Page 1

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1334   OF  2013 [Arising out of SLP (Civil) No. 2070 of 2012]

Rajendra Yadav .. Appellant

Versus

State of M.P. & Others .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. Appellant, a Police Constable, while he was working in the  

police station Rahatgarh, District Sagar along with A.S.I. Lakhan  

Tiwari and Head Constable Jagdish Prasad Tiwari stated to have  

received  an  amount  of  Rs.3,000  for  not  implicating  certain  

persons  involved  in  Crime  No.  4  of  2002  charged  under  

Sections 341, 294, 323, 506(B), 34 IPC.  A complaint to that  

effect  was  filed  by  one  Kundan  Rajak,  a  resident  of  Village

Page 2

2

Sothia, PS Rahatgarh.  Acting on that complaint, the appellant  

was charge-sheeted, along with two others, vide proceedings  

dated  6.5.2002  by  the  Superintendant  of  Police,  Sagar.  The  

following are the charges levelled against the appellant:

(1)     He  demonstrated  gross  negligence  and  lack  of  

interest in discharge of his duty by not implicating all  

the persons involved in the crime.

(2)     He demonstrated misconduct by accepting Rs.3,000  

from the complainant Kundan Rajak for lodging a report  

in the police station.

3. Appellant filed a detailed reply to the charge-sheet by his  

letter dated NIL and denied all the allegations.

4. A detailed inquiry was conducted through the Additional  

Superintendant of Police, Sagar against the appellant and other  

two  persons  –  A.S.I.  Lakhan  Tiwari  and  H.C.  Jagdish  Prasad  

Yadav.   During the course of the inquiry, the charge against  

Lakhan Tiwari was found not proved, but his role was found to  

be  doubtful.   So  far  as  appellant  Rajendra  Prasad  Yadav  is  

concerned, it  was held that one of the charges could not be  

proved  for  want  of  evidence.   The  inquiry  report  dated

Page 3

3

8.9.2004,  so  far  as  the  appellant  is  concerned,  states  as  

follows:

“Against  the  delinquent  No.  2,  H.C.  1104  Rajendra Prasad, one of the charges imputed could not  be proved for want of evidence.  During the course of  departmental  inquiry,  the  inquiry  has  noted  that  the  charge No. 2 was also not proved from the statement of  prosecution witness and documents of the prosecution  but one cannot deny the participation of the delinquent  and his tacit approval.”

5. The  Superintendant  of  Police,  Sagar,  however,  vide  his  

proceedings  dated 26.3.2004,  disagreed with  the  remarks  of  

the Inquiry Officer and held that the charge No. 2 as against the  

appellant  was  found  to  be  proved.   Consequently,  a  

supplementary charge-sheet was also given to the appellant.  

Later, a final order was passed by the Deputy Inspector General  

of Police, Sagar stating as follows:

“With respect to the delinquent HC No. 1104 Rajendra  Yadav, the Inquiry Officer has stated vide his said letter  that the delinquent HC was present in the police station  during the report of the Crime No.  4/02.   As per the  evidence,  the  money  was  demanded  by  Ct.  Arjun  Pathak.   The  report  has  been  recorded  by  HC  1104  Rajendra Yadav whereas Rs.3,000/- was paid to Const.

Page 4

4

Arjun  Pathak.   Therefore,  with  regard  to  receiving  money, the participation of HC Rajendra Yadav and his  tacit approval are proved with respect to the charge No.  2.  At the same time, he could not exercise his control  over  his  subordinate.  The  money  was  demanded  by  Arjun Pathak and upon receipt of the money by Arjun  Pathak,  HC  1104  Rajendra  Yadav  lodged  the  report.  Therefore, I  am in disagreement with the view of the  Inquiry  Officer  given  in  the  inquiry  report  of  the  department  inquiry  that  the  charge  is  not  proved  against the delinquent HC Rajendra Prasad Yadav.   As  per  the  remark  of  the  Inquiry  Officer,  the  above  mentioned charge No. 2 imputed against HC No. 1104  Rajendra Prasad is found to be proved.”

6. On  the  basis  of  the  above  finding,  Lakhan  Tiwari  was  

demoted  for  three  years  from  the  post  of  A.S.I.  to  Head  

Constable.  But the appellant and Jagdish Prasad Tiwari were  

dismissed from service.

