[2014] 1 S.C.R. 59

ISHWAR CHANDRA JAYASWAL

UNION OF INDIA & ORS. (Civil Appeal Nos. 48-49 of 2014)

JANUARY 3, 2014.

[T. S. THAKUR AND VIKRAMAJIT SEN, JJ.]

SERVICE LAW:

Departmental inquiry - Charges proved - Punishment c

- Doctrine of proportionality - Railway employee - Removal from service on charges of demanding and accepting meager amounts - Held: Removal of employee from service for the charges levelled against him shocks the judicial conscience of the Court - Deprivation of retiral benefits in addition to loss 0 of service is entirely incommensurate with the charge of appellant having taken very small sums of money for issuance of Fit Certificate to other Railway employees - Appellant shall be deemed to have been compulsorily retired under Part-I/I Penalty 6(vii) of 1968 Rules and shall be entitled to retiral or other benefits - Railway Servants E

(Disciplin~ and Appeal) Rules: 1968 - Part-Ill - Penalty 6(vii).

The appellant, an employee of Railways was removed from service as the charges of demanding and F accepting Rs. 26/-, Rs. 34/- and Rs. 18/- from three employees, respectively, were found proved in the 'departmental inquiry. His writ petition and review petition were dismissed.

In the instant appeals, the only question for G consideration before the Court was: "whether the punishment of removal of service of the petitioner on the alleged demand of meagre amounts of Rs.18-45 is contrary to the doctrine of proportionality"

59 H

A Allowing the appeals, the Court

HELD: The appellant is 75 years of age. He has served the respondents for a period of twenty three years and removal from service for the two charges levelled

8 against him shocks the judicial conscience of this Court.

It has not been established that the appellant had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate. However, since two of the three charges have been proved, this Court is of the considered opinion that C the imposition of compulsory retirement i.e. Penalty 6(vii) of Part Ill of The Railway Servants (Discipline and Appeal) Rules, 1968 would have better and more appropriately met the ends of justice. Deprivation of retiral benefits in addition to loss of service is entirely incommensurate 0 with the charge of the appellant having taken very small

sums of money for the issuance of Fit Certificate to other Railway employees. The impugned order dated 11.10.2010 is set aside. The appellant shall be deemed to have compulsorily retired under Part-Ill Penalty 6(vii) of E the 1968 Rules with effect from 22.1.1991 and shall be

entitled to retiral or other benefits as on the said date. [Para 6-7) [62-F, G-H; 63-A-E]

Union of India v. S.S. Ahluwalia 2007 (9) SCR 377 = F

(2007) 7 sec 257 - relied on.

Case Law Reference:

2007 (9) SCR 377 relied on para 5

G CIVIL APPELLATE JURISDICTION : Civi Appeal No. 48- 49 of 2014.

From the Judgment & Order dated 28.03.2012 of the High Court of Judicature at Allahabad in Civil Misc. Review Application No. 325013 of 2010 in Civil Misc. Writ Petition No.

ISHWAR CHANDRA JAYASWAL v. UNION OF INDIA 61

38190 of 2004 and order 11.10.2010 in Civil Misc. Writ Petition A No. 38190 of 2004.

Shashank Shekhar, Devashish Bharuka, Jasneet for the Appellant.

S.P. Singh, Sukhbir Kaur Bajwa, Kiran Kapoor Shreekant B N. Terdal for the Respondents.

The Judgment of the Court was delivered by

VIKRAMAJIT SEN, J. 1._Leave granted. These Appeals c assail the Judgment dated 11.10.201 O of the Division Bench of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.38190 of 2004 as well as the subsequent Order dated 28.3.2012 by which a Review Application in respect of the former was dismissed.

2. The Division Bench was confronted with the dismissal from service of the Appellant Dr. lshwar Chandra Jayaswal against whom three Articles of Charge had been framed.

Article-I was that he demanded and accepted a sum of Rs.26/

- from Shri Pyare Ram, Khalasi for issuing in his favour a Fit E Certificate. Article-II, in similar vein was that the Appellant demanded and accepted a sum of Rs.34/- from Shri Nandlal,

Semi-skilled Revetter for issuing him a Fit Certificate. Article-

111 was that the Appellant had demanded and accepted Rs.18/

- from Shri Balroop, Semi-skilled Revetter for issuing of Fit F Certificate. The Inquiry Officer, after duly perusing the entire evidence, returned a finding that Charges 1 and 3 had been proved. The Disciplinary Authority, after considering the response of the Appellant, by its Order dated 22.1.1991 imposed the penalty of removal of the Appellant from service. G

3. A Revision came to be filed which appears to have attracted the gravamen of challenge before the Division Bench.

After considering the manner in which the Revision was heard and decided, the Division Bench in the impugned Order, has H

A come to the conclusion that the President had decided the Revision in accordance with law.

4. In these proceedings, learned counsel for theAppellant has confined his arguments to the ground - "whether the

8 punishment of removal of service of the petitioner on the alleged demand of meagre amount of Rs.18-45 is contrary to the doctrine of proportionality".

5. It is now well settled that it is open to the Court, in all circumstances, to consider whether the punishment imposed C on the delinquent workman or officer, as the case may be, is commensurate with the Articles of Charge levelled against him.

There is a deluge of decisions on this question and we do not propose to travel beyond Union of India v. S.S. Ahluwalia

(2007) 7 SCC 257 in which this Court had held that if the D conscience of the Court is shocked as to the severity or inappropriateness of the punishment imposed, it can remand the matter back for fresh consideration to the Disciplinary Authority concerned. In that case, the punishment that had been imposed was the deduction of 10% from the pension for a ff period of one year. The High Court had set aside that order. In those premises. this Court did not think it expedient to remand the matter back to the Disciplinary Authority and instead approved the decision of the High Court.

6. The Appellant before us is presently 75 years of age.

P At the time when the Articles of Charge had been served upon him, he had already given the best part of his life to the service of the Respondent-Indian Railways. It has been contended before us that the three charges that have been sustained against the Appellant reflected only the tip of the iceberg; G however, there is no material on record to substantiate this argument of Respondents. In the present case, the Appellant has served the Respondents for a period of twenty three years and removal from service for the two charges levelled against him shocks our judicial conscience. Part Ill of The Railway H Servants (Discipline & Appeal) Rules, 1968 contains the

ISHWAR CHANDRA JAYASWAL v. UNION OF INDIA 63

[VIKRAMAJIT SEN, J.]

penalties that can be imposed against a Railway servant, both A Minor Penalties-as well as Major Penalties. We have already noted that it has not been established that the Appellant had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate.

However, since two of the three charges have been proved, we B are of the considered opinion that the imposition of compulsory retirement i.e. Penalty 6(vii) would have better and more appropriately met the ends of justice. While this would have instilled sufficient degree of fear in the mind of the employees, it would also not have set at naught several years of service c which the Appellant had already given to the Respondent-Indian

Railways. We think that deprivation of retiral benefits in addition to loss of service is entirely incommensurate with the charge of the Appellant having taken very small sums of money for the issuance of Fit Certificeie to other Railway employees. o

7. It is in the$e premises that the Appeals are accepted and the impugned Order dated 11.10.2010 is set aside. The Appellant shall be deemed to have compulsorily retired under Part-Ill Penalty 6(vii) of the aforementioned Railway Rules with effect from 22.1.1991. If he is entitled to retiral or other benefits E on the said date, the Respondents shall make necessary payment within three months from today. This decision is restricted to the facts of the present case.

R.P.

Appeals allowed.