published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40604
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs…6142/2013
(Arising out of Special Leave Petition (Civil) No.10025 of 2012)
Lucknow K.Gramin Bank (Now
Allahabad,U.P.Gramin Bank) & Anr. …..Appellant (s)
Vs.
Rajendra Singh …..Respondent
(s)
With
C.A.Nos. 6143 & 6144/2013 (@ SLP (C) Nos.11211 of 2012 & 11451 of 2012
J U D G M E N T
A.K.Sikri, J.
1. Leave granted.
2. These appeals arise out of the decision dated 19th December 2011
rendered by High Court of Judicature at Allahabad, whereby three Writ
Petitions filed by the respondents in these appeals have been disposed
of with certain directions.
-
3. Before we point out the directions of the High Court in the
impugned judgment and the grievance of the appellant thereto, it would
be proper to traverse the seminal facts which are largely undisputed.
4. The appellant-Bank had issued separate charge-sheets to six
employees leveling identical charges.
Three respondents before us in
these appeals were the three employees out of those six employees to
whom these charge-sheets were issued.
All the six employees,
including the respondents herein, filed their replies to the charge-
sheets denying the charges.
5. For certain unknown reasons, the appellant-Bank initially chose to proceed and conduct the enquiry only against the respondents herein and appointed an enquiry officer.
After conducting the enquiry, the
enquiry officer submitted his enquiry report, returning the findings
that charges leveled against the respondents stood proved.
After
giving the opportunity to the respondents to file their response and
objections to the enquiry report, the Disciplinary Authority imposed
the punishment of dismissal from service vide order dated 15th
February 2008 in respect of all the three respondents, though orders
were passed separately in each case.
These -
respondents filed departmental appeals which were also dismissed by
the Appellate Authority vide orders dated 28th April, 2008.
6. Aggrieved by the orders of the Disciplinary Authority as well as
the Appellate Authority, the respondents approached the High Court by
way of Writ Petitions.
7. It so happened that
though
the other three employees had denied
the charges and the enquiry officer was also appointed in their cases
(of course after the finding of guilt was recorded by the enquiry
officer in the case of the respondents) before the enquiry officer,
the said three employees admitted the charges and tendered
unconditional apology.
They also gave undertaking that they would not
commit any such misconduct in future.
The enquiry officer recording
this, forwarded his report to the Disciplinary Authority and keeping
in view that those employees had tendered unconditional apologies with
the assurance, as aforesaid,
all three of them were inflicted the
penalty of reduction of his basic pay by one stage for one year with
cumulative effect” under Regulation 38(1)(b)(ii) by separate orders
dated 25th June 2008, 26th June 2008 and 30th June 2008. This is a -
major penalty as per the aforesaid Regulations though in the impugned
order,
High Court has termed it as “minor punishment”
8. Be that as it may, when the three Writ Petitions filed by the
respondents herein came up for hearing before the High Court, the
counsel who appeared on behalf of the respondents pointed out the
orders of punishment passed by the Disciplinary Authority in the case
of aforesaid three employees and made a statement that the respondents
were also willing to tender unconditional apologies for their
misconduct with assurance that they would not repeat the same and
would not give any cause of grievance to the Bank in future.
The High
Court directed the counsel for the Bank to seek instructions as to
whether the Appellate Authority (which is the Board of Directors in
these cases) was willing to reconsider the unconditional apology of
the respondents and award the same punishment which had been awarded
to other persons charged for the same misconduct.
Counsel for the
Bank took the instructions and on the next date of hearing informed
the High Court that he had received a letter from the Bank to the
effect that since the Appellate Authority was the Board of Directors
which had also decided their appeals and confirmed the order of
punishment, it could reconsider the matter only if the Court issues
such a direction.
Taking note of the aforesaid -
instructions which the appellant-Bank had given to its counsel, the
High Court disposed of the Writ Petitions by setting aside the order
of the punishment passed by the Appellate Authority with the
directions that these appeals of the respondents be reconsidered.
However, while giving the directions for reconsideration the High
Court also specifically ordered that the Appellate Authority shall
take a decision and award “minor punishment” as had been done in the
case of other three employees.
Exact nature of this direction given
by the High Court in the impugned order reads as under:
“The petitioners shall file before the appellate authority
the notarized affidavits, tendering unconditional apology in the
same terms as has been filed before this Court and the appellate
authority shall take a decision and pass appropriate orders
accordingly awarding minor punishments, as has been done in the
case of other office-bearers of the Bank’s Union. This shall be
done in the first meeting of the Boards of Directors, which is
to take place hereinafter or in any case within next two months,
whichever is earlier.”