7. Aggrieved  by  the  same,  appellant  preferred  an  appeal  

before the Inspector General of Police (appellate authority), who  

dismissed the appeal vide his order dated 9.12.2004.

8. Appellant  then  filed  a  Writ  Petition  No.  10696  of  2007  

before  the  High  Court  of  Madhya  Pradesh,  Jabalpur  Bench,

Page 5

5

which was dismissed by the learned single Judge by his order  

dated 3.5.2007, against which a Writ Appeal No. 11 of 2007 was  

also preferred, which was also dismissed by the Division Bench  

vide its impugned judgment dated 6.9.2011.

9. Mr.  Rakesh  Khanna,  learned  counsel  appearing  for  the  

appellant,  submitted  that  since  both  the  charges  levelled  

against  the  appellant  were  not  proved  fully,  the  respondent  

Department  was  not  justified  in  dismissing  him  from  the  

service, which is grossly disproportionate to the gravity of the  

offence.  Further, it was pointed out that there is nothing on the  

record to show that the appellant had demanded or accepted  

the alleged sum of Rs.3,000 and it was proved in the inquiry  

that  it  was  Constable  Arjun  Pathak  who  had  demanded  the  

above mentioned amount and he was, even though, inflicted  

with  the  punishment  of  compulsory  retirement  was,  later,  

reinstated by imposing punishment of reduction of increment  

with cumulative effect  for  one year.   The inquiry has clearly  

established that it was Arjun Pathak who had demanded and  

accepted the illegal gratification from the complainant, but he  

has been given a lighter punishment while the appellant was  

imposed a harsher punishment, which is clearly arbitrary and

Page 6

6

discriminatory.  Learned counsel  placed considerable reliance  

on the judgment of this Court in  Anand Regional Coop. Oil  

Seedsgrowers’ Union Ltd. V. Shaileshkumr Harshadbhai   

Shah (2006)  6  SCC  548  and  claimed  parity,  if  not  fully  

exonerated.    

10. Shri  Arjun  Garg,  learned  counsel  appearing  for  the  

respondent State,  submitted that  there is  no illegality  in  the  

views expressed by the learned single Judge and the Division  

Bench calling for any interference.   Further, it was pointed out  

that since the appellant, being a member of a disciplined force,  

should  not  have  involved  in  such  an  incident  and  his  tacit  

approval could not be brushed aside because it had taken place  

in his presence.

11. 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  

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 appellants and other

Page 7

7

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, 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.  

  12. 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  

disproportionate,  i.e.,  lesser  punishment  for  serious  offences  

and stringent punishment for lesser offences.

Page 8

8

13. The  principle  stated  above  is  seen  applied  in  few  

judgments of this Court.  The earliest one is Director General  

of  Police  and  Others  v.  G.  Dasayan (1998)  2  SCC  407,  

wherein one Dasayan, a Police Constable, along with two other  

constables and one Head Constable were charged for the same  

acts of misconduct.  The Disciplinary Authority exonerated two  

other constables, but imposed the punishment of dismissal from  

service on Dasayan and that of compulsory retirement on Head  

Constable.   This Court, in order to meet the ends of justice,  

substituted the order of compulsory retirement in place of the  

order  of  dismissal  from  service  on  Dasayan,  applying  the  

principle of parity in punishment among co-delinquents.  This  

Court  held  that  it  may,  otherwise,  violate  Article  14  of  the  

Constitution of India.  In  Shaileshkumar Harshadbhai Shah  

case  (supra),  the  workman  was  dismissed  from  service  for  

proved  misconduct.   However,  few  other  workmen,  against  

whom there were identical allegations, were allowed to avail of  

the  benefit  of  voluntary  retirement  scheme.   In  such  

circumstances,  this  Court  directed that  the workman also  be  

treated  on  the  same  footing  and  be  given  the  benefit  of

Page 9

9

voluntary retirement from service from the month on which the  

others were given the benefit.

14. 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.

............................................J. (K. S. RADHAKRISHNAN)

............................................J. (DIPAK MISRA)

Page 10

10

New Delhi, February 13, 2013