Surendra Ramteke Vs State Of Chhattisgarh

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2024:CGHC:30391

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally A signed by ANNAJEE A RAO ANNAJEE WPS No. 1227 of 2016 RAO

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1. Surendra Ramteke S/o Late Ramcharan Ramteke, Aged About 43 Years Petitioner is working on the post of Constable and working/ attached at Police Lines, Rajnandgaon, District Rajnandgaon, Chhattisgarh.

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2. Subhash Marabi S/o Lamna Singh, Aged About 46 Years Petitioner is working on the post of Constable and working/ Attached at Police Lines, Rajnandgaon, District Rajnandgaon, Chhattisgarh,

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3. Vijay Singh Chouhan, S/o Jagmohan Singh Chouhan, Aged About 43 Years Petitioner is working on the post of Constable and working/ attached at Police Lines, Rajnandgaon, District Rajnandgaon, Chhattisgarh.

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4. Ramkumar Dhruw, S/o Mohan Singh Dhruw, Aged About 43 Years Petitioner is working on the post of Constable and working/ attached at Police Lines, Rajnandgaon, District Rajnandgaon, Chhattisgarh.

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5. Ramakant Upadhyay, S/o Hira Lal Puadhyay, Aged About 49 Years Petitioner is working on the post of Constable and working / attached at Police Lines, Rajnandgaon, District Rajnandgaon, Chhattisgarh. ... Petitioners

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versus

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1. State of Chhattisgarh through its Secretary, Department of Home and Police, Mantralaya, Mahanadi Bhawan, Naya Raipur, Chhattisgarh.

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2. The Director General of Police, State of Chhattisgarh, Police Head Quarter P.H.Q., Naya Raipur, District : Raipur, Chhattisgarh.

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3. The Inspector General of Police, Durg Range, Durg, District : Durg, Chhattisgarh

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4. The Superintendent of Police, Rajnandgaon, District : Rajnandgaon, Chhattisgarh. ... Respondents

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For Petitioners : Mr. R. K. Kesharwani, Advocate. For State/Respondents : Mr. Rahul Tamaskar, Govt. Advocate.

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({GOUTAM BHADURI, JUDGE)

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JUDGMENT ON BOARD

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12/08/2024

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1. The challenge made in the instant petition is to the order dated 03.03.2015 (Annexure P-1) passed by the Inspector General of Police, Durg in appeal filed by the petitioners whereby the appellate authority while reinstating the service of petitioners denied the back wages and modified the order of major punishment of dismissal from service and instead imposed major penalty of stoppage of an increment for one year in the pay scale of petitioners with non-cumulative effect from the date of their re-entry in service. The appellate authority further applying the principle of “No Work No Pay”, directed that the period spent under suspension shall be counted as the period spent out of service from the date of dismissal till the date of their arrival. The said order dated 03.03.2015 (Annexure P-1) was subjected to review in Mercy Petition filed before the Director General of Police (DGP) and by order dated 10.03.2016, (Annexure P-2) the DGP affirmed the order of appellate authority and rejected the mercy petition, which is also under challenge in this petition.

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2. According to the petitioner, in the intervening night of 17th/18th of September, 1996 at midnight while the petitioners were posted in Police Station, Manpur, about 50 – 60 out-lawed people (Naxalites) armed with guns attacked the Manpur Police Station with an intention to kill the police personnel and loot the the arms and ammunition available in Police Station. On that date, the petitioners after completing their duty were relaxing at the place adjacent to Police Station whereas the other persons were on duty in the Police Station. During attack, the Naxalites took hostage of one of the Police personnel and looted arms. As a consequence, the persons who were on duty in Police Station and the present petitioners who were though off the duty and were taking rest at Police Barack were charge sheeted. Pursuant to the incident, the services of the personnel who were on duty in Police Station were terminated without any enquiry under Article 311, clause 2(b) of the Constitution of India whereas against the present petitioners, departmental enquiry was initiated.

