Full Text
HIGH COURT OF DELHI
Date of Decision: 27th August, 2024
M.C. AGGARWAL .....Petitioner
Through: Mr. Sanjoy Ghose, Senior Advocate
Mr.Mohit Garg, Advocates.
Through: Mr. O.P. Gaggar and Mr. Sachindra Karn, Advocates.
JUDGMENT
1. This writ petition has been preferred on behalf of the Petitioner under Articles 226 and 227 of the Constitution of India laying a challenge to the order of the Disciplinary Authority dated 24.07.2012, whereby Petitioner was dismissed from the service of the Bank with immediate effect as well as order dated 08.07.2014 passed by the Appellate Authority and order dated 03.03.2015, by which the Review Petition was dismissed.
2. As per the case set up by the Petitioner, he joined the services of Respondent No.1/Union Bank of India (‘UBI’) on 23.12.1976 as Probationary Officer and served the Bank dedicatedly for 32 years. Petitioner is stated to be a whistle blower, who pointed out several irregularities in the Bank Account of M/s Duro Marketing Pvt. Ltd. between 2007-08 while posted at Chief Manager, Sadar Bazar Branch, Delhi, which led to his transfer to Jaipur Region followed by a suspension order on 01.04.2008. Charge sheet was served on the Petitioner on 25.07.2009 and the disciplinary proceedings culminated in imposition of major penalty of dismissal from service by order dated 24.07.2012. Appeal as well as Review Petition against the penalty order were rejected by the Competent Authorities.
3. Amongst a myriad of grounds pleaded in the writ petition, Mr. Sanjoy Ghose, learned Senior Counsel for the Petitioner restricts his arguments to two grounds. It is urged that after the penalty of dismissal was imposed on the Petitioner by the Disciplinary Authority, he preferred an appeal dated 24.09.2012 before the then Executive Director Mr. S.K. Jain, the Appellate Authority and after keeping the appeal pending for 22 months, a decision was taken to convert the penalty of dismissal to ‘compulsory retirement’ on the ground that dismissal was disproportionate to the charges levelled and proved and while doing so the Appellate Authority looked into several mitigating factors, which are spelt out in the decision. After the decision was taken, the same was forwarded to the Chief Vigilance Officer (‘CVO’) of UBI for his concurrence and the CVO agreed with the Appellate Authority that dismissal was a disproportionate penalty. In the teeth of this final decision, the new incumbent, who subsequently took over as the Appellate Authority after retirement of Mr. Jain, re-visited the issue, which was impermissible in law and rejected the appeal on 08.07.2014. Pithily put, the argument is that the appeal could not be decided twice. Even assuming the CVO did not concur with the order dated 24.05.2014, the advice was only persuasive and not binding and could not furnish a reason to overlook the first final decision and reconsider the appeal once again.
4. The next and the only other argument of Mr. Ghose is that Petitioner has suffered discrimination at the hands of the UBI inasmuch as two other persons, namely, Mr. V.K. Gupta and Mr. J.B. Handa were also chargesheeted in respect of the same accounts and despite being involved in the same transactions and the misconduct, minor penalty of ‘reduction by two stages in the time scale of pay for two years without cumulative effect’ was imposed on them. The senior officers, who were responsible for granting sanctions and approvals of the transactions in question, were not even charge-sheeted. In this backdrop, it is urged that the case of the Petitioner deserves a reconsideration to the extent of quantum of penalty imposed, on the touchstone of Article 14 of the Constitution of India.
5. Learned counsel for UBI strenuously disputes that the earlier Appellate Authority had passed a final order on 24.05.2014 reducing the penalty of dismissal from service to compulsory retirement. It is contended that a bare perusal of the document dated 24.05.2014 would show that it was only a Note in which the then Appellate Authority i.e. the Executive Director who otherwise concurred with the findings of guilt of the Disciplinary Authority, proposed a lesser penalty of compulsory retirement, which in his tentative opinion was sufficient to meet the ends of justice. With this opinion, the matter was again placed before the CVO as per the advice of the Appellate Authority since this was a vigilance case. The CVO did not concur with the tentative view of the Appellate Authority and the matter was thus placed for a final decision on the appeal. In the meantime, Mr. Jain retired and the Executive Director, who took charge as Appellate Authority, rejected the appeal on the ground that penalty of dismissal was commensurate with the gravity of the charges proved against the Petitioner and did not require reconsideration. It is wholly incorrect for the Petitioner to urge that the erstwhile Appellate Authority had taken a final decision to reduce the penalty. Learned counsel further submits that the CVO did not agree with the erstwhile Appellate Authority to reduce the penalty and in fact expressed a strong opinion to the contrary, noting that the allegations were serious and grave.
