Anil Kumar Asthana vs Union Of India & Ors

Om Prakash VII, Member (J)

Shri S. K. Singh Vashisht, learned counsel for the applicant and Shri Arvind Singh, learned counsel for the respondents, were present at the time of hearing.

The instant original application has been filed seeking following relief:

“(i) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order of punishment dated 19.5.2004 (Annexure A-I). Appellate order dated 10.01.2005 (Annexure A-II) and Revisioning Authority’s order dated 26.4.2007 (Annexure A-III) together with orders of forfeiture of pay & allowances (Anneuxre A-IX).

(ii) To issue a writ order or direction in the nature of Mandamus directing the respondent No. 3 to reinstate the petitioner on duty w.e.f. 19.5.2004 with all consequential benefits, as if no penalty order was passed on that day.

(iii) To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Hon’ble Tribunal may deem fit and proper.

(iv) To award cost of the petition.”

The instant original application has been filed by the applicant challenging the punishment order dated 19.05.2004, appellate order dated 10.01.2005 and Revisional Authority’s order dated 26.04.2007 by way of which punishment of compulsory retirement which was meted out to the applicant was reduced to the punishment of reduction in pay. By way of the instant original application, applicant is alleging several infirmities and illegalities in the impugned orders and prays that the same may be set aside directing the respondents to reinstate the applicant on duty w.e.f. 19.05.2004 with all consequential benefits as if no punishment order was passed on that day.

Disclosing a brief history of the case, learned counsel for the applicant submits that the applicant was initially appointed on the post of Messenger Boy in the respondents department which is a Group D Non-Industrial post. Subsequently, he was upgraded to the post of Lower Division Clerk in the pay scale of Rs 3050-4590. While working on the aforesaid post, the applicant was served with memorandum of charges dated 17.05.2003 by the respondents alleging therein that the applicant ‘kept unauthorizedly with him from 8.2.2003 to 5.5.2003 Govt. money to the tune of Rs. 10,000/- (Rs. 5050/- towards GM’s Relief Fund plus Rs. 4590/- towards Medical Aid Fund) without disbursing amongst the employees whose applications were pending with him since long. Citing applicant’s conduct tantamount to doubtful integrity, dereliction of duty and unbecoming of a Govt. servant and alleging him to have violated the provisions as contained in Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules 1964, memorandum of charges was served upon him. Earlier to this, the applicant was also placed under suspension vide order dated 05.05.2003. In reply to the memorandum of charges, applicant submitted a detailed representation thereby denying all the allegations leveled against him. However, learned counsel submits, a court of enquiry was constituted against the applicant by the Disciplinary Authority under Rule 14 of CCS (CCA) Rules, 1965 and the inquiry officer after completing the inquiry across various dates, submitted his report asking the applicant to move a representation, if any. In reply to Disciplinary Authority’s order dated 08.04.2004, the applicant submitted his representation on 20.04.2004 citing various irregularities in the inquiry. However, applicant’s representation was not considered at all and without recording cogent reasons on each imputation of charges and unilaterally accepting the findings of Inquiry Officer, respondents went ahead and passed an order dated 19.04.2004 imposing the severe penalty of compulsory retirement upon the applicant w.e.f. 19.05.2004.

Learned counsel for the applicant goes on to submit that a perusal of the entire inquiry proceedings reveals that the said proceedings were not conducted in a fair and proper manner and procedure as envisaged under Rule 14 of CCS (CCA) Rules was not followed. The Inquiry Officer did not consider the fact that the applicant being a LDC is not supposed to handle and to operate a cash transaction because in the factory there exists a Cash Office, Cash Officer and Cashier and they are paid cash handling allowance separately in addition to the other allowances. The applicant was working under the subordination of the Officer Incharge of Labour Welfare Office and the amount of GM Relief Fund for which the applicant has been charged was not taken and kept by the applicant with himself but the same was withdrawn by the applicant on the written authorization of the said officer so the applicant has just been made a scapegoat for his superior’s wrongdoing and prolonged inaction.

Learned counsel for the applicant further submits that the inquiry was conducted in absolute violation of the statutory rules and principle of natural justice was not followed as the applicant was not given ample opportunity of hearing by the Inquiry Officer. Thus, the whole inquiry proceedings are vitiated. The Inquiry Officer also failed to maintain daily order sheet of the Inquiry due to which the applicant is unable to show that what discrepancies / irregularities were observed by the Inquiry Officer. Furthermore, the learned counsel submits, during the course of pendency of the applicant’s appeal dated 03.07.2004 before the appellate authority, the Disciplinary Authority passed orders for forfeiture of pay and allowances to be paid over and above to subsistence allowances already paid which is very bad in the eyes of law.