It is this specific direction to the Appellate Authority, which
is the bone of contention.
9. Mr. Dhruv Mehta, learned senior counsel for the Bank, submitted
that once the matter was referred back to the Appellate Authority for
reconsideration, it was to be left to the discretion of the Appellate
Authority -
to take an appropriate view in the matter and it was not open to the
Court to spell out and suggest the exact nature of penalty which the
Appellate Authority is supposed to pass.
His submission was that by
issuing such a direction, the Court itself assumed the role of the
Appellate Authority which was impermissible.
He further submitted
that even when the charges leveled against six employees were
identical, the circumstances under which the penalty was imposed on
the other three employees were totally different than the
circumstances of the three respondents herein.
In this behalf, he
pointed out that whereas the said three employees who were given
lesser punishment, had accepted the charges on the very first day
before the enquiry officer and tendered unconditional apology as well.
On the other hand, in so far as these respondents are concerned, they
denied the charges even in the enquiry proceedings which led to
conduct full-fledged departmental enquiry.
Not only this, even after
the findings of the enquiry officer the respondents adopted the same
posture of denial and took the matter further before the Appellate
Authority.
Pointing out this distinction Mr. Mehta’s submission was
that case of the respondents could not be treated at par with other
three officials and it was permissible for the Appellate Authority to
consider these circumstances and take a decision to -
impose penalty at variance with the punishment imposed upon those
employees who had accepted the charges at the outset.
Mr. Mehta
referred to the judgment of this Court in the case of Obettee (P) Ltd.
Vs. Mohd. Shafiq Khan (2005) 8 SCC 46
wherein identical features, as
prevailing in this case, were held as distinctive features and
different and higher punishment was held to be justified in the
following manner:
“On consideration of the rival stands one thing becomes
clear that Chunnu and Vakil stood on a different footing so far
as the respondent workman is concerned. He had, unlike the other
two, continued to justify his action. That was clearly a
distinctive feature which the High Court unfortunately failed to
properly appreciate. The employer accepted to choose the
unqualified apology given and regrets expressed by Chunnu and
Vakil. It cannot be said that the employer had discriminated so
far as the respondent workman is concerned because as noted
above he had tried to justify his action for which departmental
proceedings were initiated. It is not that Chunnu and Vakil
were totally exonerated. On the contrary, a letter of warning
dated 11.4.1984 was issued to them.
In Union of India vs. Parma Nanda the Administrative
Tribunal had modified the punishment on the ground that two
other persons were let off with minor punishment. This Court
held that
when all the persons did not stand on the same footing, the same yardstick cannot be applied. Similar is the position in the present case.
Therefore, the High Court’s order
is clearly unsustainable and is set aside.”
-
10. Per contra Mr. Rajeev Singh, the learned counsel appearing
for the respondent in one of these appeals argued that the
circumstances of the two sets of cases were almost identical and
therefore in the facts of this case, the directions of the High Court
were perfectly in order. He pointed out that the other three
employees had also denied the charges in the first instance, in their
replies to the charge sheets served upon them. For some curious
reasons the appellant-Bank did not hold any common enquiry even when
the charges leveled in all six charge-sheets were identical. Instead
the Bank first picked up only the respondents herein, and held the
enquiry against them. It is only after in the enquiry the charges
were established against the respondents and the punishment of
dismissal was imposed on them, that the enquiry against the other
three employees was commenced. At this stage, knowing the fate of
their cases, those three employees accepted the charges and tendered
unconditional apologies. The learned counsel argued that the Bank had
given definite advantage to those three employees by deferring their
enquiries enabling them to make up their mind after knowing the result
in the case of the respondents. He, thus, argued that it cannot be
said that those three employees had accepted the charges at the
outset. His submission was in such circumstances imposition of
different and higher -
penalty to the respondents herein would clearly amount to invidious
discrimination, as held by this Court in Rajendra Yadav vs. State of
M.P. & Ors. 2013 (2) SCALE 416.
In that case two employees were
served with charge sheets who were involved in the same incident. A
person who had more serious role was inflicted comparatively a lighter
punishment than the appellant in the said case. This was held to be
violative of doctrine of Equality Principles enshrined under Article
14 of the Constitution of India.
