Page 1

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

(REPORTABLE)

   IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs…6142/2013 (Arising out of Special Leave Petition (Civil) No.10025 of 2012)

Lucknow K.Gramin Bank  (Now  Allahabad,U.P.Gramin Bank) & Anr. …..Appellant (s)

                         Vs.

Rajendra Singh            …..Respondent (s)

With   C.A.Nos. 6143 & 6144/2013 (@ SLP (C) Nos.11211 of 2012 & 11451 of  2012

J U D G M E N T

A.K.Sikri, J.

1. Leave granted.

2. These  appeals  arise  out  of  the  decision  dated  19th December  2011  

rendered  by  High  Court  of  Judicature  at  Allahabad,  whereby  three  Writ  

Petitions filed by the respondents in these appeals have been disposed of  

with certain directions.   

1

Page 2

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

-

3. Before we point out the directions of the High Court in the impugned  

judgment and the grievance of the appellant thereto, it would be proper to  

traverse the seminal facts which are largely undisputed.

4. The  appellant-Bank  had  issued  separate  charge-sheets  to  six  

employees leveling identical charges.  Three respondents before us in these  

appeals were the three employees out of those six employees to whom these  

charge-sheets were issued.  All the six employees, including the respondents  

herein, filed their replies to the charge-sheets denying the charges.

5. For  certain  unknown reasons,  the  appellant-Bank  initially  chose  to  

proceed and conduct the enquiry only against the respondents herein and  

appointed an enquiry officer.    After  conducting the enquiry,  the enquiry  

officer  submitted  his  enquiry  report,  returning  the  findings  that  charges  

leveled against the respondents stood proved.  After giving the opportunity  

to the respondents to file their response and objections to the enquiry report,  

the  Disciplinary  Authority  imposed  the  punishment  of  dismissal  from  

service  vide  order  dated  15th February  2008  in  respect  of  all  the  three  

respondents, though orders were passed separately in each case.  These -

2

Page 3

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

respondents filed departmental  appeals which were also dismissed by the  

Appellate Authority vide orders dated 28th April, 2008.   

6. Aggrieved by the orders of the Disciplinary Authority as well as the  

Appellate Authority, the respondents approached the High Court by way of  

Writ Petitions.

7. It so happened that though the other three employees had denied the  

charges and the enquiry officer was also appointed in their cases (of course  

after the finding of guilt was recorded by the enquiry officer in the case of  

the  respondents)  before  the  enquiry  officer,  the  said  three  employees  

admitted the charges and tendered unconditional apology.  They also gave  

undertaking that they would not commit any such misconduct in future.  The  

enquiry  officer  recording  this,  forwarded  his  report  to  the  Disciplinary  

Authority  and  keeping  in  view  that  those  employees  had  tendered  

unconditional apologies with the assurance, as aforesaid, all three of them  

were inflicted the penalty of reduction of his basic pay by one stage for one  

year  with  cumulative  effect”  under  Regulation  38(1)(b)(ii)  by  separate  

orders dated 25th June 2008, 26th June 2008 and 30th June 2008.  This is a -

3

Page 4

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

major  penalty  as  per  the  aforesaid  Regulations  though  in  the  impugned  

order, High Court has termed it as “minor punishment”

8. Be  that  as  it  may,  when  the  three  Writ  Petitions  filed  by  the  

respondents herein came up for hearing before the High Court, the counsel  

who  appeared  on  behalf  of  the  respondents  pointed  out  the  orders  of  

punishment passed by the Disciplinary Authority in the case of aforesaid  

three employees and made a statement that the respondents were also willing  

to tender unconditional apologies for their misconduct with assurance that  

they would not repeat the same and would not give any cause of grievance to  

the Bank in future.  The High Court directed the counsel for the Bank to  

seek instructions as to whether the Appellate Authority (which is the Board  

of  Directors  in  these  cases)  was  willing  to  reconsider  the  unconditional  

apology of the respondents and award the same punishment which had been  

awarded to other persons charged for the same misconduct.  Counsel for the  

Bank took the instructions and on the next date of hearing informed the High  

Court that he had received a letter from the Bank to the effect that since the  

Appellate Authority was the Board of Directors which had also decided their  

appeals  and  confirmed  the  order  of  punishment,  it  could  reconsider  the  

4

Page 5

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

matter only if the Court issues such a direction.  Taking note of the aforesaid  

-

instructions  which the appellant-Bank had given to  its  counsel,  the High  

Court  disposed  of  the  Writ  Petitions  by  setting  aside  the  order  of  the  

punishment passed by the Appellate Authority with the directions that these  

appeals  of  the  respondents  be  reconsidered.   However,  while  giving  the  

directions for reconsideration the High Court also specifically ordered that  

the Appellate Authority shall take a decision and award “minor punishment”  

as had been done in the case of other three employees.  Exact nature of this  

direction given by the High Court in the impugned order reads as under:

