# Gopal Kumar Mathur v. State of U.P. and another

- **Citation:** (2008) 2 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-11
- **Case number:** Civil Misc. Writ Petition No. 52599 of 2000
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-kumar-mathur-v-state-of-u-p-and-another-41135
- **Pages:** 6

## Headnote

Constitution of India, Article 226-Service
law-dismissal order-petitioner working
as executive engineer-expended excess
money than sanctioned-no allegation of
misappropriation or embezzlement of
public money or corruptive motive or any
loss caused to the Government-heldpunishment
of
dismissaldisproportionate-liable to be quashed.
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 20

In view of the above, in appropriate
cases, where the punishment is found to
be shocking, the Court in exercise of
limited power of judicial review, can also
interfere
with
the
quantum
of
punishment. In the instant case, there is
no whisper even of misappropriation or
embezzlement
of
public
money
or
corrupt motive and in fact no loss has
been incurred by the State and the
charge which stood proved against the
petitioner had been only to the extent of
spending the amount over and above the
sanctioned amount. We are of the
considered opinion that the punishment
of removal imposed upon the petitioner
is disproportionate to the delinquency
and thus liable to be quashed.
Case law discussed:
AIR 1975 SC 2025, (1997) 11 SCC 370, (2000)
7 SCC 517, AIR 2001 SC 930, JT 2001 (10) SC
12, AIR 2006 SC 2730, (2008) 1 SCC 115, AIR
1983 SC 454, AIR 1987 SC 2386, AIR 1994 SC
215, 1995 Suppl (3) SCC 519, (1996) 10 SCC
461, AIR 1996 SC 484, (1998) 9 SCC, 416,
(2004) 2 SCC 130, (2005) 7 SCC 338.

## Text

2 All] Gopal Kumar Mathur V. State of U.P. and another
485
Shankar Singh has not made any
complaint that his F.I.R. was not recorded
properly by S.O. P.S. Kamasin. He did
not move any application under Section
156(3) Cr.P.C. for lodging another F.I.R.
Investigation of the case registered at
crime
no.
206/2007
is
going
on.
Therefore, having regard to the facts and
circumstances of this case, the learned
Chief Judicial Magistrate, Banda had not
committed any illegality in rejecting the
application under Section 156(3) Cr.P.C.
moved by the application Awadhesh
Singh for lodging second F.I.R. regarding
the murder of his brother Kamlesh Singh
against the opposite parties no. 2 to 5.
Although, as held by this Court in the
case of Vipin Chaudhary and others Vs.
State of U.P. and others 2005 (51) ACC
533, second F.I.R. regarding the same
incident is not barred, but for the reasons
mentioned herein-above, in instant case,
second F.I.R. cannot be permitted to be
lodged, as the first F.I.R. of case crime
no.
206/2007
was
lodged
by
the
eyewitnesses of the incident of murder of
deceased Kamlesh Singh. The law laid
down by Hon'ble Apex Court in the case
of Vikram Singh and others Vs. State of
Maharashtra (supra) is not helpful in
instant case for the reasons mentioned
above.

8. Next submission made by learned
counsel for the applicant is that F.I.R. was
lodged on 26.11.2007, but no action has
been taken so far by the Investigating
Officer and hence, direction should be
issued
to
the
Investigating
Officer
concerned to make proper investigation.
This prayer of the applicant's counsel may
be accepted. The Hon'ble Apex Court in
the case of Sakiri Basu Vs. State of U.P.
and others (2008) 1 SCC (Cri) 440 has
held that under the provisions of Section
156(3)
Cr.P.C.,
the
Magistrate
has
implied
jurisdiction
to
monitor
the
investigation. Hence, direction can be
issued to the Chief Judicial Magistrate,
Banda to ensure proper investigation of
case crime no. 206 of 2007.

