Allowed

Shri. Ramchandra Goya Sadhu v. the Union of India, through Secretary, Govt of India and Ors.

Bombay HC8 Oct 2014WP/9418/2013

Case brief

AI extract

What is this about?

Challenging his dismissal from service for theft, the petitioner argued the penalty was disproportionate given his 22-year unblemished record and the sympathetic treatment of similarly situated colleagues. The High Court set aside both the dismissal order and the Tribunal's rejection, directing compulsory retirement instead.

What did the court decide?

Dismissal order and Tribunal order set aside; petitioner ordered to be compulsorily retired under Rule 40 of CCS (Pension) Rules, 1972 and paid pensionary benefits.

Shri. Ramchandra Goya Sadhu Vs the Union of… — Pension and Retirement Benefits | Bombay HC (2014)

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WP.9418.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.9418 OF 2013

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Shri Ramchandra Goya Sadhu

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..Petitioner

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Vs.

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The Union of India & Ors.

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..Respondents

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Mr. Kamlakar Koli and Ms. Vaishali Benere, Advocates for the Petitioner. Mr. Ravindra Lokhande for Respondent No.1 - UOI.

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CORAM :- NARESH H. PATIL & B. P. COLABAWALLA, JJ.

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Reserved on :- September 30, 2014. Pronounced on :- October 8, 2014.

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Judgment [ Per B. P. Colabawalla J. ]

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Rule. By consent of the parties, Rule made returnable forthwith and heard finally.

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By this Writ Petition under Article 226 of the Constitution of India,

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the Petitioner seeks to challenge the order dated 15^th March, 2013 passed

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by the Central Administrative Tribunal (hereinafter referred to as “the Tribunal” ), whereby the Original Application filed by the Petitioner challenging his dismissal from service, was rejected.

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The Tribunal, by the impugned order, principally dismissed the Original Application on the ground that the misconduct committed by the Petitioner, and to which he pleaded guilty as charged, was of a grave nature, and therefore the penalty of dismissal from service imposed on the Petitioner was not shockingly disproportionate, and neither did the same suffer from any arbitrariness or discrimination.

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The brief facts of the case are that the Petitioner on 14^th May, 2010 was caught by the duty DSC Sentry of 109, DSC Platoon at Tiger Gate, stealing Government property namely, copper rods, weighing approximately 10 kgs that were tied around his waist and inside his clothes. This theft was reported to the duty JCO, Tiger Gate and a Panchanama report dated 14^th May, 2010 was accordingly prepared. The copper rods were also confiscated from the Petitioner and photographs of the Petitioner along with these copper rods were also taken.

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After the aforesaid incident, on 29^th May, 2010, Respondent No.4 sent a Memorandum alongwith Annexure I to IV alleging therein that the Petitioner had not maintained devotion to his duty and acted in a manner which was unbecoming of a Government Servant and thereby violated the provisions of the Central Civil Services (Conduct) Rules, 1964. On receipt of the said Memorandum, the Petitioner attended the preliminary inquiry before the Inquiry Officer and pleaded guilty to the charges framed against him. Accordingly, the Inquiry Officer submitted his report to Respondent No.4.

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Thereafter, Respondent No.4 under cover of his letter dated 29^th June, 2014 forwarded the said report of the Inquiry Officer to the Petitioner and directed him to make his written submissions within 15 days from the receipt thereof. In reply thereto, the Petitioner on 6^th July, 2010 submitted his representation in writing wherein he tendered his apology and requested that a sympathetic view be taken of the matter. After taken into consideration the representation of the Petitioner, the 4^th Respondent on 27^th July, 2010 passed the order of dismissal against the Petitioner.

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In view of this dismissal, the Petitioner on 14^th October, 2010 wrote a letter to Respondent No.3 and prayed that a sympathetic view be taken of the matter, but the said request was rejected by Respondent No.3. Being aggrieved by the said rejection, the Petitioner preferred a Revision Petition before Respondent No.2 and once again prayed for a sympathetic consideration of his case and reinstatement in service. This too was rejected by Respondent No.2 by his order dated 29^th October, 2011.

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Being aggrieved thereby, the Petitioner approached the Tribunal, inter alia seeking the quashing of his dismissal, and in the alternative, to consider the case of the Petitioner for awarding a lesser penalty of compulsory retirement under Rule 40 of the Central Civil Services (Pension) Rules, 1972 and be paid the pensionary benefits as admissible. In view of the fact that the Petitioner had pleaded guilty to the charges of theft etc., the Tribunal, by the impugned order, found no merit in the case of the Petitioner and accordingly dismissed the Original Application. This is how the present Writ Petition has come up before us.

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Despite several contentions being raised in the Writ Petition, Mr. Kali, the learned counsel appearing on behalf of the Petitioner, pressed

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before us only one submission. He submitted that the Tribunal had erred in not considering the Petitioner’s alternative prayer for compulsory retirement instead of dismissal from service, as other similarly placed persons and who were in the past, guilty of the same charges of theft, were awarded lesser penalties. In this regard, Mr Kali invited our attention to the orders passed by Respondent No. 4 in respect of 4 other employees who were also guilty of theft and on whom much lesser penalties were imposed.