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3. The joint inquiry was held against all the delinquents including the petitioners and all they were held guilty of the charges and by order dated 24.10.1997 (Annexure P-7) all the petitioners were dismissed from service. The main allegation was that the act of petitioners has led to covered expression before the public at large whereby the image of police department was tarnished. The said order was subject of appeal before the Deputy Inspector General of Police, Balaghat Range which was rejected on 30.3.1999 vide Annexure P-8. Being aggrieved by such order, the petitioner preferred Original Application (OA) before the State Administrative Tribunal. In the meanwhile, since SAT was abolished, the matters were transferred to the High Court and the OAs preferred by the petitioners were converted as WPS No.1830/2005, WPS No.1825/2005,

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WPS No.1830/2005 & WPS No. 584 of 2014. Eventually, the said writ petitions came to be decided on 08^th September 2014 (Annexure P-9) whereby this Court held that the appellate order does not contain any reasons nor it shows compliance of statutory requirement, as such, remanded the case to the appellate authority to adjudicate the appeal afresh.

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4. Pursuant to the order of this Court dated 08.09.2014 the petitioners filed representation before the Director General of Police vide Annexure P- 10 to hear the appeal afresh. The said appeal was decided by order dated 03.03.2015 (Annexure P-1) whereby the petitioners were reinstated in service without back wages and further the order imposing major punishment of termination was reduced to major penalty of stoppage of one increment for one year with non-cumulative effect and no back wages were granted for such period on the principle of “no work no pay”. The operating para of order dated 03.03.2015 is relevant here and quoted below for the sake of convenience :

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ारा "सभी अपीलाቕኍ�गण स्तुत अपील के अंत में स्वयं की पारिरवारिरक कठि�नाईयों एवं अच्छे सेवा रिरका्ቑ$ का लेख ठिकया गया है। अस्तु ्ቚकरण में अधिरोठिपत आरोप की ्ቚमाणिणकता तቕኍा घठि/त घ/ना के घ/ना्ቅम को दृठि2गत रखते हुए ्ቚकरण में सहानुभूधितपूव$क ठिवचार कर मानवीय आार पर लंबी सेवा अवधि* को दृठि2गत रखते हुए व गुण - दोष के आार पर पुलिलस अी्ቌक , राजनांदगांव ारा पारिरत आदेश कमांक - पुअराज / ठिव . जांच /16/96/219/97 ठिदनांक 24.10.97 के माध्यम से सेवा से बरखास्त ठिकए जाने संबंी दं्ቑादेश को ठिनरस्त ठिकया जाता है। चूंठिक अपीलाቕኍ� ्ቚान आर्ቌक मांक 323 स्वग�य ्ቦी राेश्याम , ቕኍाना मानपुर जिजला राजनांदगांव की मृत्यु धितणिቕኍ ठिदनांक 17.07.2010 को हो चुकी है। अतः उनके लिलए ठिदनांक 16.07.2010 को वह सेवा में बहाल हुए यह मान्य ठिकया जाता है। अपीलाቕኍ� . आर . ्ቅमांक 323 स्वग�य ी राेश्याम , आर्ቌक मांक 65 ठिEभुवन दास , आर्ቌक कमाक 48 सुरेन ् राम/ेके , आर्ቌक ्ቅमांक 250 ठिवजय िሺसह , आर्ቌक कमांक 769 रमाकांत , आर्ቌक कमांक 59 रामकुमार , आर्ቌक मांक 174 रामलाल एवं आर्ቌक मांक 833 सुभाष चन ् सभी ቕኍाना मालपुर , जिजला राजनांदगांव को सेवा में बहाल ठिकया जाकर उनके ठिवरू्ቍ ्ቚमाणिणत पाए गए आरोप के लिलए " वेतनमान में एक वेतनवृधि्ቍ के बराबर की राणिश एक वष$ तक की अवधि* के लिलए असंचयी

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भाव से कमी ठिकये जाने " की दीघ$शाቜኌस्त (Major Penalty) से दቜኌK्ቑत ठिकया जाता है , जो सभी अपीलाቕኍ�गण के सेवा में पुनः आमद देने के ठिदनांक से भावी होगा। सभी अपीलाቕኍ�गण ्ቛारा ठिनलंबन में व्यतीत की गई ठिनलंबन अवधि* को ठिनलंबन में ही शुमार ठिकया जाता है एवं पुलिलस अी्ቌक , राजनांदगांव के आदेश ठिदनांक 24.10.97 के अनुसार सेवा से बरखास्त ठिकए जाने के ठिदनांक से आमद ठिदनांक तक की सेवा से बाहर ठिबताई गई अवधि को " काम नहीं वेतन नहीं " (No Work No Pay) के तहत ठिनराकृत की जाती है।

