Case: UNION OF INDIA AND ORS Vs. P. BALASUBRAHMANAYAM

specifically paras 704 and 705, were examined qua the instructions contained therein and the consequence of non-compliance thereof by the investigating officer dealing with the departmental trap. The instructions were held to be procedural in character and not of a substantive nature and they were meant not for the delinquent officer but for guidance of the investigating officer. Thus, a violation thereof ipso facto was held not to vitiate the departmental proceedings. 13. On the other hand, the respondent, who appeared in-person, contended that the Circular was statutory in nature as it was issued under the authority of the Central Vigilance Commission, being a statutory body. Thus, the procedure prescribed by the Circular and Rule 12(v) of the Postal Manual Vol. III was mandatory, which was not complied with. The respondent relied on a few judgments in this behalf. It may be observed that the same were generic in character on the point of non compliance with executive instructions. Thus, if procedural safeguards are provided, these judgments note, the same should be observed as they prevent any arbitrary exercise of power. In fact, in one of the cases, the expression used is a departmental instruction cannot totally be ignored (Moni Shankar case (supra)) [emphasis supplied]. The principle propounded was that any wanton or deliberate deviation in implementation of the rules could breed indiscipline among the services and amount to undue favour to some while denial of equality among many(A.N. Sehgal case (supra)). Suffice to say, that in order that such executive instructions have force of statutory rules, it must be shown that they have been issued under the authority conferred on the Central Government or the State Government by some statutes or under some provisions of the Constitution providing therefor(Chief Commercial Manager case (supra)). 14. We may add that the respondent also sought to contend that the action of the appellants was retributive in character as he had earlier endeavoured to highlight the manipulations in the result of Postal Service Group-B cadre examinations and the legal proceedings that followed therefrom. 15. We have given thought to the aforesaid limited controversy and examined the records. We are of the view that the reliance on the Circular really does not help the case of the respondent inter alia for the reason that once it is found that the case does not have a vigilance angle, albeit after conclusion of inquiry, no prejudice can be said to have caused to the respondent. If we may say so, the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected. The only charges found proved are of procedural irregularities, over which there are concurrent findings of the relevant authorities based on certain admissions made by the respondent himself. The proceedings have also got prolonged because at every stage the respondent sought to challenge them in judicial forums, and that too not very successfully. 16. We find it difficult to disturb the findings of the disciplinary authority insofar as the procedural lapses are concerned. It really shows that there was negligence on the part of the respondent in performing his duties. That being so, we do not feel it was appropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue as a consequence of the Circular not being followed. It would be right to say that suppose these charges of bribery had not been levelled and only procedural lapses were examined, this plea would not have been open to the respondent. 17. In the facts of the case, the result has arisen after the inquiry but then, at the cost of repetition we may say, there are no adverse consequences to the respondent with respect to the bribery charges, but in fact favourable consequences. 18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment. 19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court( S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 ). This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent. 20. The question is whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. We have given thought to the aforesaid limited controversy and examined the records. We are of the view that the reliance on the Circular really does not help the case of the respondent inter alia for the reason that once it is found that the case does not have a vigilance angle, albeit after conclusion of inquiry, no prejudice can be said to have caused to the respondent. If we may say so, the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected. The only charges found proved are of procedural irregularities, over which there are concurrent findings of the relevant authorities based on certain admissions made by the respondent himself. The proceedings have also got prolonged because at every stage the respondent sought to challenge them in judicial forums, and that too not very successfully.16. We find it difficult to disturb the findings of the disciplinary authority insofar as the procedural lapses are concerned. It really shows that there was negligence on the part of the respondent in performing his duties. That being so, we do not feel it was appropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue as a consequence of the Circular not being followed. It would be right to say that suppose these charges of bribery had not been levelled and only procedural lapses were examined, this plea would not have been open to the respondent.17. In the facts of the case, the result has arisen after the inquiry but then, at the cost of repetition we may say, there are no adverse consequences to the respondent with respect to the bribery charges, but in fact favourable consequences.18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment.19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court( S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 ). This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent.The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.