Ashok Bhushan, J.:— Heard Sri N.K Pandey appearing for the petitioner and Sri Rajni Kant Tiwari, learned standing counsel.

2. Counter and rejoinder-affidavits have been exchanged and with the consent of the parties, the writ petition is being finally decided. This writ petition has been filed by the petitioner praying for quashing of the order dated 26th August, 1996, passed by respondent No. 1 and the enquiry report dated 30th March, 1995 and 22nd November, 1995. A writ of mandamus has further been prayed for direction to the respondents not to give effect to the order dated 26th August, 1996.

3. The facts of the case as emerge from the pleadings of the parties are; the petitioner was appointed on 1st July, 1963, in the Sales Tax Department on a class III post. He was confirmed in 1974. From 1979 to 1986, the petitioner was posted as Noter and Drafter in district Sultanpur. In 1986, he was promoted on the post of Senior Assistant and was transferred. A charge-sheet dated 18th December, 1990, was issued to the petitioner levelling three charges. Copy of the charge-sheet has been filed as Annexure-6 to the writ petition. Charge Nos. 1 and 2 were to the effect that petitioner on the application of traders for issuance of Form 31 showed more amounts than actual deposit amount and has thus helped the traders to get Form-31 illegally causing loss of revenue. Charge No. 3 was to the effect that before submitting report on the applications of the traders for issuance of Form-31, the petitioner did not see the departmental copy of challans nor verified the deposited amount from daily receipt register. It was alleged that petitioner committed gross carelessness and ignored the departmental circulars. In the charge-sheet evidences were mentioned which included daily receipt register of 1980-1981, copies of application for giving Form-31 containing the report of the petitioner, the assessment flies of the relevant firms and the Sales Tax Manual providing procedure on the aforesaid. After receiving the charge-sheet, petitioner submitted an application on 7th January, 1991, praying that he should be shown flies for the year 1980-1981 of Raja Coal Concern and Commission Agent, Vijay Coal Suppliers and Commission Agent, Singh Coal Agency and daily receipt register and other correspondences on the matter. Petitioner further prayed that he should be shown sales tax memo. Petitioner further prayed that he should be given personal hearing from Daily Receipt Clerk and Ledger Keeper. The Enquiry Officer vide letter dated 24th January, 1991, asked the petitioner that he should disclose the name of all those Ledger Keepers and Daily Receipt Clerk whom he wants to cross-examine. Details of documents which petitioner wants to peruse would also be mentioned. Petitioner in reply to the aforesaid letter gave names of five Ledger Keepers and one Kaushal Nand, Daily Receipt Clerk. Petitioner also prayed that he should be shown daily receipt register and other relevant files. The Enquiry Officer vide his letter dated 8th April, 1991, asked the petitioner to appear in Divisional Office, Sultanpur, for seeing the records. It was further stated in the letter that no further date would be given to the petitioner since certain records are in police custody, which will be required to be called. The petitioner appeared on 7th May, 1991 but on that date, he was not shown the documents as stated by Enquiry Officer. The petitioner submitted a reply on 16th May, 1991 to the charges. In the reply, he stated that he has not been shown the daily receipt register and relevant files due to the fact that they were in the police custody. He further stated in the reply that he has only been shown the duplicate file. The petitioner also complained that he was not given opportunity to cross-examine the witnesses but on the basis of personal memory, he is replying the charges. Enquiry Officer again wrote a letter on 25th July, 1991, asking the petitioner to appear on 28th August, 1991, in the Court of District Judge. On 28th August, 1991, the petitioner appeared which is mentioned in the certificate issued by Trade Tax Officer on 28th August, 1991, Annexure-16 to the writ petition, in which it was stated that documents could not be shown to the petitioner and next date will be given after contacting the Court of District Judge. Further notice was issued by the Enquiry Officer on 31st August, 1994, asking the petitioner to appear on 17th September, 1994. In the notice it was stated that petitioner should appear before the Enquiry Officer and if he wants to inspect any documents he should do the same. From the material on record, it is clear that the petitioner appeared on 17th September, 1994, before the Enquiry Officer and has given a letter in writing which has been annexed as Annexure-S.C.A-1 to the supplementary counter-affidavit of Sri Vinod Kumar. In the aforesaid letter, the petitioner has stated that he did not feel any necessity of seeing any document. He further stated that the reply to the charge-sheet which he has already given should be treated as his final reply. Petitioner, in the aforesaid letter, has stated that report, which he used to give, was on the basis of reports of Ledger Keeper and the reports of Ledger Keeper could not be verified due to paucity of time. He stated that challans from trader were received with delay. He further stated that he has not submitted any report verifying the amount deposited by trader since the said duty was of Daily Receipt Clerk. He further stated that aforesaid forged challans were submitted by trader by playing fraud. The enquiry report dated 30th March, 1995, was submitted by the Enquiry Officer holding all the charges proved against the petitioner. A subsequent report dated 22nd November, 1995, was also submitted by the Enquiry Officer in which it was stated that Sri Nigam Prasad Srivastava, Sri Ram Sumer, Sri Agam Prasad Satsangi, Sri Paras Nath Singh and Sri Raja Ram, who were all working at the relevant point of time, caused loss of revenue. The show cause notice was given to the petitioner vide notice dated 14th March, 1996, which was replied by the petitioner vide his reply dated 10th June, 1996. After receiving the reply of the show cause notice, the disciplinary authority has passed the punishment order dated 26th August, 1996, which has been challenged by the petitioner by means of the present writ petition.

