# Vinod Kumar Srivastava v. Secretary, Public Works Department and others

- **Citation:** (2012) 1 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-24
- **Case number:** Civil Misc. Writ Petition No. 45321 of 2008
- **Bench:** S. K. Singh, Pankaj Naqvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-srivastava-v-secretary-public-works-department-and-others-42150
- **Pages:** 5

## Headnote

Constitution of India , Article 226Punishment-allegation
against
three
persons-common
and
sameexhonorating
two
others-punishment
against
petitioner-held-discriminatorynot sustainable.

Held: Para 23

On
the
facts
and
totality
of
the
circumstances we are satisfied that the
respondents while awarding punishment
to the petitioner have failed to consider
the fact that charges against two other
employees were the same but they were
not
punished,
and
thus
have
discriminated against the petitioner by
inflicting a punishment and, therefore,
the order passed by the respondent no. 1
is liable to be quashed.
Case law discussed:
(2010) 5 SCC 783; (2007) 7 SCC 206

## Text

342 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2012

BEFORE
THE HON'BLE S. K. SINGH, J.
THE HON'BLE PANKAJ NAQVI, J.

Civil Misc. Writ Petition No. 45321 of 2008

Vinod Kumar Srivastava
 ...Petitioner
Versus
Secretary, Public Works Department and
others

 ...Respondents

Counsel for the Petitioner:
Sri Gyanendra Kumar Singh
Sri Vipin Sinha

Counsel for the Respondents:
C.S.C.

Constitution of India , Article 226Punishment-allegation
against
three
persons-common
and
sameexhonorating
two
others-punishment
against
petitioner-held-discriminatorynot sustainable.

Held: Para 23

On
the
facts
and
totality
of
the
circumstances we are satisfied that the
respondents while awarding punishment
to the petitioner have failed to consider
the fact that charges against two other
employees were the same but they were
not
punished,
and
thus
have
discriminated against the petitioner by
inflicting a punishment and, therefore,
the order passed by the respondent no. 1
is liable to be quashed.
Case law discussed:
(2010) 5 SCC 783; (2007) 7 SCC 206

(Delivered by Hon'ble S. K. Singh, J.)

1. Heard Sri Vipin Sinha, learned
Advocate in support of this writ petition
and learned Standing Counsel.

2. By means of this writ petition,
petitioner has prayed for quashing of the
impugned order dated 23.5.2006 passed
by the respondent no. 1 (annexure no. 10)
by which in the disciplinary proceedings
punishment of (i) censor (ii) stoppage of
one increment with cumulative effect was
given.

3. For disposal of the writ petition,
facts in brief will suffice.

4. Petitioner was working as
Assistant Engineer in Public Works
Department in district Basti. In respect to
widening of Duddhi - Lumbini - Mani
Road on the charge of use of sub standard
material, when in the night of 9.10.2001 a
visit of the Minister concerned took place,
some shortcomings were pointed out,
upon which suspension of several officers
followed
and
it
is
thereafter
correspondence between higher officials
and disciplinary proceedings started,
resulting into the impugned action.

5. Submission is that the enquiry in
the charge has not proceeded in the fair
manner
and
although
disciplinary
proceedings
proceeded
against
other
officers also but all have been exonerated
and the petitioner has been singled out for
ulterior motive.

6. It is further submitted that
departmental enquiry proceeded against
D. P. Roy, Assistant Engineer and Sunil
Kumar, Junior Engineer who were posted
along with the petitioner for the same
work and for the same charge but the
proceedings against D. P. Roy was finally
dropped and against Sunil Kumar also
nothing wrong was found and he was
1 All Vinod Kumar Srivastava V. Secretary, Public Works Department and others
343
exonerated and thus in an arbitrary
manner petitioner has been punished.

7. Submission is that charge of sub
standard
material
in
completion
of
Duddhi - Lumbini Road related to Km. 97
against other officers also noted above
who were associated with the same work
but as no material on merits of charge was
found against anyone, that has to apply
for the petitioner also.

8. It is further submitted that in
respect to two charges i.e. (i) at km. 97
level is not proper/lepan is not good (ii) at
km. 98 the portion of the road which was
widened is slightly low and painting is not
good, the enquiry officer himself has
found that second charge of the road
being slightly uneven is not established
and so far the first charge about "lepan not
being proper" some discrepancies were
found. Submission is that both aspects
were interlinked. As two rainy season
intervened after the initial work and no
maintenance grant was also given in two
years, the slight technical discrepancy as
pointed out and that too only against the
petitioner although, D. P. Roy, Assistant
Engineer
and
Sunil
Kumar,
Junior
Engineer were all at par cannot make the
petitioner
alone
responsible
and,
therefore, it is a case where for no
justification petitioner has been taken to
task.