Learned counsel for the applicant further submits that having been aggrieved with the illegal and arbitrary order of the Disciplinary Authority as well as the Appellate Authority, the applicant preferred a Revision Petition dated 23.04.2005 to the Revisioning Authority. Considering the same, the said authority was pleased to modify the penalty of compulsory retirement into reduction of pay to a lower stage in time scale of pay of Rs. 3050-4590 at minimum of the pay scale for a period of 2 years w.e.f. the date of applicant’s reinstatement with order of not earning any increment during the period of reduction and on expiry of it having effect of postponing the future increments and further not entitled to pay from the date of compulsory retirement to the date of reinstatement and also said period will not be treated as on duty, vide their order dated 26.04.2007.Learned counsel submits that the aforesaid order was the amalgam of both major and minor penalty. The penalty of reduction being for two years is a minor penalty whereas not earning any increment during the period of reduction and having effect of postponing future increments is a major penalty and it is an accepted fact that both major and minor penalties cannot run simultaneously. Besides, not earning of increment during the period of reduction and having effect of postponing future increments are contrary to each other and hence it is being illegal and not sustainable in the eyes of law and liable to be quashed.

Learned counsel for the applicant further submits that though the modified penalty order did not speak about the determination of seniority of the petitioner but on the other hand, he has been made junior to his colleagues and juniors have been given promotion to the higher grades. Thus, the penalty is illegal and is liable to be quashed.

Concluding his arguments, learned counsel for the applicant submits that the applicant’s past record is unblemished and the allegations made in the memorandum of charges are fake as the applicant neither misappropriated the amount drawn by him nor committed any fraud but in good faith, he performed his duties as per direction of his officers though not supposed to handle cash as per existing rules. Thus, he prays, penalty order dated 19.05.2004, appellate order dated 10.01.2005 and Revisioning Authority’s order dated 26.04.2007 and other connected orders are liable to be quashed as the same have been passed without reasonability and sufficient cause.

Learned counsel for the respondents vehemently opposes the prayer of the applicant submitting that the Deputy Labour Welfare Commissioner (DLWC) of the Ordnance Equipment Factory vide his report dated 02.05.2003, informed that an amount of Rs. 30,705/-was drawn by the applicant on 08.02.2003 towards General Manager’s Relief Fund and Medical Aid Fund but he did not disburse the full amount of the employees and kept Rs. 10,000/-unauthorisedly with him from 08.02.2003 to 05.05.2003 despite applications of the employees pending with him requesting for payment. This clearly speaks for the misappropriation / temporary embezzlement of the government money on the part of the applicant. The applicant committed serious violation of Rule 3(1)(i), (ii) and (iii) of the CCS (Conduct ) Rules, 1965 and accordingly a charge sheet under Rule 14 of the said rules was served upon him. Furthermore, on the detection of misappropriation / embezzlement by the authority, the applicant deposited the sum of Rs. 10,000/- in Cash Office of the factory on the date of his suspension i.e., 05.05.2003 which remained withheld with him prior to that date.

Referring to his counter affidavit, learned counsel for the respondents submits that no illegality or irregularity can be attributed to the penalty order dated 19.05.2004, appellate order dated 10.01.2005 and Revisioning Authority’s order dated 26.04.2007 as the same were issued in accordance with the statutory rules and provisions governing the subject matter. As and when required, the applicant was given ample opportunity of hearing by the Inquiry Officer and all the evidences were made available to him for inspection. Thus, the claim of the applicant that the inquiry was conducted in violation of the principles of natural justices is absolutely baseless and uncalled for.

Learned counsel for the respondents went on to submit that in applicant’s interest only, the initial punishment order vide which he was compulsorily retired was moderated by the revisionary Authority vide its order dated 26.04.2007. Learned counsel submits that charges on doubtful integrity, dereliction of duty and conduct regarding unbecoming of a government servant leveled against the applicant are very serious in nature and no reprieve whatsoever must be entertained.Learned counsel for the respondents further states that it is the discretion / jurisdiction of the Appellate Authority to decide whether an opportunity for personal hearing is to be provided to an individual or not during the inquiry. In the instant case of the applicant, the Appellate Authority did not accede to the request of the applicant for personal hearing since he was convinced that the Disciplinary Authority had followed the procedure laid down in the CCS (CCA) Rules, 1965 and that the penalty imposed is warranted by facts and circumstances on record.