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The said order was subject of revision in Mercy Petition before the Director General of Police. While considering the mercy petition, the DGP held that the allegation against the petitioners was completely proved since they did not counter Naxalites befitting to their duty and further deviating from duty they displayed cowardice which brought disrepute to the department, therefore, the punishment awarded by appellate authority deems appropriate and rejected the mercy petition filed by the petitioners on 10.03.2016. Hence both the orders dated 03.03.2015 (Annexure P-1) & 10.03.2016 (Annexure P-2) are under challenge in this petition.

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5(i) Learned counsel for the petitioners submits that the order of the appellate authority is flawed for the reason that the appellate authority has failed to take into account the provisions of Rule 15 of Chhattisgarh Civil Services (Classification, Control & Appeal) Rules 1966 (For short “Rules of 1966) as the enquiry was not conducted by the disciplinary authority himself but it was delegated to some other officer. He relied on a dictum laid down by this Court in WPS No. 4539 of 2012 (Lachchhan Ram Giri Versus State of Chhattisgarh) decided on 11.05.2018 and submits that the appointment of presenting officer was necessary to avoid the allegation of bias.

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5 (ii) He further submits that the other set of employees who are parties to the same incident have been reinstated by the SAT with back wages,

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therefore, punishment imposed on petitioners should not be discriminative while comparing the involvement of co-delinquents in the same incident. He further referred to provisions of Rule 27(2)(c) of Rules, 1966 and contends that the present petitioners could not have been imposed different punishment on the same footing of charges though the appellate order would reveal that the punishment of termination was reduced to major penalty of stoppage of one increment for one year in pay scale with non-cumulative effect denying back wages for such period on the principle of “no work no pay”. Therefore, applying the principle of parity, the petitioners who are similar set of employees could not have been imposed different punishment on almost identical charges relating to the same incident. He submits that both the appellate authority as also the revisional authority did not take into account parity ground while considering the case of petitioners and imposed punishment thereby the petitioners were put to discrimination. Therefore, the petition is liable to be allowed.

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6(i) Per contra, learned State Counsel would submit that as far as departmental enquiry is concerned, it has been settled at rest and now the petitioners cannot challenge the same as it was already adjudicated in earlier writ petition wherein the case was merely remanded to the appellate authority to decide afresh since the appellate order does not contain any reasons. Consequently, the departmental enquiry was held to be correct but only for limited scrutiny by the appellate authority, the case was remanded. He further submits that Rule 27 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules 1966 do not contemplate that the punishment of like nature cannot be imposed inasmuch as the punishment of termination was substituted thereby substantial relief was already granted.

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6(ii) He further submits that since the objection to the appointment of Presenting Officer was not raised in earlier round of litigation, the petitioners cannot be allowed to go back again and pursuant to the remand order passed by this Court, the appellate authority has considered the case of petitioners and reduced the punishment thereby substantial relief was granted and the petitioners herein do not have right to get any other relief.

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7. I have heard learned counsel for the parties and have perused the records. So far as the facts are concerned, it is not in dispute. There were two sets of Police Personnel who were terminated on almost identical charges. The persons who were on duty in police station where from firearms were looted by taking one of the petitioners herein Subhash Marawi as a hostage, were all terminated simplicitor invoking Article 311(2)(b) of the Constitution of India. The said order was subject of challenge before the State Administrative Tribunal. The Tribunal (SAT) by its order dated 07.03.1998 set aside the termination and directed the reinstatement of the said police personnel with back wages. The order passed by the SAT was affirmed by the Division Bench of this Court by order dated 01.03.2006 (Annexure A-2), passed in W.P. No. 5917 of 1998 and further the said order dated 01.03.2006 was affirmed by the Supreme Court in SLP (Civil) No.458/2007 (Annexure A-1) on 29.04.2013. The remaining persons (present petitioners) against whom the departmental enquiry was held were dismissed from service by order dated 24.10.1997 (Annexure P-7). The same was subject of challenge in departmental appeal filed before Deputy Inspector General of Police, Balaghat Range and the said appeal came to be rejected on 30.03.1999. The same was further subject of challenge before the High Court and the High Court by its order dated 08.09.2014 (Annexure P-9) passed in WPS No.1825 of