The discussion which ensued, while
taking this view, reads as under:
“We have gone through the inquiry report placed before us
in respect of the appellant as well as Constable Arjun Pathak.
The inquiry clearly reveals the role of Arjun Pathak. It was
Arjun Pathak who had demanded and received the money, though the
facit approval of the appellant was proved in the inquiry. The
charge leveled against Arjun Pathak was more serious than the
one charged against the appellant. Both appellants and other
two persons as well as Arjun Pathak were involved in the same
incident. After having found that Arjun Pathak had a more
serious role and, in fact, I was he who had demanded and
received the money, he was inflicted comparatively a lighter
punishment. At the same time, appellant who had played a
passive role was inflicted with a more serious punishment of
dismissal from service which, in our view, cannot be sustained.
We are of the view the principle laid down in the above
mentioned judgments also would apply to the facts of the present
case. We have already indicated that the action of the
Disciplinary Authority imposing a comparatively lighter
punishment to the co-delinquent Arjun Pathak and at the same -
time, harsher punishment to the appellant cannot be permitted in
law, since they were all involved in the same incident.
Consequently, we are inclined to allow the appeal by setting
aside the punishment of dismissal from service imposed on the
appellant and order that he be reinstated in service forthwith.
Appellant is, therefore, to be re-instated from the date on
which Arjun Pathak was re-instated and be given all consequent
benefits as was given to Arjun Pathak. Ordered accordingly.
However, there will be no order as to costs.”
Learned counsel for the respondents made a fervent plea that
the respondents herein were also entitled to the same treatment.
11. The question that falls for determination is as to
whether the
High Court is justified in giving such a mandamus or it should have
referred the matter back to the Bank with the direction to take a
fresh decision in the matter?
12. Indubitably, the well ingrained principle of law is that it is
the Disciplinary Authority, or the Appellate Authority in appeal,
which is to decide the nature of punishment to be given to a
delinquent employee keeping in view the seriousness of the misconduct
committed by such an employee.
Courts cannot assume and usurp the
function of the Disciplinary Authority.
In the matter of Apparel
Export Promotion Council vs. -
A.K.Chopra reported in 1999 (1) SCC 759 this principle was explained
in the following manner:
“22 …….The High Court in our opinion fell in error in
interfering with the punishment, which could be lawfully
imposed by the departmental authorities on the respondent
for his proven misconduct. …..The High Court should not
have substituted its own discretion for that the authority.
What punishment was required to be imposed, in the facts
and circumstances of the case, was a matter which fell
exclusively within the jurisdiction of the competent
authority and did not warrant any interference by the High
Court. The entire approach of the High Court has been
faulty. The impugned order of the High Court cannot be
sustained on this ground alone. …..”
Yet again, in the case of State of Meghalaya & Ors. Vs. Mecken
Singh N.Marak reported in 2008 (7) SCC 580, this Court reiterated the
law by stating:
“14. In the matter of imposition of sentence, the scope of
interference is very limited and restricted to exceptional
cases. The jurisdiction of the 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 therefor. 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. In the impugned order of the
High Court no reasons whatsoever have been indicated to why
the punishment was considered disproportionate. Failure to
give reasons amounts to denial of justice. The mere
statement that it is disproportionate would not suffice.
15&16 xxxxxxxxxxxxxxxx
17. Even in cases where the punishment imposed by the
disciplinary authority is found to be shocking to the
conscience of the court, normally the disciplinary
authority or the appellate authority should be directed to
reconsider the question of imposition of penalty. The High
Court in this case has not only interfered with the
punishment imposed by the disciplinary authority in a
routine manner but overstepped its jurisdiction by
directing the appellate authority to impose any other
punishment short of removal. By fettering the discretion of
the appellate authority to impose appropriate punishment
for serious misconducts committed by the respondent, the
High Court totally misdirected itself while exercising
jurisdiction under Article 226. Judged in this background
the conclusion of the Division Bench of the High Court
cannot be regarded as proper at all. The High Court has
interfered with the punishment imposed by the competent
authority in a casual manner and, therefore, the appeal
will have to be accepted.”
13. As is clear from the above that the Judicial Review of the
quantum of punishment is available with a very limited scope. It is
only when the -
penalty imposed appears to be shocking disproportionate to the nature
of misconduct that the Courts would frown upon. Even in such a case,
after setting aside the penalty order, it is to be left to the
disciplinary/Appellate Authority to take a decision afresh and it is
not for the court to substitute its decision by prescribing the
quantum of punishment. In the present case, however, we find that
the High Court has, on the one hand directed the appellate authority
to take a decision and in the same breath, snatched the discretion by
directing the Appellate Authority to pass a particular order of
punishment. In normal course, such an order would clearly be
unsustainable, having regard to the legal position outlined above.