Concluding his arguments, learned counsel for the respondents submits that applicant’s past clean record does not absolve him from the penalty imposed on his proven misconduct. It would be just and proper that the penalty order dated 19.05.2004 passed by the Competent Disciplinary Authority, Appellate Order dated 10.01.2005 passed by the Appellate Authority and the Revisionary Order dated 26.4.2007 passed by the Revisionary Authority may be upheld by the Hon’ble Court and the instant original application be dismissed being devoid of merits.

Learned counsel for the applicant contradicts the averments of the learned counsel for the respondents and by way of his rejoinder affidavit, submits that the applicant was not working independently but was working under the full control and obedience of Dy. Labour Welfare Commissioner of Ordnance Equipment Factory Kanpur. No doubt the said amount was drawn but that amount was drawn on behalf of the DLWC. The applicant did not keep the aforesaid amount for any other motive except to awaiting written orders of DLWC on those applications and for want of verification from other sections like LB and Cash Office. Therefore, there is no case of embezzlement on the part of the applicant for which severe penalty has been imposed upon him. He further submits that the order passed by the Revisionary Authority is not consistent to the principles of law laid down by the Apex Court in case Union of India & Ors. Vs. S.C. Parashar, P.496, SCC (L&S) 2006 and in case Raj Kumar Mehrotra Vs. State of Bihar and others, P.679, SCC (L&S) 2006.

Furthermore, by way of his supplementary affidavit, the learned counsel for the applicant has annexed a letter dated 05.10.2009 issued by the Addl. General Manager / Information Officer, in which it has been stated / admitted that G.M. Fund and Medical Fund are the component of private funds. Furthermore, the applicant had never been given the charge of medical fund. He further states that private funds are not being audited by any authority of India because it is private fund. So far as GM Fund is concerned, it was never audited by any Govt. Auditor. Thus, learned counsel submits, the punishment that has been imposed upon the applicant is absolutely uncalled for as the amount in question pertains to private fund and no punishment can be attributed in case of embezzlement, if there has been any, for private fund.

We have considered the rival contentions advanced by the learned counsel appearing for the parties and also gone through the documents on record in detail.

For the sake of brevity, the facts and circumstances of the case are not being reiterated as the same have already been narrated above in detail. The aspects which are required to be deliberated upon in the instant case are whether there was any sort of embezzlement of fund on part of the applicant, the inquiry which was conducted was in accordance with the statutory provisions or not and whether the punishment that was imposed during and after the culmination of inquiry was just and appropriate.

As regards to the issue of embezzlement of funds, from the contents of the original application and arguments advanced by the learned counsel for the parties, it is crystal clear that the applicant kept unauthorizedly with him from 8.2.2003 to 5.5.2003 Govt. money to the tune of Rs. 10,000/- (Rs. 5050/- towards GM’s Relief Fund plus Rs. 4590/- towards Medical Aid Fund) without disbursing amongst the employees whose applications were pending with him since long. The same has been cogently proven in the inquiry done by the respondents. So there is no iota of doubt as regards to the embezzlement of govt. funds, even of temporary nature, done by the applicant. Secondly, as far as the procedure followed during the course of inquiry is concerned, there is no doubt that the impugned orders passed in the subject matter are speaking and reasoned ones clearly elucidating the facts and circumstances of the case. Fact and evidence adduced by the parties itself make it clear that ample opportunity at all stage have been provided to the applicant. Thus, plea on this count is not acceptable.

The embezzlement in question is to the tune of Rs. 10,000/-only. While the Court is not at all commenting that any embezzlement of government amount, no matter how less the amount is, can be overlooked or condoned, in the instant case, the embezzlement was not of permanent nature nor did the applicant commit any deceit or fraud for doing the said embezzlement. The applicant just withheld the amount for a certain period of time which he claims to have done because he was waiting for the written approval of his superior officers to proceed with the said amount. It is pertinent to mention here that the applicant is Grade C employee (LDC) who possessed an unblemished service before this incident and therefore punishment imposed upon him for the alleged temporary embezzlement of an amount to the tune of Rs. 10,000/- is too harsh.

The Apex Court in its judgment dated 24.02.2006 in case Appeal (Civil) No. 1267 of 2006 titled Union of India & Anr. Vs. S.C. Parashar has held as under:-

“The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties : (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clause (iii) and (iii)(a) thereof. The Disciplinary Authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.”

