'Parity Of Punishment': Gujarat High Court Reduces Deduction Of Pension From 100% To 25% Of Sub-Inspector Accused Of Aiding Escape Of Prisoner

The Petitioner-accused challenged the order of 2015 passed by the Respondent-State wherein the Petitioner's monthly pension was deducted 100%. The Petitioner also challenged the order where the Respondent-State had refused to reconsider the impugned order.

Justice AY Kogje noted that the Petitioner, a Police Sub-Inspector, was proceeded against departmentally for aiding an under-trial prisoner from escaping custody. The Petitioner challenged the impugned order on two grounds­­­­―there was no evidence that the Petitioner was involved in the offence and second, other accused personnel were also proceeded against and were inflicted penalty of Rs. 5,000 whereas the Petitioner faced an order of dismissal.

It was submitted that the Petitioner was in contact with the prisoner because he was unwell before he escaped from the hospital. He was also in touch with the doctor and the jailer. Reliance was placed on Anand Regional Coop. Oil Seeds growers' Union Limited v/s. Shaileshkumar Harshadbhai Shah to insist on parity in punishment.

Significantly, no explanation was offered as to why the Petitioner was in touch with the friend of the under-trial prisoner during the proximate period.

The AGP opposed the petition on the ground that the allegations against the Petitioner were grave and he had played a key role in creating a reason for the prisoner to be shifted to the hospital and then escape from there. The departmental inquiry was conducted with due process and it was found that the Petitioner was indeed guilty. The Government invoked Rule 24 of the Gujarat Civil Service (Pension) Rules 2002 to pass the order of withholding of 100% pension. Hence, no interference from the High Court was warranted when there were no violations of principles of natural justice.

It was noted by Justice Kogje that the Petitioner had abetted the escape of the prisoner and consequently, committed serious misconduct and negligence in duty. After the superannuation of the Petitioner, the departmental inquiry report was sent to the Home Department for finalization and the punishment was determined. Affirming that the parameters of preponderance of possibilities were clearly achieved in the instant service matter, it held that the Petitioner was guilty. Reference was made to Union of India and others v/s. Dalbir Singh to observe:

"The burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.Union of India and others v/s. Dalbir Singh Union of India and others v/s. Dalbir Singh Union of India and others v/s. Dalbir Singh Union of India and others v/s. Dalbir Singh"

However, on the issue of parity of punishment, the Bench discerned that no action was taken against the jailer or other erring persons. Further, the other personnel were inflicted within 5,000 penalty. Therefore, it was held:

"In this view of the matter, the Court deems it judicious to consider the case of the petitioner on the ground of parity with other delinquent. Hence, the punishment inflicted of 100% withdrawal of the pension to be harsh punishment and hence, it is deemed fit to modify the impugned order to the extent of punishment."

The Petitioner was not entitled to any interest or claim on arrears and hence, the petition was partly, allowed.

Case Title: ANOPSINH HARISINH BHAGORA v/s STATE OF GUJARAT & 2 other(s)