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2005 & connected cases remanded the case to the Appellate Tribunal to adjudicate afresh. 8. In the earlier round of litigation, while disposing of WPS No.1825/2005 and connected cases on 08^th Sept. 2014, the orders passed by the appellate authority dated 30.03.1999 and other authorities were scrutinized and applying principles laid down in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (2009) 4 SCC 240 this Court observed that the order passed by the appellate authority does not contain any reason and the statutory service rules are required to be looked into by the appellate authority. This Court at paras 22, has reiterated the observations made in Chairman, Disciplinary Authority (Supra) which reads thus :

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“22. Recently in case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank (supra), the Supreme Court has held as under:

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In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover Case (1995) 6 SCC 279 has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.

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The view we are taking was also taken by this Court in Divl. Forest Officer v. Madhusudhan Rao (2008) 3 SCC 469 vide SCC Para 20: JT para 19) and in M.P. Industries Ltd. v. Union of India AIR 1966 SC 671, Siemens Engg. & Mfg. Co. of India Ltd v. Union of India (1976) 2 SCC 981 : AIR 1976 SC 1785 (vide SCC Para 6: AIR Para 6) etc.

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In the present case, since the appellate authority’s order does not contain any reasons, it does not show any application of mind.

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The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v.

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Union of India (1990) 4 SCC 594 is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not ? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.

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No doubt, in S.N. Mukherjee case (supra), it has been observed that : (SCC p.613, Para 36) :

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“36. … The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.”

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The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line order stating that they agree with the view of the lower authority.

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For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide AIR Para 15) has also to be understood as explained by us above.”

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9. Applying the above position of law declared by the Supreme Court

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in WPS No.1825 of 2005 (supra), this Court further held at paras 23, 26 & 27 which are reproduced here-in-below:

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“23. If the orders, passed by the Appellate Authority and other Authorities are scrutinized by applying aforesaid principle of law laid down keeping in view statutory requirement as to the manner of consideration of an appeal, it leads to inevitable conclusion that the order passed by the Appellate Authority does not contain any reason whatsoever and is a mechanical affirmation without considering the appeal according to the statutory service rules much less application of mind to the specific grounds raised by the petitioner in this appeal. Therefore, the orders passed by the Appellate Authority and other Higher Authorities affirming the order passed in appeal are unsustainable in law and liable to be set aside.

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Taking into consideration the fact that order of punishment was passed long back, it would be proper to direct the Appellate Authority to decide the appeal of the petitioners in Writ Petition (S) No. 1825/2005 and Writ Petition(S)

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No.1830/2005 afresh, as early as possible, within a period of 4 months from the date of receipt of copy of this order.

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In view of the statement made by learned counsel for the State that upon re-organisation of the State, the Appellate Authority in the case of the petitioners in Writ Petition(S) No.1825/2005 and Writ Petition (S) No.1830/2005 shall now be DIG, Rajnandgaon, the direction to decide the appeal of the petitioners in Writ Petition (S) No. 1825/2005 and Writ Petition (S) No.1830/05 shall oblige the DIG, Rajnandgaon to decide the appeal in compliance of the order which is now being passed by this Court.”

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10. Here before this Court, the petitioner has raised the issue that the Disciplinary Authority did not himself conduct the Departmental Enquiry but it was delegated to Additional Superintendent of Police and nonappointment of the Presenting Officer vitiated the enquiry proceedings. Rule 14 Sub-Rule (5) Clause (c) of Rules, 1966 mandates that when the disciplinary authority itself inquires into any Articles of Charges or appoints an enquiry officer for holding an enquiry into such charge, it may, by order, appoint a Government servant or a legal practitioner to be known as the Presenting Officer to present on its behalf the case in support of articles of charges. Though the submission of the State is that the question of departmental enquiry cannot be reopened at this stage, but such submission cannot be allowed to sustain as the reasoning which ought to have been given in the appellate order was found missing besides there being non-compliance of procedural statutory requirement which goes against the fundamental principle of natural justice and for that reason the case was remanded by this Court in earlier round of litigation. Therefore, the respondent State cannot by-pass the statutory obligation to be fulfilled under the provisions of Rule 14 (5) (c) of Rules, 1966. This rule has been interpreted by the Supreme Court in Union of India through its Secretary Ministry of Railway, New Delhi Versus Mohd. Naseem Siddiqui (2005) 1 LLJ 931 wherein at Para 7, the Court dealing with the

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issue has held as under :

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“7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognized facets : (i) The Adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) A witness cannot be Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated.