4. Counsel for the petitioner Sri N.K Pandey made following submissions:

(1) Principles of natural justice have been violated in conducting the disciplinary enquiry against the petitioner since the petitioner was not shown the relevant documents demanded by him including daily receipt register and other relevant files. Counsel for the petitioner elaborating his submissions stated that in fact the original documents were submitted in the Court of District Judge, Faizabad and were not in the custody of the department, hence could not have been shown to the petitioner.

(2) Secondly, it was submitted that according to Chapter XIV of the Trade Tax Manual work and duties to verify the amount deposited by traders while making an application for Issuance of Form 31, was not of the petitioner. Counsel for the petitioner submitted that the said duty was the duty of Ledger Keeper and Noter Drafter Incharge. Petitioner cannot be held liable for the lapse since the same was not his duty.

(3) Thirdly, petitioner's counsel submitted that petitioner has been discriminated in award of punishment since the disciplinary authority awarded lesser punishment to Sri Agam Prasad Satsangi and Raja Ram. In paragraph 70 of the writ petition, petitioner has specifically stated that he has been discriminated in punishment since lesser punishment has been awarded to other persons whereas petitioner was chosen for awarding major punishment.

5. Learned standing counsel refuting the submissions of counsel for the petitioner has stated that disciplinary enquiry was conducted in accordance with principle of natural justice. Petitioner was shown all relevant documents and he himself has given in writing that he does not want to see any further documents on 17th September, 1994. In view of the petitioner's own statement before the Enquiry Officer that he does not want to see any further documents, no prejudice can be said to have been caused against the petitioner. With regard to second submission of the learned counsel for the petitioner, learned standing counsel has stated that it is on record that petitioner put his report on the applications. In view of the fact that the petitioner has reported on the applications, he cannot escape by saying that it was not his duty. Replying the third submission of the counsel for the petitioner it was stated by the learned standing counsel that charges against the petitioner were found proved and hence, he was awarded major penalty.

6. I have heard counsel for the parties and perused the record. The first submission of the counsel for the petitioner is not showing of documents mentioned in the charge-sheet, which is violation of principle of natural justice. Counsel for the petitioner has also placed reliance on following decisions:

(i) State Bank of Patiala v. S.K Sharma, JT 1996 (3) SC 722.