“The petitioners shall file before the appellate authority  the notarized affidavits, tendering unconditional apology in the  same terms as has been filed before this Court and the appellate  authority  shall  take  a  decision  and  pass  appropriate  orders  accordingly awarding minor punishments, as has been done in  the case of other office-bearers of the Bank’s Union.  This shall  be done in the first meeting of the Boards of Directors, which is  to take place hereinafter or in any case within next two months,  whichever is earlier.”

It  is  this specific direction to the Appellate Authority, which is the  

bone of contention.

5

Page 6

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

9. Mr. Dhruv Mehta, learned senior counsel for the Bank, submitted that  

once  the  matter  was  referred  back  to  the  Appellate  Authority  for  

reconsideration, it was to be left to the discretion of the Appellate Authority  

-

to take an appropriate view in the matter and it was not open to the Court to  

spell  out  and  suggest  the  exact  nature  of  penalty  which  the  Appellate  

Authority is supposed to pass.  His submission was that by issuing such a  

direction, the Court itself assumed the role of the Appellate Authority which  

was impermissible.  He further submitted that even when the charges leveled  

against  six  employees  were  identical,  the  circumstances  under  which the  

penalty was imposed on the other three employees were totally different than  

the circumstances of the three respondents herein.  In this behalf, he pointed  

out  that  whereas  the  said  three  employees  who  were  given  lesser  

punishment,  had  accepted  the  charges  on  the  very  first  day  before  the  

enquiry officer and tendered unconditional apology as well.  On the other  

hand, in so far as these respondents are concerned, they denied the charges  

even  in  the  enquiry  proceedings  which  led  to  conduct  full-fledged  

departmental enquiry.  Not only this, even after the findings of the enquiry  

6

Page 7

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

officer  the  respondents  adopted  the  same posture  of  denial  and took the  

matter further before the Appellate Authority.  Pointing out this distinction  

Mr.  Mehta’s  submission  was  that  case  of  the  respondents  could  not  be  

treated  at  par  with  other  three  officials  and  it  was  permissible  for  the  

Appellate Authority to consider these circumstances and take a decision to -

impose  penalty  at  variance  with  the  punishment  imposed  upon  those  

employees who had accepted the charges at the outset.  Mr. Mehta referred  

to the judgment of this Court  in the case of  Obettee (P) Ltd.  Vs.  Mohd.  

Shafiq Khan (2005) 8 SCC 46 wherein identical features, as prevailing in  

this  case,  were  held  as  distinctive  features  and  different  and  higher  

punishment was held to be justified in the following manner:

“On consideration of the rival stands one thing becomes  clear that Chunnu and Vakil stood on a different footing so far  as the respondent workman is concerned.  He had, unlike the  other two, continued to justify his action. That  was clearly a  distinctive feature which the High Court unfortunately failed to  properly  appreciate.  The  employer  accepted  to  choose  the  unqualified  apology  given  and  regrets  expressed  by  Chunnu  and Vakil. It cannot be said that the employer had discriminated  so  far  as  the  respondent  workman  is  concerned  because  as  noted  above  he  had  tried  to  justify  his  action  for  which  departmental proceedings were initiated.  It is not that Chunnu  and Vakil were totally exonerated. On the contrary, a letter of  warning dated 11.4.1984 was issued to them.

7

Page 8

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

In  Union  of  India  vs.  Parma  Nanda  the  Administrative Tribunal  had modified  the punishment  on the  ground  that  two  other  persons  were  let  off  with  minor  punishment. This Court held that when all the persons did not  stand  on  the  same  footing,  the  same  yardstick  cannot  be  applied.  Similar is the position in the present case.  Therefore,  the High Court’s order is clearly unsustainable and is set aside.”

