Kumar Singh Vs. State of Jharkhand & Ors.  Insc 1290 (14 December 2007)
Sinha & Harjit Singh Bedi
out of SLP (C) No.3171 of 2007) S.B. Sinha, J.
Appellant herein was working as a writer constable in the Bihar Military Police
at Bokaro Steel City. A Departmental proceeding was
initiated against him on the following imputation of charges:
While he was posted in March 1985 in C Company made an entry in
general diary with regard to arrival of S.I. (S), R.B. Sahu, Company Commander
opening the diary, column in which details of Ohededar and officers are being
filled, he shown presence of S.I. (S) Sahu at the company head quarter, but on
the same day, as per the entry No.700 his arrival is shown at 8.45 Oclock.
This entry No.700 was recorded two times, on first time it was 8.45 and on
second time it was at 9.30.
No.700 recorded at 8.45 is certainly inserted later on.
According to his statement when he was posted at Dhanbad with his C
Company, he was out from the company headquarter from 14.12.84 to 16.12.84 and
from 9.1.85 to 12.1.85 as per the order of Company Commander, Sh. Sahu. Despite
the same he shown his presence in Company Headquarter and claimed for food
allowance and obtained the same.
From C Company Aurangabad he was directed by Command No.227376 with
constable 576 Kaushal Kumar and Vahini Mukhyalaya. He alsong with Constable
No.576 Kaushal Kumar returned on 24.3.84, their arrival is shown on 26.3.85 at 9.00 a.m.
voucher of food allowance for the said period payment was made and obtained
which is a forgery.
the said departmental proceeding, he was found guilty of all the charges. He
admitted the charges in relation to charge No.2. He was found guilty of other
charges also. The appointing authority, relying on the report of the Enquiry
Officer, passed a final order on or about 31.8.1987 dismissing him from
appeal preferred thereagainst was dismissed by the Director General of Police, Bihar, Patna. In the
said appeal, one of the contentions raised by the appellant was that in a
departmental proceeding involving one Kaushal Kumar who was also found guilty
of identical charges, a lenient view was taken. Appellate authority in its
order dated 9.8.1989 in that behalf opined :
illustration given by the charge sheeter constable regarding other departmental
proceeding No.22/87 of BMP-4 against constable 576 Kaushal Kumar Singh is
wrong. Constable Kaushal Kumar Singh has made an effort to raise a voice
against the illegal act of commanding officer of that time.
Commanding Police Inspector Ram Bhakt Sahu was punished also. Hence charge
sheeted Constable and Constable 576 Kaushal Kumar Singh case is not
Appellant, challenging the legality of the said order, filed a writ petition in
the High Court of Judicature at Patna which was marked as CWJC No.9945 of 1996.
learned Single Judge of the said Court dismissed the said writ petition opining
a matter of fact, Babban Ram was deputed as orderly to the Deputy Commandant,
whereas the petitioner was the Writer Constable who was responsible for the
entry in the Register regarding Diet allowances and, therefore, the charges
against the petitioner were grievous in nature and, as such, the punishment has
been awarded to him considering the gravity of the charges. The petitioner was
provided full opportunity to defend his case and the departmental enquiry was
held in fair and proper manner.
carefully gone through the recommendation of the Conducting Officer as well as
the order passed by the disciplinary authority as contained in Annexure-4 to
the writ application and also the order passed by the appellate authority as
contained in Annexure-8 and 8/1 to the writ application. I find that the
learned disciplinary authority as well as the appellate authority have
carefully examined the materials on record and after appreciation of evidence,
they have come to a definite finding on the basis of facts on record that the
charges against the petitioner was fully established and, therefore, he was
found to be guilty.
Court while exercising the jurisdiction under Article 226 and 227 of the
Constitution of India cannot act as an appellate authority and cannot substitute
its own finding over the findings arrived at by the Enquiry Officer and also
the order passed by the disciplinary authority as well as the appellate
authority. The petitioner has not been able to show that the findings arrived
at by the respondents were perverse or not based on the materials on record
and, therefore, I do not find any material to upset the findings arrived at by
as the quantum of punishment is concerned, I find that in view of the nature
and gravity of the charge, which has been proved against the petitioner, the
punishment for dismissal passed by the authorities concerned also needs no
interference by this Court.
intra court appeal preferred thereagainst has been dismissed by a Division
Bench of the said Court by reason of the impugned judgment.
