R.N. Srivastava vs U.P. Public Services Tribunal No. 1 and Others

J.C. Gupta, J.—By means of this writ petition, the Petitioner has challenged the order of the Tribunal, Respondent No. 1 dated 23.11.87 (Annexure-10), order of the appellate authority. State Government, Respondent No. 2 dated 2.11.81 (Annexure-9) and the order of the Director, N.C.C., Lucknow, Respondent No. 3 dated 14.9.79 (Annexure-5) and has also prayed for a writ of mandamus directing the Respondents to reinstate the Petitioner with the entire arrears of salary with continuity of service and all other consequential benefits.

The Petitioner was initially appointed on 17.11.55 as Junior Division Clerk in IInd U.P. Battalion, N.C.C., B.H.U., Varanasi and was in due course promoted to the post of Senior Division Clerk and then to the higher post of Head Clerk. He was also confirmed on the said post with effect from 15.4.73. It is alleged that in 1973 the Petitioner became ill with Deodanal Ulcer and suspected cancer and remained ill for about one year and he was advised by attending physicians to do light work. He was admitted and operated on 24.10.75 in Sir Sundarlal Hospital. The Petitioner was served with a charge-sheet dated 6.3.79 (Annexure-1) which comprised of five charges, all relating to leave. The first charge was that the Petitioner applied for earned leave from 10.2.75 to 24.2.75, which was sanctioned and the same was availed of, but the said leave was neither entered in the leave account of the Petitioner nor Part-II order was published. The Petitioner filed reply. An inquiry under Rule 55 of the Classification, Control and Appeal Rules was conducted and the Inquiry Officer in his report dated May 3, 1979 concluded.

Finding general applicable all above pleas:

There has been no other known case of such leave/part publication lapse in the H. Q. The delinquent officer as per his statement had in good faith left a lot of work to the dealing clerk because of his illness and operation.

It is strongly felt that all the lapses in respect of Sri R. N. Srivastava could not have taken place without active participation of Sri Parma Nand Singh the dealing pers ''O'' Clerk.

After submission of the inquiry report, Respondent No. 3, the Director, N.C.C., U.P., Lucknow passed the impugned order dated 14.9.79 removing the Petitioner from service. The Petitioner preferred an appeal against this order before Respondent No. 2, but the same was also dismissed by the order dated 2.11.81 (Annexure-9). Thereafter the Petitioner filed Claim Petition No. 38/1/1982 before Respondent No. 1 and the same has also been dismissed by the judgment dated 23.11.87 (Annexure-10). The Petitioner has challenged the order of removal mainly on the grounds that Respondent No. 3 has passed the order of removal against the findings of the Inquiry Officer and he has misread the evidence on record; that the order of punishment does not contain any reason and there has been no application of mind for awarding such a severe punishment and that in any view of the matter the punishment awarded to the Petitioner is too severe for the alleged lapses on the part of the Petitioner and also that the principles of natural justice were violated.

On behalf of Respondent Nos. 2 and 3, counter-affidavit has been filed and it is stated that the order of removal from the service of the Petitioner was passed after considering the inquiry report and all other material on record. The Petitioner being a Head Clerk and a responsible Government Servant was expected to have proper supervision of the office records and publication of orders. The Petitioner tried to gain illegal benefit of leave and salary for himself for which he was served with a charge-sheet. The Petitioner tried to shift his guilt upon others. In short, the order of removal is defended on the grounds that the same has been passed after applying mind on the entire facts and circumstances of the case as well as taking into consideration the report of the Inquiry Officer.

Learned Counsel for the Petitioner firstly contended that no reasonable opportunity was afforded to the Petitioner during inquiry as provided under the provisions of Rule 55A of the Classification, Control and Appeal Rules. On this issue, it is suffice to state that this submission of the learned Counsel has been dealt with in detail by Respondent No. 1 in the impugned order. The Petitioner participated in the inquiry, he was given copies of all the relevant documents and also given reasonable opportunity to cross-examine the witnesses and produce his defence. The report of the Inquiry Officer also indicates that the Petitioner was given full opportunity to defend the charges, which were framed against him. No such plea or objection was raised before the Inquiry Officer. Therefore, this contention of the Petitioner must be repelled.

