THE ADMINISTRATOR UNION TERRITORY OF DADAR & NAGAR HAVELIversusGULABHIA M. LAD

                     [2010) 5 S.C.R. 309


 THE ADMINISTRATOR UNION TERRITORY OF DADAR &                     A
                 NAGAR HAVEL!
                               v.
                     GULABHIA M. LAD
            (Criminal Appeal No. 3933 of 2010)
                                                                  B
                       APRIL 28, 2010

       [R.V. RAVEENDRAN AND R.M. LODHA, JJ.]

     Service Law - Disciplinary proceedings - Punishment -
Imposition of - Different punishment to delinquents in a joint C
inquiry - Propriety of - Held: Different punishment is
permissible if the responsibilities and duties of co-delinquents
differ or where distinguishing features exist - Similarity of
charges is not determinative factor for imposition of
punishment - On facts, instant case does not make out a D
case of discrimination in inflicting punishment - Punishment
of removal imposed on the appellant-delinquent,
commensurates with the misconduct proved against him,

     Judicial Review - Scope of - In disciplinary matters - E
Held: In ex~rcise of power of judicial review, court cannot
interfer~ with discretion exercised by the disciplinary authority!
appe/l~te authority, with regard to imposition of punishment
unless such discretion suffers from illegality, or material
procedural irregularity or that would shock the conscience of
the court.                                                         F

      Disciplinary enquiry was initiated against respondent
 (Land Reforms Officers) along with two of his subordinate
,staff. After the joint enquiry, Inquiring Authority submitted
 its report to Disciplinary Authority. All the delinquents G
 were imposed with major penalty of removal from
 service. In departmental appeal, the punishment of
 removal of the respondent-delinquent was upheld, while
 the punishment of the two co-delinquents were modified
                              ~09                                 H
                                                            I

    31 O      SUPREME COURT REPORTS             [2010) 5 S.C.R.


A   viz. one was punished with compulsory retirement while
    the other was punished with reduction to lower stage of
    pay by five stages with cumulative effect.

        Respondent challenged the order before Centr~I
B   Administrative Tribunal. The Tribunal held that the awaefd
    of. different punishment to the respondent was
    discriminatory. Challenge to the order of the Tribunal was
    set aside by High Court. Hence the present appeal.

        Allowing the appeal, the Court
c
       HELD: 1.1. While exercising power of judicial review,
                        a
  the High Court or Tribunal cannot interfere with the
  discretion exercised 11by the Disciplinary Authority, and/or
  on appeal the Appell'Me Autbority with regard to the
D imposition of punishment unless such discretfun suffers
  from illegality or material procedural irregularity or that
  would shock the conscience of the Court/Tribunal. The
  exercise of discretion in imposition of punishment by the
  Disciplinary Authority or Appellate Authority is dependent
E on host of factors such as gravity -0f misconduct, past
  conauct, the nature of duties assigned to the delinquent,
  responsibility of the position that the delinquent holds,
  previous penalty, if any, and the discipline required to be
  maintained in the department or establishment he works.
F Ordinarily the court or a tribunal would not substitute its
  opinion on reappraisal of facts. [Para 13) [318-G-H; 319-
  A-B]

        B. C. Chaturvedi v. Union of India and Ors. (1995) 6 SCC
    749; Director General, RPF and Ors. v. Ch. Sai Babu (2003)
G   4 ·sec 331; Chairman and Managing Director, United
    Commercial Bank and Ors. v. P.C. Kakkar (2003) 4 SCC
    364; Union of.India and Anr. v. S.S. Ahluwalia (2007) 7 SCC
    257; State of Meghalaya and Ors. v. Mecken Singh N. Marak
    (2008) 7 sec 580, referred to.
H
  ADMINISTRATOR UNION TERRITORY OF DADAR &              311
        NAGAR HAVELI v. GULABHIA M. LAD

     1.2. In a matter of imposition of punishment where        A
joint disciplinary enquiry is held against more than one
delinquent, the same or similarity of charges is not
decisive but many factors as noticed above may be vital
in decision making. A single distinguishing feature in the
nature of duties or degree of responsibility may make          B
difference insofar as award of punishment is concerned.
To avoid multiplicity of proceedings and overlapping
adducing of evidence, a joint enquiry may be conducted
against all the delinquent officers but imposition of
different punishment on proved charges may not be              c
 impermissible if the responsibilities and duties of the co-
delinquents differ or where distinguishing features exist.
In such a case, there would not be any question of
selective or invidious discrimination. [Para 13) [319-C-E)

    Tata Engineering and Locomotive Co. Ltd. v_ Jitendra Pd.   D
Singh and Anr. (2001) 10 sec 530; State of UP. and Ors ..
v. Raj Pal Singh JT 2001 (Suppl. 1) SC 44, distinguished.