-

10. Per contra Mr. Rajeev Singh, the learned counsel appearing for  

the respondent in one of these appeals argued that the circumstances of the  

two sets of cases were almost identical and therefore in the facts of this case,  

the directions of the High Court were perfectly in order.  He pointed out that  

the other three employees had also denied the charges in the first instance, in  

their  replies  to  the  charge  sheets  served  upon  them.  For  some  curious  

reasons the appellant-Bank did not hold any common enquiry even when the  

charges leveled in all six charge-sheets were identical. Instead the Bank first  

picked up only the respondents herein, and held the enquiry against them.  It  

is  only  after  in  the  enquiry  the  charges  were  established  against  the  

respondents and the punishment of dismissal was imposed on them, that the  

enquiry against the other three employees was commenced. At this stage,  

8

Page 9

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

knowing the fate of their cases, those three employees accepted the charges  

and tendered unconditional apologies.  The learned counsel argued that the  

Bank had given definite advantage to those three employees by deferring  

their enquiries enabling them to make up their mind after knowing the result  

in the case of the respondents.  He, thus, argued that it cannot be said that  

those  three  employees  had  accepted  the  charges  at  the  outset.   His  

submission was in such circumstances imposition of different and higher -

penalty  to  the  respondents  herein  would  clearly  amount  to  invidious  

discrimination, as held by this Court in Rajendra Yadav vs. State of M.P. &  

Ors. 2013 (2) SCALE 416.  In that case two employees were served with  

charge sheets who were involved in the same incident.  A person who had  

more serious role was inflicted comparatively a lighter punishment than the  

appellant  in  the  said  case.   This  was  held  to  be  violative  of  doctrine of  

Equality Principles enshrined under Article 14 of the Constitution of India.  

The discussion which ensued, while taking this view, reads as under:

“We have gone through the inquiry report placed before  us in respect of the appellant as well as Constable Arjun Pathak.  The inquiry  clearly  reveals  the  role  of  Arjun Pathak.  It  was  Arjun  Pathak  who  had  demanded  and  received  the  money,  though the facit  approval  of  the appellant  was proved in the  inquiry.  The  charge  leveled  against  Arjun  Pathak  was  more  

9

Page 10

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

serious  than  the  one  charged  against  the  appellant.   Both  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, I was he who had  demanded  and  received  the  money,  he  was  inflicted  comparatively  a  lighter  punishment.   At  the  same  time,  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.

We are of the view the principle laid down in the above  mentioned  judgments  also  would  apply  to  the  facts  of  the  present case. We have already indicated that the action of the  Disciplinary  Authority  imposing  a  comparatively  lighter  punishment to the co-delinquent Arjun Pathak and at the same  -

time, harsher punishment to the appellant cannot be permitted  in  law,  since  they  were  all  involved  in  the  same  incident.  Consequently,  we are inclined to allow the appeal  by setting  aside the punishment of dismissal from service imposed on the  appellant and order that he be reinstated in service forthwith.  Appellant is, therefore, to be re-instated from the date on which  Arjun  Pathak  was  re-instated  and  be  given  all  consequent  benefits  as  was  given to  Arjun Pathak.  Ordered accordingly.  However, there will be no order as to costs.”

         Learned counsel for the respondents made a fervent plea that the  

respondents herein were also entitled to the same treatment.   

11.   The question that falls for determination is as to whether the High Court  

is justified in giving such a mandamus or it should have referred the matter  

back to the Bank with the direction to take a fresh decision in the matter?

10

Page 11

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

12.   Indubitably,  the  well  ingrained  principle  of  law  is  that  it  is  the  

Disciplinary  Authority,  or  the  Appellate  Authority  in  appeal,  which is  to  

decide  the  nature  of  punishment  to  be  given  to  a  delinquent  employee  

keeping in view the seriousness of the misconduct committed by such an  

employee.  Courts cannot assume and usurp the function of the Disciplinary  

Authority.  In the matter of Apparel Export Promotion Council vs.   -   

A.K.Chopra  reported in 1999 (1) SCC 759 this principle was explained in  

the following manner:

“22 …….The  High  Court  in  our  opinion  fell  in  error  in  interfering with the punishment, which could be lawfully  imposed  by  the  departmental  authorities  on  the  respondent  for  his  proven misconduct.    …..The High  Court should not have substituted its own discretion for  that the authority. What punishment was required to be  imposed, in the facts and circumstances of the case, was  a matter which fell exclusively within the jurisdiction of  the  competent  authority  and  did  not  warrant  any  interference by the High Court.  The entire approach of  the High Court has been faulty. The impugned order of  the High Court cannot be sustained on this ground alone.  …..”

