IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4079/2008 (OA(M) 132/97) Date of Decision : May 4, 2009 Sh. Pritam Pal Madan Petitioner Versus Government of Himachal Pradesh through its Financial Commissioner-cum-Secretary (Forests), Shimla-2 and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Onkar Jairath, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. R.P. Singh, Asstt. Advocate General for respondents No. 1 and 2. Mr. D.K. Khanna, Advocate, for respondent No. 3. Sanjay Karol, J. (Oral) The petitioner has assailed the impugned order dated 11.2.1997 imposing a penalty of withholding of 1/4th pension for a period of one year upon Shri P.P. Madan, HPFS (now Retd.). The petitioner was posted as Assistant Conservator of Forests, J.L.N. Great Himalayan National Park, Shamshi. During the financial year 1989-90 the respondent/State desired of carrying out various 1 Whether reports of Local Papers may be allowed to see the judgment? 2 construction activity in and around the National Park. Number of estimates were submitted to the Additional Chief Conservator of forests (Wild Life) for approval and sanction of the competent authority. The estimates for laying down of separate water supply scheme at transit accommodation Sai Ropa was approved by Additional Chief Conservator of Forest (Wild Life) Shimla and forwarded to the competent authority for technical approval and sanction. Anticipating the sanction, considering that the financial year was coming to an end, on 29.3.1990 petitioner placed an order for the supply of certain material value of which was Rs. 36,707/-. Undisputedly the material was supplied and the work was satisfactorily executed as per the estimate and the sanction manual. The respondent authorities however did not approve of the petitioner’s conduct and decided to initiate disciplinary proceeding against him and consequently issued memorandum containing articles of charges dated 9.6.1993 (Annexure P-C). Petitioner responded to the same. Inquiry officer was appointed and inquiry proceedings were concluded with the inquiry officer holding the charge against the petitioner to be partly proved. The inquiry report (Annexure P-H) is on record. The petitioner represented to the disciplinary authority in terms of his letter dated 18.3.1996 (Annexure P-I). The disciplinary authority, after considering the material in its entirety held that the charges against the delinquent 3 officer stand established hence imposed penalty in terms of Annexure P-A. Mr. Onkar Jairath, learned counsel for the petitioner has assailed the same on the ground that the penalty imposed is harsh and disproportionate to the charged misconduct. Mr. R.K. Sharma, learned Senior Addl. Advocate General assisted by Mr. Ankush Dass Sood, learned Addl. Advocate General has opposed the petition for the reasons set out in the reply. Having heard learned counsel for the parties and after perusal of the record I am of the considered view that the penalty imposed is harsh and shocks the conscious of the Court. It is shockingly disproportionate to the proven misconduct. The charge against the petitioner is reproduced as under: “Article of charge. That during the year 1989-90, the said Shri P.P.Madan, HPFS, the then Director, J.L.N. Great Himalayan National Park purchased 4000 Rmt. HDPE Pipe of size 25mm 10 Kgf/Cm2 for Rs. 36,707/- (Rupees thirty six thousand seven hundred and seven) only, from M/S Himalayan Pipe Industries Saproon (Distt. Solan), in absence of any technical and financial sanction from the competent authority. The supply order was placed with the firm on 26.3.1990 and the bill No. 317 dated 29.3.1990 was issued by the firm. The material was inspected by the said Sh. P.P. Madan, HPFS, personally on 29.3.1990 at Solan and the delivery of the same was received at Kullu on 6.4.1990. The freight charges are stated to have been paid by the firm though according to condition No. 1 of the rate contract the rates were for ex-factory. The payment 4 was made by the said Shri P.P. Madan, HPFS, through No. 261882 dated 31.3.1990 for Rs. 40,148/- which amount include the price of 375 Rmt HDPE pipe covered under various estimate already sanctioned by the competent authority. On personal inspection of water supply system in Sai Ropa on 25.6.90 when said Shri P.P. Madan also accompanied the Addl. CCF(WL), it found that providing of separate water supply by bringing water form a distance about 4km from the site was not at all justified especially when the water was already available there and thus the expenditure incurred was redundant which resulted in a loss to the Government.” The Inquiry Officer in its report has found that the work was executed to the satisfaction of the authorities. There is no allegation of embezzlement of accounts or misappropriation of funds. There is positive finding by the Inquiry Officer that the sanction was received in the office of the Director, Great Himalayan National Park, Shamshi on 10.5.1990 wherein 400 Rmt. pipe was excluded from the estimate. The fact escaped notice of the delinquent officer who purchased pipe on 29.3.1990 before closer of the financial year, in anticipation that the estimate would be sanctioned in full. Infact the Inquiry Officer observed that the order for the purchase of the pipe was made against the rate contract as per prevalent practice as the provision for pipe was already made in the estimate. Infact there is positive finding to the effect that “Shri P.P. Madan cannot, therefore, to be held entirely responsible for not 5 obtaining the technical and financial sanction from the competent authority”. It is nobody’s case that action against other delinquent officials was also taken. Inquiry report also concludes by giving positive finding that the purchase of the pipes was justified as old water line required repairs and the supply was erratic and uncertain as was borne out from the record. The water supply from the new source would have also helped sufficient and regular supply of water. That no loss is caused to the Government has also been observed by the inquiry officer. The sanction was finally accorded and received on 10.5.1990. The Apex Court in V. Ramana v. A.P. SRTC & Ors. (2005) 7 SCC 338, has held that the Court should not interfere with the administrator’s decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscious of the Court in the sense that it was in defiance of logic or moral standards. The penalty imposed can be interfered with if it shocks the conscious of the Court. In Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn.& Anr. (2007) 4 SCC 669, the Apex Court further held as under:- “It is clear that the Indian Legal system has accepted the doctrine of proportionality. With the rapid growth of administrative law and the need and 6 necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”. “Proportionality’ is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise – the elaboration of a rule of permissible priorities. “Proportionality” involves “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. The doctrine of proportionality has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a 7 ”sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded.” In Bank of India &Anr. v. Degala Suryanareayana (1999) 5 SCC 762, the Apex Court has held as under:- “Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority.” It is the case of the petitioner, though rebutted that the order was placed on the oral instructions of higher officers. Be that as it may be the fact of the matter is that post facto sanction was immediately accorded for the order placed by the petitioner, which infact had been placed keeping in view the fact that the financial 8 year was coming to an end. There is no doubt that the action taken by the petitioner was in public interest. The petitioner is found to have placed the order without prior sanction but however the fact that the estimates were actually approved by immediate higher authority and sent for sanction can also not be ignored. Disciplinary authority has, in my view, imposed a penalty which is harsh. The reasons are borne out from the aforesaid discussions. In the facts and circumstances of the present case Annexure P-A dated 11.2.1997 is quashed with a direction that the disciplinary authority shall reconsider the issue of imposition of penalty by taking into account all the attending facts and circumstances, within a period of three months from today. Needless to add the petitioner shall be afforded all reasonable opportunity of representation and hearing. The authority shall pass a speaking order which shall be supplied to the petitioner. Liberty granted to the petitioner to assail the same, if need so arises. With the aforesaid observations the present petition is allowed. (Sanjay Karol), Judge. May 4, 2009 (PK)