Anil Kumar vs Union Of India And Ors

Nita Chowdhury, Member (A)

The applicant has filed this Original Application (OA) seeking the following reliefs:-

i) set-aside and quash the punishment orders dated 14.01.2008, Annexure A-1 read with rejection of appeal orders dated 17.09.08, Annexure A-3, whereby the appellate authority has enhanced the penalty of reduction to lowest grade to removal from service, being badly vitiated as humbly submitted in the foregoing paras

ii) direct/command the Respondent"s to deem the applicant as in service and having continued to discharge the duties of a booking clerk, from which post the punishment orders have been made effective.

iii) make payment of the salary and allowances for the period from the date the impugned orders have been made effective with arrears and 24% interest.

iv) any other relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicant alongwith heavy costs against the Respondents, in the interest of justice."

The brief facts of the case are that while the applicant was on duty at Counter No.4, Booking Office, Delhi Shahdara and was busy in issuing tickets to the passengers, a vigilance team checked his cash alleging that he demanded Rs.58/- in excess of fare for issuing two tickets to the decoy passengers and he produced Rs.160/- excess in Government cash. Accordingly, the applicant was transferred along with the post from Delhi Division to Moradabad Division by way of punishment on 19.02.2004 against which he submitted an appeal, which was not acceded to. As a result thereof, on 20.07.2004, a major penalty charge sheet was served on the applicant with the charges as above which he denied and disciplinary proceedings were conducted. Thereafter, the Inquiry Officer (IO) submitted the enquiry report holding the applicant guilty of charges without any evidence on the basis of conjectures and surmises. Thereagainst the applicant submitted a representation on 29.10.2007. On 14.01.2008, the respondents awarded the punishment of reduction from Class III to Class IV post for a period of 12 years with postponing his future increments. On 22.02.2008, the applicant submitted an appeal, raising various legal infirmities and requested for cancellation of the punishment orders. After getting no response from the respondents on the appeal, the applicant submitted an application under Right to Information Act 2005, requesting for supply of related documents with the enhanced punishment and the decision on the appeal. The respondents ultimately supplied the demanded documents including the rejection appeal order dated 24.04.2012. The appellate authority rejected the applicant"s appeal vide order dated 17.09.2008.

The respondents, in their reply, stated that there is no evidence on record to prove that the applicant had correctly demanded Rs.372/- from the decoy passenger and when the decoy paid Rs.430/-, he took out Rs.58 from his cash drawer with malafide intention to refund it to the decoy. There is sufficient evidence on record which will prove that the applicant had demanded and accepted Rs.430 from the decoy passenger in lieu of Rs.372/-. However, the applicant"s own version of accepting Rs.430/- from the decoy passenger goes to confirm that the demand and acceptance of excess fare is established.

It is further pleaded that the appellate authority carefully considered the appeal of the applicant and held that the penalty imposed on the applicant by the disciplinary authority is not commensurate with the gravity of offence committed by the applicant and enhanced the penalty to removal from service vide order dated 17.09.2008 in accordance with the provisions of Rule 22 of D&A Rules.

It is submitted that the competent authority considers that there is no justification for keeping the applicant on Delhi Division where the applicant is alleged to have been involved in malpractices and has accordingly passed orders that he should be transferred from Delhi Division to Moradabad Division.

We have heard the learned counsel for both the parties and perused the pleadings on record.

The short controversy involved in this OA is whether the order passed by the appellate authority enhancing the penalty to removal from service on the appeal of the applicant is a reasoned and speaking one or not

On perusal of the appellate authority "s order dated 17.09.2008, it is found that the appellate authority has gone through the analysis and discussions of the prosecution and the defence submitted against the orders of the disciplinary authority and has also proved the main charge of demand, acceptance and recovery in decoy chec and also other charge on the basis of evidence. The appellate authority has thus passed the following order:-

"Keeping in view of the above, I find that the penalty imposed by the disciplinary authority is not commensurate with the gravity of offence committed by you because you were found in malpractices as the decoy money was recovered from your cash. A Railway servant should be of good fame so that passengers could believe in the railways but you have defamed the goodwill of the Railways and excess in you government cash also proved your malafide intention. Therefore, I have decided to enhance the penalty of "Reduction to the lowest grade of Rs.2550-3200 RPS on pay Rs.2550/- PM from the grade of Rs.3200-4900 for a period of Twelve (12) years with postponing future increments" to "Removal from Service". You are therefore, "Removed from Service" with immediate effect."

