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CASE NO.: Appeal (civil)  5943 of 2007

PETITIONER: Akhilesh Kumar Singh

RESPONDENT: State of Jharkhand & Ors.

DATE OF JUDGMENT: 14/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.3171 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant herein was working as a writer constable in the Bihar  Military Police at Bokaro Steel City.  A Departmental proceeding was  initiated against him on the following imputation of charges: \023(1) While he was posted in March 1985 in \021C\022  Company made an entry in general diary  with regard to arrival of S.I. (S), R.B. Sahu,  Company Commander on 28.3.1985.   Before opening the diary, column in which  details of Ohededar and officers are being  filled, he shown presence of S.I. (S) Sahu at  the company head quarter, but on the same  day, as per the entry No.700 his arrival is  shown at 8.45 O\022clock.  This entry No.700  was recorded two times, on first time it was  8.45 and on second time it was at 9.30.   Entry No.700 recorded at 8.45 is certainly  inserted later on. (2)     According to his statement when he was  posted at Dhanbad with his \021C\022 Company,  he was out from the company headquarter  from 14.12.84 to 16.12.84 and from 9.1.85  to 12.1.85 as per the order of Company  Commander, Sh. Sahu.  Despite the same he  shown his presence in Company  Headquarter and claimed for food allowance  and obtained the same. (3)     From \021C\022 Company Aurangabad he was  directed by Command No.227376 with  constable 576 Kaushal Kumar and Vahini  Mukhyalaya.  He alsong with Constable  No.576 Kaushal Kumar returned on 24.3.84,  their arrival is shown on 26.3.85 at 9.00 a.m.   On the voucher of food allowance for the  said period payment was made and obtained  which is a forgery.\024

3.      In the said departmental proceeding, he was found guilty of all the  charges.  He admitted the charges in relation to charge No.2.  He was found  guilty of other charges also.  The appointing authority, relying on the report  of the Enquiry Officer, passed a final order on or about 31.8.1987 dismissing  him from service.  

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4.      An appeal preferred thereagainst was dismissed by the Director  General of Police, Bihar, Patna.  In the said appeal, one of the contentions  raised by the appellant was that in a departmental proceeding involving one  Kaushal Kumar who was also found guilty of identical charges, a lenient  view was taken.  Appellate authority in its order dated 9.8.1989 in that  behalf opined : \023The illustration given by the charge sheeter  constable regarding other departmental proceeding  No.22/87 of BMP-4 against constable 576 Kaushal  Kumar Singh is wrong.  Constable Kaushal Kumar  Singh has made an effort to raise a voice against  the illegal act of commanding officer of that time.   Company Commanding Police Inspector Ram  Bhakt Sahu was punished also.  Hence charge  sheeted Constable and Constable 576 Kaushal  Kumar Singh case is not similar.\024

5.      Appellant, challenging the legality of the said order, filed a writ  petition in the High Court of Judicature at Patna which was marked as  CWJC No.9945 of 1996.           A learned Single Judge of the said Court dismissed the said writ  petition opining : \023As a matter of fact, Babban Ram was deputed as  orderly to the Deputy Commandant, whereas the  petitioner was the Writer Constable who was  responsible for the entry in the Register regarding  Diet allowances and, therefore, the charges against  the petitioner were grievous in nature and, as such,  the punishment has been awarded to him  considering the gravity of the charges.  The  petitioner was provided full opportunity to defend  his case and the departmental enquiry was held in  fair and proper manner.         I have carefully gone through the  recommendation of the Conducting Officer as well  as the order passed by the disciplinary authority as  contained in Annexure-4 to the writ application  and also the order passed by the appellate authority  as contained in Annexure-8 and 8/1 to the writ  application.  I find that the learned disciplinary  authority as well as the appellate authority have  carefully examined the materials on record and  after appreciation of evidence, they have come to a  definite finding on the basis of facts on record that  the charges against the petitioner was fully  established and, therefore, he was found to be  guilty.         This Court while exercising the jurisdiction  under Article 226 and 227 of the Constitution of  India cannot act as an appellate authority and  cannot substitute its own finding over the findings  arrived at by the Enquiry Officer and also the order  passed by the disciplinary authority as well as the  appellate authority.  The petitioner has not been  able to show that the findings arrived at by the  respondents were perverse or not based on the  materials on record and, therefore, I do not find  any material to upset the findings arrived at by the  respondents.         So far as the quantum of punishment is  concerned, I find that in view of the nature and  gravity of the charge, which has been proved  against the petitioner, the punishment for dismissal  passed by the authorities concerned also needs no  interference by this Court.\024

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6.      An intra court appeal preferred thereagainst has been dismissed by a  Division Bench of the said Court by reason of the impugned judgment.   7.      This Court issued a limited notice stating : \023Counsel submits that for the same misconduct a  much lighter punishment was given to another  constable while the punishment of dismissal has  been imposed on the petitioner.         Issue notice on the application for  condonation of delay as also on the Special Leave  Petition.\024