     1.3. The present case does not make out
discrimination in inflicting punishment. In the first place, E
the respondent and the two other delinquents may have
been found guilty in connection with the same incident.
but the charges against the respondent and the other two
delinquents cannot be said to be same or substantially
similar. Thus, there was variation in allegations of F
misconduct and all the three delinquents could not have
been put on par although joint enquiry was held and there
was common evidence. Secondly, the tribunal failed to
notice that respondent was holding an important position
and the co-delinquents were only his subordinates and G
they carried out his instructions. Therefore, the
respondent and the two co-delinquents cannot be said to
have been similarly placed. Thirdly, the tribunal
overlooked a very important aspect that even the
appellate authority has not treated the case of co- H
    312       SUPREME COURT REPORTS            (2010) 5 S.C.R.


A delinquents alike inasmuct:i as .in the departmental
  appeal, the J>Unishment of removal awarded td one was
  modified to that of compulsory retirement while the
  punishment awarded to the other was modified to
  reduction to lower stage of pay by five stages with
B cumulative effect. There was, thus, no similarity in award
  of punishment to the other two co-delinquents as well.
          I
  [Para 13-15] [319-E-F; 320-8-D]

       1.4. The respondent being the Land Reforms Officer
C was the authorized officer under the Regulations for
  grant of occupancy rights and for illegal grant of
  occupancy rights in respect of Government lands, it was
  he who was squarely responsible. On the facts found
  and conclusions recorded in the enquiry report, the
  punishment of removal cannot be said to be not
D commensurate with the misconduct proved against the
  r:espondent and the High Court ought to have interfered
  with the order of the Tribunal. [Para 17] [321-E-F]
                        Case Law Reference:
E    (2001 > 1o sec 530        distinguished       ·Para 6
    JT 2001 (Suppl. 1) SC 44 distinguished          Para 6
     (1995) s sec 749          referred to          Para 8
F    (2003) 4 sec 331          referred to          Para 9
     (2003) 4 sec 364          referred to          Para 10
     (2007) 1 sec 257          referred to          Para 11
     (2008) 1 sec 580          referred to          Para 12
G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3933 of 2010.

      From the Judgment & Order dated 1.12.2008 of the High
H Court of Bombay in W.P. No. 5219 of 2008.
  ADMINISTRATOR UNION TERRITORY OF DADAR &                    313
        NAGAR HAVELI V. GULABHIA M. LAD-
    P.P. Malhotra, ASG, Krishan Kumar, Rekha Pandey, D.S.             A
Mahra and Sudarshan Singh Rawat for the Appellant.

    Asha Gopalan Nair for the Respondent.

    The Judgment of the Court was delivered by
                                                                      B
     R.M. LODHA, J. 1. Leave granted.

     2. The question that calls to be determined in this appeal
by special leave is : on consideration of the report of the
Inquiring Authority wherein misconduct of the respondent has          C
been proved and after following the prescribed procedure, the
Disciplinary Authority ordered his removal from service and the
departmental appeal against that order has been dismissed by
the Appellate Authority, whether Central Administrative Tribunal
was justified, on the facts found, in interfering with the order of
punishment on the ground that co·delinquents were awarded             D
lesser punishment in departmental appeals and directing the
appellant to reconsider the whole matter and give the
respondent the same treatment which has been meted out to
the co-delinquents.
                                                                      E
      3. Gulabhia M. Lad - respondent - while functioning as
Land Reforms Officer-I , Dadra and Nagar Haveli for the
period October 14, 1997 to April 27, 1998 allegedly granted
occupancy rights of the government land situate at village Athola
to five persons with ulterior motive by getting the survey            F
conducted from R.K. Kapdi, Surveyor and without following the
procedure prescribed under the Dadra and Nagar Haveli Land
Reforms Regulation, 1971 (for short, 'Regulations'). A
disciplinary enquiry was initiated against him under Rule 14 of
Central Civil Services (Classification, Control and Appeal)           G
Rules, 1965. He was charged for misconduct under Rule 3 of
Central Civil Services (Conduct) Rules, 1964. Two other
employees, R.K. Kapdi, Surveyor and P.N. Vinod, Patel Talati
were also subjected to disciplinary enquiry in connection with
illegal grant of occupancy rights of government land to those
                                                                      H
    314       SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A five persons. R.K. Kapdi was charged for having connived with
  the respondent,and prepared a map by not following the
  procedure and without
                   ;/
                          verifying the documentary evidence as
  required under the Regulations and in assigning new plot
  numbers without any authority in flagrant violation of law. Insofar
B as P.N. Vinod was concerned, he was charged for having
  connived with the respondent and prepared the statement on
  oath of each of the applicants in his own handwriting in the
  absence of the applicants and thereby abusing his official
  position as Patel Talati.
c       4. A joint enquiry was conducted against the respondent
  and two other delinquents, namely, R.K. Kapdi and P.N. Vinod.
  The three delinquents submitted their defence separately and
  denied any misconduct on their part. The Inquiring Authority, on
  consideration of the written statement of defence; evidence
D produced in the course of the inquiry and after hearing the
  Presenting Officer and the delinquents recorded its opinion that
  charges were proved and submitted its report to the
  Disciplinary Authority. The Disciplinary Authority (Administrator,
  Daman & Diu and Dadra and Nagar Haveli) served enquiry
E report upon respondent and after calling for explanation,
  imposed a major penalty of his removal from service vide order
  dated April 23, 2004. For the other two delinquents, the
  Disciplinary Authority was the Commissioner/Secretary
  (Finance), Daman & Diu and Dadra and Nagar Haveli and the
F said Disciplinary Authority,after serving the enquiry report and
  calling for their explanation, orcfered their removal from service
  by two separate orders.