In the result, the application under
Section 482 Cr.P.C. is hereby rejected.
However the Chief Judicial Magistrate,
Banda is directed to issue necessary
directions to the Station Officer of Police
Station Kamasin (Banda) to make proper
investigation of case crime no. 206/07
under Section 302 I.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 52599 of 2000

Gopal Kumar Mathur

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.C. Mathur
Sri Rajeev Gupta
Sri. Ashok Khare

Counsel for the Respondents:
Sri. R.B. Pradhan
S.C.

Constitution of India, Article 226-Service
law-dismissal order-petitioner working
as executive engineer-expended excess
money than sanctioned-no allegation of
misappropriation or embezzlement of
public money or corruptive motive or any
loss caused to the Government-heldpunishment
of
dismissaldisproportionate-liable to be quashed.
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 20

In view of the above, in appropriate
cases, where the punishment is found to
be shocking, the Court in exercise of
limited power of judicial review, can also
interfere
with
the
quantum
of
punishment. In the instant case, there is
no whisper even of misappropriation or
embezzlement
of
public
money
or
corrupt motive and in fact no loss has
been incurred by the State and the
charge which stood proved against the
petitioner had been only to the extent of
spending the amount over and above the
sanctioned amount. We are of the
considered opinion that the punishment
of removal imposed upon the petitioner
is disproportionate to the delinquency
and thus liable to be quashed.
Case law discussed:
AIR 1975 SC 2025, (1997) 11 SCC 370, (2000)
7 SCC 517, AIR 2001 SC 930, JT 2001 (10) SC
12, AIR 2006 SC 2730, (2008) 1 SCC 115, AIR
1983 SC 454, AIR 1987 SC 2386, AIR 1994 SC
215, 1995 Suppl (3) SCC 519, (1996) 10 SCC
461, AIR 1996 SC 484, (1998) 9 SCC, 416,
(2004) 2 SCC 130, (2005) 7 SCC 338.

(Delivered by Hon'ble B.S. Chauhan, J.)

1. This writ petition has been flied
challenging the order dared 26.02.1988 by
which the petitioner has been removed
from service; the judgment and order
dated 08.02.2000 passed by the U.P.
Public
Service
Tribunal
(hereinafter
called the 'Tribunal') by which the claim
petition of the petitioner has been rejected
and also the order dated 05.09.2000 by
which the review application filed against
the order dated 05.09.2000 has been
rejected by the Tribunal.

2. The fact and circumstances giving
rise to this case are that the petitioner ,
while posted as Executive Engineer at
Allahabad, was served with a charge sheet
dated 31.01.997 containing following
three charges:

Charge No.1: He spent more than allotted
funds on the projects sanctioned by the
Government in different financial years
and, thus, has violated para 375 ** of
Financial Hand Book Vol.6 and is guilty
cf dereliction to duties in observing para
108 of the U.P. Budget Manual.
Charge No.2: He got the work done from
the contractors for a sum of Rs. 2.20
crores without .allocation of fund and
thereby 220 vouchers in respect to
aforesaid payment remained pending. He
has, thus, violated para 375 of, Financial
Hand Book Vol.6 and is guilty of
dereliction to duties in observing para 108
of the U.P. Budget Manual by getting the
work done from the contractors without
allocation of funds.
Charge No.3: For the financial years
1990-91 to 93-94, temporary imprest for a
total sum of Rs.506.24 lacs were opened
but have not been adjusted and still
adjustment of temporary imprest of Rs.
2,64,783.10 is pending and in view
thereof payment of labourers could not be
made and thereby temporary imprest have
been kept unadjusted. Non-payment of
wages to labourers and absence of any
demand for payment by the labourers
creates doubt on the genuinity of the work
makes integrity doubtful.

3. The petitioner submitted reply to
the aforesaid charges on 12.03.1997.
After conclusion of the enquiry, the
Inquiry Officer submitted the report
recording following findings on the
aforesaid charges:-

Charge No.1 has been found to be
proved partly to the extent of nonobservance of para 376 of Financial Hand
Book Vol.6, i.e. excess expenditure than
2 All] Gopal Kumar Mathur V. State of U.P. and another
487
the allotted funds on the work of Magh
mela, however, rest of the charge has not
been found proved.