6. Mr. O.P. Gaggar also refutes that the penalty of dismissal is disproportionate to the charges levelled and proved against the Petitioner. It is argued that Petitioner was working as Chief Manager, Sadar Bazar Branch of UBI and by his acts of malfeasance caused substantial loss to UBI, which at the relevant time was over Rs.454 lacs. Petitioner committed several irregularities in the accounts of various firms such as M/s. Fab Pole International, M/s. Royal Sales Corporation, M/s. ARC Creations etc. and it was proved in the inquiry that Petitioner committed lapses not only while appraising/recommending/sanctioning the credit facilities but also while disbursing and monitoring the same inasmuch as pre-sanction and postdisbursement inspections were either not carried out or were carried out in a haphazard manner and due diligence of borrowers as well as properties was not done properly. Credit reports were not compiled carefully, delegated powers were abused, excess over limits were allowed, care was not taken while accepting title deeds and creating mortgages etc. The claim of parity with co-delinquents Mr. V.K. Gupta and Mr. J.B. Handa is misplaced inasmuch as Petitioner was in-charge of the Branch and the person directly dealing with the borrowers and the concerned accounts in respect of which acts of misfeasance were carried out while the other two officers were not directly in touch with the borrowers and were only acting on the dictates of the Petitioner. In so far as the superior officers are concerned who were responsible for sanctioning/ approving the proposals, no incriminating evidence was found against anyone and therefore, no charge sheet was issued.
7. Heard learned Senior Counsel for the Petitioner and learned counsel for UBI.
8. Coming to the first contention raised on behalf of the Petitioner that once an Appellate Authority i.e. the Executive Director had taken a final decision on 24.05.2014 reducing the penalty of dismissal from service to compulsory retirement, it was not open to the second Appellate Authority to revisit the decision and arrive at a fresh decision contrary to the earlier decision that the penalty of dismissal was disproportionate. No law permits an appeal against an order of Disciplinary Authority to be decided twice as per the Petitioner. There can be no quarrel with the legal proposition that once an appeal has been finally decided by the Appellate Authority against the order of penalty imposed by the Disciplinary Authority, there cannot be a second decision unless for any reason a reconsideration is directed. However, on perusal of the document dated 24.05.2014, purportedly a final decision of the Appellate Authority according to the Petitioner, this Court is unable to hold in favour of the Petitioner that this was the final decision taken by the then Executive Director on 24.05.2014. A close reading of the Note shows that looking to the mitigating factors, which the Appellate Authority detailed in the Note, an opinion was rendered that the quantum of penalty needed to be reconsidered and that it would be sufficient to meet the ends of justice to impose the penalty of compulsory retirement. The observation was merely a tentative opinion which was then sent to the CVO for his concurrence since the case was a vigilance case. As Mr. O.P. Gaggar points out from a number of documents which he has handed over in Court, being confidential documents, the CVO did not agree with the opinion of the Executive Director and penned a strong note at variance with the opinion that gravity of the charges justify the penalty of dismissal. The matter was thereafter placed before the Appellate Authority for a final decision and since the earlier Executive Director had retired, in the meantime, the new incumbent took a decision on the appeal and held that the penalty was proportionate to the gravity of charges proved during the inquiry. This contention of the Petitioner therefore deserves to be rejected.
9. The second and the only other plank of argument of the Petitioner is that the extreme and harsh penalty of dismissal from service is highly disproportionate and therefore the matter be remanded to the Appellate Authority to revisit the quantum of penalty. In support of this, Mr. Ghose argues that: (a) erstwhile Appellate Authority noted that it was the borrowers who had submitted forged property papers or other documents with the sole motive of cheating and defrauding the bank; (b) though the charge pertaining to lack of honesty and integrity has been held as proved by the Inquiring Authority, no direct evidence has been brought on record to attribute mala fides on the part of the Petitioner; (c) the credit proposals had undergone scrutiny and appraisals at various levels at the Branch and in some cases at higher offices; and (d) Mr. V.K. Gupta, Assistant Manager and Mr. J.B. Handa, Manager (Advances) were also charge sheeted on the same lines. They tried their best to shift the blame on the Petitioner but were unable to prove their own innocence. It is argued that role of Mr. J.B. Handa was graver than the Petitioner as he prepared the proposals, got the documents executed from the parties after verifying their identities, inspected the mortgage properties and made independent visits to the units/business places of the parties and compiled credit reports on borrowers and guarantors which formed the basis of the loans advanced. Likewise, the allegations against Mr. V.K. Gupta were that he did not exercise due diligence while recommending limits in the accounts of certain companies/firms, credentials of the borrowers were not verified, credit reports were prepared without any independent verification, pre-sanction inspections were misleading etc. However, both of them were given minor penalty of ‘reduction by two stages in the time scale of pay, for two years without cumulative effect’. The superior officers who were involved in scrutinising and approving the credit proposals were not even charge sheeted and thus there is discrimination against the Petitioner. To this extent, the Court finds merit in the submissions of Mr. Ghose, learned Senior Counsel.