Vide order dated 19.5.2004, Disciplinary Authority imposed the punishment of compulsory retirement upon the applicant. Appellate Authority vide order dated 10.1.2005, rejected the appeal of the applicant. Revisionary Authority vide order dated 26.4.2007 modified the punishment from compulsory retirement to reduction to a lower stage in the time scale of pay i.e. to the lowest stage of Rs. 3050/- in the time scale of Rs. 3050-4590/- for 2 years w.e.f. the date of reinstatement. Applicant will not earn increments of pay during the period of reduction and on the expiry of the period, the reduction will have the effect of postponing his future increments of pay. Applicant will not be entitled for pay between the date of compulsory retirement and the date of reinstatement. It is further ordered that intervening period will not be treated as on duty and the period may be regularized by grant of leave after following due procedure. Hence, it is clear that the order passed by the Revisionary Authority dated 26.4.2007 by which punishment from compulsory retirement was reduced to a lower stage in the time scale of pay i.e. to the lowest stage of Rs. 3050/- in the time scale of Rs. 3050-4590/- for 2 years w.e.f. the date of reinstatement along with other punishments is concerned, since the same has been passed without affording any opportunity to the applicant and disproportionate to the charges leveled against the applicant. It is also evident that vide order dated 26.4.2007, revisionary authority has passed so many punishment like reduction to a lower stage in the time scale of pay i.e. to the lowest stage of Rs. 3050/- in the time scale of Rs. 3050-4590/- for 2 years w.e.f. the date of reinstatement, stoppage of increments of pay during the period of reduction and on the expiry of the period, the reduction will have the effect of postponing his future increments of pay, applicant will not be entitled for pay between the date of compulsory retirement and the date of reinstatement and intervening period will not be treated as on duty and the period may be regularized by grant of leave after following due procedure, which is not tenable in the eyes of law.

In the case of Union of India Vs. S.S. Ahluwalia reported in 2007 Law Suit (SC) 950, the Hon’ble Apex Court has been pleased to observe as under:-

“The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty.”

In the case of State of Meghalaya Vs. Mecken Singh N Marak reported in 2009 Law Suit (SC) 1935, the Hon’ble Apex Court has also held as under:-

“A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. 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.”

Lastly in the case of Director General , RPF Vs. Sai Babu reported in 2003 Law Suit (SC) 117, the Hon’ble Apex Court has been pleased to hold as under:-

“4. Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appellants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge.”

Broadly speaking, the quantum of punishment ought to have been decided by the authority concerned keeping in view the following six points:-

i) Gravity of misconduct

ii) Past Conduct

iii) Nature of duties

iv) Position in organization

v) Previous penalty, if any

vi) Kind of discipline required to be maintained.

Going through the above judgments, the legal position is clear that the power of High Court or the Tribunal is very limited while exercising the power of judicial review, so far as it relates to the quantum of punishment. However, the Supreme Court consistently held that punishment imposed was grossly or shockingly disproportionate, then the court can review the order.

This court also found that the punishment awarded to the applicant is quite harsh and disproportionate to the gravity of offence. The charge levelled against the applicant is that applicant did not disburse the full amount to the employees and kept Rs. 10000/-unauthorizedly with him from 8.2.2003 to 5.5.2003. Even if the charge leveled against the applicant stands proved, the offence remained only for keeping Rs. 10000/- unauthorizedly with him from 8.2.2003 to 5.5.2003. From the perusal of the punishment order, it does not appear that any of the above points were considered and discussed. Finally, therefore, the punishment order deserves to be modified. Remanding the matter to the authority concerned will cause undue delay. Thus, to avoid such situation, punishment order passed by the revisionary authority further needed modification at this stage itself.

Accordingly, O.A. is allowed. Order passed by the Revisionary Authority dated 26.4.2007 is quashed except “reduction to a lower stage in the time scale of pay i.e. to the lowest stage of Rs. 3050/-in the time scale of Rs. 3050-4590/- for 2 years w.e.f. the date of his reinstatement”. Effect of punishment order dated 19.5.2004 which was modified/reduced by the revisionary authority vide order dated 26.4.2007 will be completed on 18.5.2006, hence, respondents are directed to give all services benefit to the applicant thereafter, including arrears of salary with interest @ 6% per annum. This exercise shall be completed within a period of 02 months from the date of receipt of certified copy of this order.

All associated MAs stand disposed of accordingly.

No costs.