11

Page 12

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

Yet again, in the case of State of Meghalaya & Ors. Vs. Mecken Singh  

N.Marak  reported in 2008 (7)  SCC 580, this Court  reiterated the law by  

stating:

“14. In  the  matter  of  imposition  of  sentence,  the  scope  of  interference is very limited and restricted to exceptional  cases.  The  jurisdiction  of  the  High  Court,  to  interfere  with the quantum of punishment is limited and cannot be  exercised  without  sufficient  reasons.  The  High  Court,  although has jurisdiction in appropriate case, to consider  the question in regard to the quantum of punishment, but  it has a limited role to play. It is now well settled that the  High Courts, in exercise of powers under Article 226, do  not  interfere  with  the  quantum  of  punishment  unless  there exist sufficient reasons therefor. The punishment -

imposed by the disciplinary authority or the appellate authority  unless shocking to the conscience of the court, cannot be  subjected to judicial review. In the impugned order of the  High Court no reasons whatsoever have been indicated to  why  the  punishment  was  considered  disproportionate.  Failure to give reasons amounts to denial of justice. The  mere  statement  that  it  is  disproportionate   would  not  suffice.

15&16  xxxxxxxxxxxxxxxx

17. Even  in  cases  where  the  punishment  imposed  by  the  disciplinary  authority  is  found  to  be  shocking  to  the  conscience  of  the  court,  normally  the  disciplinary  authority or the appellate authority should be directed to  reconsider  the  question  of  imposition  of  penalty.  The  

12

Page 13

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

High Court in this case has not only interfered with the  punishment  imposed  by  the  disciplinary  authority  in  a  routine  manner  but  overstepped  its  jurisdiction  by  directing  the  appellate  authority  to  impose  any  other  punishment short of removal. By fettering the discretion  of  the  appellate  authority  to  impose  appropriate  punishment  for  serious  misconducts  committed  by  the  respondent,  the  High  Court  totally  misdirected  itself  while exercising jurisdiction under Article 226. Judged in  this background the conclusion of the Division Bench of  the High Court cannot be regarded as proper at all. The  High Court has interfered with the punishment imposed  by  the  competent  authority  in  a  casual  manner  and,  therefore, the appeal will have to be accepted.”

13. As is clear from the above that the Judicial Review of the quantum of  

punishment is available with a very limited scope.  It is only when the -

penalty imposed appears to be shocking disproportionate to the nature of  

misconduct that the Courts would frown upon. Even in such a case, after  

setting aside the penalty order, it is to be left to the disciplinary/Appellate  

Authority to take a decision afresh and it is not for the court to substitute its  

decision by prescribing the quantum of punishment.   In the present case,  

however,  we find that  the High Court  has,  on the one hand directed the  

appellate authority to take a decision and in the same breath, snatched the  

discretion by directing the Appellate Authority to pass a particular order of  

13

Page 14

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

punishment.   In  normal  course,  such  an  order  would  clearly  be  

unsustainable, having regard to the legal position outlined above.

14. The peculiar  feature,  however,  is  that  the  High Court  has  done so  

proceeding on the presumption that these three respondents are equally and  

identical placed as the other three employees who had admitted the charges,  

though this parity is not spelled out in the impugned order. Whether this  

approach of the High Court is tenable, looking into the facts of this case, is  

the moot question.

15. If there is a complete parity in the two sets of cases imposing different  

penalties would not be appropriate as inflicting of any/higher penalty in one  

-

case would be discriminatory and would amount to infraction of the doctrine  

of Equality enshrined in Article 14 of the Constitution of India. That is the  

ratio of Rajendra Yadav’s case, already taken note above.  On the other hand,  

if  there  is  some difference,  different  penalty can be meted out and what  

should be the quantum is to be left to the appellate authority.  However, such  

a penalty should consumerate with the gravity of misconduct and cannot be  

shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if  

14

Page 15

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

the nature of misconduct committed by the two sets of employees is same,  

the conduct  of  one set  of  employee accepting the guilt  and pleading for  

lenient  view  would  justify  lesser  punishment  to  them  than  the  other  

employees who remained adopted the mode of denial, with the result that  

charges stood proved ultimately in a full-fledged enquiry conducted against  

them.  In that event, higher penalty can be imposed upon such delinquent  

employees. It would follow that choosing to take a chance to contest the  

charges such employees thereafter cannot fall back and say that the penalty  

in their cases cannot be more than the penalty which is imposed upon those  

employees  who  accepted  the  charges  at  the  outset  by  tendering  

unconditional apology.