10. Mr. Ghose has assailed the penalty of dismissal from service on twofold grounds i.e. disproportionate penalty and disparity in punishment with co-delinquent employees who were charge sheeted for similar if not graver allegations. On the question of proportionality, I may allude to the judgment of the Supreme Court in Chairman-Cum-Managing Director, Coal India Limited and Another v. Mukul Kumar Choudhuri and Others, (2009) 15 SCC 620, where the Supreme Court held that one of the tests while dealing with question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the measure, magnitude and degree of misconduct as well as all other circumstances. Relevant paragraphs are as follows:-
11. In Union of India and Another v. G. Ganayutham, (1997) 7 SCC 463, the Supreme Court elaborately considered the doctrine of proportionality both under the Administrative Law in England and in India and summed up the position of law as follows:-
into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury [(1948) 1 KB 223: (1947) 2 All ER 680] test. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational — in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU [1985 AC 374: (1984) 3 All ER 935] principles. (3)(a) As per Bugdaycay [R. v. Ministry of Defence, ex p Smith, (1996)
1 All ER 257], Brind [(1991) 1 AC 696: (1991) 1 All ER 720] and Smith [Cunliffe v. Commonwealth, [(1994) 68 Aust LJ 791] (at 827, 839) (also 799, 810, 821), Australian Capital Tel. Co. v. Commonwealth, 1992 CL p. 106 (at 157) (Aus), R. v. Oake, 1987 Law Reports of Commonwealth 477 (at 500) (Can), R. v. Big M Drug Mart Ltd., (1985) 1 SCR 295 (Can)] as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article
14. Punishment in disciplinary matters: Wednesbury and CCSU tests
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of “proportionality”. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to “irrationality”, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in “outrageous” defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain “Ranjit Thakur [(1987) 4 SCC 611:
33. In Ranjit Thakur [(1987) 4 SCC 611: 1987 SCC (L&S) 1: (1987) 5 ATC 113] this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44] a three-Judge Bench said the same thing as follows: (SCC p. 762, para 18) “18. … 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 mould the relief, either directing the disciplinary authority/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.” Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora [(1997) 3 SCC 72: 1997 SCC (L&S) 636] that the Court will not intervene unless the punishment is wholly disproportionate.
34. In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury [(1948) 1 KB 223: (1947) 2 All ER 680] or CCSU [1985 AC 374: (1984) 3 All ER 935] norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case [AIR 1961 SC 418: (1961) 2 SCR 343] that the Court might — to shorten litigation — think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi [AIR 1961 SC 418: (1961) 2 SCR 343] and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar [(1988) 2 SCC 52: 1988 SCC (L&S) 436: (1988) 6 ATC 876] cannot be of any help.”
12. In Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Another, (2007) 4 SCC 669, the Supreme Court held as under:- “Doctrine of proportionality
17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”.
18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities.
19. de Smith states that “proportionality” involves “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.]
20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated: “The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness.”
21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a “sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded”.
22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)] Lord Diplock proclaimed: (All ER p. 950h-j) “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’….” (emphasis supplied)
23. CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)] has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.
24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)], this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.
25. In Hind Construction & Engg. Co. Ltd. v. Workmen [AIR 1965 SC 917: (1965) 2 SCR 85], some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But) “It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner.” (AIR p. 919, para 7) The Court concluded that the punishment imposed on the workmen was “not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed”. (AIR pp. 919-20, para 7)
26. In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40: AIR 1972 SC 763], the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation—the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34) “[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation.”
27. In Ranjit Thakur [(1987) 4 SCC 611: 1988 SCC (L&S) 1] referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.
28. Applying the doctrine of proportionality and following CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)], Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) “The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. 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.”
