Ramkalyan Gupta vs State of Rajasthan

Veerender Singh Siradhana, J.—As a consequence of the proceedings conducted against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''Rules of 1958'', for short), the competent authority made the impugned order dated 7/8th August, 2006, withholding 100% pension of the petitioner. Aggrieved of the order dated 7/8th August, 2006, the petitioner has instituted the instant writ proceedings praying for the following relief(s):--

"(i) quash the entire enquiry proceedings conducted against the petitioner under rule 16 of the CCA Rules on the basis of charge sheet dated 10.4.1998 and the impugned punishment order dated 8.8.2006 and exonerate the petitioner from the charges levelled against him;

(ii) further direct the respondents to release the entire pensionary benefits withheld by them with interest at the prevalent bank rate;

(iii) any other order or direction as may be deemed fit and proper in the facts and circumstances of the present case may also be passed in favour of the humble petitioner.

(iv) cost of this writ petition may also be awarded in favour of humble petitioner."

Shorn off unnecessary details, the indispensable skeletal material facts necessary for appreciation of the controversy raised herein, needs to be first noticed. The petitioner while working as Manager of Aklera Kray Vikray Sahkari Samiti Limited, District Jhalawar (for short ''Society''), was found responsible for financial irregularities resulting into losses to the Society on account of advance credit, payment of higher interest rate and misuse of the finances of the Society. It is pleaded case of the petitioner that while he was to retire on 30th April, 1998, attaining the age of superannuation, was served with a charge sheet on 10th April, 1998. An amount of Rs. 4,560/- (Rupees: Four Thousand Five Hundred and Sixty Only) per month with effect from 1st May, 1998, was allowed as provisional pension to the petitioner. On conclusion of the enquiry, the Enquiry Officer submitted the enquiry report on 31st December, 2003. A copy of the enquiry report was furnished to the petitioner along with communication/notice dated 7th April, 2005, calling upon the petitioner to submit his representation, if any. The petitioner was allowed an opportunity of personal hearing and vide impugned order dated 7/8th August, 2006, the petitioner was imposed with the penalty of stoppage of 100% pension for all times.

Reiterating the pleaded facts and grounds of the writ application, the learned counsel appearing on behalf of the petitioner strenuously argued that there is no provision for withholding of 100% pension under the Rules of 1958, and therefore, the penalty imposed is bad in the eye of law. Though Rule 7 of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter referred to as ''Rules of 1996'', for short), contemplates for withholding of the pension, but no specific loss was caused to the Society/Government, as would be evident from the nature of the charges levelled against the petitioner.

Referring to the proceedings conducted under Section 72 of the Rajasthan Cooperative Societies Act, 1965 (for short ''Act of 1965''), the learned counsel urged that the charges, which were levelled against the petitioner, almost on identical set of facts, were found not to be proved, as would be evident from the order dated 29th January, 2009 as well as the appellate order dated 15th November, 2010. The findings arrived at by the Court of Joint Registrar, Cooperative Societies, Kota Division, Kota, vide order dated 29th January, 2009, and by the Court of Additional Registrar (II), Cooperative Societies, Rajasthan, Jaipur, vide order dated 15th November, 2010, completely exonerated the petitioner of the charges, based on same set of facts, and therefore, the findings arrived at by the Enquiry Officer while conducting the enquiry under Rule 16 of the Rules of 1958, cannot be sustained and so also the penalty imposed as a consequence thereof.

In the alternative, the learned counsel would further submit that for the alleged irregularities, the penalty imposed is too harsh and disproportionate looking to the nature of the alleged misconduct. In order to reinforce his submissions with reference to disproportionate punishment, has placed reliance on the opinion of the Hon''ble Supreme Court in the case of State of Uttar Pradesh and Others Vs. Ram Daras Yadav, (2010) 124 FLR 123 : (2009) 15 JT 107 : (2009) 14 SCALE 367 : (2010) 2 SCC 236 : (2010) 1 SCC(L&S) 602 : (2010) 2 SLJ 396 : (2009) 6 SLR 689 ; and Surendra Prasad Shukla Vs. The State of Jharkhand and Others, (2011) 131 FLR 1112 : (2011) 9 JT 560 : (2011) 9 SCALE 535 : (2011) 8 SCC 536 : (2011) 10 SCR 799 .

In response to the notice of the writ application, the respondents have filed their counter affidavit pleading that the charges levelled against the petitioner for financial irregularities and lapses surfaced during the audit, which clearly reflected the financial losses caused by the petitioner to the Society. The enquiry was conducted strictly in accordance with the procedure prescribed under Rule 16 of the Rules of 1958, affording ample opportunity of defence and hearing to the petitioner to defend the charges. The petitioner was allowed to adduce evidence in his defence. On the conclusion of the enquiry proceedings, the enquiry report was submitted by the Enquiry Officer, returned a finding of guilt of charge number 1 and 2 as proved and charge number 3 was found partly proved.

Mr. Mridul Goswami appearing on behalf of Mr. J.M. Saxena, Additional Advocate General, for State-respondents, reiterating the stand in the counter affidavit asserted that the petitioner was charged for gross financial irregularities and misuse of the finance of the Society thereby causing huge losses by deflation of an amount to the tune of Rs. 18 lacs. According to the learned counsel, judicial review in such matters is very limited and restricted only to the decision making process and not to the decision itself. Moreover, the penalty imposed vide impugned order dated 7/8th August, 2006, preceded the order passed by the authorities under Section 74 of the Act of 1965. Moreover, the two provisions i.e. Section 74 of the Act of 1965, and Rule 16 of the Rules of 1958; operate entirely in different and distinct areas. However, it was open for the petitioner to plead before the authorities during the course of proceedings under Section 74 of the Act of 1965, for the penalty already imposed on the petitioner vide impugned order dated 7/8th August, 2006.