14. The peculiar feature, however, is that the High Court has done
so proceeding on the presumption that these three respondents are
equally and identical placed as the other three employees who had
admitted the charges, though this parity is not spelled out in the
impugned order. Whether this approach of the High Court is tenable,
looking into the facts of this case, is the moot question.
15. If there is a complete parity in the two sets of cases imposing
different penalties would not be appropriate as inflicting of
any/higher penalty in one -
case would be discriminatory and would amount to infraction of the
doctrine of Equality enshrined in Article 14 of the Constitution of
India. That is the ratio of Rajendra Yadav’s case, already taken note
above. On the other hand, if there is some difference, different
penalty can be meted out and what should be the quantum is to be left
to the appellate authority. However, such a penalty should
consumerate with the gravity of misconduct and cannot be shockingly
disproportionate. As per the ratio of Obettee (P) Ltd. Case even if
the nature of misconduct committed by the two sets of employees is
same, the conduct of one set of employee accepting the guilt and
pleading for lenient view would justify lesser punishment to them than
the other employees who remained adopted the mode of denial, with the
result that charges stood proved ultimately in a full-fledged enquiry
conducted against them. In that event, higher penalty can be imposed
upon such delinquent employees. It would follow that choosing to take
a chance to contest the charges such employees thereafter cannot fall
back and say that the penalty in their cases cannot be more than the
penalty which is imposed upon those employees who accepted the charges
at the outset by tendering unconditional apology.
-
16. This, according to us, would be the harmonious reading of
Obettee (P) Ltd. and Rajendra Yadav cases.
The principles discussed above can be summed up and summarized
as follows:
(a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities;
(b) The Courts cannot assume the function of
disciplinary/departmental authorities and to decide the
quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
(c) Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in
cases where such penalty is found to be shocking to the
conscience of the Court;
-
(d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed
against the delinquent employee, the appropriate course of
action is to remit the matter back to the disciplinary
authority or the appellate authority with direction to pass
appropriate order of penalty.
The Court by itself cannot mandate as to what should be the penalty in such a case.
(e) The only exception to the principle stated in para (d)
above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority
even when the charges of misconduct was identical or the co-
delinquent was foisted with more serious charges. This
would be on the Doctrine of Equality when it is found that
the concerned employee and the co-delinquent are equally
placed.
However,
there has to be a complete parity between
the two, not only in respect of nature of charge but
subsequent conduct as well after the service of charge
sheet in the two cases. If co-delinquent accepts the
charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.
-
17. It is made clear that such a comparison is permissible only when
the other employee(s) who is given lighter punishment was co- delinquent.
Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries.
18. Applying these principles to the facts of the present case, we
may observe that, no doubt the charges in respect of two sets of
employees were identical.
Though the other set of employee accepted
the charges on the first day of enquiry, a factor which is to be kept
in mind, that even those employees had denied the charges in the first
instance and accepted these charges only in the departmental enquiry,
that too after realizing that similar charges had been proved against
the respondents herein in the departmental enquiry.
Therefore, it was
not a case where those employees had expressed the unconditional
apology in the first instance.
This may be a mitigating circumstance
for the appellants herein.
At the same time, we are of the opinion
that all these aspects are to be considered by the appellate
authority.
The High Court did not look into all these aspects and
mandated the appellate authority to pass orders imposing a specific
penalty only.
This direction of the High Court is, accordingly, set
aside and the matter is remitted back to the appellate authority to
take a decision imposing - appropriate penalty on the respondents herein.
We are confident that
the mitigating circumstances pointed out by the respondents herein
would be given due consideration by the appellate authority, keeping
in view the ratio of Rajendra Yadav’s case as well.
It would be open
to the respondents herein to make representation in this behalf to the
appellate authority on the basis of which the respondents want to
contend that they should be given same treatment as meted out to other
three employees. Such a representation will be given 15 days from
today. Appellate Authority shall pass appropriate orders deciding the
appeals afresh within 2 months from today.
19. Appeals are allowed in the aforesaid terms. No costs.
…………………….J.
(Anil R. Dave)
…………………….J.