The Hon"ble Supreme Court with regard to imposition of penalty has held in Civil Appeal No. 4722 of 1996 State of U.P. Vs. Nand Kishore Shukla and another (L &S) 867 decided on 11.03.96 as under:-

"...... It is settled law that the court is not a court of appeal to go into the question of imposition of the punishment. It is for the Disciplinary Authority to consider what would be nature of punishment to be imposed on a government servant based upon the misconduct proved against him. Its proportionality also cannot be gone into by the court. The only question is whether the Disciplinary Authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the Disciplinary Authority or by the Appellate Authority, the court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him from seeking any appointment elsewhere. Under these circumstances, the High Court was wholly wrong in setting aside the order...."

The same view was reiterated by the Hon"ble Supreme in the case of B.C. Chaturvedi Vs. UOI 1995 (6) SCC 749 and it was held as under:-

"Service Law - Writ - Power under Article 226 of the High Court - To impose appropriate punishment - The High Court/Tribunal while exercising the power of judicial review, cannot normally come to its own conclusion on penalty and impose some other penalty. (Constitution of India, Article 226).

No doubt, while exercising power under Article 227 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court's view regarding appropriate punishment is not permissible."

Recently, the Hon"ble High Court of Delhi in the case of Union of India (UOI) and Ors Vs Ram Dass Rakesh, WP(C) No.4211-4216/2915 decided on 24.09.2007 has decided on quantum of punishment. The relevant portion of the judgement is quoted below:-

"...5. When we apply these principles to the present case, our conclusion would be that the approach of the learned Tribunal is not correct in law. No doubt, in the first blush it appears that allegations against all three officials are of similar nature, which related to non-payment of 8 money orders to the payees. However, the role of the three officials, it is natural, would be different. Depending upon that if the disciplinary authority in the case of other two officials decided to impose a particular punishment, that would not mean that same punishment is to be meted out to the respondent as well. Before the disciplinary authority of the respondent the charge against the respondent for misappropriation of a sum of Rs. 12,000/- is proved. The charge in itself is a very serious charge and punishment of dismissal on such a charge should not have been interfered with unless the penalty is shockingly disproportionate to the proven charge. Even if one proceeds with the assumption that other two officials are given lesser punishment wrongly, that would not mean that lesser punishment should have been given to the respondent as well, who had committed grave misconduct, and when such a case is treated in isolation, even as per the Tribunal, the misconduct justified imposition of this kind of penalty. The concept of discrimination would be alien in such a situation...".

Thus, in the absence of any procedural illegality and irregularity, in the conduct of DE, no ground to interfere with the order of appellate authority is made out, in view of law  laid  down  by  Hon"ble  Apex Court  in  the  case  of Chairman-cum-Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others (2009) 15 SCC 620.

The judgments relied upon by the applicant in the case of Moni Shankar Vs. UOI, 2008-3-SCC-484, State of UP Vs. Shiv Shankar Lal Srivastava, 2006-3-SCC-276, Trilok Sudhirbhai Pandya Vs. UOI, (2011)10 SCC-213, Ranjit Thakur Vs. UOI (1987)4 SCC 611, NK Varadarajan Vs. Spl. Dy. Director, 1991-1-SLR-667 and P.Muniswamy Vs. UOI, 1998-7-SLR-137 will not come to the rescue of the applicant as the appellate authority has passed the order on appeal in accordance with rules and with due application of mind.

No other point, worth consideration, has been urged or pressed by learned counsel for the parties.

In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed as such in the obtaining circumstances of the case. No costs.