CW 5693/95 {1} In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5693/1995 Manohar Singh Versus Mng Dir. RSRTC & Ors. Date of Order : 19/11/09 Hon'ble Mr. Justice Ajay Rastogi Mr. VB Srivastava, for petitioner Mrs Sumati Bishnoi, for respondents Instant petition is directed against order dt.24/01/94 (Ann.6) whereby petitioner has been inflicted with penalty of removal from service, against which he preferred appeal, which too was rejected by a non- speaking order dt.03/06/95 (Ann.11). It is relevant to mention that at the time of admission, as is evident from order sheet dt.06/08/96, Counsel for petitioner confined his grievance only with regard to quantum of penalty inflicted which according to him was shockingly disproportionate to the charges for which he was held guilty. Petitioner was appointed as Lower Division Clerk on substantive basis pursuant to recommendations made by recruitment board vide order dt.19/05/1979 (Ann.1); and till June, 1989 worked in Legal Cell while discharging duties of the post of LDC with ability & honesty; and was reporting to CW 5693/95 {2} Administrative Officer. As alleged, there have been no adverse remarks or explanation or punishment being ever inflicted upon him in his service tenure except penalty impugned. He was transferred in June, 1989 and posted in Office of Chief Manager, RSRTC, Beawar till 25/01/1994 while he was served with notice inflicting penalty of removal from service vide order dt. 24/01/94 (Ann.6). Initially, charge sheet was served in the month of July, 1989, to which reply was submitted by petitioner. However, amended charge sheet was issued on 06/05/91 and after holding inquiry, petitioner was inflicted with penalty of removal from service vide order dt. 24/01/94 (Ann.6) – against which appeal was preferred by him that too was rejected by a non-speaking order dt.03/06/95 (Ann.1). Hence this petition. Extract of charge imputed against petitioner, as reproduced in para 6 of writ petition, reads ad infra: "आरोप पऽ के आधार पर ौी मनोहर िसंह किनं ठ िलिपक के िवरूƨ लगाये गये आरोप का संि्षप् त िववरण िनम् न ूकार है:- आरोिपत ौी मनोहर िसंह किनं ट िलिपक Ʈारा िडलक् स वाहन सं. आर.एन.ई.6349 की दघर्टना ु िदनांक 10.6.86 सम् बन् ध में िवधान सभा के अतारांिकत ूँ न संख् या 42 Ʈारा ौी हरीश चन् ि के CW 5693/95 {3} जवाब के सम् बन् ध में िदनांक 23.3.89 को गलत िरपोटर् देकर िवभाग को गुमराह िकया एवं बताया िक िदनांक 6.11.87 की लोक अदालत में इस सम् बन् ध में कोई समझौता नहीं िकया गया जबिक 10.6.86 की लोक अदालत में इस वाहन की दघर्टना से ु सम् बिन् धत मामलों में समझौता कर भुगतान िकया गया, आरोिपत की िरपोटर् के आधार पर िवधान- सभा ूँ न का जवाब गलत भेजा गया। इसके कारण िनगम की ूितं ठा को ठेस पहंची व ूशासन को नीचा ु देखना पड़ा।'' Only allegation imputed was that Question NO.42 was raised by one of members of legislative assembly in regard to Deluxe Bus RNE 6349 on having met with an accident on 10/06/86 – in respect whereof, whether there was a compromise having been arrived at by Corporation in course of permanent Lok Adalat held on 06/11/87 or not; and pursuant to which, whether there was any payment of compensation being made to the claimants. In fact, compromise was arrived at on behalf of Corporation in course of permanent Lok Adalat held on 06/11/87 and compensation was paid to the claimants; however, the answer to question NO.42 (supra) was sent on 23/03/89 that no compromise was arrived at in course of permanent Lok Adalat held on 06/11/87 in regard to the claim raised on motor vehicle - Deluxe Bus No.RNE-6349 having met with an accident on 10/06/86. CW 5693/95 {4} This answer was found to be incorrect, having resulted in tarnishing the prestige of Corporation (RSRTC) & lowering down the image of administration, which was the misconduct imputed against petitioner as it appears from the record that the answer to question No.42 was prepared by petitioner while working as LDC in legal cell and sent to the Assembly after having routed through his higher officials – Sri I.N.Sharma, the then Administrative Officer. Sole defence having been taken by petitioner before the disciplinary authority and also in course of inquiry was that in fact he was on medical leave due to his serious illness which was duly sanctioned for the period from Oct, 1987 to January, 1988 - during which, permanent lok Adalat was held on 06/11/87; inasmuch as the record being available with him in regard to correspondence if having taken