Admin Union
Territory of D & N. Haveli Vs. Gulabhia M.Lad [2010] INSC 315 (28 April
2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3933 OF
2010 (Arising out of SLP(C) No. 14428 of 2009) The Administrator, Union
Territory of Dadra & Nagar Haveli ...Appellant Versus Gulabhia M. Lad
...Respondent JUDGEMENT R.M. Lodha, J.
Leave
granted.
2. The
question that calls to be determined in this appeal by special leave is : on
consideration of the report of the Inquiring Authority wherein misconduct of
the respondent has been proved and after following the prescribed procedure,
the Disciplinary Authority ordered his removal from service and the
departmental appeal against that order has been dismissed by the Appellate
Authority, whether Central Administrative Tribunal was justified, on the facts
found, in interfering with the order of punishment on the ground that
co-delinquents were awarded lesser punishment in departmental appeals and
directing the appellant to reconsider the whole matter and give the respondent
the same treatment which has been meted out to the co-delinquents.
3.
Gulabhia M. Lad - respondent - while functioning as Land Reforms Officer--I ,
Dadra and Nagar Haveli for the period October 14, 1997 to April 27, 1998
allegedly granted occupancy rights of the government land situate at village
Athola to five persons with ulterior motive by getting the survey conducted
from R.K. Kapdi, Surveyor and without following the procedure prescribed under
the Dadra and Nagar Haveli Land Reforms Regulation, 1971 (for short,
`Regulations'). A disciplinary enquiry was initiated against him under Rule 14
of Central Civil Services (Classification, Control and Appeal) Rules, 1965. He
was charged for misconduct under Rule 3 of Central Civil Services (Conduct)
Rules, 1964. Two other employees, R.K. Kapdi, Surveyor and P.N. Vinod, Patel
Talati were also subjected to disciplinary enquiry in connection with 2 illegal
grant of occupancy rights of government land to those five persons. R.K. Kapdi
was charged for having connived with the respondent and prepared a map by not
following the procedure and without verifying the documentary evidence as
required under the Regulations and in assigning new plot numbers without any
authority in flagrant violation of law.
Insofar
as P.N. Vinod was concerned, he was charged for having connived with the
respondent and prepared the statement on oath of each of the applicants in his
own handwriting in the absence of the applicants and thereby abusing his
official position as Patel Talati.
4. A
joint enquiry was conducted against the respondent and two other delinquents,
namely, R.K. Kapdi and P.N. Vinod. The three delinquents submitted their
defence separately and denied any misconduct on their part. The Inquiring
Authority, on consideration of the written statement of defence; evidence
produced in the course of the inquiry and after hearing the Presenting Officer
and the delinquents recorded its opinion that charges were proved and submitted
its report to the Disciplinary Authority. The Disciplinary Authority 3
(Administrator, Daman & Diu and Dadra and Nagar Haveli) served enquiry
report upon respondent and after calling for explanation, imposed a major
penalty of his removal from service vide order dated April 23, 2004. For the
other two delinquents, the Disciplinary Authority was the Commissioner/Secretary
(Finance), Daman & Diu and Dadra and Nagar Haveli and the said Disciplinary
Authority after serving the enquiry report and calling for their explanation,
ordered their removal from service by two separate orders.
5. The
respondent filed the departmental appeal against the order of punishment dated
April 23, 2004 before the Appellate Authority but the said appeal was dismissed
on March 8, 2006. Insofar as the other two delinquents are concerned, their
departmental appeals were partly allowed.
The punishment
of removal awarded to R.K. Kapdi was modified to that of compulsory retirement
with effect from April 23, 2004 by the Appellate Authority while the punishment
awarded to P.N. Vinod was modified to reduction to lower stage of pay by five
stages with cumulative effect.
6. The
order of punishment dated April 23, 2004 which was confirmed in departmental
appeal by the Appellate Authority vide order dated March 8, 2006 came to be
challenged by the respondent before the Central Administrative Tribunal, Bombay
Bench at Mumbai (for short, `Tribunal') on diverse grounds. The Tribunal
accepted the argument of the respondent that he has been discriminated in the
matter of imposition of punishment. The Tribunal vide its order dated June 22,
2007 allowed the original application and held that similarly placed persons
have been treated differently and the action of the present appellant in
awarding differential punishment to the respondent by singling him out for the
extreme punishment of removal could not be sustained. In this regard, the
Tribunal relied upon two decisions of this Court, namely, (1) Tata Engineering
& Locomotive Co. Ltd. v. Jitendra Pd. Singh and Another1 and (2) State of
U.P. and Others. v. Raj Pal Singh2.