(ii) Prathama Bank v. Vijay Kumar Goel, (1989) 4 SCC 441 : AIR 1989 SC 1977.

(iii) State Bank of India v. D.C Aggarwal, (1993) 1 SCC 13 : AIR 1993 SC 1197.

7. Counsel for the petitioner elaborating his submissions has referred to certificate dated 28th August, 1991, Annexure-16 to the writ petition, issued by Trade Tax Officer, Sultanpur, in which it was mentioned that documents could not been shown to the petitioner due to some reasons and the petitioner will be informed subsequently. Counsel for the petitioner laid much emphasis on the fact that original documents were not with the department, hence they were not in position to show the records. In view of above, the principles of natural justice were violated and the whole enquiry is vitiated on this ground alone.

8. I have considered the above submission and looked into the record. 17th September, 1994, was the date fixed by the Enquiry Officer for showing the record to the petitioner. On 17th September, 1994, the petitioner gave in writing that there is no necessity of seeing any record. The aforesaid letter dated 17th September, 1994, has been filed as Annexure-S.C.A-1 to the supplementary counter-affidavit. Petitioner himself having given in writing that he does not want to see any record, no error was committed by Enquiry Officer in proceeding with the enquiry and submitting the enquiry report. It was open to the petitioner to insist for seeing the records, which was not done by the petitioner. In this context, it is relevant to note that petitioner in his reply which he has submitted on 16th May, 1991, has also admitted that he was shown duplicate file of 1980-1981. The duplicate file contained the photostat of original file which was submitted in the Court of District Judge, Faizabad. Petitioner having seen the duplicate file was in a position to submit a reply which was submitted by him on 16th May, 1991. It is relevant to note that in the reply, the petitioner has not denied submission of report on the application for Form 31. Petitioner has also not claimed that all the amounts, which were shown in the applications for Issuance of Form 31, were deposited by the trader. Petitioner rather has admitted in his letter dated 17th September, 1994, that traders have committed fraud by submitting forged challans.

9. In view of above, I am not inclined to accept the argument of the counsel for the petitioner that by not showing the records as demanded by the petitioner, the enquiry is vitiated. The petitioner himself having given in writing on 17th September, 1994, that there is no necessity of seeing any record, he cannot be permitted to complain in the writ petition that the enquiry is vitiated. The Apex Court in State Bank of Patiala's case (supra) has laid down that even in case of violation of procedural provision which is mandatory, it has to be ascertained whether the provision is conceived in the Interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. The Apex Court in paragraph 34 sub-paragraph (4) held:

“(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, than it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing as it may be called.”

10. In the present case, as stated above, it is clear that petitioner has waived expressly his right to see documents by his letter dated 17th September, 1994. The Apex Court in State Bank of India's case (supra) laid down that delinquent has to be given adequate opportunity to examine the relevant documents. The law of the Apex Court is well-settled. In disciplinary proceeding the employer is required to show all relevant documents on which it is relying in punishing an employee. In the present case, the aforesaid documents were mentioned in the charge-sheet and petitioner after seeing the duplicate file himself has expressly written that he did not feel it necessary to see the documents. The aforesaid judgment of the Apex Court does not help the petitioner.