(A.K.Sikri)
New Delhi,
Dated: July 29, 2013
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs…6142/2013
(Arising out of Special Leave Petition (Civil) No.10025 of 2012)
Lucknow K.Gramin Bank (Now
Allahabad,U.P.Gramin Bank) & Anr. …..Appellant (s)
Vs.
Rajendra Singh …..Respondent
(s)
With
C.A.Nos. 6143 & 6144/2013 (@ SLP (C) Nos.11211 of 2012 & 11451 of 2012
J U D G M E N T
A.K.Sikri, J.
1. Leave granted.
2. These appeals arise out of the decision dated 19th December 2011
rendered by High Court of Judicature at Allahabad, whereby three Writ
Petitions filed by the respondents in these appeals have been disposed
of with certain directions.
-
3. Before we point out the directions of the High Court in the
impugned judgment and the grievance of the appellant thereto, it would
be proper to traverse the seminal facts which are largely undisputed.
4. The appellant-Bank had issued separate charge-sheets to six
employees leveling identical charges.
Three respondents before us in
these appeals were the three employees out of those six employees to
whom these charge-sheets were issued.
All the six employees,
including the respondents herein, filed their replies to the charge-
sheets denying the charges.
5. For certain unknown reasons, the appellant-Bank initially chose to proceed and conduct the enquiry only against the respondents herein and appointed an enquiry officer.
After conducting the enquiry, the
enquiry officer submitted his enquiry report, returning the findings
that charges leveled against the respondents stood proved.
After
giving the opportunity to the respondents to file their response and
objections to the enquiry report, the Disciplinary Authority imposed
the punishment of dismissal from service vide order dated 15th
February 2008 in respect of all the three respondents, though orders
were passed separately in each case.
These -
respondents filed departmental appeals which were also dismissed by
the Appellate Authority vide orders dated 28th April, 2008.
6. Aggrieved by the orders of the Disciplinary Authority as well as
the Appellate Authority, the respondents approached the High Court by
way of Writ Petitions.
7. It so happened that
though
the other three employees had denied
the charges and the enquiry officer was also appointed in their cases
(of course after the finding of guilt was recorded by the enquiry
officer in the case of the respondents) before the enquiry officer,
the said three employees admitted the charges and tendered
unconditional apology.
They also gave undertaking that they would not
commit any such misconduct in future.
The enquiry officer recording
this, forwarded his report to the Disciplinary Authority and keeping
in view that those employees had tendered unconditional apologies with
the assurance, as aforesaid,
all three of them were inflicted the
penalty of reduction of his basic pay by one stage for one year with
cumulative effect” under Regulation 38(1)(b)(ii) by separate orders
dated 25th June 2008, 26th June 2008 and 30th June 2008. This is a -
major penalty as per the aforesaid Regulations though in the impugned
order,
High Court has termed it as “minor punishment”
8. Be that as it may, when the three Writ Petitions filed by the
respondents herein came up for hearing before the High Court, the
counsel who appeared on behalf of the respondents pointed out the
orders of punishment passed by the Disciplinary Authority in the case
of aforesaid three employees and made a statement that the respondents
were also willing to tender unconditional apologies for their
misconduct with assurance that they would not repeat the same and
would not give any cause of grievance to the Bank in future.
The High
Court directed the counsel for the Bank to seek instructions as to
whether the Appellate Authority (which is the Board of Directors in
these cases) was willing to reconsider the unconditional apology of
the respondents and award the same punishment which had been awarded
to other persons charged for the same misconduct.
Counsel for the
Bank took the instructions and on the next date of hearing informed
the High Court that he had received a letter from the Bank to the
effect that since the Appellate Authority was the Board of Directors
which had also decided their appeals and confirmed the order of
punishment, it could reconsider the matter only if the Court issues
such a direction.
Taking note of the aforesaid -
instructions which the appellant-Bank had given to its counsel, the
High Court disposed of the Writ Petitions by setting aside the order
of the punishment passed by the Appellate Authority with the
directions that these appeals of the respondents be reconsidered.
However, while giving the directions for reconsideration the High
Court also specifically ordered that the Appellate Authority shall
take a decision and award “minor punishment” as had been done in the
case of other three employees.
Exact nature of this direction given
by the High Court in the impugned order reads as under:
“The petitioners shall file before the appellate authority
the notarized affidavits, tendering unconditional apology in the
same terms as has been filed before this Court and the appellate
authority shall take a decision and pass appropriate orders
accordingly awarding minor punishments, as has been done in the
case of other office-bearers of the Bank’s Union. This shall be
done in the first meeting of the Boards of Directors, which is
to take place hereinafter or in any case within next two months,
whichever is earlier.”