Next it has been argued that no copy of the report of the Inquiry Officer Major P. P. Pandey was supplied to the Petitioner and, therefore, the order of dismissal stands vitiated being violative of the principles of natural justice and in support of his contention, reliance has been placed on the famous decision of Mohd. Ramzan Khan (1991) SCC 588, wherein it was held that termination order stands vitiated for non-supply of inquiry report being violative of the principles of natural justice. The judgment in that case was rendered on 20.11.91. A question thereafter arose whether ratio down in Mohd. Ramzan Khan''s case would be applicable to the orders passed earlier and a Constitution Bench of Hon''ble Supreme Court held in the case of Managing Director, E.C.I.L., Hyderabad v. B.K. Karunakar and Ors. (1973) 4 SCC 727, that the ratio in Ramzan Khan''s case would apply to the punishment imposed by the disciplinary authority after the date of the judgment. Since the controversy is no longer res integra, the Petitioner in the present case is not entitled to claim any benefit of the ratio of Ramzan Khan''s case as admittedly the impugned order of dismissal was passed on 14.9.79, i.e., much before the date of judgment of Mohd. Khan''s case.

It was then contended by the Petitioner''s counsel that the punishing authority, Respondent No. 3, has differed with the findings of the Inquiry Officer without assigning any valid reasons and on this ground alone, the order of Respondent No. 3 is illegal, invalid and against the principles of service jurisprudence. The Tribunal has also examined this leg of argument, which was also raised before it and this Court is in complete agreement with the view taken by the Tribunal that Respondent No. 3 while passing the impugned order has considered the entire evidence on record and in fact appears to have been taken extra pains in examining the evidence on record while coming to the conclusion that the charges framed against the Petitioner stood proved.

Lastly, it was argued that in view of the nature of the charges levelled against the Petitioner and the findings of the Inquiry Officer, the punishment of removal of the Petitioner from service is wholly disproportionate. It has also been urged that while ordering dismissal from service, the punishing authority ought to have considered the concluding portion of the inquiry report, which has been quoted above in the body of this judgment and the punishing authority has not assigned any reason whatsoever as to why only the punishment of removal from service was desirable or necessary.

In the case of Ranjit Thakur Vs. Union of India (UOI) and Others, , it was held that:

Judicial review, generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the punishing authority. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.

In Bhagat Ram Vs. State of Himachal Pradesh and Others, , the Apex Court held as under:

It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.

In a recent decision of B.C. Chaturvedi Vs. Union of India and others, , it was held:

A High Court would be within its Jurisdiction to modify the punishment/penalty by moulding the relief. In a case of a dismissal. Article 21 gets attracted and, in view of the interdependence of fundamental rights, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. If Article 14 were to be violated a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it.

It was also observed in the said decision:

But for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of Judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.

Whether in a given case, the extreme punishment of removal from service is reasonable or arbitrary, the question can only be judged when the punishing authority assigns good reasons as to why extreme punishment is felt necessary. It is true that the disciplinary authority has exclusive power to consider the evidence with a view to maintain discipline and is invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct and the High Court does not normally substitute its own discretion for that of the disciplinary authority and award some other punishment, but where the court finds that no reason whatsoever has been assigned by the punishing authority for awaraing the extreme penalty of dismissal from the service and there has been no consideration of mitigating circumstances appearing in favour of the delinquent officer, such an order cannot be said to be reasonable. In the present case, while passing the order of removal, the punishing authority has not assigned specific reasons as to why he has found it necessary to order the removal of the Petitioner from the service especially when the Inquiry Officer had made some observations favourable to the Petitioner. The punishing authority, Respondent No. 3, has also not taken into consideration the mitigating circumstances that the Petitioner was suffering from serious illness and was under a constant mental agony on account of suspected dreaded disease like cancer. The order of removal/dismissal is the most severe punishment, which may be awarded to a Government servant and such a punishment has not to be imposed in a routine or mechanical prescription. The authority concerned should examine the entire material to arrive at a just decision as to what punishment/penalty would be appropriate in that particular case. It is necessary for the authority concerned to weigh the aggravating as well as the mitigating circumstances for awarding a just and appropriate punishment which will suit to the offence and the offender.

For the above reasons, this Court is of the view that the impugned order, so far as it relates to the punishment part of removal of Petitioner from service cannot be upheld and the case is remanded back to Respondent No. 3 for reconsidering the question of imposition of penalty and to pass appropriate order of punishment in accordance with law and in the light of the observations made above. It is made clear that so far as the other part of the order, by which the charges against the Petitioner have been found proved, is maintained and the same does not require any fresh consideration.

With these directions, this writ petition is disposed of.