11. Second submission of the counsel for the petitioner is that according to Trade Tax Manual, it was not his duty to submit report on application for Form 31 and it was the duty of Ledger Keeper and Senior Noter Drafter Incharge to submit a report regarding amount deposited. An extract of Chapter XIV of Trade Tax Manual has been filed as Annexure-4 to the writ petition. The counsel for the petitioner is right in his submission that Chapter XIV of the Manual contemplates that Ledger Keeper will give necessary details on the applications submitted for Form 31 to Noter Drafter-I. Further Noter Drafter Incharge is also required to keep the register for Form 31 and give receipt and make necessary entries in the register. However, the fact cannot be lost sight that petitioner had submitted the report on applications given by traders for Form 31. In his reply dated 16th May, 1991, submitted by the petitioner, he has not denied submission of report on applications for Form 31. Rather, he has submitted that he on applications for Form 31, according to prevalent practice, after receiving the report of Ledger Keeper, has submitted his report. In the work and duties as provided in Chapter XIV of Trade Tax Manual with regard to Noter Drafter-II, Item No. 19 provides Thus, Noter Drafter-II could have been entrusted with any other work by the Incharge Officer. However, without entering into controversy as to whether petitioner was required to submit a report on applications for Form 31, the fact of the matter is that he had submitted the reports. In view of above, he may be right only up to that extent that the primary responsibility to verify the challans was on Ledger Keepers and Noter Drafter Incharge but petitioner cannot escape from his responsibility since actually his report was there on the application. The traders succeeded to obtain Form 31 without payment of sufficient amount and since the application passed through the hands of the petitioner who has also submitted his report, it cannot be said that he has no responsibility.

12. The third and the last submission of the counsel for the petitioner is regarding discrimination in awarding punishment. In paragraph 70 of the writ petition, petitioner has made specific allegation that other officers whose responsibility was for the irregularity has been awarded lesser punishment. Reference has been made on Sri Agam Prasad Satsangi and Raja Ram. It has been stated in the aforesaid paragraph that on above two persons who were responsible for making report and liable to be punished, the disciplinary authority imposed lesser punishment and arbitrarily and discriminatorily awarded major punishment to the petitioner. The petitioner has also filed copy of the punishment order dated 26th August, 1996, passed by the disciplinary authority regarding Agam Prasad Satsangi, Senior Clerk as Annexure-24 to the writ petition. The aforesaid allegation of paragraph 70 of the writ petition has been denied by the respondents in paragraph 29 of the counter-affidavit by saying that on enquiry, the petitioner was found directly involved in the illegality, which has been proved against him, therefore, there is no illegality in the order of punishment.

13. I have perused the punishment order passed regarding Agam Prasad Satsangi (Annexure-24 to the writ petition). The charges against Agam Prasad Satsangi and the petitioner were same and same charges were found to be proved against both the persons. There is no difference between the charges levelled against Agam Prasad Satsangi and petitioner. The punishment order (Annexure-24 to the writ petition) of Agam Prasad Satsangi also shows that both the charges were fully proved. However, on the same date punishment order was passed against Agam Prasad Satsangi of stopping one increment for two years and a censure entry. The submission of the counsel for the petitioner that there is a discrimination regarding punishment of both the persons has substance. In the present case, allegation against both the persons, petitioner and Agam Prasad Satsangi was that they submitted the report on applications of traders for Form 31 without verifying the actual amount deposited by aforesaid traders. As claimed in the writ petition against both of them it was held that due to their negligence the loss of revenue was caused.

14. In view of above fact, I am of the view that punishing authority has acted arbitrarily in awarding different punishments to the petitioner and Agam Prasad Satsangi. The Apex Court in Sengara Singh v. State of Punjab, (1983) 4 SCC 225 : AIR 1984 SC 1499, has held that there can be no discrimination while treating two persons unless it is found that they are guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. The Apex Court in paragraph 9 of the aforesaid judgment has held:

“Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, we see no Justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the Court the distinguishing features and, therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution. The Court must accordingly interpose and quash the discriminatory action.”

15. The order passed by the respondents awarding major penalty of reversion to the petitioner is discriminatory and violative of Articles 14 and 16 of the Constitution of India.

16. In view of above, the order dated 26th August, 1996 is quashed.

17. However, the respondent No. 1 is directed to pass fresh order regarding punishment to be awarded to the petitioner in consonance with the punishment which has been awarded to Sri Agam Prasad Satsangi by order of the same date, i.e. 26th August, 1996. The respondents may pass appropriate punishment order as indicated above within a period of two months from the date of receipt of a certified copy of this order.

18. With the aforesaid directions, the writ petition is finally disposed of.