IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 236 of 2008 DATE OF DECISION : 06.05.2009 Kulwant Kaur .... PETITIONER Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Naresh Kaushik, Advocate, for the petitioner. Ms. Sushma Chopra, Addl. A.G., Haryana, for respondent No.1. Mr. Pankaj Gupta, Advocate, for respondent No.2. * * * SATISH KUMAR MITTAL , J. Smt. Kulwant Kaur widow of Shri Kharaiti Lal, the deceased employee, has filed the instant petition for quashing the order dated 13.9.2006 (Annexure P-1), passed by respondent No.2, whereby services of the deceased employee were terminated and recovery of Rs. 46,500/- with interest @ 11.5% per annum with effect from 1.1.1996 was imposed. The petitioner has also prayed for quashing the order dated 30.4.2007 (Annexure P-2), passed by respondent No.2, whereby total amount of Rs. 1,06,060/- (Rs. 46,500/- as principal amount, Rs. 57,226/- as interest @ 11.5% per CWP No. 236 of 2008 -2- annum from 1.1.1996 to 13.9.1996 and Rs. 2,334/- on account of wheat loan and cash payment) was found due towards the deceased employee and after adjusting the entire amount of his gratuity i.e. Rs. 94,327/-, the balance amount of Rs.11,733/- has been ordered to be recovered from the petitioner. In the present case, the deceased employee (Shri Kharaiti Lal) was working with the respondent Corporation as Chowkidar (Security Guard) since the year 1980. In the year 1995-96, he was posted at Naraingarh Selling Centre under the Farmer Service Centre, Ambala. It is the case of the respondent Corporation that the deceased employee was posted there as Caretaker of Naraingarh and Mullana Godowns. It is alleged that while he was working as Caretaker at Mullana Godown, he did not account for 100 DAP fertilizer bags. It is alleged that he had embezzled those bags, the value of which was Rs. 46,500/-. It is the case of the petitioner that actually, the deceased employee did not misappropriate or embezzle any amount of sale proceeds of the DAP fertilizer bags. In this regard, a preliminary enquiry was conducted in the year 1996 itself, wherein the Enquiry Officer found that no amount of sale proceeds of the DAP fertilizer bags was embezzled by the deceased employee at Sale Centre, Naraingarh. However, it was found that he had violated the instructions of the DM, FSC, Ambala by selling the goods on credit basis on slips on 2-3 days credit basis at his own risk. Copy of the said enquiry report has been annexed with the petition as Annexure P-3. It is further case of the petitioner that on the basis of the said preliminary enquiry report, no further CWP No. 236 of 2008 -3- action was taken, but in the year 2002, a charge sheet was issued to the deceased employee for embezzling 100 DAP Fertilizer bags, to which he filed a detailed reply. Not satisfied with the said reply, a departmental enquiry was ordered by the respondent Corporation. The Enquiry Officer submitted the report against the deceased employee on 28.12.2005. Thereafter, a show cause notice dated 21.2.2006 was issued to him, to which he filed a detailed reply, but without considering the said reply, the impugned order dated 13.9.2006 (Annexure P-1) was passed, whereby services of the deceased employee were terminated and recovery of Rs. 46,500/- with interest @ 11.5% per annum with effect from 1.1.1996 was ordered. It is further case of the petitioner that against the said order, the deceased employee filed appeal, but before his appeal could be decided, he unfortunately died. Thereafter, the order dated 30.4.2007 was passed, whereby it has been ordered that an amount of Rs. 1,06,060/- (Rs. 46,500/- as principal amount, Rs. 57,226/- as interest @ 11.5% per annum from 1.1.1996 to 13.9.1996 and Rs. 2,334/- on account of wheat loan and cash payment) is recoverable from the deceased employee and after adjusting the entire gratuity amount of the deceased employee, an order was passed to recover the balance amount of Rs. 11,733/-. Consequently, a notice for recovery of the said amount was issued to the petitioner, being widow of the deceased employee. Counsel for the petitioner argued that a perusal of the impugned order of punishment (Annexure P-1) shows that the said order was passed CWP No. 236 of 2008 -4- only on the basis of the fact that the deceased employee had admitted his fault during the course of hearing. He submitted that the reply to the show cause notice given by the deceased employee was not considered at all. He further submitted that after the death of the deceased employee, the appeal filed by him against the order of punishment was also dismissed and decision of the same was communicated to the petitioner on 15.10.2007. Learned counsel contended that the punishing authority was not justified while ordering the recovery of an amount of Rs. 46,500/- with interest @ 11.5 per annum from 1.1.1996 till the date of death