Similarly, Charge No.2 has been
found proved as the payments were
stopped due to non-availability of funds.

In Charge No.3, only non-adjustment
of temporary imprest has been found
proved and rest of the charge has not been
found proved. Therefore, charge of lack
of integrity stands disproved.

4. Thereafter, a copy of the said
report was served upon the petitioner on
19.08.1997. The petitioner submitted his
reply to the enquiry report on 28.09.1997
and after considering the same, the order
of punishment dated 26.02.1998 was
passed by the Disciplinary Authority
removing the petitioner from service.
Being aggrieved, the petitioner preferred
claim petition before the Tribunal which
has been dismissed vide order dated
08.02.2000. Review application filed
against the said order has also been
dismissed vide order dated 05.09.2000.
Hence the present writ petition.

5. We have heard Shri Ashok Khare,
learned Senior Advocate for the petitioner
and Shri R.B. Pradhan, learned Standing
Counsel for the respondents.

6. Large number of submissions
have been made including that the enquiry
has not been conducted giving adherence
to the statutory provision or meeting the
requirement of principles of natural
justice. Copies of the documents were not
supplied to the petitioner etc, but the
Tribunal has considered all these aspects
and rejected the submissions in those
regards.

7. It is evident from the charge sheet
dated 31.01.1997 that except a part of
charge no. 3 there was not even a slightest
whisper
against
the
petitioner
for
misappropriation, embezzlement or misutilisation of public fund. The charges had
been only in respect of incurring
expenditure in anticipation as per the
demands raised by him for meeting the
requirement of various works and projects
under
him
and
thereby
incurring,
expenditure over and above the allotted
fund. It was recorded by the Inquiry
Officer that there was, nothing on record
to hold that his integrity could be
doubtful. The Inquiry Officer found the
charges partly proved.

8. The basic issue which has been
agitated before the Tribunal admittedly
had been that to the extent the charges
stood proved, the punishment awarded to
the
petitioner
was
disproportionate.
However
the
Tribunal
rejected
it
observing that the gravity of charges were
serious in nature warranting maximum
penalty
and
the
Tribunal
has
no
competence to substitute its punishment
over the punishment awarded by the
Disciplinary Authority as the -matter fell
exclusively with the domain of the
Competent Authority.

9. In the facts of this case admittedly
no charge of embezzlement, corruption or
even corrupt motive, mis-utilisation or
misappropriation had been levelled. A
part of charge no.3 had been raising
doubts about his integrity which could not
be proved at all. The charge, against the
petitioner had been mainly of incurring
the expenditure over and above the
sanctioned limit i.e. merely a technical
mis-conduct, whether the penalty of
removal from service can be held to be
488 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
proportionate and as to whether such
matter can be subject matter of judicial
review. inasmuch as on the quantum of
punishment.

10. In Municipal Committee,
Bahadurgarh Vs. Krishnan Blhari & Ors.,
AIR 1996 SC 1249, the Hon'ble Supreme
Court held as under:-

"In a case of such nature - indeed, in
cases involving corruption - there cannot
be any other punishment than dismissal.
Any sympathy shown in such cases is
totally uncalled i for and opposed to
public
interest.
The
amount
misappropriated may be small or large; it
is the act of misappropriation that is
relevant."

11. Similar view has been reiterated
in Ruston & Hornsby (I) Ltd. Vs. T.B..
Kadam, AIR 1975 SC 2025; U.P. State
Road Transport Corporation Vs. Basudeo
Chaudhary & Anr, (1997) 11 SCC 370;
Janatha Bazar South Kanara Central
Cooperative Wholesale Stores Ltd. & Ors.
Vs.
Secretary,
Sahakari
Noukarara
Sangha & Ors., (2000) 7 SCC 517;
Karnataka
State
Road
Transport
Corporation Vs. B.S. Hullikatty, AIR
2001 SC 930; and Regional Manager,
R.S.R.T.C. Vs. Ghanshyam Sharma, JT
2001 (10) SC 12.

