WRIT PETITION 8333 of 2010 on 22 November 2001

Conclusion

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO

REVIEW APPLICATION No.884 of 2016

IN/AND

WRIT PETITION No.8333 of 2010

COMMON ORDER:(per the Hon’ble Sri Justice A.V. Sesha Sai)

Review Application No.884 of 2016 is an application, filed under Order XLVII Rule 1 r/w Section 114 of CPC, seeking review of the order, dated 04.09.2014, passed by the Division Bench of the Composite High Court in W.P.No.8333 of 2010.

2. Heard Sri C.Subodh, learned counsel for the review petitioner (writ petitioner), and Smt.S.Siva Kumari, learned Additional Standing Counsel for Union of India, appearing for the respondents.

3. Petitioner in the Writ Petition is the review petitioner. He approached the Central Administrative Tribunal, Hyderabad Bench (hereinafter referred to as ‘Tribunal’) by filing O.A.No.6 of 2006, assailing the order of dismissal passed by the second respondent, as modified by the first respondent-appellate authority vide order, dated 06.09.2005. The disciplinary authority, vide Memorandum No.PES/7401/MVVS/CM-II, dated 24.03.2003, framed the following Article of Charge against the petitioner herein:

“Article-1: That the said Sri M.V.V. Satyanarayana, CIN No.81932-K, C.No.11, Fabrication Department, Naval Dockyard, Visakhapatnam while serving as Chargeman II aided and abetted by Sri S.Varahalu, CMD II, CIN No.82570-K and TS Prabhakar Rao. T.No.19018, Fork Lift Operator, C.No.89, YU Department did on 22 Nov, 2001 attempt to commit theft of Brass and Alluminium scrap weighing approximately 580 Kgs and valued approximately Rs.88,520/- for personal gain. CIN No.81932-K, C.No.11, Fabrication Department, Naval Dockyard, Visakhapatnam while serving as Chargeman II aided and abetted by Sri S.Varahalu, CMD II, CIN No.82570-K and TS Prabhakar Rao. T.No.19018, Fork Lift Operator, C.No.89, YU Department did on 22 Nov, 2001 attempt to commit theft of Brass and Alluminium scrap weighing approximately 580 Kgs and valued approximately Rs.88,520/- for personal gain.

By the above said act Sri M.V. V.Satyanarayana CM II, CIN 81932-K exhibited lack of integrity and behaved in a manner unbecoming of a Government servant and thereby violated Rule 3 (1) (i) and (iii) of CCS (Conduct) Rules, 1964”.

4. After holding regular enquiry against the petitioner, the second respondent/disciplinary authority, vide proceedings in PES/7401/MVVS/CM-II, dated 05.10.2004, inflicted on the petitioner the penalty of dismissal from service. Against the said order of punishment, petitioner filed appeal before the first respondent, and, vide proceedings No.CE/9400/106, dated 06.09.2005, first respondent-appellate authority modified the order of punishment of dismissal from service as one of compulsory retirement. Assailing the validity and legal sustainability of the said order, passed by the disciplinary and appellate authorities, petitioner herein approached the Tribunal by way of filing O.A.No.6 of 2006. The Tribunal, vide order, dated 01.10.2007, dismissed the said Original Application. Against the said order of the Tribunal, petitioner herein approached this Court, by way of filing W.P.No.8333 of 2010, and this Court, on 04.09.2014, dismissed the said Writ Petition, upholding the order passed by the Tribunal. In the present Review Application, filed under Order XLVII Rule 1 r/w Section 114 of CPC, petitioner is seeking review of the said order, principally contending that the order passed by this Court needs review on the ground that the judgment of the Honourable Apex Court, in State of Uttar Pradesh and others v. Raj Pal Singh[1], was not taken into consideration. It is further submitted by the learned counsel that similarly situated individual, namely Sri T.S.Prabhakar Rao was inflicted with the punishment of reduction of pay by three lower stages in the existing pay scale for a period of two years.

5. On the other hand, it is strenuously contended by the learned Standing Counsel that the order under review cannot be faulted and the judgment of the Honourable Apex Court, referred supra by the learned counsel for the petitioner, has no relevance to the facts and circumstances of the case on hand.

6. In order to consider the above said contentions, it may be appropriate to refer to the charges framed against the petitioner and Sri T.S.Prabhakar Rao.

7. Article of Charge framed against the petitioner is as under:

“Article-1: That the said Sri M.V.V. Satyanarayana, CIN No.81932-K, C.No.11, Fabrication Department, Naval Dockyard, Visakhapatnam while serving as Chargeman II aided and abetted by Shri S.Varahalu, CMD II, CIN No.82570-K and TS Prabhakar Rao. T.No.19018, Fork Lift Operator, C.No.89, YU Department did on 22 Nov, 2001 attempt to commit theft of Brass and Alluminium scrap weighing approximately 580 Kgs and valued approximately Rs.88,520/- for personal gain. By the above said act Sri M.V. V.Satyanarayana CM II, CIN 81932-K exhibited lack of integrity and behaved in a manner unbecoming of a Government servant and thereby violated Rule 3 (1) (i) and (iii) of CCS (Conduct) Rules, 1964”.