8.      Mr. Mohan Pandey, learned counsel appearing on behalf of the  appellant, submitted that the charges levelled against Shri Kaushal Kumar  Singh were almost identical except the charge No.1.  According to the  learned counsel, but as the purported misconduct committed by him but did  not result in any personal gains, the disciplinary authority should have taken  a lenient view.        Our attention has been drawn to the order of punishment imposed  upon the said Shri Kaushal Kumar Singh which is to the following effect : \023After going through the statement and show cause  present in record and realizing the opinion of  Commanding Officer, I accept the opinion of  commanding officer and found him guilty with  regard to charge (1) absolutely and with regard to  charge (2) partially.  His illegal absent from  14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 and  26.3.85 (totally eight days) will be treated as  extraordinary leave.  The allowance money which  was paid to him of this period shall be deducted  from his payable amount and deposited to the  fund.  Because he had immediately made a  complaint against the Company Commander and  he was found guilty for this sympathy his  increment in annual salary shall be detained for  one year.  This punishment will not affect his  future increment.  Simultaneously warning for  dismissal is given if it in future.\024

9.      The learned counsel urged that as a very lenient punishment was  awarded to Kaushal Kumar Singh, the High Court must be held to have  committed a manifest error in not entertaining the writ petition.  Reliance in  this behalf has been placed on Director General of Police & Ors. v. G.  Dasayan [(1998) 2 SCC 407] and Anand Regional Coop. Oil Seedgrowers\022  Union Ltd. v. Shaileshkumar Harshadbhai Shah. [(2006) 6 SCC 548).   10.     Mr. Nitish Massey, learned counsel appearing on behalf of the  respondent, on the other hand, submitted that the case of the appellant is not  similarly situated to that of the aforesaid Shri Kaushal Kumar Singh as not  only no charge like charge No.1 was framed against him, but even the  charge No.2 was only proved particularly in his case.  The appellate  Authority, it was submitted, having given cogent and sufficient reason for  not awarding a lesser punishment, this Court should not interfere therewith.   11.     Charge No.1 framed against the appellant herein was a serious charge.  He has been found guilty thereof.  He tampered with the official records.   Being only a Writer Constable, he could not have made an entry in the  general diary as regards time of arrival of Company Commander.           So far as Charge No.2 is concerned, he accepted the same.  Charge  No.3 was proved against him.  The Appellate Authority as also the learned  Single Judge, as noticed hereinbefore, opined that the charges levelled  against the petitioner were serious in nature.           It is true that delinquent officers similarly situated should be dealt  with similarly and, thus if the charges against the employees are identical, it

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is desirable that they be dealt with similarly.   12.     Quantum of punishment imposed on a delinquent employee by the  appointing authority, however, depends upon several factors.  Conduct of the  delinquent officers as also the nature of the charges play a vital role in this  behalf.  Apart from the fact that charge No.1 was a very serious one and Shri  Kaushal Kumar Singh, having not been charged therewith, it cannot be said  that the appellant and the said Kaushal Kumar Singh were similarly situated  but also as noticed hereinbefore, so far as Kaushal Kumar Singh is  concerned, charge No.2 had also been partly proved against him; whereas  appellant admitted his guilt in relation thereto.           The enquiry officer in his report categorically held : \023Simultaneously I have gone through attendance  register and food allowance register no officer of  the company had neither made a signature nor  verified it.  It is also horrible that on what basis  Attendance register and food allowance register  had been treated as correct.  It is necessary that  whenever food allowance claim is being made it  should be verified from the register which is not  found.  Company Commander given the statement  that entry regarding Charge sheeter that he was  present on 14.12.84 to 16.12.84 and 9.1.85 to  12.1.85 in the Company was made by the Charge  Sheeter on register by the help of constable 432  Birendera Kumar.  Charge Sheeter had not gone  any where during that period and he stated in his  statement that on that very day he was outside on  the oral order of the Company Commander.  It is  very difficult to decide that whose statement  should be treated as correct is of charge sheeter or  of Commander.  Company Commander is the in  charge of the Company.  So weightage should be  given to his statement.  Charge Sheeter certainly  made forgery with company Commander because  believing on him he made signature.\024

13.     Appellant has, thus, been found guilty of tampering with records and  committing forgery.  He misappropriated food allowance.  Shri Kaushal  Kumar Singh was found guilty only for claiming food allowance illegally.   The superior courts of India exercising power of judicial review, it is trite,  would not ordinarily interfere with the quantum of punishment.  Even the  industrial court would not do so as has been noticed by this Court in  Shaileshkumar (supra). In the said case, however, having regard to the fact  situation obtaining therein, it was held : \023There is, however, another aspect of the matter  which cannot be lost sight of.  Identical allegations  were made against seven persons.  The  management did not take serious note of  misconduct committed by six others although they  were similarly situated.  They were allowed to take  the benefit of the voluntary retirement scheme.\024           The said decision does not assist the appellant at all.   14.     G. Dayasan (supra) is a case where respondent therein as also the  Head Constable were tried together, but as  different punishments having  been imposed upon them although they faced identical charges, this Court  interfered with the quantum of punishment.   15.     Such is not the case here.  Charges against the appellant and Kaushal  Kumar Singh being not identical in nature, the impugned judgment does not  suffer from any legal infirmity.  16.     The appeal is accordingly dismissed but there shall be no order as to  costs.