Allowed

Lakhana Ram Meena v. State of Raj and Ors.

Rajasthan HC9 Jan 2019CW/5892/2011

Case brief

AI extract

What is this about?

The High Court quashed punishment orders of compulsory retirement and withholding of pension against two state employees. The court found the inquiry report perverse due to inconsistent findings on identical charges against co-delinquents and lack of notice of disagreement, violating principles of natural justice and equality.

What did the court decide?

Impugned order dated 11.4.2011 quashed; petitioners entitled to consequential benefits including pay, allowance, and interest on pension and gratuity at 9% per annum.

Lakhana Ram Meena Vs State of Raj and Ors. — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 5892/2011

Lakhama Ram Meena

----Petitioner

Versus

State Of Raj And Ors

----Respondent

Connected With

S.B. Civil Writs No. 6679/2011

Amrit Ram Raidas

----Petitioner

Versus

State Dep Of Personnel Ors

¶14

----Respondent

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For Petitioner(s) : Dr.Ram Kishan Sharma For Respondent(s) : Mr.Amit Kuri on behalf of Mr.Raj Sharma, AGC Mr.B.L.Avasthi, AGC

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment / Order

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Judgment Reserved on : 02/01/2019 Judgment Pronounced on : 09/01/2019

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Both these cases were heard together as they relate to joint enquiry conducted by the respondents against 14 delinquents while charge-sheets have been issued to the petitioners individually and different punishment orders have been passed. The order of punishment is of dated 11.4.2011.

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Brief facts which need to be noted for the purpose are that the land acquisition proceedings were conducted for the purpose

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(2 of 11)

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[CW-5892/2011]

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of Bisalpur Project and the areas which were falling in the blasting zone were required to be acquired for the purpose. While notification under Sec.4 of the Act was issued on 16.7.1988, petitioner Lakhama Ram Meena (SBCW Pet. No.5892/11) was posted as LDC in the Irrigation Department and performing the duties with the Land Acquisition Officer of Bisalpur Project, the petitioner Amrit Ram Raidas (SBCW Pet. No.6679/2011) was holding the post of Land Revenue Inspector. Since separate charges have been leveled against both the petitioners, the discussion relating to each petitioner is being done separately.

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S.B.CIVIL WRIT PET. NO.5892/2011

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After the notification under Sec.4 of the Act, proceedings of acquisition were started on 4.6.1992 and ended on 17.10.1992 and Land Acquisition Officer passed an award on the same day after taking approval from the Collector and the higher authorities. The estimate was submitted by the Executive Engineer on 18.9.1992. A charge-sheet was issued to the petitioner wherein two charges were leveled against the petitioner. The Enquiry Officer exonerated the petitioner from first charge but held guilty for the second charge. The allegation thereof was that file of House No.76 was maintained by the petitioner bearing number 75/92 and the petitioner who was LDC, had not enclosed the parcha Mauka Report, although there was no constructed house and there was only temporary construction of house no.76 showing as Khasra No.1631 admeasuring 1170 sq.meter and also showing the area to be having green, and wrongfully compensation was awarded to one Sheoji S/o Nanda Meena and the said amount was received in connivance with the petitioner

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(3 of 11)

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[CW-5892/2011]

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who was guilty of not placing on record the Parcha Mauka report. Although in the enquiry, it was found that concerned Sheoji is not entitled to receive any compensation. The Enquiry Officer has submitted the report that house no.76 was actually situated in khasra no.1616 which was a ‘charagaha land’ and not khasra no.1631 which is a ‘abadi land’. He has also stated that Patwari had submitted parcha Mauka report but it is apparent that said report was removed from the file with ill-motive and since the file used to remain with the petitioner, the Enquiry Officer has held the petitioner Lakhma Ram as guilty of helping the concerned person to receive compensation treating the land to be abadi land while it was ‘charagah land’ where ‘bada’ was constructed. The statement of charge leveled against the petitioner is only to the effect that the petitioner had failed to place on record the site plan (Naksha Mauka report) in the file while the Enquiry Officer has reached to the conclusion that the Naksha Mauka was placed in the file but had not been wrongly removed by the petitioner Lakhma Ram. Thus he submits that the petitioner has been held guilty and punished with the punishment of compulsory retirement on the basis of allegation which was not part of statement of allegation leveled against him in the charge-sheet.

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The counsel for the petitioner submits that the presumption drawn by the Enquiry Officer of the petitioner having removed the documents from the file with ill-motive is based on surmises and conjectures and there is no specific statement of any witness or any document to reach to such a presumption.