of the deceased employee. He further contended that the deceased employee was working as Security Guard and he had nothing to do with the sale of the fertilizer. He submitted that even the appellate authority has not properly considered the grounds taken in the appeal and has confirmed the order of punishment on the ground that the deceased employee had agreed to pay the amount of Rs.46,500/- to the respondent Corporation by instalments. On the other hand, learned counsel for the respondents submitted that in the regular enquiry, the embezzlement of 100 DAP fertilizer bags was proved, which the deceased employee did not account for. On the basis of the said enquiry report, after providing an opportunity of hearing and following the procedure, services of the petitioner were terminated and the order of recovery of an amount of Rs. 46,500/- with interest with effect from 1.1.1996 was rightly passed. After hearing counsel for the parties and going through the CWP No. 236 of 2008 -5- impugned orders, I am of the opinion that the punishing authority has illegally and arbitrarily imposed the interest at the rate of 11.5% per annum on the amount of Rs. 46,500/- with effect from 1.1.1996 and after adjusting the entire gratuity amount of the deceased employee i.e. Rs. 94,327/-, the recovery of Rs. 11,733/- has been wrongly ordered. The deceased employee was a Class IV employee. He was working as Chowkidar. He was not appointed as Salesman, and being the Class IV employee, he should not have been assigned the duties of selling the fertilizer. Further, for the alleged shortage of 100 DAP fertilizer bags in the year 1996, a preliminary enquiry was conducted, in which the deceased employee was found innocent. The said finding was recorded by the Enquiry Officer while taking into account the statements of the various persons. However, the said preliminary enquiry report was not accepted and after six years of the said enquiry report, the deceased employee was charge sheeted on the same allegations. On the basis of the regular enquiry report, his services were terminated vide order dated 13.9.2006 (Annexure P-1). A perusal of the order shows that recovery of an amount of Rs. 46,500/- was ordered on the basis of the fact that the deceased employee had admitted to pay the said amount in instalments without interest and those instalments should be deducted from his salary. This fact finds mention in the impugned order. The deceased employee was not in a position to pay the said amount, therefore, he requested for payment of the same in instalments, but his request was not accepted and the termination order as well as the order of CWP No. 236 of 2008 -6- recovery with interest @ 11.5% per annum with effect from 1.1.1996 was passed. The appeal filed by him against the said order was not decided during his life time. On the basis of the impugned order of punishment and recovery, now a notice has been issued to the petitioner to pay an amount of Rs. 11,733/-, failing which legal action will be taken against her. The said amount has been shown due, even after adjusting the entire gratuity amount of the deceased employee. In these facts and circumstances, I am of the opinion that the punishing authority was not justified to order for recovery of Rs. 46,500/- with interest @ 11.5% per annum with effect from 1.1.1996. In my opinion, the punishing authority has acted arbitrarily, while ordering the recovery of the aforesaid amount with interest at the said rate from 1.1.1996, even though the enquiry was initiated only in the year 2002. In the facts and circumstances of the case, even if it is accepted that the deceased employee did not account for 100 DAP fertilizer bags, for which his services had already been terminated and most of his service benefits were forfeited, then recovery of the amount of those bags i.e. Rs. 46,500/- with interest @ 11.5% per annum with effect from 1.1.1996, is highly unreasonable. The imposition of such interest and recovering the same from the widow of the deceased employee is harsh, unfair and unequitable. Therefore, the impugned order dated 13.9.2006 (Annexure P-1) to the extent of imposing of interest @ 11.5% per annum with effect from 1.1.1996, on the amount of Rs. 46,500/-, is hereby quashed and the respondents are CWP No. 236 of 2008 -7- directed to pay Rs. 45,493/- i.e. the balance gratuity of the deceased employee to the petitioner [Rs. 94,327 minus Rs. 46.500/- (cost of 100 DAP fertlizer bags) and Rs. 2,334/- (wheat loan and cash payment)], within a period of two months from today. If the said amount is not released within the said period, the petitioner shall be entitled for interest @ 9% per annum on the said amount from the date of the death of the employee. Consequently, the writ petition is partly allowed in the aforesaid terms. May 06, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE