Jharkhand High Court
Chandrabali Singh Yadav Aged ... vs Union Of India Through The ... on 25 April, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 45 of 2020
Chandrabali Singh Yadav aged about 50 years son of Late
Kalaur Yadav, resident of village Hurmujpur, P.O.
Hurmujpur, P.S. Sadar, District- Gazipur, Uttar Pradesh.
... Appellant
Versus
1.Union of India through the Secretary, Ministry of Home
Affairs, New Delhi P.O. and P.S. New Delhi, New Delhi.
2.Inspector General, Central Reserve Police Force,
Longzing, P.O. and P.S. Longzing, Disrict-Imphal, Manipur.
3.Deputy Inspector General of Police, Central Reserve
Police Force, Longzing, P.O. and P.S. Longzing, Disrict-
Imphal, Manipur.
4.The Commandant, 26Bn, Central Reserve Police Force,
Daltonganj, P.O. and P.S. Sadar, District-Palamau.
... .... Respondents
-------
CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
For the Appellant : Mr. Saibal Mitra, Advocate
Mr. Akshay Kr. Mahato, Advocate
For the Respondents : Mr. Pratyush Kumar, Advocate
------
Per Sujit Narayan Prasad, J:
Order No.09/Dated25th April, 2023
I.A. No. 3249 of 2022
The present Interlocutory Application has been filed
for condonation of delay of 17 days in filing the instant
appeal.
2. Heard learned counsel for the parties.
3. No counter affidavit has been filed opposing the
prayer for condoning the delay.
4. Having regard to the averments made in this
application, we are of the view that the appellant was
prevented by sufficient cause from preferring the appeal
within the period of limitation.
5. Accordingly, I.A. No.3249 of 2022 is allowed and
delay of 17 days in preferring the appeal is condoned.
L.P.A. No. 45 of 2020
6. The instant intra-court appeal, under Clause 10 of
the Letters Patent, is directed against order/judgment
dated 26.11.2019 passed by learned Single Judge in
W.P.(S) No. 564 of 2011 by which the writ petition has been
dismissed on the ground that earlier writ petition being
C.W.J.C. No. 1391 of 2000(R) filed by the writ petitioner
was dismissed for non-prosecution vide order dated
05.03.2009, against which restoration application being
C.M.P No. 109 of 2010 was filed, which was dismissed on
merit vide order dated 20.08.2010 and without challenging
the order dated 20.08.2010 passed in the aforesaid
restoration application since the present writ petition has
been filed, therefore, it is not maintainable.
7. At the outset, learned counsel for the respondents
have raised the issue of maintainability by defending the
order passed by the learned Single Judge on the ground
that once the order passed by the original authority vide
order dated 31.08.1999 and order passed by the appellate
authority dated 21.01.2000 have been challenged by filing
writ petition being C.W.J.C. No. 1391 of 2000(R) and the
same was dismissed vide order dated 05.03.2009 and
against which one Civil Miscellaneous Application being
C.M.P No. 109 of 2010 was filed, which stand dismissed on
merit vide order dated 20.08.2010 as such without
challenging the order passed in restoration application
since second writ petition being W.P.(S) No. 564 of 2011
[subject matter of instant intra-court appeal] has been filed,
the instant intra-court appeal is not maintainable.
8. Learned counsel for the appellant has submitted
that it is correct that while filing the writ petition being
C.W.J.C. No. 1391 of 2000(R), the petitioner had challenged
order dated 31.08.1999 passed by the original authority
and order dated 21.01.2000 passed by the appellate
authority but the same was adjudicated on merit since the
said writ petition, C.W.J.C. No. 1391 of 2000(R), was
dismissed for non-prosecution, against which the
restoration application being C.M.P. No. 109 of 2010 was
filed which was also dismissed vide order dated 20.08.2010
and the said order has not been challenged. But in the
meanwhile, the revisional authority has rejected the
revision application preferred by the petitioner by affirming
the order passed by the appellate authority and since the
order passed by the revisional authority was not the subject
matter of C.W.J.C. No. 1391 of 2000(R), therefore, on the
basis of principle of merger the order passed by the original
authority and appellate authority will be said to be merged
with the order passed by the revisional authority. Since the
order 11.08.2000 passed by the revisional authority is
under challenge in the writ petition, therefore, the instant
intra-court appeal is maintainable.
9. We, before proceeding to examine the legality and
propriety of order passed by the revisional authority, deem
it fit and proper to answer the issue of maintainability.
The law is well settled that the order passed by the
original authority if subjected before the appellate authority
and the appellate authority confirms the order passed by
the original authority, the original order will be merged with
the order passed by the appellate authority. Likewise, if the
revisional authority confirms the order passed by the
appellate authority, the order so passed by the appellate
authority will be said to be merged with the order passed by
the revisional authority on the basis of principle of merger.
Law in this regard is well settled by Hon'ble Apex
Court in the judgment rendered in Kunhayammed v.
State of Kerala, (2000) 6 SCC 359 in particular at
paragraph 7, 8, 12 and 42, which reads as under:
"7.The doctrine of merger is neither a doctrine of constitutional
law nor a doctrine statutorily recognised. It is a common law
doctrine founded on principles of propriety in the hierarchy of
justice delivery system. On more occasions than one this Court
had an opportunity of dealing with the doctrine of merger. It
would be advisable to trace and set out the judicial opinion of
this Court as it has progressed through the times.
8. In CIT v. Amritlal Bhogilal and Co.1 this Court held:
"There can be no doubt that, if an appeal is provided against
an order passed by a tribunal, the decision of the appellate
authority is the operative decision in law. If the appellate
authority modifies or reverses the decision of the tribunal, it
is obvious that it is the appellate decision that is effective
and can be enforced. In law the position would be just the
same even if the appellate decision merely confirms the
decision of the tribunal. As a result of the confirmation or
affirmance of the decision of the tribunal by the appellate
authority the original decision merges in the appellate
decision and it is the appellate decision alone which
subsists and is operative and capable of enforcement;"
12. The logic underlying the doctrine of merger is that there
cannot be more than one decree or operative orders governing
the same subject-matter at a given point of time. When a decree
or order passed by an inferior court, tribunal or authority was
subjected to a remedy available under the law before a superior
forum then, though the decree or order under challenge
continues to be effective and binding, nevertheless its finality is
put in jeopardy. Once the superior court has disposed of the lis
before it either way -- whether the decree or order under appeal
is set aside or modified or simply confirmed, it is the decree or
order of the superior court, tribunal or authority which is the
final, binding and operative decree or order wherein merges the
decree or order passed by the court, tribunal or the authority
below. However, the doctrine is not of universal or unlimited
application. The nature of jurisdiction exercised by the superior
forum and the content or subject-matter of challenge laid or
which could have been laid shall have to be kept in view.
42. "To merge" means to sink or disappear in something else; to
become absorbed or extinguished; to be combined or be
swallowed up. Merger in law is defined as the absorption of a
thing of lesser importance by a greater, whereby the lesser
ceases to exist, but the greater is not increased; an absorption or
swallowing up so as to involve a loss of identity and
individuality."
The decision in Kunhayammed v. State of Kerala
(Supra) was followed by a three-Judge Bench decision of
Hon'ble Apex Court in Chandi Prasad v. Jagdish Prasad
reported in (2004) 8 SCC 724, wherein at paragraph 23
and 24 it has been held which reads hereunder as :-
"23. The doctrine of merger is based on the principles
of propriety in the hierarchy of the justice delivery
system. The doctrine of merger does not make a
distinction between an order of reversal, modification
or an order of confirmation passed by the appellate
authority. The said doctrine postulates that there
cannot be more than one operative decree governing
the same subject-matter at a given point of time.
24. It is trite that when an appellate court passes a
decree, the decree of the trial court merges with the
decree of the appellate court and even if and subject to
any modification that may be made in the appellate
decree, the decree of the appellate court supersedes
the decree of the trial court. In other words, merger of
a decree takes place irrespective of the fact as to
whether the appellate court affirms, modifies or
reverses the decree passed by the trial court."
More recently, the decision in Chandi Prasad v.
Jagdish Prasad (Supra) was followed by a two-Judge
Bench of Hon'ble Apex Court in Shanthi v. T.D.
Vishwanathan reported in (2018) SCC OnLine SC 2196
wherein it has been held at paragraph 7 which reads as
under:-
"7. ... When an appeal is prescribed under a statute
and the appellate forum is invoked and entertained,
for all intents and purposes, the suit continues. When
a higher forum entertains an appeal and passes an
order on merit, the doctrine of merger would apply.
The doctrine of merger is based on the principles of the
propriety in the hierarchy of the justice delivery
system. The doctrine of merger does not make a
distinction between an order of reversal, modification
or an order of confirmation passed by the appellate
authority. The said doctrine postulates that there
cannot be more than one operative decree governing
the same subject-matter at a given point of time."
10. This Court on the basis of aforesaid legal position
and after taking into consideration the fact that the order
passed by the revisional authority dated 11.08.2000 was
not the subject matter of C.W.J.C. No. 1391 of 2000(R) and
after disposal of the writ petition since revisional authority
has passed order hence the order passed by the appellate
authority will be said to be merged with the order passed by
the revisional authority, as such the same will be
considered to be a cause of action not been adjudicated.
It is also settled position of law that a person cannot
be remediless and if such person is aggrieved with any
order and if it has been questioned, the same is required to
be adjudicated by the court of law. Here, in the instant
case, the revisional order has still not been adjudicated and
in that view of the matter, if the instant appeal will be said
to be not maintainable, then the writ petitioner will become
remediless.
Considering the aforesaid fact, this Court is of the
view that the instant appeal is held to be maintainable.
11. This Court considering the aforesaid fact is of the
view that objection made on behalf of respondents
regarding non-maintainability of the instant appeal, is
required to be overruled.
12. Accordingly, the objection with regard to
maintainability of the instant intra-court appeal is
overruled and the instant intra-court appeal is
maintainable.
13. This Court, now before proceeding to examine the
legality and propriety of the impugned order passed by the
learned Single Judge, requires to refer the briefs facts of the
case, as per the pleadings made in the writ petition, which
read as under:
The petitioner-appellant was appointed as constable
in Central Reserve Police Force (CRPF) on 01.12.1990.
While serving as such, on 05.05.1998, the appellant along
with other CRPF personnel was doing operation against the
MCC-Naxalite, in which, they were attacked by MCC-
Naxalites due to which there were several casualties.
It is alleged that the respondents-authorities
treating the incidence to be the lapses on the part of
appellant and one Laxman Bhengra and H.K. Thakur
framed one joint memo of charge dated 31.08.1998 and
directed them to submit show cause report, to which, the
appellant replied denying the charge. But the reply having
been found not satisfactory, as such in contemplation of
departmental proceeding the enquiry officer was appointed
to conduct enquiry against the delinquents. The enquiry
officer, after enquiry submitted enquiry report dated
24.07.1999, in which, the charges leveled against the
delinquent was found to be partially proved. It is alleged
that thereafter, the disciplinary authority differing with the
finding recorded by the enquiry officer imposed the
impugned punishment of removal of service of the appellant
as well as said Laxman Bhengra and H.K. Thakur.
Against the order passed by the disciplinary
authority, the appellant preferred appeal which was
dismissed vide order dated 21.01.2000 by the appellate
authority.
Thereafter, against the order passed by the
appellate authority, the appellant preferred departmental
revision, however, during pendency of the revision, the
petitioner preferred writ petition being CWJC No. 1391 of
2000(R) invoking the jurisdiction of this Court conferred
under Article 226 of the Constitution of India, challenging
the order passed by disciplinary authority as well as by the
appellate authority, but the said writ petition was
dismissed for non-prosecution vide order dated
05.03.20009, against which the appellant-petitioner
preferred restoration application being CMP No. 109 of
2010, which was also dismissed.
After dismissal of the restoration application [CMP
No. 109 of 2010], the appellant filed another writ petition
being W.P. (C) No. 564 of 2011 for setting aside the order
passed by disciplinary as well as by the appellate authority
and by way of amendment has also prayed for setting aside
the order dated 11.08.2000 passed by the revisional
authority.
The learned Single Judge, after hearing learned
counsel for the parties, dismissed the writ petition being
not maintainable on the ground that earlier writ petition
being C.W.J.C. No. 1391 of 2000(R) filed by the writ
petitioner was dismissed for non-prosecution vide order
dated 05.03.2009, against which restoration application
being C.M.P No. 109 of 2010 was filed, which was
dismissed on merit vide order dated 20.08.2010 and
without challenging the order dated 20.08.2010 passed in
the aforesaid restoration application since the present writ
petition has been filed, therefore, it is not maintainable.
Being aggrieved with the order passed by learned
Single Judge the instant intra-court appeal has been filed.
14. It is evident from the memo of charge dated
31.08.1998 that the allegation has been leveled against the
appellant along with one Head Constable Laxman Bhengra
and Head Constable H.K. Thakur, that while functioning as
Ct/GO and HCs/GO respectively committed an act of
misconduct/negligence of duty in their capacity as a
member of the Force under Section 11(1) of CRPF Act, 1949
and that they while participating in an encounter with MCC
Naxalites on 05.05.1998 near village Tunudag under PS-
Panki, District Palamau (Bihar) showed
negligence/cowardice during the course of encounter. As a
result of their cowardness, lost precious life of L/N
Rukmangal Singh and MCC naxalites took away arms and
ammunition from the possession of troops. Thus they have
committed an act of gross misconduct/negligence of duty.
For ready reference, the imputation of charge, as
under annexure 2 appended to the memo of charge is
quoted as under:
"That the said No. 903064652 Ct Chandra Bali Singh who was
LMG No. 2, No. 810580249 HC Laxman Bhangra and No.
810693516 HC H.K. Thakur of C/25, both Sction Commanders
while functioning as Ct/GO and HCs/GO respectively committed
an act of misconduct/negligence of duty in their capacity as a
member of the Force under Section 11(1) of CRPF Act, 1949 in
that they while participating in an encounter with MCC Naxalites
on 5.5.1998 near village Tunudag under PS- Panki, District
Palamau (Bihar) showed negligence/cowardice during the
course of encounter. As a result of their cowardness, out troops
lost precious life of of No. 821261746 L/N Rukmangal Singh of
this unit and MCC naxalites took away of 303 LMG Butt No. 8,
Body No. I-T-7568 along with 5 LMG Magazines from the
possession of troops. Thus they have committed an act of gross
misconduct/negligence of duty which is prejudicial to god order
and discipline of the Force."
The appellant has participated in the enquiry
proceeding and enquiry officer after conclusion of enquiry
submitted enquiry report finding the charge partially
proved against the appellant along with other delinquent
employees, namely, Head Constable Laxman Bhengra and
Head Constable H.K. Thakur since joint enquiry was
conducted against all the three employees including the
appellant.
For ready reference, the conclusion arrived at by the
enquiry officer is reproduced herein below:
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The aforesaid enquiry report has been forwarded
before the disciplinary authority, who vide order dated
31.08.1999 imposed the punishment of removal from
service against the appellant and said HC Laxman Bhengra
and HC H.K. Thakur.
The appellant being aggrieved with the order passed
by the original authority preferred appeal which was also
dismissed vide order dated 21.01.2000.
The appellant, against the order passed by original
authority and appellate authority preferred revision on the
ground that though the appellate authority has quashed
the order of punishment of removal from service against the
co-delinquents, namely, Laxman Bhengra and H.K. Thakur
but order passed by original and appellate authority has
been confirmed so far as case of the appellant is concerned,
which is contrary to the principle of parity to be applicable
in imposing punishment.
However, during pendency of the revision
application, the appellant approached this Court by filing
writ petition being C.W.J.C. No. 1391 of 2000(R) which was
dismissed for non-prosecution vide order dated 05.03.2009,
against which restoration application being C.M.P No. 109
of 2010 was filed, which was dismissed vide order dated
20.08.2010.
In the meanwhile, the revisional authority rejected
the revision application preferred by the petitioner by
affirming the order passed by the appellant authority vide
order dated 11.08.2000 inter alia on the ground that the
revisional authority while dealing with the revision has not
appreciated the fact that on the similar set of allegation i.e,
on identical charge leveled against the co-delinquents,
namely, Laxman Bhengra and H.K. Thakur, the order of
punishment passed by original and appellate authority
have been quashed but even though the allegation against
appellant is identical to that of co-delinquent, namely,
Laxman Bhengra and H.K. Thakur but the revisional
authority has refused to accept the said submission by
passing order that nature of allegation is different to that of
co-delinquent employees, namely, Laxman Bhengra and
H.K. Thakur.
15. Learned counsel for the appellant has submitted
that that law is well settled that while imposing the
punishment the principle of parity is required to be
maintained.
In support of his submission, he relied upon the
judgment rendered by Hon'ble Apex Court in the case of
Rajendra Yadav Vs. State of Madhya Pradesh & Ors
[(2013) 3 SCC 73].
16. Per contra, Mr. Pratyush Kumar, learned counsel
appearing for the respondents has submitted that there is
no error in the order passed by revisional authority reason
being that the nature of allegation leveled against the
appellant cannot be said to be identical to that of co-
delinquent employees, namely, Laxman Bhengra and H.K.
Thakur, if the nature of imputation is taken into
consideration wherein it has been alleged that the appellant
was detailed as LMG-2, who was supposed to carry spars
barrel, magazines and heldel of LMG and remain with LMG-
1 during the operation but when one of the member of
LMG-1, namely, Rukmangal Singh suddenly came under
heavy firing of MCC naxalites, Ct. Chandra Bali Singh
(appellant) did not provide proper assistance of LMG-1 from
the scene of occurrence as a result of which said
Rukmangal Singh sustained bullet injury and died on spot.
It is alleged that if Ct. Chandra Bali Singh, LMG-2 would
have remained with LMG-1 L/Nk Rukmangal Singh then
naxalites could not have dared to take away one 303 LMG
along with 5 LMG magazines from the possession of troops.
So far as allegation against co-delinquent
employees, namely, Laxman Bhengra and H.K. Thakur is
concerned, it has been contended that as per imputation of
charge they were detailed as section commanders in the
said special operation as such they were supposed to have
control and supervision on their respective sections during
the course of special operations but they had shown
negligence/cowardice in the encounter and failed to use
their weapons effectively to break the ambush by naxalites
and prevent them to come nearer to L/Nk Rukmangal
Singh (deceased). Had they performed their duties properly
the life of Rukmangal Singh could have been saved and loss
of arms and ammunitions could have been avoided.
It has been contended by making comparison of
charges leveled against with appellant vis-à-vis other co-
delinquent, namely, Laxman Bhengra and H.K. Thakur that
the nature of allegation leveled against them is quite
different as allegation leveled against the appellant is that
he did not give proper assistance to L/Nk Rakmangal Singh
when heavy firing was done by MCC-Naxalites due to which
he sustained bullet injury and died on spot and further
naxalites took away arms and ammunition from the
deceased. Whereas allegation against the co-delinquent
employees, namely, Laxman Bhengra and H.K. Thakur is
that being section commanders they failed to discharge
their duty of control and supervision on their respective
section during the course of special operations and they
failed to use their weapons effectively to break ambush by
naxalites.
In that pretext, it has been contended that if the
appellant would have discharged his duty with utmost
sincerity the life of L/Nk Rukmangal Singh could have been
saved and if there would have been better supervision and
control over the unit by the section commanders, namely,
Laxman Bhengra and H.K. Thakur the ambush by the
naxalites could have been avoided. Thus, it is evident that
nature of allegation against the appellant is more serious as
he was assigned the duty of giving proper assistance to
L/Nk Rukmangal Singh and to carry spars barrel,
magazines and heldel of LMG and remain with LMG-1,
namely, L/Nk Rukmangal Singh but during the firing made
by MCC naxalites he did not give proper assistance to LMG-
1 due to which said Rukmangal sustained bullet injury and
died on the spot.
In that view of the matter, submission has been
made that charge leveled against the appellant cannot be
said to be identical to said co-delinquent employees,
namely, Laxman Bhengra and H.K. Thakur. Hence, the
principle of parity in punishment will not be applicable in
the case at hand.
17. We have heard learned counsel for the parties,
perused the documents available on record.
18. The sole ground taken by the appellant in
questioning the order of punishment is that there is no
parity in the order passed by the appellate authority in
favour of two co-delinquent employees, namely, Laxman
Bhengra and H.K. Thakur whose order of punishment has
been interfered with by quashing and setting it aside vis-à-
vis the appellant. In this regard, submission has been made
that since the allegation leveled against the appellant is
identical to that of co-delinquent employees, namely,
Laxman Bhengra and H.K. Thakur, therefore, similar relief
ought to have been extended by the appellate authority and
the said fact has been given to the notice to the revisioinal
authority but no interference was shown rather the claim of
the appellant was rejected by coming to the conclusion that
the charge leveled against the appellant cannot be said to
be identical to that of co-delinquent employees, namely,
Laxman Bhengra and H.K. Thakur.
19. The law is well settled that the principle of parity in
punishment with co-delinquent employee is required to be
followed since the doctrine of equality applies to all who are
equally placed; even amongst who are found guilty.
Reference in this regard be made to the judgment
rendered by Hon'ble Supreme Court in the case of Anand
Regional Coop. Oil Seedsgrowers' Union Ltd. v.
Shaileshkumar Harshadbhai Shah, (2006) 6 SCC 548
wherein at paragraph 27 and 28, it has been held as under:
"27. There is, however, another aspect of the matter which cannot be
lost sight of. Identical allegations were made against seven
persons. The management did not take serious note of
misconduct committed by six others although they were
similarly situated. They were allowed to take the benefit of
the voluntary retirement scheme.
28. The first respondent might not have opted therefor. However,
having regard to the peculiar facts and circumstances of this
case, he should be, in our opinion, treated on a similar
footing. In view of the fact that the first respondent has
succeeded in the Labour Court and the learned Single Judge
as also the Division Bench; we are of the opinion that having
regard to the overall situation, the interest of justice would be
subserved if the award of the Labour Court dated 31-1-2003
as affirmed by the High Court is substituted by a direction
that the first respondent shall also be given the benefit of
voluntary retirement scheme from the month in which the
other workmen were given the benefit thereof."
Further, the Hon'ble Apex Court in the judgment
rendered in the case of Rajendra Yadav v. State of M.P.,
(2013) 3 SCC 73: at paragraph 9 and 10 held as under:
"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.
10. The principle stated above is seen applied in a few
judgments of this Court. The earliest one is DG of Police v. G.
Dasayan wherein one Dasayan, a police constable, along
with two other constables and one Head Constable were
charged for the same acts of misconduct. The disciplinary
authority exonerated two other constables, but imposed the
punishment of dismissal from service on Dasayan and that of
compulsory retirement on the Head Constable. This Court, in
order to meet the ends of justice, substituted the order of
compulsory retirement in place of the order of dismissal from
service on Dasayan, applying the principle of parity in
punishment among co-delinquents. This Court held that it
may, otherwise, violate Article 14 of the Constitution of
India."
Likewise, the Hon'ble Apex Court in the judgment
rendered in Naresh Chandra Bhardwaj v. Bank of India,
(2019) 15 SCC 786 at paragraph 5 held as under:
"5. It is trite to say that the domain of the courts on the issue
of quantum of punishment is very limited. It is the
disciplinary authority or the appellate authority, which
decides the nature of punishment keeping in mind the
seriousness of the misconduct committed. This would not
imply that if the punishment is so disproportionate that it
shocks the conscience of the court the courts are denuded of
the authority to interfere with the same. Normally even in
such cases it may be appropriate to remit the matter back for
consideration by the disciplinary/appellate authority.
