Civil Writ Petition No.15368 of 2004 & 691 of 2005 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.15368 of 2004 1. K.C. Tyagi ...Petitioner(s) v. Haryana Khadi & Village Industries Board & Ors. ...Respondent(s) AND Civil Writ Petition No.691 of 2005 1. K.C. Tyagi ...Petitioner(s) v. Haryana Khadi & Village Industries Board & Anr. ...Respondent(s) Date of decision: September 21, 2010. CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Rajesh Punj, Advocate, for the petitioner(s). Shri Amit Aggarwal, Advocate for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): By this common order, both the writ petitions, bearing CWP Nos.15368 of 2004 and 691 of 2005 shall be disposed of. For facility of reference, facts have been taken from CWP No.15368 of 2004. In CWP No.15368 of 2004, prayer has been made that enquiry report dated 2.12.2002 (Annexure P-12) along with the Resolution dated 17.8.2004 (Annexure P-15), order dated 15.9.2004 Annexure P-16 passed by the Board, be quashed. Civil Writ Petition No.15368 of 2004 & 691 of 2005 -: 2 :- Vide resolution dated 17.8.2004 Annexure P-15, the Board came to the conclusion that the petitioner has caused no financial loss to the Board but keeping serious irregularities in view, petitioner was placed in the initial pay scale of his original post of Manager, Hand Made Paper Centre. This, according to the petitioner, has resulted into forfeiture of 26 years of service and withdrawal of all increments earned and other advantageous claims received. Briefly stated, petitioner was initially appointed as a Technical Clerk with the respondent-Board in the year 1978. Thereafter, petitioner was promoted to the post of Manager on 13.12.1983 and was made In- charge of Hand Made Paper Centre, Patti Kalyana, Panipat. Petitioner was agitating that he should be paid equal pay as was being paid to Technical Supervisor in the scale of Rs.225-540 (unrevised). Petitioner, seeking the aforesaid relief, filed writ petition in this Court, viz, CWP No.8991 of 1988 which was allowed on 27.2.1991. However, aggrieved against the same, the Board filed LPA in this Court, which was dismissed as withdrawn. Counsel states that the act of the petitioner to agitate for equal pay for equal work was taken by the employer as an act of insubordination and, therefore, out of vengeance a charge sheet was served upon the petitioner. Counsel for the petitioner has referred to the enquiry report dated 2.12.2002 (Annexure P- 12) wherein all the charges against the petitioner have been noticed. It is stated that petitioner was absolved of all the charges but was held guilty of charge No.3 and 4. Charge No.3 and 4 read as under:- “3. He has also tried to mislead the team, which went for inspection of centre on 19.12.1990 by providing false and wrong information. Civil Writ Petition No.15368 of 2004 & 691 of 2005 -: 3 :- 4. He on 19.12.1990 at the time of inspection of the centre took the receipt of Rs.700/- of cash book from Section Officer and torn it, due to which his behaviour and honesty was found to be doubtful.” The enquiry officer concluded as under:- “In this way it is clear from the statement of witnesses and perusal of document that work which was started by Shri Tyagi, that was in the interest of centre but the process was not followed according to rule. So the charge No.1, 2, 5, 6 cannot be taken to be proved but charge No.3 is proved very much because date in the fact submitted to survey team and date in the actual record does not match. Mentioning of wrong date in a letter written before Survey Team by Sh. Tyagi makes it clear that Sh. Tyagi is not able to perform the duty with due care. In the context of charge No.7 there is no such document or evidence has been presented which prove this charge. Team has also not signed any where except cash book mean not seen. Hence charge no.7 is not proved. The investigation report is presented for consideration please.” Vide Annexure P-15, the Board came to the conclusion that petitioner had caused no financial loss to the Board, however, findings of the Enquiry Office returned on charges No.3 and 4 were considered as proved very much and as such punishment of forfeiture of 26 years of service was awarded by observing as under:- “... Board has arrived at a unanimous decision after Civil Writ Petition No.15368 of 2004 & 691 of 2005 -: 4 :- consideration that Shri Krishan Chand Tyagi should be paid the initial payment of his original post of Manager, Handmade Paper Centre and he will be entitled to annual increase in the basic pay as per rules.” It is stated that petitioner assailed action of the respondents by filing the instant writ petition in this Court wherein the impugned order was stayed and this further infuriated the Board who during the pendency of this writ petition passed the order Annexure P-18 impugned in the connected CWP No.691 of 2005, whereby the petitioner was compulsorily retired with effect from 31.12.2004. It is submitted that this order Annexure P-18 was also stayed by a Division Bench of this Court on 13.1.2005. It is submitted that the petitioner was continuing in service since then and is also drawing his salary as punishment inflicted vide Annexure P-15, impugned in the instant case, was also not given effect to and thereafter the petitioner retired with effect from 1.1.2008 upon superannuation. Shri Amit Aggarwal, Counsel appearing for the respondent- Board, submitted that a show cause notice was issued to the petitioner and he has failed to respond thereto even though he personally appeared before the Board. Counsel states that despite 5 opportunities having been provided to the petitioner, he has not been able to spell out the mitigating circumstance before the punishing authority which should have warranted the concerned authority to take a lenient view. A perusal of the report of the Equiry Officer, Annexure P-12 to CWP No.15368 of 2004, reveals that Enquiry Officer had concluded that the petitioner had acted in the interest of Handmade Paper Centre but the process followed was not according to the rules and, thus, he had withheld Civil Writ Petition No.15368 of 2004 & 691 of 2005 -: 5 :- the cash book from the inspection team where Rs.700/- were not reflected and furthermore, he had given a wrong information to the inspection team whereby the inspection team was misled. From the report of the Enquiry Officer and charges, this Court is of the view that the punishment of forfeiture of 26 years of service and subsequent retirement are not in consonance with the act of omission and commission on the part of the petitioner, especially, when the punishing authority had not recorded disagreement with the findings returned by the Enquiry Officer. Rather, the punishing authority came to the definite conclusion that petitioner had caused no financial loss to the Board. The punishment awarded to the petitioner is very harsh and will prick the conscious of the Court, to observe that the respondents have awarded punishment which is not in commensurate to the misconduct of the petitioner. From the report of the Enquiry Officer and the observations made by the punishing authority, this Court is of the view that doctrine of proportionality can be invoked and it can be safely stated that petitioner was not entitled to infliction of any major penalty. Hence, the impugned orders Annexures P-15 and P-16 to CWP No.15368 of 2004 and the impugned order Annexure P-18 to the CWP No.691 of 2005 are quashed. The respondents are directed to consider infliction of any minor penalty upon the petitioner after following the due process of law. Both the writ petitions stand disposed of with no order as to costs. [Kanwaljit Singh Ahluwalia] September 21, 2010. Judge kadyan