It is this specific direction to the Appellate Authority, which
is the bone of contention.
9. Mr. Dhruv Mehta, learned senior counsel for the Bank, submitted
that once the matter was referred back to the Appellate Authority for
reconsideration, it was to be left to the discretion of the Appellate
Authority -
to take an appropriate view in the matter and it was not open to the
Court to spell out and suggest the exact nature of penalty which the
Appellate Authority is supposed to pass.
His submission was that by
issuing such a direction, the Court itself assumed the role of the
Appellate Authority which was impermissible.
He further submitted
that even when the charges leveled against six employees were
identical, the circumstances under which the penalty was imposed on
the other three employees were totally different than the
circumstances of the three respondents herein.
In this behalf, he
pointed out that whereas the said three employees who were given
lesser punishment, had accepted the charges on the very first day
before the enquiry officer and tendered unconditional apology as well.
On the other hand, in so far as these respondents are concerned, they
denied the charges even in the enquiry proceedings which led to
conduct full-fledged departmental enquiry.
Not only this, even after
the findings of the enquiry officer the respondents adopted the same
posture of denial and took the matter further before the Appellate
Authority.
Pointing out this distinction Mr. Mehta’s submission was
that case of the respondents could not be treated at par with other
three officials and it was permissible for the Appellate Authority to
consider these circumstances and take a decision to -
impose penalty at variance with the punishment imposed upon those
employees who had accepted the charges at the outset.
Mr. Mehta
referred to the judgment of this Court in the case of Obettee (P) Ltd.
Vs. Mohd. Shafiq Khan (2005) 8 SCC 46
wherein identical features, as
prevailing in this case, were held as distinctive features and
different and higher punishment was held to be justified in the
following manner:
“On consideration of the rival stands one thing becomes
clear that Chunnu and Vakil stood on a different footing so far
as the respondent workman is concerned. He had, unlike the other
two, continued to justify his action. That was clearly a
distinctive feature which the High Court unfortunately failed to
properly appreciate. The employer accepted to choose the
unqualified apology given and regrets expressed by Chunnu and
Vakil. It cannot be said that the employer had discriminated so
far as the respondent workman is concerned because as noted
above he had tried to justify his action for which departmental
proceedings were initiated. It is not that Chunnu and Vakil
were totally exonerated. On the contrary, a letter of warning
dated 11.4.1984 was issued to them.
In Union of India vs. Parma Nanda the Administrative
Tribunal had modified the punishment on the ground that two
other persons were let off with minor punishment. This Court
held that
when all the persons did not stand on the same footing, the same yardstick cannot be applied. Similar is the position in the present case.
Therefore, the High Court’s order
is clearly unsustainable and is set aside.”
-
10. Per contra Mr. Rajeev Singh, the learned counsel appearing
for the respondent in one of these appeals argued that the
circumstances of the two sets of cases were almost identical and
therefore in the facts of this case, the directions of the High Court
were perfectly in order. He pointed out that the other three
employees had also denied the charges in the first instance, in their
replies to the charge sheets served upon them. For some curious
reasons the appellant-Bank did not hold any common enquiry even when
the charges leveled in all six charge-sheets were identical. Instead
the Bank first picked up only the respondents herein, and held the
enquiry against them. It is only after in the enquiry the charges
were established against the respondents and the punishment of
dismissal was imposed on them, that the enquiry against the other
three employees was commenced. At this stage, knowing the fate of
their cases, those three employees accepted the charges and tendered
unconditional apologies. The learned counsel argued that the Bank had
given definite advantage to those three employees by deferring their
enquiries enabling them to make up their mind after knowing the result
in the case of the respondents. He, thus, argued that it cannot be
said that those three employees had accepted the charges at the
outset. His submission was in such circumstances imposition of
different and higher -
penalty to the respondents herein would clearly amount to invidious
discrimination, as held by this Court in Rajendra Yadav vs. State of
M.P. & Ors. 2013 (2) SCALE 416.
In that case two employees were
served with charge sheets who were involved in the same incident. A
person who had more serious role was inflicted comparatively a lighter
punishment than the appellant in the said case. This was held to be
violative of doctrine of Equality Principles enshrined under Article
14 of the Constitution of India.