However, one other cause for interference can be where the
plea raised is of parity in punishment but then the
prerequisite would be that the parity has to be in the nature
of charges made and held against the delinquent employee
and the conduct of the employee post the incident. It is the
latter aspect which is sought to be advanced by the learned
counsel for the appellant by relying upon the judgment in
Rajendra Yadav v. State of M.P. On this very aspect the
learned counsel for the respondents drew out attention to a
subsequent judgment in Lucknow Kshetriya Gramin Bank
v. Rajendra Singh which had taken note of the earlier
judgment referred to aforesaid."
20. This Court is now proceeding to examine as to
whether the charge leveled against the appellant is identical
to that of other co-delinquent employee, who subsequently
at the appellate stage have been exonerated from the
charges by quashing and setting aside the order of removal
from service passed by the disciplinary authority.
21. The principle of parity is to be followed while
imposing punishment is based upon the principle that the
charge against the delinquent employee must be identical
and similar.
22. This Court, therefore, is required to examine the
charge leveled against the appellant vis-à-vis charge leveled
against the co-delinquent employees, namely, Laxman
Bhengra and H.K. Thakur.
The imputation of charge has already been referred
hereinabove against the appellant as also against the co-
delinquent employees, namely, Laxman Bhengra and H.K.
Thakur.
23. It is evident against the charge leveled against the
appellant that he being detailed as LMG-2, was supposed to
carry spars barrel, magazines and heldel of LMG and
remain with LMG-1 during the operation but when one of
the member of LMG-1, namely, Rukmangal Singh suddenly
came under heavy firing of MCC naxalites, the appellant
did not provide proper assistance of LMG-1 from the scene
of occurrence as a result of which said Rukmangal Singh
sustained bullet injury and died on spot and the naxalites
took away arms and ammunitions from the deceased.
24. From perusal of Charge leveled against co-
delinquent employees, namely, Laxman Bhengra and H.K.
Thakur it is evident that they were detailed as section
commanders in the special operation as such they were
supposed to have control and supervision on their
respective sections during the course of special operations
but they had shown negligence/cowardice in the encounter
and failed to use their weapons effectively to break the
ambush by naxalites and prevent them to come nearer to
L/Nk Rukmangal Singh (deceased) and if they had
performed their duties properly the life of Rukmangal Singh
could have been saved and loss of arms and ammunitions
could have been avoided.
25. This Court, on the basis of charge coupled with the
finding recorded by the enquiry officer by negating the
explanation furnished by the appellant that due to pain in
his shoulder he could not be able to carry the arms and
ammunition, is of the view that the charge leveled against
the appellant is more serious in comparison to that of the
charge leveled against co-delinquent employees. This is
because of the reason that charge leveled against the
appellant was that he was detailed as LMG-2 and was
supposed to carry spare barrel, magazine and heldel of
LMG-1 and remain with LMG 1 but he was not along with
LMG-1 and not with spare barrel, magazine etc. rather even
he did not give proper assistance to L/Nk Rukmangal Singh
but ran away from the scene of occurrence which led to
casualty of said L/Nk Rukmangal Singh.
While the nature of allegation leveled against the co-
delinquents, namely, Laxman Bhengra and H.K. Thakur is
quite different as they were supposed to have control and
supervision on their respective sections during the course
of special operations.
It has come in imputation of charge that the
allegation of running away from the scene of occurrence is
also there against the appellant when heavy firing was
going on by the MCC-naxalities, which is serious allegation.
But there is no such allegation against co-
delinquents, namely, Laxman Bhengra and H.K. Thakur
rather they were supposed to have control and supervision
on their respective sections during the course of special
operations.
26. This Court, therefore, is of the view that the parity
of punishment, as has been said to be made applicable in
the facts and circumstances of the case by quashing the
order passed by revisional authority, is of the considered
view that the parity of principle cannot be made applicable
herein taking into consideration the nature of allegation
leveled against the appellant having not identical to two
other co-delinquents, namely, Laxman Bhengra and H.K.
Thakur.
In that premise, the ground of principle of parity in
imposing punishment if not accepted by the revisional
authority, the same, according to our considered view,
cannot be said to suffer from any error.
27. This Court in view of discussions made hereinabove
is of the view that the order passed by the revisional
authority requires no interference.
28. Accordingly, the instant intra-court appeal fails and
is dismissed.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Alankar/-A.F.R.