-

16. This, according to us, would be the harmonious reading of Obettee (P)  

Ltd. and Rajendra Yadav cases.

The principles discussed above can be summed up and summarized as  

follows:

15

Page 16

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

(a) When  charge(s)  of  misconduct  is  proved  in  an  enquiry  the  

quantum of punishment to be imposed in a particular case is  

essentially the domain of the departmental authorities;

(b) The  Courts  cannot  assume  the  function  of  

disciplinary/departmental authorities and to decide the quantum  

of  punishment  and  nature  of  penalty  to  be  awarded,  as  this  

function is exclusively within the jurisdiction of the competent  

authority;

(c)   Limited  judicial  review  is  available  to  interfere  with  the  

punishment imposed by the disciplinary authority, only in cases  

where such penalty is found to be shocking to the conscience of  

the Court;

-

(d) Even  in  such  a  case  when  the  punishment  is  set  aside   as  

shockingly  disproportionate  to  the  nature  of  charges  framed  

against  the   delinquent  employee,  the  appropriate  course  of  

action is to remit the matter back to the disciplinary authority or  

16

Page 17

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

the appellate authority with direction to pass appropriate order  

of  penalty.  The  Court  by  itself  cannot  mandate  as  to  what  

should be the penalty in such a case.

(e) The only exception to the  principle stated in para (d) above,  

would be  in those cases where the co-delinquent is awarded  

lesser punishment by the disciplinary authority even when the  

charges of misconduct was identical or the co-delinquent was  

foisted  with  more  serious  charges.   This  would  be  on  the  

Doctrine  of  Equality  when  it  is  found  that  the  concerned  

employee and the co-delinquent are equally placed.  However,  

there has to be a complete parity between the two, not only in  

respect of nature of charge but subsequent conduct as well after  

the service of charge sheet in the two cases.  If co-delinquent  

accepts  the  charges,  indicating  remorse  with  unqualified  

apology lesser punishment to him would be justifiable.

-

17. It is made clear that such a comparison is permissible only when the  

other employee(s) who is given lighter punishment was co-delinquent. Such  

17

Page 18

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

a comparison is not permissible by citing the cases of other employees, as  

precedents, in all together different departmental enquiries.

18. Applying these principles to  the facts  of  the present  case,  we may  

observe that, no doubt the charges in respect of two sets of employees were  

identical.  Though the other set of employee accepted the charges on the first  

day  of  enquiry,  a  factor  which  is  to  be  kept  in  mind,  that  even  those  

employees had denied the charges in the first instance and accepted these  

charges only in the departmental enquiry, that too after realizing that similar  

charges had been proved against the respondents herein in the departmental  

enquiry. Therefore, it was not a case where those employees had expressed  

the unconditional apology in the first instance.  This may be a mitigating  

circumstance for the appellants herein.   At the same time, we are of the  

opinion that all these aspects are to be considered by the appellate authority.  

The  High  Court  did  not  look  into  all  these  aspects  and  mandated  the  

appellate  authority  to  pass  orders  imposing  a  specific  penalty  only.  This  

direction  of  the  High  Court  is,  accordingly,  set  aside  and  the  matter  is  

remitted back to the appellate authority to take a decision imposing -

18

Page 19

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

appropriate penalty on the respondents herein.  We are confident that the  

mitigating circumstances pointed out  by the respondents herein would be  

given due consideration by the appellate authority, keeping in view the ratio  

of  Rajendra  Yadav’s  case  as  well.   It  would  be  open to  the  respondents  

herein to make representation in this behalf to the appellate authority on the  

basis of which the respondents want to contend that they should be given  

same treatment as meted out to other three employees.  Such a representation  

will be given 15 days from today.  Appellate Authority shall pass appropriate  

orders deciding the appeals afresh within 2 months from today.   

19. Appeals are allowed in the aforesaid terms.  No costs.

…………………….J. (Anil R. Dave)

…………………….J. (A.K.Sikri)

New Delhi, Dated:  July 29, 2013

19

Page 20

C.A. Nos.6142/ 2013 @ SLP (C) No. 10025 of 2012

20