Anubha Rawat Choudhary, J
1. Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner.
2. This writ petition has been filed for the following relief:
“For quashing the Resolution issued under Memo No.2641 dated 04.05.2013 (Annexure â€" 7) whereby and whereunder the petitioner
has been imposed a punishment of demotion to the lowest post of his scale and has been deprived from getting any salary during the period
of suspension; and for issuance of a direction upon the respondents to pay the retiral benefits including the amount towards GPF, Pension,
Gratuity, commutation of Pension and other Pensionary benefits as well as consequential benefits under the Modified Assured Career
Progression Scheme with interest @ 18% per annum and within a specified period.â€
Arguments of the Petitioner
3. Learned counsel for the petitioner submits that he is confining his argument on the point of punishment.
4. Learned counsel for the petitioner submits that altogether six persons faced departmental proceedings in connection with identical charges which is
apparent from the charge sheet as well as inquiry report brought on record by the petitioner by way of filing supplementary affidavit dated 06.03.2019
read with Annexure â€" 2 to the writ petition. The learned counsel submits that not only the allegations are identical, but the findings of the inquiry
report are also identical.
5. He further submits that the petitioner was In-charge Executive Engineer at the relevant point of time and as per the reply filed by the petitioner
before the authorities, he was posted for the relevant work for the period from 31.01.2008 to 30.07.2008. Learned counsel further submits that the
allegation is in connection with the quality of work done in the matter of construction of bridge and it has been alleged that the piling of the pillars was
not properly done till the level it was required to be done.
6. Learned counsel submits that Bhola Ram, who was also an Executive Engineer and faced the departmental proceedings in connection with the
same work for the same charges, has been punished by withholding three annual increments with non-cumulative effect; withholding promotion for
five years with an observation that the punishment and also the payment in connection with the period of suspension will be subject to the result of the
criminal case. Learned counsel submits that so far as criminal case is concerned, final form was submitted which has been brought on record by way
of reply to the counter-affidavit, but he has no idea as to whether the final form was ultimately accepted by the court concerned or not.
7. Learned counsel submits that so far as the petitioner is concerned, he has also been punished but with different punishment order i.e., demotion to
the lowest pay of his pay scale and further with a rider that he will not be entitled to any amount for the period of suspension and matter relating to
period of suspension will be subject to the result of the criminal case.
8. Learned counsel submits that two identically placed persons i.e., Bhola Ram and the petitioner have been given different punishments for identical
charges and therefore, the impugned order of punishment as against the petitioner is fit to be set aside. He further submits that demotion of the
petitioner to the lowest pay scale is much more severe than the punishment imposed upon Bhola Ram, in as much as, the punishment to the petitioner
will have a permanent impact on the post retiral benefits of the petitioner as post retiral benefits are based on last pay drawn. The learned counsel for
the petitioner has relied upon the judgment passed by this Court in the case of T.R. Sharma Vs. Union of India and Ors. reported in 2010 3 JLJR 567
and also judgment passed by Hon'ble Supreme Court reported in (2013) 3 SCC 73 Rajendra Yadav Vs. State of Madhya Pradesh and Others; 2014 4
JLJR 112 (SC) (Life Insurance Corporation of India and Ors. Vs. Triveni Sharan Mishra) to submit that there has to be parity in the matter of
punishment for identical charges.
9. Learned counsel submits that the order of punishment is dated 04.05.2013 and the petitioner has retired on 30.06.2013 and the pension of the
petitioner was also withheld. He further refers to order dated 02.12.2014, wherein a direction was issued upon the respondents to release admissible
post retiral dues of the petitioner in the admissible scale of pay within a period of 10 weeks with an observation that any further claim of the petitioner
would be subject to the outcome of the writ proceedings. Learned counsel submits that pursuant to the interim order dated 02.12.2014, the petitioner
has been drawing the admissible pension on the basis of last pay drawn in the lowest pay of his pay scale. The learned counsel for the petitioner has
also prayed for release of the entire retirement benefits to the petitioner.