The discussion which ensued, while
taking this view, reads as under:
“We have gone through the inquiry report placed before us
in respect of the appellant as well as Constable Arjun Pathak.
The inquiry clearly reveals the role of Arjun Pathak. It was
Arjun Pathak who had demanded and received the money, though the
facit approval of the appellant was proved in the inquiry. The
charge leveled against Arjun Pathak was more serious than the
one charged against the appellant. Both appellants and other
two persons as well as Arjun Pathak were involved in the same
incident. After having found that Arjun Pathak had a more
serious role and, in fact, I was he who had demanded and
received the money, he was inflicted comparatively a lighter
punishment. At the same time, appellant who had played a
passive role was inflicted with a more serious punishment of
dismissal from service which, in our view, cannot be sustained.
We are of the view the principle laid down in the above
mentioned judgments also would apply to the facts of the present
case. We have already indicated that the action of the
Disciplinary Authority imposing a comparatively lighter
punishment to the co-delinquent Arjun Pathak and at the same -
time, harsher punishment to the appellant cannot be permitted in
law, since they were all involved in the same incident.
Consequently, we are inclined to allow the appeal by setting
aside the punishment of dismissal from service imposed on the
appellant and order that he be reinstated in service forthwith.
Appellant is, therefore, to be re-instated from the date on
which Arjun Pathak was re-instated and be given all consequent
benefits as was given to Arjun Pathak. Ordered accordingly.
However, there will be no order as to costs.”
Learned counsel for the respondents made a fervent plea that
the respondents herein were also entitled to the same treatment.
11. The question that falls for determination is as to
whether the
High Court is justified in giving such a mandamus or it should have
referred the matter back to the Bank with the direction to take a
fresh decision in the matter?
12. Indubitably, the well ingrained principle of law is that it is
the Disciplinary Authority, or the Appellate Authority in appeal,
which is to decide the nature of punishment to be given to a
delinquent employee keeping in view the seriousness of the misconduct
committed by such an employee.
Courts cannot assume and usurp the
function of the Disciplinary Authority.
In the matter of Apparel
Export Promotion Council vs. -
A.K.Chopra reported in 1999 (1) SCC 759 this principle was explained
in the following manner:
“22 …….The High Court in our opinion fell in error in
interfering with the punishment, which could be lawfully
imposed by the departmental authorities on the respondent
for his proven misconduct. …..The High Court should not
have substituted its own discretion for that the authority.
What punishment was required to be imposed, in the facts
and circumstances of the case, was a matter which fell
exclusively within the jurisdiction of the competent
authority and did not warrant any interference by the High
Court. The entire approach of the High Court has been
faulty. The impugned order of the High Court cannot be
sustained on this ground alone. …..”
Yet again, in the case of State of Meghalaya & Ors. Vs. Mecken
Singh N.Marak reported in 2008 (7) SCC 580, this Court reiterated the
law by stating:
“14. In the matter of imposition of sentence, the scope of
interference is very limited and restricted to exceptional
cases. The jurisdiction of the 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 therefor. 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. In the impugned order of the
High Court no reasons whatsoever have been indicated to why
the punishment was considered disproportionate. Failure to
give reasons amounts to denial of justice. The mere
statement that it is disproportionate would not suffice.
15&16 xxxxxxxxxxxxxxxx
17. Even in cases where the punishment imposed by the
disciplinary authority is found to be shocking to the
conscience of the court, normally the disciplinary
authority or the appellate authority should be directed to
reconsider the question of imposition of penalty. The High
Court in this case has not only interfered with the
punishment imposed by the disciplinary authority in a
routine manner but overstepped its jurisdiction by
directing the appellate authority to impose any other
punishment short of removal. By fettering the discretion of
the appellate authority to impose appropriate punishment
for serious misconducts committed by the respondent, the
High Court totally misdirected itself while exercising
jurisdiction under Article 226. Judged in this background
the conclusion of the Division Bench of the High Court
cannot be regarded as proper at all. The High Court has
interfered with the punishment imposed by the competent
authority in a casual manner and, therefore, the appeal
will have to be accepted.”
13. As is clear from the above that the Judicial Review of the
quantum of punishment is available with a very limited scope. It is
only when the -
penalty imposed appears to be shocking disproportionate to the nature
of misconduct that the Courts would frown upon. Even in such a case,
after setting aside the penalty order, it is to be left to the
disciplinary/Appellate Authority to take a decision afresh and it is
not for the court to substitute its decision by prescribing the
quantum of punishment. In the present case, however, we find that
the High Court has, on the one hand directed the appellate authority
to take a decision and in the same breath, snatched the discretion by
directing the Appellate Authority to pass a particular order of
punishment. In normal course, such an order would clearly be
unsustainable, having regard to the legal position outlined above.