7. The
present appellant challenged the order of the Tribunal before Bombay High Court
by filing a writ petition but 1 (2001) 10 SCC 530 2 JT 2001 (Suppl. 1) SC 44 5
that was dismissed on December 1, 2008. The High Court held that as the
authorities did not challenge the orders passed by the Appellate Authority in
respect of co-delinquents, the order of the Tribunal did not call for any
interference.
8. The
scope of judicial review in disciplinary matters has come up for consideration
before this Court time and again.
It is
worthwhile to refer to some of these decisions. In the case of B.C. Chaturvedi
v. Union of India and Others3 this Court held:
"18.
A review of the above legal position would establish that the disciplinary
authority, and on appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the evidence with a view to
maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty.
If the
punishment imposed by the disciplinary authority or the appellate authority
shocks the conscience of the High Court/Tribunal, it would appropriately mould
the relief, either directing the disciplinary/appellate authority to reconsider
the penalty imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment with cogent reasons
in support thereof".
9. In
Director General, RPF and Others v. Ch. Sai Babu 4, this Court stated the legal
position thus :
3 (1995)
6 SCC 749 4 (2003) 4 SCC 331 6 "6. ....Normally, the punishment imposed by
a disciplinary authority should not be disturbed by the High Court or a
tribunal except in appropriate cases that too only after reaching a conclusion
that the punishment imposed is grossly or shockingly disproportionate, after
examining all the relevant factors including the nature of charges proved
against, the past conduct, penalty imposed earlier, the nature of duties
assigned having due regard to their sensitiveness, exactness expected of and
discipline required to be maintained, and the department/establishment in which
the delinquent person concerned works."
10. In
the case of Chairman and Managing Director, United Commercial Bank and Others
v. P.C. Kakkar5, this Court on review of long line of cases and the principles
of judicial review of administrative action under English law summarized the
legal position in the following words :
"11.
The common thread running through in all these decisions is that the court
should not interfere with the administrator's decision unless it was illogical
or suffers from procedural impropriety or was shocking to the conscience of the
court, in the sense that it was in defiance of logic or moral standards. In
view of what has been stated in Wednesbury case [(1947) 2 All ER 680 (CA)] the
court would not go into the correctness of the choice made by the administrator
open to him and the court should not substitute its decision to that of the
administrator. The scope of judicial review is limited to the deficiency in
decision-making process and not the decision.
12. To
put it differently, unless the punishment imposed by the disciplinary authority
or the Appellate Authority shocks the conscience of the court/tribunal, there
is no 5 (2003) 4 SCC364 7 scope for interference. Further, to shorten
litigation it may, in exceptional and rare cases, impose appropriate punishment
by recording cogent reasons in support thereof. In the normal course if the
punishment imposed is shockingly disproportionate it would be appropriate to
direct the disciplinary authority or the Appellate Authority to reconsider the
penalty imposed.
13. In
the case at hand the High Court did not record any reason as to how and why it
found the punishment shockingly disproportionate. Even there is no discussion
on this aspect. The only discernible reason was the punishment awarded in M.L.
Keshwani case. As was observed by this Court in Balbir Chand v. Food Corpn.
of India
Ltd. [(1997) 3SCC 371] even if a co-delinquent is given lesser punishment it
cannot be a ground for interference. Even such a plea was not available to be
given credence as the allegations were contextually different".
11. In
Union of India and Another v. S.S. Ahluwalia6, this Court reiterated the legal
position as follows :
"8.
.......The scope of judicial review in the matter of imposition of penalty as a
result of disciplinary proceedings is very limited. The court can interfere
with the punishment only if it finds the same to be shockingly disproportionate
to the charges found to be proved.....".
12. In
State of Meghalaya and Others v. Mecken Singh N. Marak7 this Court stated :
"14.
In the matter of imposition of sentence, the scope for 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 6 (2007) 7 SCC 257 7 (2008) 7 SCC 580 8 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 as 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."
13. The
legal position is fairly well settled that while exercising power of judicial
review, the High Court or a Tribunal cannot interfere with the discretion
exercised by the Disciplinary Authority, and/or on appeal the Appellate
Authority with regard to the imposition of punishment unless such discretion
suffers from illegality or material procedural irregularity or that would shock
the conscience of the Court/Tribunal. The exercise of discretion in imposition
of punishment by the Disciplinary Authority or Appellate Authority is dependent
on host of factors such as gravity of misconduct, past conduct, the nature of
duties assigned to the delinquent, responsibility of the position that the
delinquent holds, previous penalty, if any, and the discipline required to be
maintained in the department or establishment he works. Ordinarily the Court or
a Tribunal would not substitute its opinion on reappraisal of facts. In a
matter of imposition of punishment where joint disciplinary 9 enquiry is held
against more than one delinquent, the same or similarity of charges is not
decisive but many factors as noticed above may be vital in decision making. A
single distinguishing feature in the nature of duties or degree of
responsibility may make difference insofar as award of punishment is concerned.
