Admin.Union Territory Of D.&N.Haveli vs Gulabhia M.Lad

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.

4

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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