Article of Charge framed against Sri T.S.Prabhakar Rao is as under:

“Sri T.S.Prabhakar Rao, while serving as Skilled, T.No.19018, C.No.89, YU Department and functioning as Fork Lift Operator, Fork Lift No.9, did between 1200 and 1300 hrs aid and abet Sri M.V.V. Satyanarayana, CM II, CIN No.81932-K, C.No.11, Fabrication Department, Naval Dockyard, Visakhapatnam to commit theft of 580 Kgs of Brass and Alluminium scrap worth of Rs.88,520/- (rupees eighty eight thousand five hundred twenty only). He had loaded the scrap in IN 920 (Eicher) driven by S.Varahalu from N 17/18 Jetty under the supervision of Sri M.V.V.Satyanarayana CM II of Fabrication Department.

By the above a t, the said Sri T.S. Prabhakar Rao, SK, Fork Lift Operator, T.No.19018, C.No.89, Yard Utility Department, Naval Dockyard, Visakhapatnam exhibited lack of integrity and behaved in a manner unbecoming of Government servant and thereby violated Rule 3 (1) (i) and (iii) of CCS (Conduct) Rules, 1964”.

8. The order of punishment passed by the disciplinary authority against Sri T.S.Prabhakar Rao is also placed on record along with the Writ Petition as a material paper, which referred to the report of the Enquiry Officer, dated 29.07.2004, wherein the Enquiry Officer opined and recorded a finding that the charge for involvement of Sri T.S.Prabhakar Rao, in the attempt of theft along with Sri M.V.V.Satyanarayana-review petitioner, stood proved. It may also be appropriate to refer to the judgments of the Honourable Apex Court in the case of The Director General of Police and others v. G.Dasayan and Rajpal Singh’s case (first cited supra).

9. In the case of G.Dasayan (referred to supra), the Honourable Apex Court held as under:

“The third ground that the co- delinquents except the Head Constable were let off though the charges were identical, it is stated by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged along with the respondent, was compulsorily retired by the Disciplinary Authority.

Mr. Murlidhar, learned counsel appearing for the respondent, while agreeing with the contentions of the learned counsel for the appellants on the first two grounds, submitted that the order of dismissal at any rate cannot be sustained and if at all an order of compulsory retirement as was made in the case of the Head Constable, who was tried along with the respondent, has to be imposed We have perused the order of the Tribunal and the relevant documents. We find merit in the arguments of the learned counsel for the appellants. At the same time, we are of the view that as pointed out by the learned counsel for the respondent that a punishment of compulsory retirement in the case of the respondent as well would meet the ends of justice on the facts and circumstances of this case”

10. In the case of Rajpal Singh (first cited supra), the Honourable Apex Court held as under:

“It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established, to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution”.

11. It is very much evident from a reading of the above referred judgments of the Honourable Apex Court that when the charges are same and identical, the punishment should not be different. In the instant case, a perusal of the Articles of Charges framed against the petitioner and Sri T.S.Prabhakar Rao are identical and the Enquiry Officer also found involvement of Sri T.S.Prabhakar Rao along with the petitioner. When the disciplinary authority had chosen to inflict the punishment of reduction of rank to three lower stages for a period of two years in respect of Sri T.S.Prabhakar Rao, in the considered opinion of this Court, there is no justification on the part of the disciplinary authority and the appellate authority in inflicting higher punishment against the petitioner herein. It is also pertinent to note that, while ordering reduction by three lower stages in the existing pay scale for a period of two years against Sri T.S.Prabhakar Rao, the disciplinary authority also has ordered that he would not earn increments of pay during the period of reduction and the reduction would have the disentitlement of his future increments. In the considered opinion of this Court, the punishment inflicted on the review petitioner should be in the same lines when the charges being identical.

12. For the aforesaid reasons, review application is allowed, setting aside the order, dated 04.09.2014, passed by this Court in W.P.No.8333 of 2010 and, consequently, the said Writ Petition is also allowed, so also the order, dated 28.11.2003, in O.A.No.6 of 2006, setting aside the order of punishment, dated 05.10.2004, as confirmed in appeal vide order, dated 06.10.2005. However, it is open for the respondents herein to inflict the same punishment that was imposed against Sri T.S.Prabhakar Rao on the petitioner herein also.

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A.V.SESHA SAI, J

02[nd] March, 2020. Tsy

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R.RAGHUNANDAN RAO, J