       5. The respondent filed the departmental appeal against
  the order of punishment dated April 23, 2004 before the
G Appellate Authority but the said appeal was dismissed on
  March 8, 2006. Insofar as the other two delinquents are
  concerned, their departmental appeals were partly allowed. The
  punishment of removal awarded to R.K. Kapdi was modified
  to that of compulsory retirement with effect from April 23, 2004
H
      ADMINISTRATOR UNION TERRITORY OF DADAR &               315
     NAGAR HAVELI v. GULABHIA M. LAD [R.M. LODHA. J.]

by the Appellate Authority while the punishment awarded to          A
P.N. Vinod was modified to reduction to lower stage of pay by
five stages with cumulative effect.

     6. The order of punishment dated April 23, 2004 which
was confirmed in departmental appeal by the Appellate Authority B
vide order dated March 8, 2006 came to be challenged by the
respondent before the Central Administrative Tribunal, Bombay
Bench at Mumbai (for short, 'Tribunal') on diverse grounds. The
Tribunal accepted the argument of the respondent that he has
been discriminated in the matter of imposition of punishment. C
The Tribunal vide its order dated June 22, 2007 allowed the
original application and held that similarly placed persons have
been treated differently and the action of the present appellant
in awarding differential punishment to the respondent by
singling him out for the extreme punishment of removal could
not be sustained. In this regard, the Tribunal relied upon two D
decisions of this Court, namely, (1) Tata Engineering &
Locomotive Co. Ltd. v. Jitendra Pd. Singh and Another1 and
(2) State of UP. and Others. v. Raj Pal Singh 2 •

      7. The present appellant challenged the order of the          E
Tribunal before Bombay High Court by filing a writ petition but
that was dismissed on December 1, 2008. The High Court held
that as the authorities did not challenge the orders passed by
ttie Appellate Authority in respect of co-delinquents, the order
of the Tribunal did not call for any interferencf'                  F

      8. The scope of judicial review ih disciplinary matters has
come up for consideration before this Court time and again. It
is worthwhile to refer to some of these decisions. In the case
of B. C. Chaturvedi v. Union of India and Others3 this Court
held:                                                               G

        "18. A review of the above legal position would establish
1.    (2001) 10 SGC 530.
2.    JT 2001 (Suppl. 1) SC 44.
3.    (1995) a sec 749.                                             H
    316         SUPREME COURT REPORTS                  [2010] 5 S. C.R.


A         that the disciplinary authority, and on appeal the appellate
          authority, being fact-finding authorities have exclusive
          power to consider the evidence with a view to maintain
          discipline. They are invested with the discretion to impose
          appropriate punishment keeping in view the magnitude or
B        ·gravity of the misconduct. The High Court/Tribunal, while
          exercising the power of judicial review, cannot normally
          substitute its own conclusion on penalty and impose some
          other penalty. If the punishment impos.ed by the disciplinary
          authority or the appellate ·authority shocks the conscience
c         of the High Court/Tribunal, it would appropriately mould the
          relief, either directing the disciplinary/appellate authority to
          reconsider the penalty imposed, or to shorten the litigation,
          it may itself, in exceptional and rare cases, impose
          appropriate punishment with cogent reasons in support
          thereof'.
D
         9. In Director General, RPF and Others v. Ch. Sai Babu4,
    this Court stated the legal position thus :