13. In the present case, learned Senior Counsel for the Petitioner has rightly urged that the erstwhile Appellate Authority had noted from the records that the borrowers had submitted forged documents with the intent of defrauding the Bank and no direct evidence came on record to attribute mala fides to the Petitioner. It was also noted that the credit proposals had undergone scrutiny in appraisals at various levels both at the Branch Office of UBI as well in some cases at higher offices. These, according to the first Appellate Authority, were mitigating factors which did require revisiting the penalty of dismissal and reducing the same to compulsory retirement. Therefore, the Petitioner has made out a case for a relook on the quantum of penalty.
14. The stand of the Petitioner that the extreme penalty of dismissal needs a reconsideration also draws strength from his second argument that there must be parity in punishment awarded between co-delinquents. It is urged that two of the co-delinquents Mr. V.K. Gupta and Mr. J.B. Handa were awarded minor penalty and superiors were not even charge sheeted. Mr. O.P. Gaggar has not been able to deny that no officer senior to the Petitioner was charge sheeted and sought to defend this by arguing that no material was found against them. The charge sheets issued to the Petitioner and the co-delinquents are on record and a bare comparison does support the case of the Petitioner that the quantum of penalty imposed on him needs a reconsideration. Insofar as the senior officers are concerned, the first Appellate Authority also notes that the credit proposals had been approved at various levels in the branch and higher officers and it is common knowledge that in the banking transactions once the proposals are mooted for credit facilities etc., they have to be approved at the highest levels before the credits/limits etc. are sanctioned. It is only known to UBI as to why no senior officer who approved or sanctioned the credits etc. were proceeded against in disciplinary proceedings. Be that as it may, the co-delinquents have been awarded minor penalties while Petitioner has been awarded the extreme and harsh penalty of dismissal from service. Parity in punishment amongst co-delinquents similarly placed is a well-recognised principle in service jurisprudence and in this context, I may refer to the judgment of the Supreme Court in Rajendra Yadav v. State of Madhya Pradesh and Others, (2013) 3 SCC 73, wherein the Supreme Court held that a comparatively lighter punishment on the co-delinquent and harsher punishment of dismissal on the other will be unsustainable if both are involved in the same incidents. Relevant passages from the judgment are as under:-
a more serious punishment of dismissal from service which, in our view, cannot be sustained.
9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.
10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407: 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among codelinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
11. In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548: 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the codelinquent Arjun Pathak and at the same time, harsher punishment on 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. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.”
15. In Man Singh v. State of Haryana and Others, (2008) 12 SCC 331, the Supreme Court emphasised on the requirement of fair play even while awarding penalties and punishments and relevant passages are as follows:- “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.
21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served in the Police Department of Haryana in different capacities with unblemished record of service.
22. In the backdrop of the abovementioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the second appeal by an unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-à-vis HC Vijay Pal, the driver of the vehicle.”
16. From a conspectus of the aforementioned judgments, it is clear as day that doctrine of equality enshrined in Article 14 of the Constitution of India is not an abstract doctrine and is applicable to all equally placed even if they are guilty and this principle cannot be glossed over by the Disciplinary Authority while deciding the quantum of punishment. There can be no cavil to the settled law that awarding punishments is the domain of the Disciplinary Authority and ordinarily the Court while exercising jurisdiction of judicial review under Article 226 of the Constitution of India would interfere in rare cases and one such carve out is where there is disparity in quantum of punishments awarded to co-delinquents involved in the same transactions and charged with similar allegations.
17. Having given my thoughtful consideration to the present case, I find merit in the grievance of the Petitioner that he has not received fair treatment at the hands of UBI in terms of proportionality in the penalty awarded as well as on the touchstone of parity with co-delinquents who have been awarded minor penalties. Accordingly, this writ petition is allowed to the limited extent of directing the Appellate Authority to reconsider the penalty of dismissal from service awarded to the Petitioner keeping in the backdrop the mitigating factors brought out in the tentative opinion dated 24.05.2014 rendered by the first Appellate Authority as well as the principle of parity with the co-delinquents Mr. V.K. Gupta and Mr. J.B. Handa. The decision shall be taken within a period of three months, as sought by Mr. O.P. Gaggar and needless to state that the order passed will be a reasoned and speaking order, which shall be communicated to the Petitioner, who will be at liberty to take recourse to legal remedies in case of any surviving grievance and if so advised.
18. Writ petition stands disposed of in the aforesaid terms along with the pending application.