9. Submission is that the disciplinary
authority has not taken into account the
representation of the petitioner in relation
to the enquiry officer's report and the
ground that for same work at the same
place two other co-ordinate officers have
been exonerated and, therefore, it is just
an arbitrary and whimsical exercise which
needs to be quashed by this court.

10. In response to the aforesaid,
learned Standing Counsel submits that
various submissions in respect to facts as
advanced can be matter of examination
from the record and in no case petitioner
can take any advantage about the
exoneration
and
dropping
of
the
proceedings against D. P. Roy, Assistant
Engineer
and
Sunil
Kumar,
Junior
Engineer. As the enquiry officer has
found
one
charge
to
be
partially
established if the disciplinary authority
has
awarded
punishment
then
no
exception can be taken to it.

11. Before dealing with the
arguments on merits, we are to just notice
the order of this Court dated 2.2.2011
wherein the submission of the petitioner
side against adopting two standards in
respect to same charge, for the same
project, same length and period in which
construction of road was there was
noticed.

12. The order of this Court dated
2.2.2011 is hereby quoted -

"It is submitted by Sri Vipin Sinha
assisted by Sri Gynendra Kumar Singh for
the petitioner that in respect of first part of
both the charges, namely, unevenness on
the sides of the road, the enquiry officer
has
exonerated
the
petitioner.
The
petitioner has been found guilty only of
short-coming in painting of the road and
punished by awarding a censure entry and
withholding
of
one
increment,
permanently.

It is stated that inspection was made
in the night after two years of completion
of works. By that time the road was
affected by heavy rain in two seasons.
Along with the rejoinder affidavit, the
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
petitioner
has
annexed
orders
for
exonerating
Sri
D.P.
Rai
Assistant
Engineer and Sri Sunil Kumar Junior
Engineer, on the same charges and in
respect of same project, length and period
of the road.

Learned standing counsel prays for
and is allowed to weeks time to file
supplementary counter affidavit."

13. After the orders of this Court,
State has filed Supplementary Counter
Affidavit in April, 2011.

14. So far the averment/argument
from the petitioner side that against D. P.
Roy and Sunil Kumar the charge was the
same and it was in respect to same
project, about same length and period has
not been specifically denied and a vague
and evasive reply has been given just to
conclude, by taking shelter of the report
of the enquiry officer. The portion of the
averment as made in para 4, 16 and 21 of
the Rejoinder Affidavit are hereby quoted
for convenience -

"4............Sri D. P. Roy, Assistant
Engineer, who is also posted along with
the petitioner on the said Road and he is
also found guilty in the inspection made
by the Hon'ble Minister but there was no
any disciplinary proceedings initiated
against Sri D. P. Roy, which is apparent
from the order dated 8.3.2002.

16..........Firstly for the same charges
the petitioner's - Junior Engineer, namely,
Sunil Kumar was exonerated from the
said charge who is also posted on
kilometer 97 - 99 but the petitioner was
punished for the same without any rhyme
or reason.

21..............The case of the petitioner
as well as that of Sri D. P. Roy are the
same as the same charges were levelled
against the petitioner and Sri D. P. Roy
but Sri D. P. Roy has been exonerated
while the petitioner has been punished for
the same and the Junior Engineer - Sunil
Kumar who was also posted along with
the petitioner and he also has been
exonerated for the same charges and the
petitioner has been punished for the
same."

15. In the Supplementary Counter
Affidavit there is just general denial and
vague averment about proof of the
charges against the petitioner and about
no proof against others.

16. Petitioner has annexed the copy
of the order passed in case of Sunil
Kumar and at the same time the order
passed in respect to D. P. Roy and copy of
the charges also which we will just notice
for the conclusion that the charges against
all the three are the same, for the same
project and for the same length/period of
the road.

17. Annexure no. 3 to the rejoinder
affidavit is the copy of the enquiry
officer's report in the matter of Sunil
Kumar which suggests about the charge
against him which is to the following
effect -

"KM. 97 ME LEPAN THIK NAHI
HAI. SATAH SAMTAL NAHI HAI"

18. The finding of the enquiry
officer is that on account of traffic
congestion the old road is found to be
damaged in sufficient length and at the
same time two rainy seasons intervened.
It has been further stated that no final
1 All Vinod Kumar Srivastava V. Secretary, Public Works Department and others
345
payment has yet been made and only
running payment has been made and the
contract is not yet complete.