          "6 ..... Normally, the punishment imposed by a disciplinary
E         authority should not be disturbed by the High Court or a
          tribunal except in appropriate cases that too only after
          reaching a conclusion that the punishment imposed is
          grossly or shockingly disproportionate, after examining all
          the relevant factors including the nature of charges proved
F         against, the past conduct, penalty imposed earlier, the
          nature of duties assigned having due regard to their
          sensitiveness, exactness expected of and discipline
          required to be maintained, and the department/
          establishment in which the delinquent person concerned
          works."
G
        10. In the case of Chairman and Managing Director,
    United Commercial Bank and Others v. P. C. Kakkar6, this
    Court on review of long line of cases and the principles of
    4.   (2003) 4 sec 431.
H   5.   (2003) 4 sec 364.
  ADMINISTRATOR UNION TERRITORY OF DADAR & 317
 NAGAR HAVELI v. GULABHIA M. LAD [R.M. LODHA, J.]
judicial review of administrative action under English law A
summarized the legal position in the following words :

    "11. The common thread running through in all these
    decisions is that the court should not interfere with the
    administrator's decision unless it was illogical or suffers
                                                                  8
    from procedural impropriety or was shocking to the
    conscience of the court, in the sense that it was in defiance
    of logic qr moral standards. In view of what has been stated
    in Wednesbury case [(1947) 2 All ER 680 (CA)] the court
    would not go into the correctness of the choice made by
    the administrator open to him and the court should not C
    substitute its decision to that of the administrator. The
    scope of judicial review is limited to the deficiency in
    decision-making process and not the decision.

    12. To put it differently, unless the punishment imposed by D
    the disciplinary authority or the Appellate AuthoritY shocks
    the conscience of the court/tribunal, there is no scope for
    interference. Further, to shorten litigation it may, in
    exceptional and rare cases, impose appropriate
    punishment by recording cogent reasons in support thereof. E
    In the normal course if the punishment imposed is
    shockingly disproportionate it would· be appropriate to
    direct the disciplinary authority or the Appellate Authority
    to reconsider the penalty imposed.

    13. In the case at hand the High Court did not record any F
    reason as to how and why it found the punishment
    shockingly disproportionate. Even there is no discussion
    on this aspect. The only discernible reason was the
    punishment awarded in M.L. Keshwani case. As was
    observed by this Court in Balbir Chand v. Food Corpn. of G
    India Ltd. [(1997) 3SCC 371] even if a co-delinquent is
    given lesser punishment it cannot be a ground for
    interference. Even such a plea was not available to be given
    credence as the allegations were contextually different".
                                                                 H
    318          SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A       11. In Union of India and Another v. S.S. Ahluwalia6 , ;this
    Court reiterated the legal position as follows :

          "8 ........ The scope of judicial review in the matter of
          imposition of penalty as a result of disciplinary proceedings
8         is vecy-#mited. The court can interfere with the punishment
          only if it finds the same to be shockingly disproportionate
          to the charges found to be proved ..... ".

        12. In State of Megha/aya and Others v. Mecken Singh
    N. Marak7 this Court stated :
c
          "14. In the matter of imposition of sentence, the scope for
          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
D         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
E
          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 as
F         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."