place or compromise if arrived at in Lok Adalat, all were never made part of record, and such correspondence alongwith compromise if any having taken place in lok adalat held on 06/11/87 was never handed over to him nor it was the part of the file being dealt with through him; as such he had CW 5693/95 {5} prepared the answer merely on the basis of documents and record file being maintained by him. However, it was alleged that the files being dealt with by him were always routed through his next senior (UDC) and finally through the then administrative officer (Shri I.N.Sharma) who even had appeared in Lok adalat held on 06/11/87 and compromise was also signed by him but no copy whereof was sent for being dealt with for official purpose; as such Shri Sharma administrative officer was solely responsible and despite it being in his personal knowledge, nothing was pointed out by him while he was party to prepare the answer to question No.42 and he was also imputed with self same allegation about negligence on his part, for which he was held guilty but finally Shri Sharma, to the best of personal knowledge of petitioner, was inflicted with penalty of stoppage of five grade increments. However, no document to this effect was placed on record. In course of arguments, vide order dt. 23/07/09, this Court directed the respondents to keep the record of disciplinary inquiry conducted against Shri I.N.Sharma, reference CW 5693/95 {6} whereof has been made by petitioner in instant petition. However, respondents have informed to this Court vide letter dt.18/08/09 that record of Shri Sharma on having retired holding post of Administrative Officer, stood weed out. The fact still remains that Shri I.N.Sharma, the then administrative Officer was finally inflicted with penalty of stoppage of five annual grade increments with cumulative effect and not of a major penalty alike inflicted in case of instant petitioner of removal from service. Counsel for petitioner laid much stress that penalty impugned herein in the facts of instant case is shockingly disproportionate to the misconduct imputed against petitioner. Counsel further submits that except alleged misconduct for which charge sheet impugned was served, his total service rendered for fifteen years is clean with unblemished record, during which neither there were any adverse remarks recorded nor memo being issued. That apart, even in present alleged misconduct, he was on sanctioned leave and on the day while Lok adalat being held on 06/11/87 and compromise was arrived at in his absence & in presence of administrative CW 5693/95 {7} officer (Shri I.N.Sharma); as such it happened to be a bonafide mistake committed, without oblique motive behind it and for a human mistake being committed, major penalty of removal from service inflicted upon petitioner is shockingly disproportionate being not in commensuration with the charges & allegations impugned & found proved holding him guilty; inasmuch as while administrative officer (Shri I.N.Sharma) was the person having finally checked the answer prepared by petitioner based on material available in the file being dealt with by him, and had sent the answer to the assembly; and moreover, despite that Shri I.N.Sharma himself was present having participated in legal proceedings in course of permanent lok adalat held on 06/11/87, inasmuch as compromise was arrived at in his presence as he signed on behalf of the Corporation (owner of Deluxe Bus which met with an accident on 10/06/86), thus it was well within his knowledge but Shri Sharma did not take note whereof while preparing answer to question NO.42 and for such alleged wrong, he too was imputed with charge sheet and upon having been held guilty, was finally inflicted with penalty of stoppage of increments while CW 5693/95 {8} petitioner has been inflicted with major penalty of removal from service; and while doing so, disciplinary authority failed to record “good & sufficient reasons” which may commensurate with charges imputed; in such circumstances, penalty of removal from service inflicted upon petitioner is shockingly disproportionate which warrants interference. In their reply, respondents have inter-alia averred that once the charges imputed against petitioner were found proved, no error was committed by respondents while inflicting penalty impugned and it does not require interference by this