Arguments of the Respondent-State
10. Learned counsel appearing on behalf of the respondents are also not in a position to say as to what ultimately happened in the criminal case and as
to whether the final form submitted has been accepted by the court or not. The respondents are also not able to say as to whether there has been any
revision in the punishment order which has been imposed upon the petitioner or Bhola Ram.
11. Learned counsel for the respondents while justifying the difference in the order of punishment has referred to the supplementary counter affidavit
to submit that the punishment which was imposed upon Bhola Ram could not have been imposed upon the petitioner in view of the fact that the order
of punishment is dated 04.05.2013 and the petitioner attained the age of superannuation on 30.06.2013 and therefore there is a difference in the order
of punishment. However, he does not dispute the fact that the punishment which has been imposed upon the petitioner will have a permanent impact
on his pension and his pension will be ultimately determined on the basis of the last pay drawn which would be at the lowest pay scale in terms of the
order of punishment.
Arguments of the Accountant General
12. The learned counsel appearing on behalf of the Account General submits that the pension is fixed on the basis of last emoluments and not last pay
drawn in the last month. The learned counsel submits that the last pay drawn is not the correct term to be used, the correct term is last emoluments
which is calculated on the basis of Rule 151 of the Bihar Pension Rules and that would be the average of the previous 10 months from the date of
retirement and technically the calculation of pension of the petitioner is to be done accordingly. Learned counsel for the Accountant General reiterates
that the pension is calculated in terms of Rule 151 of Bihar Pension Rules and it is not only based on the last pay drawn on the date of retirement.
Findings of this Court
13. After hearing the learned counsel for the parties, this Court finds that it is not in dispute that the petitioner was initially appointed as Assistant
Engineer in Water Resources Department as back as in the year 1979 and at the relevant point of time, the petitioner was Incharge Executive
Engineer and the period for which the petitioner had worked in connection with the construction work involved in the present case is from 31.01.2008
to 30.07.2008.
14. Admittedly, the petitioner was served with a charge sheet dated 14.05.2010 alleging inter alia that while the petitioner was posted as Incharge
Executive Engineer in Rural Development Department, Spl. Division, Dhanbad, the quality of work done in the matter of construction of bridge over
Barakar river at Nirsa-Jamtara road was not up to the level. The charge sheet was based on report submitted by Chief Engineer, Rural Development
Department, Special Zone, Ranchi which was dated 26.08.2009. It is further not in dispute that the criminal case was also instituted against the
petitioner and other officials and other persons.
15. The petitioner submitted his explanation in the department proceeding on 15.08.2010 denying the allegation and tried to explain that construction of
piles had no nexus with the posting of the petitioner except pillar no.12 and 13 to the extent of half of its construction. However, on 24.11.2010, the
Enquiry Officer submitted enquiry report against the petitioner.
16. Thereafter, admittedly second show cause was issued to the petitioner dated 30.03.2013 along with a copy of the enquiry report to which the
petitioner filed his reply on 03.04.2013 and the petitioner was imposed punishment vide impugned Memo No. 2641 dated 04.05.2013 of demotion to the
lowest pay scale and deprivation from getting salary during the period of suspension. It was also observed in the order of punishment that the payment
of subsistence allowance will be dependent upon the final outcome of the criminal case.
17. It is not in dispute that the petitioner and 5 others were subjected to the same allegation with respect to the same piles of the pillars of the bridge,
who also were Engineers of the Department. This is also apparent from the enquiry report which has been filed by the petitioner by way of
supplementary affidavit dated 06.03.2019 which deals with the allegations against each of the charged persons.