G       13. The legal position is fairly well settled that while
    exercising power of judicial review, the High Court or a Tribunal
    cannot interfere with the discretion exercised by the Disciplinary
    Authority, and/or on appeal the Appellate Authority with regard
    a.   (2007) 7 sec 257.
H   7.   (2008) 5 sec 580.
  ADMINISTRATOR UNION TERRITORY OF DADAR & 319
 NAGAR HAVELI v. GULABHIA M. LAD [R.M. LODHA, J.]
to the imposition of punishment unless such discretion suffers        A
from illegality or material procedural irregularity or that would
shock the conscience of the Court/Tribunal. The exercise of
discretion in imposition of punishment by the Disciplinary
Authority or Appellate Authority is dependent on host of factors
such as gravity of misconduct, past conduct, the nature of duties     B
assigned to the delinquent, responsibility of the position that the
delinquent holds, previous penalty, if any, and the discipline
required to be maintained in the department or establishment
he works. Ordinarily the Court or a Tribunal would not substitute
its opinion on reappraisal of facts. In a matter of imposition of     c
punishment where joint disciplinary enquiry is held against more
than one delinquent, the same or similarity of charges is not
decisive but many factors as noticed above may be vital in
decision making. A single distinguishing feature in the nature
of duties or degree of responsibility may make difference
                                                                      0
insofar as award of punishment is concerned. To avoid
multip~icity of proceedings and overlapping adducing of
evidence, a joint enquiry may be conducted against all the
delinquent officers but imposition of different punishment on
proved charges may not be impermissible if the responsibilities
and duties of the co-delinquents differ or where distinguishing       E
features exist. In such a case, there would not be any question
of selective or invidious discrimination. Does the present case
make out discrimination in inflicting punishment? We do not
think so. In the first place, the respondent and the two other
delinquents may have been found guilty in connection with the         F
same incident, i.e. illegal grant of occupancy rights in respect
of government land to five persons but the charges against the
respondent and the other two delinquents cannot be said to be
same or substantially similar. The substance of the charge
against the respondent was that as a Land Reforms Officer-I,          G
he granted occupancy rights to the government land to five
persons with ulterior motive by getting the survey conducted
from co-delinquent R.K. Kapdi, Surveyor and without following
the procedure prescribed under the Regulations. On the other
hand, the main charge against R.K. Kapdi was that he prepared         H
    320       SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A  a map by not following the procedure and without verifying the
   documentary evidence as was required under the Regulations
   and assigning new plot numbers without any authority in flagrant
   violation of law. As regards, P.N. Vinod, he was principally
   charged for having prepared the statement on oath of each of
B ·the applicants in his own handwriting in the absence of the
   applicants and thereby abusing his official position as Patel
   Talati. Thus, there was variation in allegations of misconduct
   and all the three delinquents could not have been put on par
   although joint enquiry was held and there was common
c  evidence.

         14. Secondly, the Tribunal failed to notice that respondent
    was holding an important position as Land Reforms Officer.
    during the relevant period having been conferred with various
    powers and duties under the Regulations. As a Land Reforms
D   Officer, the respondent possessed the official authority for grant
    of occupancy rights under the Regulations. The co-delinquents .
    were only his subordinates and they carried out his instrudio1ls.
    In the facts and circumstances, therefore, the respondent and ·
    the two co-delinquents cannot be said to have been similarly
E   placed.

          15. Thirdly, and more importantly, the Tribunal overlooked
    a very important aspect that even the Appellate Authority has
    not treated the case of co-delinquents viz., R.K. Kapdi and P.N.
F   Vinod alike inasmuch as in the departmental appeal the
    punishment of removal awarded to R.K. Kapdi was modified
    to that of compulsory retirement while the punishment awarded
    to P.N. Vinod was modified to reduction to lower stage of pay
    by five stages with cumulative effect. There was, thus, no
G   similarity in award of punishment to the other two co-delinquents
    as well.

         16. The Tribunal relied upon two decisions of this Court.
    In Tata Engineering & Locomotive Co. Ltd. 1, this Court found
    no justification to interfere with the order of the High Court that
H   recorded the following finding:
  ADMINISTRATOR UNION TERRITORY OF DADAR & 321
 NAGAR HAVEL! v. GULABHIA M. LAD [RM. LODHA. J.l
    "Since as many as three workmen on almost identical           A
    charges were found guilty of misconduct in connection with
    the same incident, though in separate proceedings, and
    one was punished with only one month's suspension, and
    the other was ultimately reinstated in view of the findings
    recorded by the Labour Court and affirmed by the High         B
    Court and the Supreme Court, it would be denial of justice
    to the appellant if he alone is singled out for punishment
    by way of dismissal from service."

We are afraid Tata Engineering & Locomotive Co. Ltd. 1 has
no application to the facts of the present case.                  C

      17. Similarly, the decision of this Court in Raj Pal Singh2
has no application to the present case. It was found therein that
the charges proved against the delinquents were same and
identical. No dissimilarity was found and, therefore, it was held D
that it was not open for the Disciplinary Authority to impose
different punishments for different delinquents. In the case in
hand, we have already noticed above that the charges against
respondent and co-delinquents were not exactly identical or
substantially similar. Moreover, the respondent being the Land E
Reforms Officer was the authorized officer under the
Regulations for grant of occupancy rights and for illegal grant
of occupancy rights in respect of government lands, it was he
who was squarely responsible. We have no hesitation in .
holding that on the facts found and conclusions recor~ed in the F
enquiry report, the punishment of remoyal cannot be said to be
not commensurate with the misconduct proved against the
respondent and the High Court ought to have interfered with the
order of the Tribunal.

    18. The result is that appeal is allowed, the order of the G
High Court dated December 1, 2008 and that of the Tribunal
dated June 22, 2007 are set aside. The parties shall bear their
own costs.

K.K.T.                                       Appeal allowed.      H