Court. Counsel for respondents reiterated that once charges stood proved, this Court in a limited scope of judicial review will not like to substitute its own conclusion of penalty inflicted by disciplinary authority unless it shocks conscience of the Court and looking to nature of charges proved by disciplinary authority holding the petitioner guilty, certainly it is a gross misconduct committed by the petitioner, where prestige of Corporation stood lowered down; and such guilty person has to be dealt with iron hands. This Court has considered rival CW 5693/95 {9} contentions of the Counsel for parties and with their assistance, examined material on record. Doctrine of proportionality of penalty and scope of judicial review U/Art. 226 of the Constitution while interfering with quantum of punishment have been examined by Apex Court in B.C.Chaturvedi Vs. Union of India (1995(6) SCC 750) and observed ad infra: “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. It 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 CW 5693/95 {10} impose appropriate punishment with cogent reasons in support thereof.” It is settled by judgment of Apex Court that the High Court in its jurisdiction U/Art.226 of the Constitution in exercise of powers of judicial review would not normally interfere with quantum of punishment in disciplinary inquiry and doctrine of proportionality can be invoked unless penalty impugned is found to be disproportionate and shocks the conscience of the Court. At the same time, while examining quantum of penalty inflicted upon delinquent, several factors are also to be taken note of including conduct of delinquent as well as nature of the charges imputed, which plays vital role. In Dev Singh Vs. Punjab Tourism Development Corpn. Ltd (2003(8) SCC 9), Apex Court observed ad infra: “6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the CW 5693/95 {11} disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation its may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” In Kailash Nath Gupta Vs. Enquiry Officer Allahabad Bank (2003(9) SCC 480), Apex Court observed ad infra: “11. In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re- reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded.” It has also been considered by Apex Court in recent judgment in State of Gujarat Vs. Anand Acharya (2007(9) SCC 310) ad infra; “15. The well-settled proposition of law that a court sitting in judicial review against the quantum of CW 5693/95 {12} punishment imposed in disciplinary proceedings will not normally substitute its own conclusion on penalty is not in dispute. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof [see Bhagat Ram v. State of H. P. (1983) 2 SCC 442; Ranjit Thakur v. Union of India (1987) 4 SCC 611; and U. P. State Road Transport Corporation and Anr. v. Mahesh Kumar Mishra & Ors. (2000) 3 SCC 450].” From the above backgrounds as laid down by Apex Court, it is trite that under limited scope of judicial review U/Art.226 of the Constitution of India, the High Court, ordinarily should not substitute its own conclusion on penalty. However, if the punishment imposed by the disciplinary or the appellate authority shocks the conscience of Court, it would appropriately mould the relief, either directing the disciplinary CW 5693/95 {13} authority/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself in exceptional and rare cases impose appropriate punishment obviously after assigning cogent reasons in support thereof. In instant case, charges imputed against petitioner were found to be proved but the total charge imputed against him was that the report prepared by him and routed through UDC & finally through Shri IN Sharma Administrative Officer who too was supposed to look into the same before being forwarded with the answer to question No.42 raised in the legislative assembly about compromise having been arrived at in course of permanent Lok Adalat held on 06/11/87 in a claim of motor accident (Deluxe Bus RNE-6349 of RSRTC) which took place on 10/06/86, indisputably the report sent, was factually incorrect. However, his defence through out was that papers & file of compromise arrived at in Lok Adalat held on 06/11/87 were not made available by Shri I.N. Sharma for being dealt with by him as Clerk concerned; inasmuch as he was on sanctioned leave from October, 1987 to January, 1988 and that being so, he was