The Secretary, Department of Animal Husbandry & Fisheries, Bihar v. Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12566 of 2006 ====================================================== Chhote Lal Choudhary, son of Late Bihari Choudhary, resident of Raushal Lal Colony, Harni Chak, By-pass Road, Anisabad, Patna. .... .... Petitioner. 1. The State of Bihar 2. The Secretary, Department of Animal Husbandry & Fisheries, Bihar, Versus Patna. 3. The Dy. Secretary to the Government, Department of Animal Husbandry & Fisheries, Bihar, Patna. 4. The Director, Department of Animal Husbandry & Fisheries, Bihar, Patna. 5. The Accountant General, Bihar, Patna. 6. Joint Secretary to the Government, Department of Animal Husbandry & Fisheries, Bihar, Patna. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Tej Bahadur Singh, Sr. Adv. For the Respondent/s : Mr. Satyendra Kumar Jha, AC to G.A.-X : Mr. Brisketu Sharan Pandey, Adv. Mr. Binod Kumar Labh, Standing Counsel. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 3 09-12-2013 Heard learned counsel for the petitioner, State and the Accountant General. 2. The petitioner was held guilty in a proceeding subsequently converted under Rule 43 B of the Bihar Pension Rules on the charge that during his tenure as Regional Director, Animal Husbandry Department, Magadh Range, Gaya, he made 30 appointments comprising of 27 appointments on Class-IV posts and 3 appointments on Class-III posts. 3. The respondents Vide Memo no.272 dated 2
Legal Reasoning
Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 2 / 11 21.05.2005 issued under the signature of the respondent Joint Secretary, Department of Animal Husbandry, withheld 10% of pension, and whole of gratuity and leave encashment. 4. Further plea is that the respondents have withheld six increments from the date of suspension till the date of retirement, more so, where the disciplinary authority has not passed any punishment order withholding of increments.
Decision
However, there is no such pleading in the writ petition. 5. The petitioner has not questioned the legality of the proceeding but has confined his challenge to quantum of punishment. He states that in similar circumstances, a lesser punishment has been imposed upon a co-Regional Director of Patna Range, namely, Dr. R. P. Yadav, who too has found to have made illegal appointments in Class III and Class IV posts, which are in greater number. 6. The said Dr. R. P. Yadav was found to have made 103 appointments, 43 appointments on Class-IV post and 60 appointments on Class-III posts, which is at least three times more than the number of appointments attributed against him. 7. According to the petitioner, the departmental proceedings against him and Dr. Yadav started around the same time with similar nature of charges. Both were found to have made 3 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 3 / 11 appointments against Government norms. The Government imposed a lesser punishment withholding of 10% pension and 50% of gratuity as against Dr. R. P. Yadav and leave encashment amount was not touched. The grievance of petitioner is that in his case not only 50% but 100% of gratuity and entire leave encashment has been withheld besides 10% of pension. 8. The petitioner submits that persons similarly situated should be treated equally in matter of punishment. The petitioner in support of his submissions has relied upon a decision in case of Director General of Police and Ors. Vs. G. Dasayan, reported in (1998) 2 SCC 407, Akhilesh Kumar Singh Vs. State of Jharkhand & Ors, reported in (2008) 2 SCC 74, particularly paragraph.15, Anand Regional Coop Oil Seeds Growers’ Union Ltd. Vs. Shailesh Kumar Harshadbhai Shah, reported in (2006) 6 SCC 548 paragraph. 27 to 29, The State of Bihar & Ors. Vs. Yogendra Singh, reported in 2009(1) PLJR 187 (DB) and Rajendra Yadav Vs. State of Madhya Pradesh & Ors., reported in (2013) 3 SCC 73, paragraph 8 to 10. 9. The petitioner further contends that no leave encashment can be deducted in a proceeding under Section 43 B of the Code and has relied upon a decision in case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Ano., reported 4 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 4 / 11 in 2013(3) PLJR 458 particularly paragraph 14. 10. Learned counsel for the State submits that though the charges against both the petitioner and Dr. R. P. Yadav may be more or less similar but they were not proceeded in the same transaction. The proceedings were separate. He further submits that Dr. R. P. Yadav was Regional Director of Patna Region, whereas the petitioner was Regional Director of Magadh Range, Gaya. He further submits that whereas order of punishment was inflicted against Dr. R. P. Yadav in 1999 (Annexure-7), the order of punishment was inflicted against the petitioner on 21.05.2005 (Annexure-1). 11. The facts of the case is that the petitioner as Regional Director, Magadh Range, Gaya made 27 appointments on Class IV post and 8 appointments on Class-III posts totaling 35 including some by way of promotions. The charge against the petitioner was framed on 28.11.1997 and a similar charge against Dr. R. P. Yadav was also framed in the same year on 30.04.1997 (Annexure-6). The charge against Dr. R.P. Yadav was of making 43 appointments on Class-IV posts and 60 appointments on Class- III posts and thus total comes to 103 appointments. Both were holding identical post of Regional Deputy Director. One was of Patna range and the other of Gaya range. 5 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 5 / 11 12. It would appear from the comparative chart prepared by the petitioner that Rs.8,25,000/- was spent every month on employees appointed by the petitioner whereas Rs.40,00,000/- was spent on the employees appointed by Dr. R. P. Yadav. 13. Furthermore, Dr. R. P. Yadav has been found guilty of having made appointments three times more than the petitioner. 14. It is relevant to point out here that the petitioner retired during the pendency of the departmental proceeding on 31.07.2002 and the disciplinary authority was converted into a proceeding one under Rule 43 B of the Bihar Pension Rules. The final order of punishment withholding of 10% of pension, 100% of gratuity and 100% of leave encashment was passed on 21.05.2005 by the Government. 