18. It is further not in dispute that another person namely Bhola Ram, who was also the Executive Engineer during the relevant point of time was also
accused of the same allegation as that of the petitioner; faced the departmental inquiry and the Enquiry Officer gave similar findings against Sri Bhola
Ram also. The learned counsel for the petitioner as well as the learned counsel for the respondents do not dispute the fact that the petitioner as well as
Bhola Ram were identically situated in terms of their responsibility with regard to the bridge and both of them were Executive Engineers, therefore,
the petitioner has made specific reference to the punishment imposed upon Bhola Ram and has made specific submission by contending that the
punishment imposed upon Bhola Ram is much lighter than that of the petitioner and accordingly, claimed parity.
19. It is not in dispute that Bhola Ram has been inflicted with the punishment of withholding three annual increments and not entitled for promotion for
5 years and his punishment as well as payment for the period of suspension has been made subject to the result of the criminal case. So far as the
petitioner is concerned, the petitioner was placed at the lowest pay scale and his subsistence allowance was only subject to the final result of the
criminal case.
20. As rightly submitted by the learned counsel for the respondents apparently the petitioner could not have been imposed with the punishment of
withholding of three annual increments and non-entitlement of promotion for 5 years in view of the fact that the punishment was imposed upon the
petitioner on 04.05.2013 and the petitioner was to retire on 30.06.2013. This Court also finds that only payment of subsistence allowance to the
petitioner was made subject to final result of the criminal case and consequently, the same could have been subject matter of recovery, if any, but
under no circumstances, the punishment of the petitioner could be revised on account of the final outcome of the criminal case as the petitioner was to
retire on 30.06.2013 and no punishment could have been imposed upon the petitioner of dismissal etc. pursuant to conviction, if any, in the criminal
case after his retirement.
21. So far as Bhola Ram is concerned, he had enough period left and the punishment of withholding of three annual increments and disentitlement for
promotion for five years could have been very well served by Bhola Ram and the punishment as well as payment of subsistence allowance to Bhola
Ram was made subject to the final outcome of the criminal case. Meaning thereby if Bhola Ram would have been convicted in the criminal case, his
punishment could have been revised and Bhola Ram could have been dismissed from service apart from forfeiture of his right to receive the
subsistence allowance during the period of suspension.
22. There is no dispute from the argument of the parties that the petitioner as well as Bhola Ram were identically situated in terms of the responsibility
in connection with the work. The charge sheet issued to them were also identical and the findings of the Enquiry Officer against them was also
identical, but the counsel for the respondents have cited enough reasons for difference in the order of punishment between the petitioner and Bhola
Ram.
23. The argument of the petitioner that the pension would be calculated on the basis of last pay drawn is by itself not the correct argument as
submitted by the learned counsel appearing for the Accountant General, Jharkhand. The petitioner has been imposed a punishment of demotion to the
lowest post of his scale which does not have any retrospective effect. The date of order of punishment is 04.05.2013 and the petitioner having retired
on 30.06.2013, only two months’ salary of the petitioners has been affected i.e., for the month of May, 2013 and June, 2013 which would be just a
component in the matter of calculation of average emolument of the petitioner for the purposes of payment of pension in view of Rule 151 of Bihar
Pension Rules.
24. In the Judgment passed by Hon’ble Supreme Court reported in 2014 4 JLJR 112 (SC) (supra), where similarly situated person was inflicted
with different penalty than that of the petitioner of the case and the punishment order was interfered with by the High Court on account of
discrimination, the Hon’ble Supreme Court refused to interfere with the judgment passed by the High Court and was of the opinion that the High
Court had rightly taken note of the fact regarding parity in the matter of punishment and directed the employer to consider the imposition of similar
penalty after reinstatement of the petitioner of the said case and dismissed the civil appeal. It is apparent from the aforesaid judgment that there was
neither any argument nor any discernible reason cited before the High Court for giving different punishment to two similarly situated persons and
accordingly the punishment was found to be discriminatory and violative of Article 14 of the Constitution of India.