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Further, in paragraph 16, Their Lordships summarized the legal position by observing as under:

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(i) The inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

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(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-appointment of a Presenting Officer, by itself will not vitiate the inquiry.

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(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross examine such witnesses on those clarifications.

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(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

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(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognized that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.

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Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal

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and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.”

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(Emphasis supplied)

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11. A similar view was expressed by the Supreme Court in Moni Shankar Vs. Union of India reported in (2008) 3 SCC 484 wherein at para 30 it has been held as under:

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“30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the Enquiry Officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9(21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court.”

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12. The Supreme Court had again dealt with similar situation in State of Uttaranchal and others v. Kharak Singh (2008) 8 SCC 236 and observed at paragraph-17 as under :

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“17. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16.11.1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the Investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court.”

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(Emphasis supplied)

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13. In yet another case, i.e., State of Uttar Pradesh vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 , Hon’ble Supreme Court held at paragraphs 27 to 30 as under:

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“27……….. But nonetheless in order to establish the charges the Department is required to produce the

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necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

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An enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

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Apart from the above by virtue of Article 311(2) of the Constitution of India, the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in punishment being imposed on the employee .

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When a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

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( Emphasis supplied)

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14. The principles laid down in the above-mentioned judgments would squarely apply to the facts of the present case. When the procedure adopted by the Respondents falls short to satisfy the statutory requirement, there cannot be a deeming fiction or estoppel against the law. Apart from that issue, the another aspect which goes to the root of the matter is that another set of employees who were involved in the same incident were reinstated with all back-wages whereas the exception was carved out for these petitioners. The incident was one and the same for

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which almost identical charges were framed. Irrespective of the fact that they were reinstated only for the reason that without any departmental enquiry they were terminated, there is nothing on record before this Court to appreciate that after the reinstatement any enquiry was further contemplated as the State was free to do within a reasonable time. So when two sets of employees come before the Court on the same footing of identical charges whether such differentiation can be carved out. This is answered by the Supreme Court in Tata Engineering & Locomotive Co.Ltd. Versus Jitendra PD. Singh (2001) 10 SCC 530. In the said case, the Court held that in such circumstances notwithstanding that they were found guilty in separate proceeding, singling out the third one for punishment of dismissal would be violative of Articles 14 & 16 of the Constitution. The relevant part of Para 2 of the Judgment is relevant and

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quoted below:

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“2. On an enquiry being held, the enquiry authority found that the allegation of misconduct is proved and the disciplinary authority on consideration of the report of the enquiry authority and the other relevant material dismissed the first respondent from service. Thereafter, a reference to the Labour Court at the instance of the first respondent was made. The Labour Court though held on a preliminary question that the disciplinary enquiry conducted against the first respondent is valid came to the conclusion are perusing the documentary and oral evidence on record that the dismissal was not justified and held that he was entitled to reinstatement with full back wages with continuity in service and other consequential benefits. A writ petition was filed in the High Court which was allowed but on the basis of certain offer made, the learned Single Judge also directed that the appellant shall pay to the first respondent salary from the date of discharge till the date of the order in a lump sum of Rs.50,000. Thereupon both the management and the workman filed two appeals. In the appeals, several questions were raised as to whether the act attributed to the first respondent would amount to misconduct at all which will entail a disciplinary enquiry at the instance of the management to end up with his dismissal; strong reliance was placed on Glaxo Laboratories (I) Ltd. V. Presiding Officer, Labour Court, Meerut (1984) 1 SCC 1 : 1984 SCC (L&S) 42 . Ultimately, however, the two learned Judges were agreed on one aspect of the matter that the question, whether on misconduct attributed to the workman there should have been casual connection between misconduct and employment of the workman may not be of much significance when such acts have taken place within the premises of the factory, should be decided in an appropriate case. What

¶92

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¶93

influenced the Court in deciding the matter is that :

¶94

“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.”