To avoid
multiplicity of proceedings and overlapping adducing of evidence, a joint
enquiry may be conducted against all the delinquent officers but imposition of
different punishment on proved charges may not be impermissible if the
responsibilities and duties of the co-delinquents differ or where distinguishing
features exist. In such a case, there would not be any question of selective or
invidious discrimination. Does the present case make out discrimination in
inflicting punishment? We do not think so. In the first place, the respondent
and the two other delinquents may have been found guilty in connection with the
same incident, i.e. illegal grant of occupancy rights in respect of government
land to five persons but the charges against the respondent and the other two
delinquents cannot be said to be same or substantially similar. The substance
of the charge against the respondent was that as a Land Reforms Officer-I, 10
he granted occupancy rights to the government land to five persons with
ulterior motive by getting the survey conducted from co-delinquent R.K. Kapdi,
Surveyor and without following the procedure prescribed under the Regulations.
On the other hand, the main charge against R.K. Kapdi was that he prepared a
map by not following the procedure and without verifying the documentary
evidence as was required under the Regulations and assigning new plot numbers
without any authority in flagrant violation of law. As regards, P.N. Vinod, he
was principally charged for having prepared the statement on oath of each of
the applicants in his own handwriting in the absence of the applicants and
thereby abusing his official position as Patel Talati. Thus, there was
variation in allegations of misconduct and all the three delinquents could not
have been put on par although joint enquiry was held and there was common
evidence.
14.
Secondly, the Tribunal failed to notice that respondent was holding an
important position as Land Reforms Officer during the relevant period having
been conferred with various powers and duties under the Regulations. As a Land
11 Reforms Officer, the respondent possessed the official authority for grant
of occupancy rights under the Regulations. The co- delinquents were only his
subordinates and they carried out his instructions. In the facts and
circumstances, therefore, the respondent and the two co-delinquents cannot be
said to have been similarly placed.
15.
Thirdly, and more importantly, the Tribunal overlooked a very important aspect
that even the Appellate Authority has not treated the case of co-delinquents
viz., R.K. Kapdi and P.N. Vinod alike inasmuch as in the departmental appeal
the punishment of removal awarded to R.K. Kapdi was modified to that of
compulsory retirement while the punishment awarded to P.N. Vinod was modified
to reduction to lower stage of pay by five stages with cumulative effect. There
was, thus, no similarity in award of punishment to the other two co-
delinquents as well.
16. The
Tribunal relied upon two decisions of this Court.
In Tata
Engineering & Locomotive Co. Ltd.1, this Court found no justification to
interfere with the order of the High Court that recorded the following finding:
12
"Since as many as three workmen on almost identical charges were found
guilty of misconduct in connection with the same incident, though in separate
proceedings, and one was punished with only one month's suspension, and the
other was ultimately reinstated in view of the findings recorded by the Labour
Court and affirmed by the High Court and the Supreme Court, it would be denial
of justice to the appellant if he alone is singled out for punishment by way of
dismissal from service."
We are
afraid Tata Engineering & Locomotive Co. Ltd.1 has no application to the
facts of the present case.
17.
Similarly, the decision of this Court in Raj Pal Singh2 has no application to
the present case. It was found therein that the charges proved against the
delinquents were same and identical. No dissimilarity was found and, therefore,
it was held that it was not open for the Disciplinary Authority to impose
different punishments for different delinquents. In the case in hand, we have
already noticed above that the charges against respondent and co-delinquents
were not exactly identical or substantially similar. Moreover, the respondent
being the Land Reforms Officer was the authorized officer under the Regulations
for grant of occupancy rights and for illegal grant of occupancy rights in
respect of government lands, 13 it was he who was squarely responsible. We have
no hesitation in holding that on the facts found and conclusions recorded in
the enquiry report, the punishment of removal cannot be said to be not
commensurate with the misconduct proved against the respondent and the High
Court ought to have interfered with the order of the Tribunal.
18. The
result is that appeal is allowed, the order of the High Court dated December 1,
2008 and that of the Tribunal dated June 22, 2007 are set aside. The parties
shall bear their own costs.
..................................J. (R.V. Raveendran)
.....................................J (R. M. Lodha)
New Delhi
April 28, 2010.
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