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(4 of 11)

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[CW-5892/2011]

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The counsel for the petitioner further submits that so far as Disciplinary Authority is concerned, it has punished the petitioner on different ground holding that the petitioner had not placed on record the site plan/map in file no.75/92 which resulted in compensation being awarded for temporary construction made in Charagah land. Thus the Disciplinary Authority has not agreed with the findings of Enquiry Officer and has punished the petitioner for allegations which are part of charge-sheet. However, the same were not proved by the Enquiry officer who has held the petitioner guilty for a different allegation. Thus the situation arise whether the Enquiry Officer has held the petitioner guilty of removing the documents from file while the Disciplinary Authority has held him guilty of not placing the same document on file. In the circumstances, counsel submits that the petitioner ought to have been exonerated from the charge.

¶33

Upon examining the contents of enquiry report and thereafter the contents of order passed by Disciplinary Authority dated 11.4.2011, I find that the Enquiry Officer has given specific finding that there was a site plan placed in the file by Tehsildar. Further he states that the petitioner was bent upon to remove the documents from file. Thus the Enquiry officer does not hold the petitioner guilty of not placing the document in file.

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The Disciplinary Authority on the other hand differs from the report of Enquiry Officer and held the petitioner guilty of not placing on record the factual aspects and not placing the site plan. In the circumstance, I find that the Disciplinary Authority has different view from the report of Enquiry Officer and was therefore

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(5 of 11)

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[CW-5892/2011]

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required to give a notice of disagreement to the petitioner, but the same was never served upon the petitioner and punishment order has been passed. In the case of Punjab National Bank Vs. Kunj

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Behari Misra reported in 1998 (7) SCC 84 , the Apex Court held that the Disciplinary Authority oblige to serve a notice of disagreement to the concerned delinquent before taking a decision when the concerned Disciplinary Authority does not accept the finding of Enquiry Officer. Keeping in view above, I find that the order of punishment of compulsory retirement passed by the Disciplinary Authority, therefore, deserves to be set aside and accordingly it is set aside. The petitioner will be entitled to receive all consequential benefits including actual pay and allowance, and principle of no work and no pay would apply.

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S.B.CIVIL WRIT PET. NO.6679/2011

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The order dated 11.4.2011 has been passed by the Disciplinary Authority punishing the petitioner for with-holding of 100% pension as well as his gratuity. The counsel for the petitioner has pointed out that the charge leveled against the petitioner is identical to the charge leveled against the Superior Officer namely Sh.O.P.Kanodiya, while he was exonerated of the charge leveled against him whereas the petitioner was held guilty for charge no.3 which was found to be fully proved and charge nos.6 & 9 have been found to be partially proved.

¶41

Charge no.3 leveled against the petitioner was of having not calculated the amount of compensation properly and thereby releasing the higher amount in favour of one Satya Narain S/o

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(6 of 11)

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[CW-5892/2011]

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Jagdish Maheshwari, owner of plot no.188 situated at Bisalpur. It is submitted that as the amount of Rs.6290/- has already been released on 30.3.1990 being 80% of the total amount and while releasing the remaining amount, interest could not have been calculated on the total amount but ought to have been calculated on the amount which was finalized over and above the amount paid as 80%. Further allegation was with regard to having released the compensation including 12% depreciation which was required to be deleted and also in regard to additional amount of Rs.4193/- without proper reason. Said charge no.3 was answered by the petitioner stating that Official of the Irrigation Department has revised the estimate and it was not the petitioner who had revised the said estimate and he jointed as LOA on 13.3.1991 while the acquisition proceedings had commenced on 22.9.1990. It is his case that Mr.O.P.Kanodiya, X.En. who was co-delinquent, was served with same charge-sheet having one of the similar charge, and the Enquiry Officer has exonerated him on the ground that the award was duly approved by the Superior Officer and, therefore, the X.En. could not be held guilty for the said charge.

¶45

The counsel for the petitioner submits that the petitioner could not be treated differently from the same Enquiry Officer knowing fully well that the award which the petitioner had passed after seeking full approval from the Superior Officer which included Mr.O.P.Kanodiya, X.En. and the Collector, Tonk, there was no occasion for holding the petitioner guilty of releasing the amount in favour of concerned claimant. With regard to depreciation also, it was pointed out that another X.En. Mr.Jitendra Kothari was served with charge-sheet in relation to the same

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(7 of 11)

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[CW-5892/2011]

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house. However, he was also exonerated. So far as other two charges are concerned, counsel for the petitioner pointed out that charge no.6 could not be leveled against him with regard to amount calculated as the entire estimate and the amount calculated was prepared by the Official of Irrigation Department who has been left out or exonerated of the charge leveled. It has been submitted that the interim award was also not passed by him as he was not posted during the time when the interim award was passed. Thus the calculation conducted could not be put on him. Moreover, the award passed by the petitioner was after taking approval and confirmation from the Collector, Tonk who had not been charge-sheeted or punished.