15. The petitioner has sought quashing of the order of punishment to the extent it exceeds the punishment awarded to Dr. R. P. Yadav on the ground of equality and parity in the matter of awarding of punishment, as charge against him was less severe. 16. Before, I deal with the issue, it would be relevant to notice some of the judgments of Hon’ble Apex Court on the issue. 6 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 6 / 11 17. The Hon’ble Apex Court in case of Director General of Police and Ors. Vs. G. Dasayan, reported in (1998) 2 SCC 407, in paragraph 9 noticed that the charge against respondent G. Dasayan and one head constable was similar and as such held that since similarly charged head constable has been inflicted punishment of compulsory retirement, the punishment of dismissal awarded to the respondent should also be converted to one of compulsory retirement. In case of Anand Regional Coop Oil Seeds Growers’ Union Ltd. Vs. Shailesh Kumar Harshadbhai Shah, reported in (2006) 6 SCC 548, the Hon’ble Apex Court too observed that persons having identical allegations should be treated in similar manner for their misconduct. In case of Akhilesh Kumar Singh Vs. State of Jharkhand, reported in (2008) 2 SCC 74, the Hon’ble Apex Court held that the delinquent officers similarly situated should be dealt similarly, if the charges of the employees are identical. In case of Rajendra Yadav Vs. State of Madhya Pradesh (supra), the Hon’ble Apex Court held that doctrine of equality would apply to all who are equally placed and even among persons who are found guilty. Paragraph 8 and 9 of the said judgment is quoted herein below: 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 7 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 7 / 11 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 the 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, the 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. 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 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 8 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 8 / 11 disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” 18. The state agrees that in aforesaid case the delinquent were tried together in the departmental proceeding or in any view of the matter, the proceedings arose from same transactions or same offences. In my view, the protection of Article 14 would not only cover cases where a person has been discriminated in matter of awarding punishment where proceedings relate to same transaction but would also extend to proceedings arising from identical and similar acts of omissions and commissions though arising from different transactions in appropriate cases. Here I would add a word of caution that one may be very circumspective while dealing with cases where equality of punishment is sought with respect to matters arising from different transactions. In cases, where the posts one is holding nature of allegations, the responsibilities carried, the circulars on which prosecutions are relying are common, the courts can interfere where punishments awarded are different. 19. I find that both the petitioner as well as Dr. R. P. Yadav were holding the post of Regional Director of their respective and adjoining ranges. Both were holding same post. The substantial charges were with respect to making appointment 9 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 9 / 11 to Class-III and class-IV posts. The petitioner was guilty of making 35 appointments including 27 appointments on Class-IV posts and 8 appointments on Class-III posts, whereas Dr. R. P. Yadav was guilty of making 103 appointments, 60 posts on Class- III and 43 posts on Class-IV. The proceedings had started against both of them in the year 1997. Both were found to have made appointments in violation of 1991 and 1993 circulars of the Government, which had withdrawn power from Regional Directors of making appointment on Class-III and Class-IV posts. 20. It appears that both the petitioner and Dr. R. P. Yadav were holding common post and were charged of making illegal appointments to Class III & IV post. Furthermore, the Government Circulars relied upon by the prosecution are also common, the period of commission of offences and initiation of departmental proceedings more or less took place around the same time. In such circumstances the principle of equality in matter of punishment cannot be denied only on the ground that one of them made appointments in Patna Zone and the other made appointments in another Zone e.g. Gaya (Magadh) Zone. 21. In view of striking similarities between the case of petitioner and Dr. R.P. Yadav, I hold that the petitioner has made out a case for reconsideration of the quantum of punishment 10 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 10 / 11 vis-à-vis one imposed on Dr. R. P. Yadav. 22. The petitioner has raised an additional point that no portion of leave encashment can be attached in a proceeding under Rule 43 (b) of the Rules, whereunder only pension and gratuity can be withheld. He submits that pensionary benefits are properties of the retired employees and thus one cannot be deprived of same by authority of law in view of Article 300-A of the Constitution. Paragraph 14 of the judgment of the Hon’ble Apex Court in case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Ano. (Supra) on which reliance has been placed is quoted herein below: 23. Article 300-A of the Constitution of India reads as under:- “300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be 11 Patna High Court CWJC No.12566 of 2006 (3) dt.09-12-2013 11 / 11 countenanced.” 24. In the backdrop of facts and provisions of law noticed in foregoing paragraphs, the matter is remitted to respondent no.2 for fresh consideration with respect to quantum of punishment. The petitioner would be at liberty to make a representation before appropriate authority, who would consider the same within a period of four months from the date of receipt of a copy of this order. 25. This writ application is allowed to the extent mentioned above. Uday/- (Samarendra Pratap Singh, J)