19. There appears to be no dispute
about the fact, from the facts stated above
that in respect to the same project, same
length/period of the road all the three i.e.
the petitioner, D. P. Roy and Sunil Kumar
were together. There is further no dispute
that no maintenance grant was there for
about two years and two rainy seasons
intervened upon which slight damage, if
any, to the work in question can be duly
noticed. The work contract was still not
complete and only running payment was
made. In view of the circular issued by
the department itself (annexure no. 4 to
the
rejoinder
affidavit)
about
lepan/painting work of the road Junior
Engineer is responsible to the extent of
30% and the Assistant Engineer to the
extent of 15%. It appears to be a case
where after about two years of the initial
work the Minister concerned just visited
the site while going on the way and he
reported the matter to the competent
official, upon which impugned exercise
was
undertaken.
Another
Assistant
Engineer and another Junior Engineer
engaged with the petitioner were not
found at fault.

20. Above mentioned facts leads to a
situation that no action against two
officers has been taken, although in
different enquiries, in relation to the same
project, same site, same length, period of
the road nothing adverse by lapse of time
and for various other reasons so stated in
the
enquiry
officer's
report
dated
24.9.2004 (annexure no. 3 to rejoinder
affidavit), is found then why the petitioner
alone is to be punished. The Junior
Engineer has been exonerated on the
ground that nothing wrong on merit of
charge was found. Factum of lapse of two
years, two rainy seasons have intervened,
no maintenance grant being there and as
such it is a case where same factual
premises can apply to the petitioner also.
All these aspects were stated by the
petitioner in his representation (annexure
no. SA-2) but nothing has been taken into
account and the impugned order has been
passed.

21. At this stage we can refer certain
decisions of the Apex Court which deals
with the issue of imposing different
punishment for different delinquent if the
charges are the same and opinion has
been expressed that the charge being same
and identical in relation to one and the
same
incident
giving
of
different
punishment would be discriminatory. It
has been observed by the Apex Court in
the
case
of
(2007)
7
SCC
206
Bongaigaon Refinary & Petrochemicals
Ltd. and others Vs. Girish Chandra
Sarma :

"18. After going through the report
and the finding recorded by the Division
Bench of the High Court, we are of
opinion that in fact the Division Bench
correctly assessed the situation that the
respondent alone was made a scapegoat
whereas the decision by all three
Committees was unanimous decision by
all these members participating in the
negotiations and the price was finalised
accordingly. It is not the respondent alone
who can be held responsible when the
decision was taken by the Committees. If
the decision of the committee stinks, it
cannot be said that the respondent alone
stinks; it will be arbitrary. If all fish stink,
to pick one and say only it stinks is unfair
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
in the matter of unanimous decision of the
Committee."

22. In another decision given by the
Apex Court in the case of State of U. P.
and others Vs. Raj Pal Singh reported
in
(2010)
5
SCC
783,
following
observation has been made :

"5. Though, on principle the ratio in
aforesaid cases would ordinarily apply, but
in the case in hand, the High Court appears
to have considered the nature of charges
levelled against the five employees who
stood charged on account of the incident
that happened on the same day and then the
High Court came to the conclusion that
since the gravity of charges was the same, it
was not open for the disciplinary authority
to
impose
different
punishments
for
different delinquents. The reasoning given
by the High Court cannot be faulted with
since the State is not able to indicate as to
any difference in the delinquency of these
employees.

6. 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."

23. On the facts and totality of the
circumstances we are satisfied that the
respondents while awarding punishment to
the petitioner have failed to consider the fact
that charges against two other employees
were the same but they were not punished,
and thus have discriminated against the
petitioner by inflicting a punishment and,
therefore,
the
order
passed
by
the
respondent no. 1 is liable to be quashed.

24. For the reasons given above, this
writ petition succeeds and is allowed.

25. The impugned order dated
23.5.2006 passed by the respondent no. 1
(annexure no. 10) is hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2012

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc. Writ Petition No. 51274 of 2007

Harendra Panwar

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

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Seemant Singh
Sri Shailendra

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226cancellation
of
appointment-on
concealment of criminal case pendencyin
column
II
of
application
forrequirement of conviction in criminal
case-no requirement of disclosure of
registration
of
any
FIR-without
recording satisfaction for unsuited for
appointment-subsequent fair acquittalcancellation
of
appointment-held-not
proper.

Held: Para 16

From the aforesaid discussion, it clearly
appears that in the impugned order no