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The further submission of Mr. kali was that the Petitioner had faithfully served his employer for 22 years with an unblemished record and in the circumstances the penalty of dismissal from service meted out to him was extremely harsh and disproportionate. He submitted that the Respondents as well as the Tribunal failed to take a sympathetic view of the Petitioner’s case especially in view of the fact that he had pleaded guilty to the charges against him at the very first instance and that the theft was committed by him under the influence of financial disability. Considering the orders passed by Respondent No. 4 in the cases of 4 other employees, Mr. Kali submitted that the penalty imposed upon the Petitioner was not only shockingly disproportionate but was

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discriminatory in nature and therefore required interference by this court under Article 226 of the Constitution of India. To support his contention, Mr Kali relied upon a judgement of the Supreme Court in the case of Tata Engineering and Locomotive Co Ltd V. Jitendra PD Singh & Anr reported in (2001) 10 SCC 530. Taking into consideration all the aforesaid factors, Mr. Kali submitted that the Tribunal had gravely erred in not considering the Petitioner’s alternative prayer for the imposing a lesser penalty of compulsory retirement.

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On the other hand, Mr Lokhande, the learned counsel appearing on behalf of Respondent No. 1 supported the orders passed by the Respondents as well as the Tribunal. He submitted that admittedly the Petitioner had pleaded guilty to the charge of theft of government property and was therefore rightly dismissed from service. He submitted that the charges against the Petitioner, and to which he pleaded guilty, were of a very grave nature and therefore the penalty imposed upon him by Respondent No. 4, and which was upheld by the Tribunal, was fully justified, let alone being shockingly disproportionate as sought to be contended by the Petitioner. For all the aforesaid reasons, Mr Lokhande submitted that no interference was called for by this Court under Article

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226 of the Constitution of India as the Writ Petition was devoid of any merit and deserved dismissal.

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With the help of learned counsel we have perused the Writ Petition, annexures thereto, as well as heard elaborate arguments advanced by counsel. It is to be noted that the Petitioner at the very first instance pleaded guilty to the charge of theft that was levelled against him. He threw himself to the mercy of the Respondents and pleaded that his case be considered sympathetically considering his unblemished record of service of 22 years. It is not in dispute, that such a charge is levelled against the Petitioner for the first time in 22 years. Considering the unblemished record of the Petitioner, and the fact that he had served his employer for 22 years without any untoward incident, we think that the Tribunal as well as the Respondents ought to have considered the case of the Petitioner sympathetically and not imposed the harsh penalty of dismissal from service. We have come to this conclusion also because of the orders passed by Respondent No. 4 in the case of 4 other employees of the Respondents who were also charged and found guilty of theft but none were meted out the harsh punishment of dismissal from service. The orders passed and punishment meted out to 4 other employees referred to

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herein, are on record (Exhibit “H” to the Petition) and they reveal that:

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(a) The employee MWI Shaikh was found guilty of committing theft of government property, namely brass rods weighing 4 kgs and brass pieces/nuts weighing 6 kgs, and the punishment meted out to him was withholding of increment for a period of 2 years;

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(b) The employee Shri Shaik Babji was found guilty of intruding in room No. 312 in a hotel in Russia which was occupied by a female guest and stealing a Nokia mobile handset. The punishment meted out to him was withholding of increment for a period of 2 years;

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(c) The employee Shri H S Lokhande was found guilty of stealing a brass impeller of a fire pump weighing approximately 8-10 kgs. The punishment meted out to him was of compulsory retirement from service;

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(d) The employee Shri V J Gharat was found guilty of committing theft of cast-iron weighing approximately 50 kgs. The punishment meted out to him was reduction of pay by one stage in the revised pay as determined in

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pursuance to the report of the sixth Central Pay Commission for a period of 3 years with a proviso that no increment will be earned during the period of reduction and on the expiry of this period, the reduction will have the effect of postponing his future increment of pay.

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As can be seen from the orders passed by Respondent No. 4 in the case of the 4 employees set out above, despite they being found guilty of charges similar to the ones leveled against the Petitioner, none of the 4 employees were dismissed from service. Taking into consideration the period of service of the Petitioner, and his unblemished record in serving his employer, we are of the view, that in the peculiar facts and circumstances of the present case, the punishment meted out to the Petitioner, namely dismissal from service, was harsh. We find that the interest of justice would be met if the order of dismissal of the Petitioner is set aside, and instead the lesser punishment of compulsory retirement from service is imposed upon the Petitioner. Considering the orders passed by Respondent No. 4 in the case of 4 other similarly placed employees, we do not think that the order of dismissal of the Petitioner

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was justified in the peculiar facts and circumstances of the present case. We are not for a moment condoning the actions of the Petitioner. The charge of theft is indeed a serious one, but looking to the totality of the facts, we feel that in the present case it would be punishment enough, if the Petitioner is compulsorily retired from service so that he receives pensionary benefits as per the rules. We reiterate that we have taken this sympathetic view only because the Petitioner has an unblemished record of service of 22 years and other similarly placed employees found guilty of the charges of theft, were imposed penalties lesser than what was meted out to the Petitioner. We however clarify that this order is being passed in the peculiar facts of the present case and especially since the Petitioner has not pressed before us that he should be reinstated in service.

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We accordingly ORDER that:-

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(i) the order of dismissal dated 27^th July, 2010 passed by Respondent No. 4, is hereby set aside;

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(ii) the impugned order dated 15^th March, 2013 passed by the Tribunal, is hereby set aside; and

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(iii) the Petitioner be imposed with the penalty of compulsory Aswale 10/11

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retirement under Rule 40 of the CCS (Pension) Rules, 1972 and be paid pensionary benefits in accordance with law.

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Rule is made absolute in the aforesaid terms and the Writ Petition is disposed off accordingly. No order as to costs.

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( B. P. COLABAWALLA, J. ) ( NARESH H. PATIL, J.)

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Shri. Ramchandra Goya Sadhu v. the Union of India, through Secretary, Govt of India and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Ramchandra Goya Sadhu v. the Union of India, through Secretary, Govt of India and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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