Sanjay Kumar vs Union of India and Others

Daya Chaudhary, J.—The prayer in the present petition is for quashing of order of removal dated 10.5.2002, orders passed in appeals on 10.6.2002 and 22.1.2004 as well as order of revision dated 6.12.2004.

Briefly, the facts of the case are that the petitioner was initially appointed as Sanitary Jamadar in the year 1984 and thereafter he was promoted as Sanitary Inspector in the year 1990. Disciplinary proceedings were initiated against him and he was placed under suspension vide order dated 14.8.2000 and thereafter he was charge sheeted on 10.11.2000. Ultimately, the petitioner was removed from service vide order dated 10.5.2002 on the basis of inquiry report, against which, the petitioner preferred the statutory appeal on 23.5.2000, which was also dismissed. Thereafter, the petitioner preferred revision petition, which was also dismissed. It is also pertinent to mention here that during the pendency of revision petition, CWP No. 8471 of 2004 was filed before this Court, wherein, directions were issued to decide the revision petition within a period of two months.

After losing the battle before the appellate authority as well as the revisional authority, the petitioner has approached this Court by way of filing the present writ petition, wherein, order of removal from service, order passed in appeal as well as order passed in revision have been challenged.

Learned counsel for the petitioner contends that the chargesheet was issued to the petitioner in violation of provisions of Rule 14 of CCS (CCA) Rules as the disciplinary authority did not furnish all documents referred in the chargesheet. Learned counsel further contends that during the course of inquiry proceedings, the petitioner could not cross-examine the witnesses, namely, Raj Kumar and Suraj Pal as his defence assistant fell ill on the date of hearing. An application was also moved for adjournment before the Inquiry Officer but the same was declined. Learned counsel also contends that proper opportunity was not granted to the petitioner and, therefore, he was unable to put up his defence properly before the Inquiry Officer. It is also the argument of learned counsel for the petitioner that the service record of the petitioner was good and no complaint or shortcoming was ever conveyed to him. The punishment awarded to the petitioner is on the excessive side keeping in view the allegations against him. The total service of more than 18 years has not been taken into consideration while awarding punishment of removal from service and the order of removal has been passed without following the principles of natural justice and without taking into consideration total length of service.

Learned counsel for respondents No. 4 and 5 submits that no prejudice has been caused to the petitioner. The impugned order of removal was passed by giving proper opportunity and by following principles of natural justice. Learned counsel further submits that nothing has been shown as to how the impugned order of removal is contrary to the findings recorded by the Inquiry Officer. Learned counsel also submits that inspite of giving various opportunities, the petitioner could not produce his witnesses as he wanted to prolong the proceedings. There was no option with the Inquiry Officer except to proceed ex parte.

Heard the arguments advanced by learned counsel for the parties and have also gone through the impugned orders as well as other documents available on file.

The allegations against the petitioner in the chargesheet were of misusing of his official position as during the period of suspension he gave orders to his subordinate to lift and remove sheesham wooden logs, which resultantly caused loss to Cantonment Fund Property. It was further alleged that he allowed some retired employee to occupy Government accommodation without his entitlement and also instigated the employees during strike. On perusal of documents available on file, it is clear that the petitioner made a request to supply the inquiry report before passing of final order of removal but the same was supplied after much delay i.e. after passing of the final order, which shows that due to absence of inquiry report, the petitioner was not in a position to put his case forward. Learned counsel for respondents No. 4 and 5 is neither able to show that the work and conduct of the petitioner was not upto the marks before issuance of chargesheet nor there is anything on record to show that during past 18 years of service, the petitioner was found to be involved in some other allegations.

On perusal of order passed by the appellate authority, it appears that the grounds of appeal of the petitioner have not been considered. It was specifically mentioned by the petitioner in the grounds of appeal that he was not given any opportunity to produce his defence evidence and to submit any statement of defence during inquiry. The appellate authority has passed a totally non-speaking order by stating that after considering the reply of the investigating officer, the evidence brought on record before the inquiry and the comments of various authorities, there is no merit in the appeal and the same is dismissed. Neither any findings have been recorded nor grounds mentioned in the appeal have been considered. Nothing has come in the inquiry as to how the financial loss was caused to the respondent-Department. It has also not come on record that wooden logs were got removed by the petitioner with the intention to attain some financial benefits or to cause loss to any person/body.

While awarding punishment of removal from service, the penalty imposed must commensurate with the gravity of misconduct and in case any penalty imposed is disproportionate to the gravity of misconduct, that would amount to violative of Article 14 of the Constitution of India.

The punishment of removal from service as recorded by the Disciplinary Authority, has been upheld by the Appellate Authority as well but the same is not in any way commensurate with the charges as neither the length of service of the petitioner has been taken into consideration while awarding punishment of removal from service nor the statement of witnesses have been discussed.

In an identical situation, the Three-Judge Bench of Hon''ble the Apex Court in B.C. Chaturvedi Vs. Union of India and others, held as under:-

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority, shocks the conscience of the High Court/Tribunal, it would appropriately mold the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

Another Three-Judge Bench of Hon''ble the Apex Court in Colour-Chem Limited Vs. A.L. Alaspurkar and Others, , has laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere.

Hon''ble the Apex Court in S.K. Giri Vs. Home Secretary, Ministry of Home Affairs and others, has held as under:-

After hearing the learned counsel for parties, we are of the opinion that the punishment awarded to the appellant is no doubt severe and disproportionate and the same deserves to be set aside. Consequently, having regard to the facts and circumstances of the present case, we set aside the order of removal of the appellant from service dated 23.04.1984 and the impugned order of the High Court....

Similar view has been expressed by Hon''ble the Apex Court in U.P. State Road Transport Corporation and Others Vs. Mahesh Kumar Mishra and Others, , which is as under:-

This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstances, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings." Keeping in view the allegations against the petitioner as well as the past service record of more than 18 years, the punishment of removal awarded to the petitioner appears to be on excessive side and he could have been awarded lesser punishment but the same has not been awarded.

In view of the facts as well as law position explained above, it would be in the interest of justice to reduce the punishment of removal from service to compulsory retirement as the petitioner is not having any adverse record during past service as nothing has been placed on record to show that the record of the petitioner was not good during last 18 years. Accordingly, the present petition is allowed and impugned orders dated 10.5.2002 (Annexure P-3), 10.6.2002 (Annexure P-5), 22.1.2004 (Annexure P-7) and 6.12.2004 (Annexure P-10) are set aside.