14. The peculiar feature, however, is that the High Court has done
so proceeding on the presumption that these three respondents are
equally and identical placed as the other three employees who had
admitted the charges, though this parity is not spelled out in the
impugned order. Whether this approach of the High Court is tenable,
looking into the facts of this case, is the moot question.
15. If there is a complete parity in the two sets of cases imposing
different penalties would not be appropriate as inflicting of
any/higher penalty in one -
case would be discriminatory and would amount to infraction of the
doctrine of Equality enshrined in Article 14 of the Constitution of
India. That is the ratio of Rajendra Yadav’s case, already taken note
above. On the other hand, if there is some difference, different
penalty can be meted out and what should be the quantum is to be left
to the appellate authority. However, such a penalty should
consumerate with the gravity of misconduct and cannot be shockingly
disproportionate. As per the ratio of Obettee (P) Ltd. Case even if
the nature of misconduct committed by the two sets of employees is
same, the conduct of one set of employee accepting the guilt and
pleading for lenient view would justify lesser punishment to them than
the other employees who remained adopted the mode of denial, with the
result that charges stood proved ultimately in a full-fledged enquiry
conducted against them. In that event, higher penalty can be imposed
upon such delinquent employees. It would follow that choosing to take
a chance to contest the charges such employees thereafter cannot fall
back and say that the penalty in their cases cannot be more than the
penalty which is imposed upon those employees who accepted the charges
at the outset by tendering unconditional apology.
-
16. This, according to us, would be the harmonious reading of
Obettee (P) Ltd. and Rajendra Yadav cases.
The principles discussed above can be summed up and summarized
as follows:
(a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities;
(b) The Courts cannot assume the function of
disciplinary/departmental authorities and to decide the
quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
(c) Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in
cases where such penalty is found to be shocking to the
conscience of the Court;
-
(d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed
against the delinquent employee, the appropriate course of
action is to remit the matter back to the disciplinary
authority or the appellate authority with direction to pass
appropriate order of penalty.
The Court by itself cannot mandate as to what should be the penalty in such a case.
(e) The only exception to the principle stated in para (d)
above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority
even when the charges of misconduct was identical or the co-
delinquent was foisted with more serious charges. This
would be on the Doctrine of Equality when it is found that
the concerned employee and the co-delinquent are equally
placed.
However,
there has to be a complete parity between
the two, not only in respect of nature of charge but
subsequent conduct as well after the service of charge
sheet in the two cases. If co-delinquent accepts the
charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.
-
17. It is made clear that such a comparison is permissible only when
the other employee(s) who is given lighter punishment was co- delinquent.
Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries.
18. Applying these principles to the facts of the present case, we
may observe that, no doubt the charges in respect of two sets of
employees were identical.
Though the other set of employee accepted
the charges on the first day of enquiry, a factor which is to be kept
in mind, that even those employees had denied the charges in the first
instance and accepted these charges only in the departmental enquiry,
that too after realizing that similar charges had been proved against
the respondents herein in the departmental enquiry.
Therefore, it was
not a case where those employees had expressed the unconditional
apology in the first instance.
This may be a mitigating circumstance
for the appellants herein.
At the same time, we are of the opinion
that all these aspects are to be considered by the appellate
authority.
The High Court did not look into all these aspects and
mandated the appellate authority to pass orders imposing a specific
penalty only.
This direction of the High Court is, accordingly, set
aside and the matter is remitted back to the appellate authority to
take a decision imposing - appropriate penalty on the respondents herein.
We are confident that
the mitigating circumstances pointed out by the respondents herein
would be given due consideration by the appellate authority, keeping
in view the ratio of Rajendra Yadav’s case as well.
It would be open
to the respondents herein to make representation in this behalf to the
appellate authority on the basis of which the respondents want to
contend that they should be given same treatment as meted out to other
three employees. Such a representation will be given 15 days from
today. Appellate Authority shall pass appropriate orders deciding the
appeals afresh within 2 months from today.
19. Appeals are allowed in the aforesaid terms. No costs.
…………………….J.
(Anil R. Dave)
…………………….J.
(A.K.Sikri)
New Delhi,
Dated: July 29, 2013