¶95

15. Further the Supreme Court in Rejendra Yadav Versus State of Madhya Pradesh (2013) 3 SCC 73 while dealing with similar situation pressed into motion the doctrine of equality and held that it applies to all those who are equally placed even among the persons who are found guilty. The Court further held that the persons who were found guilty can also claim equality of the treatment, if they can establish discrimination in imposition of punishment when all of them are involved in the same incident. Paras 9, 10 & 11 are relevant and reproduced herein below:

¶96

“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 the 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.

¶97

The principle stated above is seen applied in a few judgments of this Court. The earlier one is DG of Police v. Dasayan (1998) 2 SCC 407 wherein one Dasayan a police constable, along with two other constables and one

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¶99

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.

¶100

In Anand Regl. Coop. Oil Seeds growers’ Union Ltd Shaileshkumar Harshadbhai Shah case (2006) 6 SCC 548, the workman was dismissed from service for proved misconduct. However, few other workmen, again 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.”

¶101

We are of the view that the principle laid down in the above-mentioned judgments would squarely 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 co-delinquent 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.”

¶102

(Emphasis supplied)

¶103

16. In view of the above position of law declared by the Supreme Court, the order of the appellate Court (Annexure P-1) prima facie shows that it fails to take notice of these principles laid down by the Supreme Court and different orders have been passed. The petitioners were dismissed on 24.10.1997 and though they were reinstated by appellate order but partial relief was granted which is under challenge.

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¶105

17. Applying the doctrine of equality to the facts of the present case, this Court is of the considered view that the petitioners who are equally placed too are entitled for reinstatement with back-wages as was ordered in case of other persons who were involved in the same incident.

¶106

18. For the foregoing reasons, the petition is allowed. Annexure P-1 to the extent of non-grant of back wages and the substituted major penalty of stoppage of one increment in the basic pay with non cumulative effect is set aside. The petitioners are entitled for reinstatement with back wages. Consequently, the order passed by DGP in review/mercy petition on 10.03.2016 (Annexure P-2) also stands set aside.

¶107

Sd/-

¶108

({GOUTAM BHADURI}) JUDGE

¶109

Rao

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¶111

WPS N. 1227 of 2016

¶112

(Surendra Ramteke & others Versus State of Chhattisgarh & others

¶113

HEAD-NOTES

¶114

(1) In certain cases of like nature, if the Enquiry Officer assumes the role of presenting officer it gives rise to reasonable apprehension of bias and risk of inquiry being declared illegal or vitiated.

¶115

समान ्ቚकृधित के कुछ मामलोंमें, यठिदजाँचकता$ अधिकारी ्ቚस्तुतकता$ अधिकारी की भूठिमका ठिनभाता है, तो यह प्ቌपात की उधिचत आशंका और जाँच को अवै* या दूठिषत घोठिषत ठिकए जाने के जोलिखम को जन्म देता है ।

¶116

(2) By virtue of Article 311(2) of the Constitution of India, the departmental inquiry has to be conducted in accordance with fundamental principles of natural justice which requires opportunity of hearing to the delinquent.

¶117

भारत के संठिव*ान के अनुच्छेद 311(2) के अनुसार ठिवभागीय जाँच ्ቚाकृधितक न्याय के मूलभूत जिस्ሾांतों के अनुसार की जानी चाठिहए, जिजसमें अपचारी को सुनवाई का अवसर ्ቚदान ठिकया जाना आवश्यक है ।

¶118

(3) When the charges arise from the same incident and allegations are almost identical, doctrine of equality would apply in imposing punishment and similarly placed co-delinquents cannot be visited with different punishment.

¶119

जब आरोप एक ही घ/ना से उत्प्ቐ हुआ हो एवं आरोप लगभग एक समान हो, तो दं्ቑ अधिरोठिपत करने के संबं में समानता का जिस्ሾांत लागू होगा एवं समान सह-अपचारिरयों को अलग दं्ቑ नहीं ठिदया जा सकता ।

Surendra Ramteke v. State Of Chhattisgarh

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Surendra Ramteke v. State Of Chhattisgarh

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