12.

In
Divisional
Controller
N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006
SC 2730, the Hon'ble Supreme Court held
that the punishment should always be
proportionate to the gravity of the
misconduct. However, in a case of
corruption,
the
only
punishment
is
dismissal.

13. Similar view has been reiterated
by the Hon'ble Supreme Court In
U.P.S.R.T.C. Vs. Vinod Kumar, (2008) 1
SCC 115.

14. In the instant case, as the charge
of corruption or corrupt motive had not
been proved and the proved misconduct
remained only to the extent of technical
misconduct we are of the considered
opinion that the Tribunal had erred in
observing that it was the case of imposing
the maximum penalty.

15. The second issue involved
herein as to what is the scope of judicial
review of quantum of punishment has
been considered by the Hon'ble Supreme
Court in a catena of judgments, and it was
held that if the punishment awarded is
disproportionate to the gravity of the
misconduct, it would be arbitrary, and
thus, would violate the mandate of Article
14 of the Constitution. (Vide Bhagat Ram
Vs State of Himachal Pradesh & Ors AIR
1983 SC 454; Ranjit Thakur Vs. Union of
India & Ors AIR 1987 SC 2386; Union of
India and Ors Vs. Giriraj Sharma, AIR
1994 SC 215; S.K. Giri Vs. Home
Secretary, Ministry of Home Affairs &
Ors, 1995 Suppl (3) SCC 519; Bishan
Singh and Ors. Vs. State of Punjab &
Anr, (1996) 10 SCC 461; and B.C.
Chaturvedi Vs. Union of India & Ors.,
AIR 1996 SC 484).

In Ranjeet Thakur (supra), the
Hon'ble Apex Court observed as under:-

"But the sentence has to suit the
offence and the offender. It should not
he vindictive or unduly harsh. It should
not be so disproportionate to the offence
as to shock the conscience and amount in
itself to conclusive evidence of bias. The
2 All] Gopal Kumar Mathur V. State of U.P. and another
489
doctrine of proportionality, as part of the
concept of judicial. review, would ensure
that even on the aspect, which is
otherwise, within the exclusive province
of the Court Martial If the decision of the
court even as to sentence is an outrageous
defiance of logic, then the sentence would
not be immune from correction. In the
present case, the punishment is so
stringently disproportionate as to call for
and justify Interference. It cannot be
allowed to remain uncorrected in judicial
review."

16. The said Judgment has been
approved and followed by the Apex Court
in Union of India & Ors. Vs. G.
Ganayutham, AIR 1997 SC 3387, and
after examining elaborately the concept of
reasonableness,
rationality
and
proportionality, the same view has been
reiterated.

17. In B.C Chaturvedi (supra), after
examining various earlier decisions of the
Supreme Court, the Court observed that in
exercise of the powers of judicial review
the Court cannot "normally" substitute its
own conclusion or penalty. However, if
the penalty imposed by an Authority
"shocks the conscience" of the Court, it
would appropriately. mould the relief
either
directing
the
Authority
to
reconsider the penalty imposed and in
exceptional and rare cases, in order to
shorten the litigation, itself, impose
appropriate
punishment
with
cogent
reasons
in
support
thereof.
While
examining the issue of proportionality,
Court can also consider the circumstances
under
which
the
misconduct
was
committed. In a given case, the prevailing
circumstances might have forced him to
do so though he had no intention to do so.
(Vide Giriraj Sharma (supra). The Court
may further examine the effect, if order is
set aside or substituted by some other
penalty.