25. So far as the judgment passed by Hon’ble Supreme Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh (supra) is concerned,
it has been held in para 9 that the doctrine of equality applies to all those who are equally placed and this principle applies even amongst persons who
are found guilty, and parity amongst co-delinquent has to be maintained when punishment is being imposed and further the punishment should not be
disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. It has been held that the
disciplinary authority cannot impose punishment which is disproportionate i.e., lesser punishment for serious offences and stringent punishment for
lesser offences. In the said case, the punishment of dismissal from service of the appellant was set aside on the point of parity. In the judgment passed
by Hon'ble Supreme Court there was neither any argument nor any discernible reason to give different punishment to the delinquents who were
similarly situated.
26. In the judgment passed by this Court reported in 2010 (3) JLJR 567 (T.R. Sharma Vs. Union of India), it has been held that the authority cannot
adopt dual standards while awarding punishment. In the said case also, the counsel for the respondents could not show before the court any material
to justify the two different orders of the appellate authority with regard to two persons and in such background, it was held that the authority had
adopted two standards in awarding punishment to two persons for the same and similar charge. Consequently, the order of punishment was set aside
and the authority was to consider the case of the petitioner afresh on the quantum of punishment and pass appropriate order in accordance with law
keeping in mind the order passed in the case of the co-delinquent.
27. In all the aforesaid three judgements, which have been cited by the petitioner, there were no material on record to show the reason for imposition
of different punishments to similarly placed persons and in the judgment reported in 2010 (3) JLJR 567 (supra), it has been recorded that the counsel
for the respondents could not show any material to justify the different orders of punishment to the similarly situated person.
28. In the present case, the punishment which has been imposed upon Bhola Ram could not have been imposed upon the petitioner as explained above
in view of the short service period which was left from the date of punishment order. Thus, there is apparent reasons for differential treatment of the
petitioner and Bhola Ram although they were similarly situated in the matter of their responsibilities, allegations in the chargesheet and findings in the
departmental enquiry but were not similarly situated in the matter of imposition of punishment on account of short remaining tenure of the petitioner
and therefore, there is neither any discrimination nor any arbitrariness in the matter of imposition of punishment upon the petitioner and Bhola Ram and
thus there is no violation of Article 14 of the Constitution of India.
29. In the present case, though in the impugned order of punishment, no reason has been cited for giving different punishment to petitioner and Bhola
Ram, but the learned counsel for the respondents has successfully pointed out that ex-facie the punishment which has been imposed upon Bhola Ram
could not have been imposed upon the petitioner. This Court also finds that the punishment as well as the payment of subsistence allowance to Bhola
Ram was subject to the result of the criminal case and accordingly, Bhola Ram could also be dismissed from service if convicted in the criminal case,
but so far as the petitioner is concerned, only the subsistence allowance was made subject to the criminal case apparently on account of remain short
service and thus, even if the petitioner would have been convicted in the criminal case after his retirement, he could not be dismissed from service.
Thus, the consequences of conviction in the criminal case was more serious upon Bhola Ram as compared to that of the petitioner.
30. This Court is of the considered view that the order of punishment of the petitioner does not call for any interference on the touchstone of Article
14 of the Constitution of India. The petitioner and Bhola Ram cannot be said to be identically placed in the matter of imposing punishment which
justifies different punishment. This Court is of the considered view that merely because the persons are identically situated, different punishment can
be imposed if the circumstances so require as in the present case where the punishment imposed upon Bhola Ram could not have been imposed upon
the petitioner. In view of the aforesaid apparent discerning reason for differential treatment between the petitioner and Bhola Ram and the risk and
consequences of conviction in the criminal case being more severe in the case of Bhola Ram as compared to the petitioner, the order of punishment
imposed upon the petitioner does not call for any interference on the ground of parity even though both of them stood on same footing regarding
allegations and findings in the department proceedings.
31. Accordingly, this writ petition is dismissed.