I have heard the learned counsel for the parties, and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

The petitioner was afforded ample opportunity of hearing and defence during the course of the enquiry. The Enquiry Officer on the basis of the evidence and materials available on record collected during the course of enquiry, returned a finding of guilt on both the charges number 1 and 2 and found charge number 3 partly proved. The charges levelled against the petitioner were for misuse of the finance of the Society and deflation of money to the tune of Rs. 17 lacs and odd.

During the course of enquiry, the petitioner was afforded ample opportunity to defend himself. During the pendency of the departmental enquiry proceedings, the petitioner was also reinstated vide order dated 27th April, 1998, and stood retired on 30th April, 1998, attaining the age of superannuation. On conclusion of the enquiry, the petitioner was furnished with the enquiry report affording an opportunity of representation/reply, and was also afforded personal hearing. Even under the proceedings conducted under Section 74(1) of the Rajasthan Cooperative Societies Act, 1965/2001; the petitioner was held responsible for negligence in duty for not maintaining the record with the required divisions and the entries of financial transactions. The Additional Registrar also took note of the fact for the lapses and negligence in duty, the petitioner was proceeded with for departmental enquiry proceedings and was punished for the misconduct. The charge number 1 and 2 were found to be proved, and charge number 3 was partly proved.

The scope and extent of interference with the quantum of punishment has been subject matter of a catena of judgments by the Hon''ble Supreme Court. It has been held in uncertain words by the Hon''ble Supreme Court that such an interference cannot be a routine matter referring to the observation of Lord Greene in the famous case of Associated Provincial Picture Houses v. Wednesbury Corpn.: , (1948) 1 KB 2 : (1947) 2 All ER 680 (CA) ; wherein it has been observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. An interference was not permissible unless the order was contrary to law or relevant factors were not considered or irrelevant factors were considered or the decision was one which no reasonable person could have arrived at. The principles have been consistently followed while conducting scrutiny of the validity of an administrative action. The Hon''ble Supreme Court in the case of Om Kumar and Others Vs. Union of India, (2000) 3 JT 92 : (2000) 7 SCALE 524 : (2001) SCC(L&S) 1039 : (2000) 4 SCR 693 Supp , held that ''proportionality'' will have to be considered in the backdrop of the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures have been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order. Where the administrative action is assailed for being arbitrary under Article 14; in cases where punishments in disciplinary cases are challenged, the criteria for scrutiny would be as to whether the administrative order is ''rational'' or ''reasonable'' and whether it stands the Wednesbury test. In such matters, the Courts are confined only to a ''secondary role'' while examining the ''primary role'' of the administrator as to whether he is acted illegally or has omitted relevant factors or has considered irrelevant factors or the view arrived at is one which no reasonable person could have arrived at. This principle has been reiterated by the Hon''ble Supreme Court time and again and the common feature that runs through all the decisions on the subject matter, is to the effect that the Court should not interfere with the decision of the administration until and unless the decision was illogical or suffered with procedural impropriety or was so shocking, to the conscious of the Court, that same was in defiance of logic or moral standard. Thus, the scope of judicial review and scrutiny in such matters is limited only to the decision making process. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless is found to be in defiance of logic or moral standard or shocks the conscious of the Court, the same is not open for interference. In the instant case at hand, from the materials available on record, the enquiry conducted while returning the finding of guilt and the decision arrived at by the Disciplinary Authority, in terminating the services of the petitioner, cannot be faulted on any count as there is no element of illegality in decision making process. The petitioner was found under the influence of alcohol and has been imposed with the appropriate penalty. The penalty cannot be said to be disproportionate by any stretch of imagination, calling for any interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India.

In the case of Surendra Prasad Shukla (supra), the Hon''ble Supreme Court dealt with a case of the Head Constable with reference to an offence under Section 392 IPC, wherein his son along with two others were arrested for stealing the car. There was no charge against the appellant therein that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant was guilty of negligence of not having inquired from his son about the car kept in front of the government quarters occupied by him for which a penalty of dismissal was inflicted. Thus, it is apparent on the face of record that the facts of the instant case at hand are entirely distinct, different and distinguishable from that which has been referred to and relied upon.

In the case of State of Uttar Pradesh and Ors. (supra), there was an inter-se dispute between the colleagues wherein the delinquent was found guilty of indisciplined behaviour for using abusive language and aiming rifle at the fellow colleague threatening him of elimination. The facts have no relation whatsoever if seen in the context of financial irregularities and deflation of the money of the Society as obtained in the instant case at hand.

Interference with the penalty imposed can only be resorted where the penalty imposed is found to be ''shockingly disproportionate''. In my opinion, the penalty imposed upon the petitioner herein cannot be said to be shockingly disproportionate having regard to the singular facts of the instant case at hand wherein the petitioner was charged for financial irregularities and deflation of the finance of the Society to the non-members of the Society as well as for payment of interest on exorbitant rate amounting to 24% per annum. The allegations of misuse of finance of the Society by advance withdrawals, have also been proved in part.

For the reasons and discussions herein above, the writ petition is devoid of any substance, and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.