not present in course of CW 5693/95 {14} compromise having been arrived at in Lok Adalat and having been signed by Shri I.N.Sharma, himself as Administrative Officer of RSRTC and having no personal knowledge thereof and the answer was prepared on the basis of material available in the file being maintained by him. It is also not the case of respondents or allegation imputed against petitioner that the answer was deliberately or intentionally prepared by him with oblique motive, which was sent to the assembly. Be that as it may, certainly petitioner cannot be absolved from negligence on his part, as well. However this fact can also not be ruled out that petitioner holding the post of LDC was at the lowest in the ladder and what was being prepared by him must have been checked and looked into by his next reporting (UDC) and finally Shri I.N. Sharma Administrative Officer who had attended the Lok Adalat and signed alleged compromise in course of Lok Adalat held on 06/11/87 and that apart, answer allegedly prepared by petitioner was signed by Shri I.N.Sharma (supra) and sent on 23/03/89. It was certainly within personal knowledge of Shri I.N.Sharma but still for the charge found proved, he was CW 5693/95 {15} inflicted with penalty of stoppage of five increments with cumulative effect – copy whereof has not been placed on record despite directions of this Court as it was informed that his service record has been weeded out. It has not been disputed that service conditions of petitioner are regulated under Rajasthan State Transport Workers & Workshop Employers Standing Orders, 1965 (“Standing Orders, 1965”), as per which it was incumbent upon competent authority to apply its mind to the question of penalty and would have noted sufficient & good reasons before imposing penalty upon delinquent. It is also relevant to take note of R.36 of Standing Orders, 1965 ad infra: “36. One or more of the following penalties may, for good & sufficient be imposed on a worker by a competent authority, penalties from (v) to (viii) shall be appealable - (i)Censure : Three censures in a period of one year will involve withholding of one increment. (ii)Withholding of increments or promotion. (iii)Recovery from pay/wages of the whole or part of any pecuniary loss caused to CW 5693/95 {16} the employer by negligence or breach of any law. (iv)Fine upto 2% of worker's wages. (v)Forfeiture of wages during the period of suspension. (vi)Reduction to a lower post or grade. (vii)Termination of service, which shall not be a disqualification for future employment. (viii)Dismissal from service which shall be disqualification for future employment.” In instant case, under order impugned dt.24/01/94 (Ann.6) after narration of facts, disciplinary authority however, examined record of inquiry in last paras – extract whereof ad infra reads: “अत: मैं जांच अिधकारी Ʈारा ूः तुत जांच िरपोटर् एवं िनं कषर् से पूणर्तया सहमत हं एवं उपरोक् त ू तØ यों से ऐसा ूतीत होता है िक आरोपी की जांच में कोई रूिच नहीं होने के कारण दोष ः वीकार करता है िजसका वह दोषी है साथ ही आरोपी को िनगम कायर् को लापरवाही से सम् पन् न करने का दोषी पाता हं एवं इनके Ʈारा सूचनाएं गलत उपलब् ध ू कराने के कारण िवधान सभा में गलत जवाब पेश हआ िजससे िनगम ूितं ठा को गहरा आघात ु पहंचा। ऐसी िः थित में िनगम ूशासन के पास ु उनकी सेवा मुिक् त िकये जाने के अितिरक् त और कोई िवकã प नहीं है। अत: मैं कायर्कारी िनदेशक (ूशासन) राजः थान पिरवहन िनगम, जयपुर ौी मनोहर िसंह CW 5693/95 {17} पुऽ ौी मोहन लाल , किनं ठ िलिपक , ब् यावर आगार को िनगम सेवा से सेवामुक् त करने का आदेश देता हं। ौी मनोहर िसंह अपने पुराने बकाया ू , अगर कोई हो तो मुख् य ूबन् धक, ब् यावर से कायार्लय अविध में ूाप् त करेंगे।'' Against which, petitioner preferred appeal but it was also rejected by a non-speaking order dt.03/06/95 (Ann.11) wherein the appellate authority has also failed to apply its mind while upholding penalty inflicted by disciplinary authority upon delinquent petitioner – extract whereof ad infra reads: '' ौी मनोहर िसंह, भू0 पू0 किनं ठ िलिपक, ब् यावर आगार ने कायर्वाही िनदेशक (ूशासन) में िनणर्य आदेश बमांक मु0/ूशा/1/94/95 िजसके Ʈारा इन् हें िनगम सेवा से पृथक करने का दण् ड िदया गया है, िवरूƨ िनम् न हः ता्षरकतार् के सम्ष अपील पेश की है। मैंने अपीलाथȸ ौी मनोहर िसंह, को िदनांक 15.2.96 को व् यिक् तगत रूप से सुना एवं सम् बिन् धत िरकाडर् का अवलोकन/अÚ ययन िकया। ूाथȸ ने ऐसा कोई साआ य ूः तुत नहीं िकया िजससे अधीनः थ अिधकारी के िनणर्य में िकसी दखल की गुंजाइश हो। अत: ौी मनोहर