18. In G. Ganayutham (supra), the
Apex Court has considered the entire law
on subject and compared the Indian Law
with English, Australian and Canadian
Laws, and held that in case the Court
comes
to
the
conclusion
that
the
punishment awarded is disproportionate
or
the
Disciplinary
Authority
was
irrational in imposing the punishment, the
punishment cannot be quashed as even
then the matter has to be remitted back to
the
appropriate
authority
for
reconsideration and it is only in very rare
cases that the Court might- to shorten the
litigation-think of substituting its own
view as to the quantum of punishment in
place of punishment awarded by the
Competent Authority. In Aniltej Singh
Dhaliwal (supra); U.P.S.R.T.C. & Ors.
Vs. A.K. Parul, (1998) 9 SCC, 416; and
Teri Oat Estates (P) Ltd Vs. U.T.,
Chandigarh & Ors., (2004) 2 SCC 130,
the Apex Court has taken the same view.

19. In V. Ramana Vs. A.P.S.R.T.C.
& Ors., (2005) 7 SCC 338, the Hon'ble
Supreme Court reconsidered the whole
issue, compared the Indian Law With
English Law on judicial review and after
placing reliance on large number of
judgments, came to the conclusion that
every administrative order should be
rational and reasonable and the order
should not suffer from any arbitrariness.
The scope of judicial review as to the
quantum of punishment is permissible
only if it is found that it is not
commensurate with the gravity of the
charges and if the Court comes to the
conclusion that the scope of judicial
review as to quantum of punishment is
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
permissible only if it is found to be
"shocking to the conscious of the Court,
in the sense that it was in defiance of
logic or moral standards." In a normal
course, if the punishment imposed "is
shockingly disproportionate, it would be
appropriate to direct the Disciplinary
Authority to reconsider the penalty
imposed. However, in order to shorten the
litigation, it may, in exceptional and rare
cases, itself can impose appropriate
punishment by recording cogent reasons
in support thereof.

20. In view of the above, in
appropriate cases, where the punishment
is found to be shocking, the Court in
exercise of limited power of judicial
review, can also interfere with the
quantum of punishment. In the instant
case, there is no whisper even of
misappropriation or embezzlement of
public money or corrupt motive and in
fact no loss has been incurred by the State
and the charge which stood proved
against the petitioner had been only to the
extent of spending the amount over and
above the sanctioned amount. We are of
the
considered
opinion
that
the
punishment of removal imposed upon the
petitioner is disproportionate to the
delinquency and thus liable to be quashed.

21. At this stage Shri A.B. Pradhan,
learned Standing Counsel has suggested
that instead of substituting the order of
punishment, the judgment of the Tribunal
be set aside and the matter be remanded to
the State authorities to reconsider the
issue of punishment afresh.

22. In view thereof, we allow the
writ
petition,
quash
the
order
of
punishment dated 26.02.1998, set aside
the judgement and orders of the Tribunal
dated 08.02.2000 and 05.09.2000. The
matter is remanded to the respondent no.1
for passing a fresh order in view of the
observations made above, which should
be less than the punishment of removal
from service, within a period of three
months from the date of filing a certified
copy of this order before him.

23. Needless to say that the
petitioner shall be entitled for all
consequential benefits. Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.04.2008

BEFORE
THE HON'BLE S.S. KULSHERSTHA, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 1955 of 2008

Mohd. Shafi

...Appellant
Versus
State of U.P.

...Opposite party

Counsel for the Appellant:
Sri. Raghu Bans Sahai
Sri. Amrish sahai

Counsel for the Opp. Party:
A.G.A.

Indian Penal Code-section 304 B (2)-
imposition of fine alongwith punishment
of imprisonment-no provision of fine by
legislature-held-illegal-stayed-Registrar
General to inform the concerned Officer
for future action.

Held: Para 5 & 6

Although sentence of imprisonment can
be extended up to life imprisonment
under Section 304-B (2) I.P.C., but no
fine can be imposed as the legislature
has not prescribed imposition of fine
under this Section.