Syed Jamil Ahmad vs State of U.P.& another

S.H.A. Raza, J.—The petitioner has challenged the order of dismissal dated 26th March, 1981 passed against him, contained in AnnexureXXIV, mainly on the following grounds:

(1) No loss of public exchequer by the petitioner was caused, hence relying on Bhagat Ram Vs. State of Himachal Pradesh an d others (1983 Supreme Court Cases (L&S) 342), it was argued that the penalty imposed upon, is not commensurate with the gravity of misconduct and the penalty was disproportionate to the gravity of alleged misconduct and hence the same is arbitrary and violative of Article14 of the Constitution of India.

(2) The Enquiry Report indicates that although the charge No. 2 contained in the first charge sheet was not proved against the petitioner and he was exonerated by the Enquiry Officer but on a similar charge contained in the 3rd charge sheet, that is Charge No. 1 (5) the petitioner was found guilty,

(3) The Enquiry Report indicates that the Enquiry Officer relied upon the statement of Sri Brij Vir Singh against whom an enquiry was also conducted for the same allegations but he was not awarded any punishment.

(4) The Enquiry Officer relied upon the statement of Sri Brij Vir Singh who bore enmity against the petitioner for the reason of the fact that the petitioner had given adverse entry against him and at the instance of the petitioner the continuity of his services was broken.

The petitioner was posted as Principal of the Industrial Training Institute, Pratapgarh with effect from 28th December, 1962 and his appointment was approved by the Public Service Commission in Class II during 196465. Thereafter he worked as the Principal of Industrial Training Institute, Meerut in July, 1965 and was recruited to the State Training Service Class I after approval by U.P, Public Service commission on 21.1.1966. In 1966 a piston set was urgently required for a Diesel Tractor belonging to the institute. In accordance with the procedure prescribed, tenders were invited for an English Piston. Quotations were received, and after preparing a comparative chart the tender of M/S. A.V. Sales Corporation for Rs. 781/was found lowest and this was accepted. On an anonymous complaint a charge sheet containing three charges was communicated to the petitioner on 30.9.1972 by the Administrative Tribunal11 created under the Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. These charges relate to the period when the petitioner was working as Principal, Industrial Training Institute, Meerut. Subsequently, three more charges were framed by the department. While the proceedings were pending before the Administrative Tribunal a third charge sheet was communicated to the petitioner vide letter dated 24.7.1973. It was averred that the first three items of the third charge sheet were identical to charge no, 3 communicated in the first charge sheet. Only item nos. 4 and 5 have been newly added and the petitioner was found guilty and removed only on charge No.1 (v) of the third charge sheet. The petitioner submitted replies to all these charges. One Brij Vir Singh was also coaccused in inquiry before the Administrative Tribunal. The prosecution indicated nine witnesses to substantiate the charges against the petitioner. None of the witnesses had deposed against the petitioner except Brij Vir Singh who was on inimical terms with the petitioner and was also coaccused alongwith the petitioner in the departmental inquiry. The petitioner was served with a show cause notice in which the petitioner was required to submit his explanation only with regard to charge No. 1(v) of the 3rd chargesheet. One of the charges levelled against the petitioner in the first chargesheet which is relevant for the purpose, is charge No. 3. The said charge reads as under:

�You, Sri Jamil Ahmad, while posted as Principal, I. T. I. Meerut, during the period 6.5.66 to 6.5.68. failed to discharge your duties properly in dealing with the purchase of a piston set from M/S A. V. Sales Corporation, Meerut, causing loss to government inasmuch as :

(i) ..................

(ii) ..................

(iii) You purchased the aforesaid piston set for Rs. 710/ (excluding sales tax of Rs. 71/) from M/S. A. V. Sales Corporation, Meerut, ignoring the lower rates of Rs. 675/ quoted for this article by M/S Ravi Motors, Meerut, thereby causing loss to the Government.�

The charge on which the removal order was passed against the petitioner given in the 3rd chargesheet, that is charge No. 1(v), reads as under :

�You had shown Rs. 781/ as the price of English piston for the use of the official tractor when in reality you purchased an indigenous piston set the price of which was not more than Rs. 200/ and thus you caused an estimated loss of Rs. 581/.�

The aforesaid charge has been held to be proved against the petitioner by the Administrative Tribunal. It was argued that if the aforesaid charge No. 1(v) of the third chargosheet is read alongwith charge No. 1(3) of the third chargesheet it would be evident that both are contradictory. From the first chargesheet it is evident that the charge has not been proved, meaning thereby that no loss was caused by the petitioner inasmuch as piston set was purchased for Rs. 710/ (Excluding sales tax of Rs. 71/). Charge No. 1 (v) of the third chargesheet has been held to be proved by the Tribunal by showing that a contradictory finding has been recorded by the Tribunal itself. In this charge it has been held that the piston set of Indian make of the price of Rs. 200/ was purchased and that the petitioner had embezzled Rs. 581/ that is, he had caused a loss to the government to the tune of Rs. 581/. Both the two findings obviously are contradictory and on this ground alone the services of a government servant cannot be dispensed with.

While dealing with charge No. 3 in the first chargesheet the Administrative Tribunal accepted that the tender was lowest, and the piston was duly received from the firm and entered as such in the stock register by the staff concerned.

Hon''ble Supreme Court in Bhagat Ram''s case (supra) had indicated that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution of India.

In the instant case even if it is assumed that the petitioner had caused loss to the Government to the tune of Rs. 581/ the penalty imposed cannot be said to be commensurate with the gravity of misconduct and the same is disproportionate, to the gravity of misconduct.

Furthermore, the finding of the Administrative Tribunal regarding the purchase is conrtadictory, as far as first chargesheet is concerned; the Administrative Tribunal gave a finding that the charge has not been proved, meaning thereby that no loss was caused by the petitioner, but in charge No. 1(V) of the 3rd chargesheet, the Tribunal came to the conclusion that the charge stood proved. A perusal of both the charges indicate that they were, more or less, similar with each other. It is strange that while the Tribunal exonerated the petitioner against charge of misappropriating the money and causing loss to the Government, on a similar charge he was found guilty. Obviously, the two findings are contradictory and the services of a public servant cannot be dispensed with in such a cursory manner. The order of punishment suffers from nonapplication of mind and has been passed in a cursory and mechanical manner.

Out of the several witnesses cited, only Brij Vir Singh deposed against the petitioner. The said person was a coaccused in the said inquiry. He was given adverse remarks by the petitioner and at the instance of the petitioner penalty of break in service was imposed against him. In its finding the Tribunal in paragraph 40 has indicated that Brij Vir Singh brought this Desi piston set and gave its false receipt at the instance of Sri Jamil Ahmad, the petitioner. It is strange that Brij Vir Singh, who was found guilty of bringing a Desipiston set, and falsely had shown in the receipt that it was an English piston set, was exonerated on the ground that there was no collusion between him and Jamil Ahmad and M/s A.V. Sales Corporation and he had done so at the instance of Sri Jamil Ahmad; but the Tribunal recommended that Jamil Ahmad was not fit to be retained in service and he deserved to be removed from service and regarding Brij Vir Singh the Tribunal recommended the punishment of an adverse entry. The charge against Brij Vir Singh was graver in nature in comparison to the petitioner as he had brought a Desipiston set and gave a false receipt of English piston set but curiously enough he was given a very minor punishment, while the petitioner was removed from service. The Tribunal had committed a manifest error of law, while giving minor punishment to the person who committed a graver offence but recommended the removal of the petitioner for a lessor charge. The Enquiry Report submitted by the aforesaid two officers suffer from discrimination and arbitrariness inasmuch as they recommended minor punishment to the person who committed graver offence and major punishment to a person who is alleged to have committed a lessor offence. The penalty imposed upon the petitioner is not commensurate with the gravity of the misconduct committed by the petitioner and the same is disproportionate to the gravity of the charge levelled against the petitioner and hence the same is arbitrary and violative of Article 14 of the Constitution of India.

In view of what we have indicated hereinabove this writ petition succeeds and is allowed. A writ of certiorari is issued quashing the impugned order of removal dated 26th March, 1981 passed by the Labour Secretary, Government of Uttar Pradesh vide Government Order No. 831/36558/77. A writ of mandamus is also issued to put the petitioner on duty forthwith with all consequential benefits. No order is, however, made as to costs.