िसंह, भू0 पू0 किनं ठ िलिपक Ʈारा अपील आदेश संख् या 45 िदनांक 24.1.95 के िवरूƨ ूः तुत अपील अः वीकार की जाती है।'' A bare reading of the order of penalty inflicted by disciplinary authority which has not been even appreciated & examined by appellate authority, no where discloses that competent authority has ever examined or recorded good & sufficient reasons as required CW 5693/95 {18} U/r 36 while imposing penalty of removal from service. It may be noted that the rule making authority was conscious while enumerating schedule of penalty U/r 36 of Standing Orders that first four of penalties (i) to (iv), ibid, are not appealable. However, other four penalties (v) to (viii) including dismissal from service which disqualifies for future employment, as well, are penalties against which appeal can be filed before appellate authority. Thus different measures of penalties are available under Scheduled appended to R.36 of Standing Orders. It certainly casts obligation upon competent authority to indicate “good & sufficient reasons” while either of penalties U/r 36 being inflicted. In other words, R.36 casts an obligation upon competent authority to consider question of punishment rationally for exercise of its discretion judiciously while choosing penalty in just, fair & reasonable manner and that appears to be a reason that rule making authority has made it obligatory upon the authority to indicate “good & sufficient reasons” while selecting & inflicting a particular either of penalties CW 5693/95 {19} upon delinquent U/r 36. However, it would not be sufficient for competent authority to say in a general, vague & ambiguous manner that having regard to facts & circumstances of the case the delinquent employee deserves to be removed or dismissed from service. The competent authority is bound to take into consideration gravity of the charge, nature of its consequences, circumstances under which the misconduct was committed, working condition of delinquent, his past service record as well; besides the fact as to whether the misconduct imputed was such having resulted in serious detriment in public interest, while taking decision for inflicting penalty upon delinquent for the charge of misconduct being proved against him. This fact cannot be ruled out that main object of penalty being inflicted upon delinquent is to correct his fault by making him more alert in future and to hold out a warning to other employees to be careful in discharge of their duties so that they do not expose themselves to similar punishment. If an employee against whom fault is established with infliction of penalty of dismissal and to CW 5693/95 {20} get rid of him, it would certainly be counter productive to do so for which it would be futile to expect to recruit so perfect employees that they would never commit any fault; and to avoid arbitrariness, it is always to be ensured that the penalty to be imposed is commensurate with magnitude of fault of delinquent; and that is the reason that the rule making authority has provided different categories of penalties for being imposed having regard to the alleged faults – one of which is dismissal from service. But, as already observed (supra), merely because an employee has committed fault, it is not that he has always to be punished with dismissal from service alone. In instant case, after making narration of facts, charges found proved against petitioner while holding him guilty, disciplinary authority finally observed that for alleged negligence, there could not be any other penalty than dismissal from service. Thus the authority has failed to ascertain as to what will be just penalty in the facts & circumstances; while however, it was enjoined upon it U/r 36 to record “good & sufficient reasons” while passing order of appropriate punishment. No CW 5693/95 {21} attempt has been made by the authority under order of penalty impugned to ascertain as to what would be just penalty. Counsel for respondents has also not placed any material before this Court by which it could be inferred that competent authority even in the Note sheet has recorded “good & sufficient reasons” while choosing penalty for being inflicted upon delinquent petitioner for his dismissal from service. In the facts & circumstances of the case, it cannot be said that disciplinary authority has discharged his quasi judicial function in the manner as required