¶49

The counsel for the petitioner also submits that two different yard-sticks cannot be adopted by the Enquiry officer. Once the Enquiry Officer has exonerated the Superior on the ground that the decision taken for releasing the award amount was as per the direction issued by the Superior Authority, and, therefore, Enquiry Officer has exonerated the petitioner’s Superior i.e. X.En., the petitioner ought to have been also exonerated as the award passed by him was after taking approval from the Superior Officer and after the file having been placed before the Collector, Tonk. The calculation process was also placed by him before his Superior Officer and, therefore, he could not be held guilty for the said charge.

¶50

Similarly for charge no.9, counsel for the petitioner submits that Mr.O.P.Kanodiya, X.En. who was Superior Officer than the petitioner, was also served with the same charge-sheet of the

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(8 of 11)

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[CW-5892/2011]

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same charge but has been exonerated. The Enquiry Officer has not proved the charges against all the X.En., S.E. and J.Ens. while the petitioner and LDC alone have been punished. The charge against Mr.O.P.Kanodiya, Mr.M.L.Garg and others was not found proved. However, counsel for the petitioner submits that different punishments on the same facts could not have been passed in relation to the same allegation. Counsel for the petitioner has relied upon AIR 1984 SC 1499 – Sengara Singh and ors. Vs. The State of Punjab and ors. , to support the aforesaid proposition of law, he also relies on (2013) 3 SCC 73 - Rajendra Yadav Vs. State of M.P. and ors. Counsel for the petitioner further submitted that representation against the order of Enquiry Officer was also submitted but same has not been examined by the Disciplinary Authority.

¶54

Per contra, counsel appearing for the respondent supports the order impugned dated 11.4.2011.

¶55

I have heard counsel for the parties and find that the Enquiry Officer has committed a serious perversity in exonerating the Superior Officers, named above for the same charges on the ground that the award had been given approval by the Superior Officer over and above the X.En. But the contents of the charges leveled against Mr.O.P.Kanodiya were identical to that of petitioner so far as charge nos.3 & 9 are concerned. In the circumstances, two different findings could not have been arrived at by the Enquiry Officer and such report prepared has to be rejected on the ground of non-application of mind.

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(9 of 11)

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[CW-5892/2011]

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Having said so, this court also finds that all the Officers who were involved in approval of the award, have been exonerated by the Enquiry Officer and Disciplinary Authority has also exonerated them. In Sengara Singh’s case (supra), it has been observed as under:

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“9. …….. Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, we see no justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the Court the distinguishing features and therefore, we are satisfied in putting all of them in same bracket. …….”

¶60

In Rajendra Yadav’s case (supra), the Hon’ble Apex Court has held as under:

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“ 8. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.

¶62

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 treatment, if they can establish discrimination while imposing punishment when all of them are involved

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(10 of 11)

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[CW-5892/2011]

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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.

¶66

The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one 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 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.

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Having noticed the facts in both the cases, it is apparent that the Enquiry report has been prepared in cursory manner without dealing with the facts which had come on record. The Disciplinary Authority has also failed to notice the findings. The very purpose of joint enquiry under Rule 18 of the CCA Rules is to find out the actual responsibility of a particular individual delinquent in a case where several business are involved. However, if there is same charge, as against two delinquents, one delinquent could not have been exonerated on the ground that award has been approved by the Superior Officer, while holding other person guilty of the same charge. It is noticed that the petitioner has also taken the defence that the award passed by him was only after taking approval from the Collector, Tonk and estimate which has been prepared by

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(11 of 11)

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[CW-5892/2011]

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Officer of the Irrigation Department was the basis for passing of interim award by his predecessors. Thus the estimates have been left undecided by the concerned Disciplinary Authority and the Disciplinary Authority has also failed to take notice of similarity of the charge of petitioner and that of Mr.O.P.Kanodiya.

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Keeping in view above, I am inclined to accept the submissions of counsel for the petitioners that the case set up against the petitioners for which they have been held guilty, is without basis and different considerations as also yard-sticks have been adopted by the Disciplinary Authority and Enquiry Officer while exonerating the Superior Officers and punishing the petitioners. While it is true that this court would not substitute the own finding to that of the Enquiry Officer or the Disciplinary Authority, if decision making process itself is vitiated, this court would strike out the perversity.

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Accordingly, both the writ petitions are allowed. The impugned order dated 11.4.2011 whereby the petitioner Lakhama Ram who has been punished of compulsory retirement and petitioner Amrit Ram who has been punished of with-holding of 100% pension with gratuity, is quashed and set aside with all consequential benefits. The petitioners would be entitled to receive interest on the pension and gratuity @ 9% per annum.

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(SANJEEV PRAKASH SHARMA),J

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sandeep/-23-24

Lakhana Ram Meena v. State of Raj and Ors.

Case brief

What is this about?

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Lakhana Ram Meena v. State of Raj and Ors.

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