989, Dr.K.K. Sidh, Assistant

Director, ICSSR submitted a complaint dated 06.11.1989 stating as under:

"While passing through the gallery today, Shri Ram Narain first hit me through his elbow and when I objected he gave blows over my face. It was only through the intervention of Dr. Majumdar that I have been saved. Later on he came into my room and threatened me before Dr. Saun, Miss Alka, Mrs. Sara John to see me outside office.

Administration is requested to kindly provide necessary

protection to me."

13. Thereafter, since the disciplinary proceedings against the petitioner

was contemplated, the ICSSR in exercise of its power conferred under SR-61

issued an order dated 06.11.1989 whereby the petitioner was placed under

suspension with immediate effect. Thereafter, Administrative Officer,

ICSSR, issued a chargesheet dated 15/17.11.1989 to the petitioner and

subsequently, Member Secretary, ICSSR on 25.09.1990 constituted an

enquiry committee to enquire into the charges framed against the petitioner.

The enquiry committee after taking documentary and oral evidence

submitted its report concluding that the petitioner had physically assaulted

Dr.K.K. Sid in the corridor of the office on 06.11.1989 at about 11:00 a.m.

14. Consequently, the punishment was imposed upon the petitioner. He

challenged the same by various petitions as mentioned above. Finally order

dated 14.10.2003 was passed by the Division Bench in LPA No.818/2002 as

under:

"We direct reinstatement of the respondent No. 2 with liberty to the appellant to proceed with the inquiry by placing respondent No. 2 under suspension and continuing with the inquiry from the stage of furnishing him with the report. (We may not that during the pendency of the appeal; the report of the inquiry has been furnished). The appellant would consider the representation of Respondent No. 2 against the inquiry

report, which he would be entitled to make within three weeks from today. If the Respondent No. 2 succeeds and is directed to reinstated, the appellant would decide as to what benefits the respondent No. 2 would be entitled to and in what manner the period of suspension should be treated as a consequence of reinstatement."

15. The petitioner and the respondents herein have approached the

Hon'ble Supreme Court of India by filing SLP (Civil) No.2501/2004 and

1639/2004 respectively which were dismissed vide order dated 03.02.2004.

16. Learned counsel further submitted that in pursuance of the directions

of the Division Bench, the petitioner submitted his representation dated

03.11.2003 to the enquiry committee report. Thereafter, the said

representation of the petitioner was considered by the disciplinary authority

and vide its memorandum dated 12.04.2004 rejected the representation and

issued a show cause notice by liberty to the petitioner as to why the penalty

of compulsory retirement from service should not be imposed upon him.

The disciplinary authority while rejecting the representation dated

03.11.2003 and issuing show cause to the petitioner, noted and observed that

considering all the materials on record including the evidences of witnesses

recorded during inquiry, the inquiry report, as also representation and the

submission made by the petitioner at the hearing on 19.02.2004 with regard

to the charge levelled against him, the disciplinary authority found that it is

anomaly proved that he had slapped Dr.K.K. Sidh, Assistant Director,

ICSSR.

17. Dr.T.K. Majumdar, a witness in the proceedings, had stated in his

deposition that he saw the petitioner giving blows to Dr.K.K. Sidh.

Accordingly, he intervened and physically separated. The enquiry officer

also considered the evidence of Mr.Daulat Ram, who deposed in the said

proceedings as a defence witness on behalf of the petitioner. However, his

evidence was not found credible by the inquiry officer. Therefore, after

examining the evidences of Dr.T.K. Mazumdar and Mr.Daulat Ram

independently, the disciplinary authority has concluded that the findings of

the inquiry officer in this context are justified and correct. The disciplinary

authority was of the view that such conduct of slapping an officer in the

office premises is a grave misconduct. If such instances are tolerated within

the office premises, it will seriously affect the maintenance of discipline and

office decorum. Persons committing such grave misconduct cannot be

allowed to continue in the services of the organisation. The Disciplinary

Authority has, therefore, rejected the representation dated 03.11.2003 made

by the petitioner. The Disciplinary Authority, after considering all the facts

and circumstances of the case, is of the opinion that the petitioner deserves

the punishment of dismissal from service, but has provisionally decided to

impose only the penalty of compulsory retirement.

18. It is further stated that in compliance with the provisions of SR-64 of

the ICSSR (Service) Regulations, 1970, the petitioner was given an

opportunity to show cause as to why the penalty of compulsory retirement

from service should not be imposed. To this effect, the petitioner gave his

explanation dated 20.04.2004 stating that the misconduct, if any, was only on

account of the sudden provocation from Dr. K K Sidh, but pleaded that the

punishment proposed to be imposed on him was unduly harsh and highly

disproportionate to his alleged misconduct. The relevant portion of

petitioner's explanation dated 20.04.2004 is as under:

"1. That the proposed punishment is unduly harsh and highly disproportionate to the misconduct alleged against me.

2. .....

3. That the misconduct, if any, (on the assumption without admitting) is only on account of the sudden provocation in the form of KK Sidh taking the first step slapping me in connection with the Housing Society dispute. The return slap, if any, was not planned deliberately and conscious act, it was on the spur of the moment as an immediate result of provocation.

4. That, the alleged misconduct did not emanate from any discharge of official duty, but, it was only in the context of the long drawn struggle in the matter of the Housing Society membership, wherein, taking undue advantage of the position, the officer in question was behaving high

handedly. The undersigned only voice the grievance of the aggrieved members, at which, the whole incident has been planted on me."

19. Learned counsel further submitted that even in his explanation to the

show cause notice submitted on 20.04.2014, the petitioner once again

admitted of having slapped Dr. K. K. Sidh, in the office premises, but

pleaded that the punishment proposed to be imposed was unduly harsh and

highly disproportionate to the misconduct alleged against him. He further

pleaded that he still had 9 ½ years' service left and under the changed

circumstances, he was willing to serve the Council.

20. Learned counsel appearing on behalf of the respondents further

submitted that in addition to the incident with Dr. K. K. Sidh in the year

1988, the petitioner had physically assaulted Shri KL Khera, the then

Assistant Director, ICSSR, in the office premises for which he was issued a

charge sheet and upon his tendering an unqualified apology and giving a

written assurance of good conduct in future, the petitioner was issued a

warning asking him to refrain from nefarious activities. Thus, it is grossly

unbecoming of an employee of an organisation to physically assault any

employee, what to speak of a senior officer that too within the office

premises itself and irrespective of the same, it also amounts to a criminal

misconduct. Keeping in view the magnitude of the criminal misconduct

committed by the petitioner, the respondents have compulsory retired from

the services. Though he was not entitled to any back wages and deserves to

be dismissed from service for grave misconduct, yet keeping in view his age,

he was paid back wages from 06.11.1989 till the date of issue of the order. It

is made clear that period from 06.11.1989 till the date of issue of this order

will, however, not count towards pensionary benefits. It is pertinent to

mention here that pursuant to direction dated 23.02.2011, the appellate

authority passed a detailed reasoned order dated 09.05.2011 and dismissed

the appeal filed by the petitioner.

21. Learned counsel appearing on behalf of the respondent Nos. 2 and 3

further submitted that the petitioner was paid back wages of ₹12,08,952 from

06.11.1989 till 17.05.2004 in terms of the order dated 17.05.2004 as a full

and final settlement of his dues from ICSSR with an undertaking that the

petitioner would not be eligible for pensionary or any other benefits from the

ICSSR. True copy of the receipt dated 10.06.2004 is annexed and marked as

annexure R-2 which is as under:-

"I have received Cheque No. 848581, dated 9.2004, for an amount of ₹ 12,08,952/- (Rupees Twelve Lakhs Eight Thousand Nine Hundred & Fifty Two only) towards full and final settlement of my dues from the Indian Council of Social

Science Research, New Delhi. I have further noted that I would not be eligible for pensionary and or any other benefits from the ICSSR."

22. I have heard the learned counsel for the parties.

23. In case of Baikuntha Nath Das vs. Chief District Medical Officer:

(1992) 2 SCC 299 whereby the Hon'ble Supreme Court has held that an

order of compulsory retirement is not a punishment. It implies no stigma nor

any suggestion of misbehaviour. The principles of natural justice have no

place in the context of an order of compulsory retirement. This does not

mean that judicial scrutiny is excluded altogether. The Court would not

examine the matter as an appellate court, it may interfere if satisfied that the

order is passed mala fide or that it is based on no evidence or it is arbitrary in

the sense that no reasonable person would form the requisite opinion on the

given material; in short, if it is found to be a perverse order.

24. In case of Sub-Divisional Officer, Konch vs. Maharaj Singh: 2003

(9) SCC 191 whereby the Supreme Court has held that the jurisdiction of the

High Court under Article 226 is a supervisory one and not an appellate one,

and as such the Court would not be justified in reappreciating the evidence

adduced in a disciplinary proceeding to alter the findings of the enquiring

authority.

25. In case of Union of India and Ors. Vs. P. Chandra Mouli and Ors.:

2003 (10) SCC 196 whereby the Hon'ble Supreme Court has held that once

the charge against a delinquent is established, the quantum of punishment is

for the employer to decide and the court ordinarily would not interfere with

the order on the quantum of punishment once the court comes to a

conclusion that there has been no infirmity with the procedure.

26. In case of State of UP vs. Sheo Shanker Lal Srivastava & Ors: 2006

(3) SCC 276 whereby the Hon'ble Supreme Court has held that doctrine of

proportionality can be invoked only under certain situations. The Court shall

be very slow in interfering with the quantum of punishment, unless it is

found to be shocking to one's conscience.

27. In B.C. Chaturvedi vs. Union of India & Ors.: (1995) 6 SCC 749

whereby it is held that a judicial review is not an appeal from a decision but a

review of the manner in which the decision is made. The power of judicial

review is meant to ensure that the individual receives fair treatment and not

to ensure that the conclusion which the authority reaches is necessarily

correct in the eye of the Court. The Court/Tribunal may interfere where the

authority held the proceedings against the delinquent officer in a manner

inconsistent with the rules prescribing the mode of inquiry or where the

conclusion or finding reached by the disciplinary authority is based on no

evidence.

28. It is pertinent to mention here that whenever there were any violations

of the procedure or of natural justice, the petitioner time and again

approached this Court and accordingly, got the orders in his favour. Pursuant

to the directions passed by this Court in the Writ Petition discussed above

filed by the petitioner, the proper opportunities were granted and only

thereafter, the Disciplinary Authority and the Appellate Authority passed the

impugned orders. Moreover, before the incident in question in the year 1988,

the petitioner had physically assaulted Shri K.L. Khera, the then Asstt.

Director, ICSSR, in the office premises for which he was issued a charge-

sheet and upon his tendering an unqualified apology and giving a written

assurance of good conduct in future, the petitioner was issued a warning

asking him to refrain from nefarious activities. Despite he slapped to Dr. K.

K. Sidh as admitted by the petitioner but there is no evidence on record that

Dr. K. K. Sidh slapped the petitioner and in reiteration of that he slapped to

Dr. K. K. Sidh. Even if it is presumed that the Dr. K.K. Sidh had slapped the

petitioner then petitioner instead of slapping in turn ought to make complaint

to the concerned authority. Even as per the admission of the petitioner, he

has admitted that on 06.11.1989, when the petitioner was passing through the

narrow corridor near the stenographers room, he met Dr. Sidh, who was

coming from the opposite side. Due to narrow space, the petitioner requested

Dr. Sidh to make way for him. Dr. Sidh was a senior officer whereas the

petitioner is on the lower rank. Therefore, there was no reason to ask Dr.

Sidh to make way for him. Thus, it proves that the petitioner had created a

cause and slapped Dr. Sidh.

29. Keeping in view the past conduct and the incident in question, no

leniency is required to be granted in favour of the petitioner. Moreover, he

had settled the issue with the respondent by taking amount of ₹ 12,08,952/-

as mentioned above as full and final settlement. I note, regarding the

pensionary benefits, the competent authority has passed specific order to this

effect whereby it is stated that the petitioner shall not be liable for the

pensionary benefits in view of the misconduct committed.

30. In view of the above discussion and settled law, I find no merit in the

present petition.

31. The same is, accordingly, dismissed with no order as to costs.

(SURESH KUMAR KAIT) JUDGE March 12, 2019/ab/rd