This Court issued a limited notice stating :
submits that for the same misconduct a much lighter punishment was given to
another constable while the punishment of dismissal has been imposed on the petitioner.
notice on the application for condonation of delay as also on the Special Leave
Mohan Pandey, learned counsel appearing on behalf of the appellant, submitted
that the charges levelled against Shri Kaushal Kumar Singh were almost
identical except the charge No.1. According to the learned counsel, but as the
purported misconduct committed by him but did not result in any personal gains,
the disciplinary authority should have taken a lenient view.
attention has been drawn to the order of punishment imposed upon the said Shri Kaushal
Kumar Singh which is to the following effect :
going through the statement and show cause present in record and realizing the
opinion of Commanding Officer, I accept the opinion of commanding officer and
found him guilty with regard to charge (1) absolutely and with regard to charge
(2) partially. His illegal absent from 14.12.84 to 16.12.84 and 9.1.85 to
12.1.85 and 26.3.85 (totally eight days) will be treated as extraordinary leave.
The allowance money which was paid to him of this period shall be deducted from
his payable amount and deposited to the fund. Because he had immediately made a
complaint against the Company Commander and he was found guilty for this
sympathy his increment in annual salary shall be detained for one year. This
punishment will not affect his future increment. Simultaneously warning for
dismissal is given if it in future.
learned counsel urged that as a very lenient punishment was awarded to Kaushal
Kumar Singh, the High Court must be held to have committed a manifest error in
not entertaining the writ petition. Reliance in this behalf has been placed on
Director General of Police & Ors. v. G. Dasayan [(1998) 2 SCC 407] and Anand
Regional Coop. Oil Seedgrowers Union Ltd. v. Shaileshkumar Harshadbhai
Shah. [(2006) 6 SCC 548).
Mr. Nitish Massey, learned counsel appearing on behalf of the respondent, on
the other hand, submitted that the case of the appellant is not similarly
situated to that of the aforesaid Shri Kaushal Kumar Singh as not only no
charge like charge No.1 was framed against him, but even the charge No.2 was
only proved particularly in his case. The appellate Authority, it was
submitted, having given cogent and sufficient reason for not awarding a lesser
punishment, this Court should not interfere therewith.
Charge No.1 framed against the appellant herein was a serious charge.
been found guilty thereof. He tampered with the official records.
only a Writer Constable, he could not have made an entry in the general diary
as regards time of arrival of Company Commander.
as Charge No.2 is concerned, he accepted the same. Charge No.3 was proved
against him. The Appellate Authority as also the learned Single Judge, as
noticed hereinbefore, opined that the charges levelled against the petitioner
were serious in nature.
true that delinquent officers similarly situated should be dealt with similarly
and, thus if the charges against the employees are identical, it is desirable
that they be dealt with similarly.
Quantum of punishment imposed on a delinquent employee by the appointing
authority, however, depends upon several factors. Conduct of the delinquent
officers as also the nature of the charges play a vital role in this behalf.
Apart from the fact that charge No.1 was a very serious one and Shri Kaushal
Kumar Singh, having not been charged therewith, it cannot be said that the
appellant and the said Kaushal Kumar Singh were similarly situated but also as
noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge No.2
had also been partly proved against him; whereas appellant admitted his guilt
in relation thereto.
enquiry officer in his report categorically held :
I have gone through attendance register and food allowance register no officer
of the company had neither made a signature nor verified it. It is also
horrible that on what basis Attendance register and food allowance register had
been treated as correct. It is necessary that whenever food allowance claim is
being made it should be verified from the register which is not found. Company
Commander given the statement that entry regarding Charge sheeter that he was
present on 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 in the Company was made
by the Charge Sheeter on register by the help of constable 432 Birendera Kumar.
Charge Sheeter had not gone any where during that period and he stated in his
statement that on that very day he was outside on the oral order of the Company
Commander. It is very difficult to decide that whose statement should be
treated as correct is of charge sheeter or of Commander. Company Commander is
the in charge of the Company. So weightage should be given to his statement.
Charge Sheeter certainly made forgery with company Commander because believing
on him he made signature.
Appellant has, thus, been found guilty of tampering with records and committing
forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found
guilty only for claiming food allowance illegally.
superior courts of India exercising power of judicial
review, it is trite, would not ordinarily interfere with the quantum of
punishment. Even the industrial court would not do so as has been noticed by
this Court in Shaileshkumar (supra). In the said case, however, having regard
to the fact situation obtaining therein, it was held :
is, however, another aspect of the matter which cannot be lost sight of.
Identical allegations were made against seven persons. The management did not
take serious note of misconduct committed by six others although they were
similarly situated. They were allowed to take the benefit of the voluntary
retirement scheme. The said decision does not assist the appellant at all.
Dayasan (supra) is a case where respondent therein as also the Head Constable
were tried together, but as different punishments having been imposed upon them
although they faced identical charges, this Court interfered with the quantum
Such is not the case here. Charges against the appellant and Kaushal Kumar
Singh being not identical in nature, the impugned judgment does not suffer from
any legal infirmity.
The appeal is accordingly dismissed but there shall be no order as to costs.