IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 15042 of 2008 Judgment reserved on: 4.1.2011 Date of decision: 21.2.2011 Bhupinder Singh …Petitioner. Versus H.R.T.C. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Ms. Archana Dutt, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Kuldip Singh, Judge The petitioner has prayed for quashing office order dated 23.10.2004 penalty of removal from service and memo dated 18.3.2005 dismissing the appeal of the petitioner against the order dated 23.10.2004. 2. The facts, in brief, are that the petitioner was appointed as Conductor with respondent No.1 on 28.11.1979 and his services were regularised w.e.f. 18.8.1980. The petitioner was charge- sheeted on 10.2.1981 on allegations of embezzlement of the revenue of the Corporation amounting to Rs.8.75, inquiry was conducted. The disciplinary authority imposed penalty of removal 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 from service on the petitioner vide order dated 26.9.1982. The appeal filed by the petitioner was rejected. 3. The petitioner thereafter served a demand notice on the management. The conciliation proceedings failed and the failure report was sent by the Conciliation Officer to the Corporation for referring the dispute to the Labour Court. On 2.7.1985 the respondent No.2 refused to refer the matter to the Labour Court. The petitioner approached the High Court for suitable directions and the High Court directed that the reference petition preferred by the petitioner may be considered in accordance with law and disposed of by the Labour Court, Shimla. 4. The petitioner filed a fresh reference petition which was registered as Reference No. 112 of 1997 before the Presiding Judge, H.P.Labour Court, Shimla. The Labour Court vide award dated 6.4.1999 held that the reference was maintainable and the punishment of dismissal is harsh and highly excessive. The Labour Court while setting aside the punishment of removal from service imposed penalty of withholding of two increments with cumulative effect and denied the back wages to the petitioner. 5. The petitioner filed CWP No. 151 of 2000 against the award dated 6.4.1999 for not granting the back wages. The Corporation also filed CWP No. 494 of 1999 challenging the award dated 6.4.1999, both the writ petitions i.e. CWP No. 494 of 1999 and CWP No. 151 of 2000 were decided by common judgment dated 23.3.2004. Both writ petitions were allowed, the award dated 6.4.1999 of the Labour Court imposing the penalty of stoppage of 3 two increments as well as penalty imposed by disciplinary authority on the workman was set-aside and the case was remitted to the disciplinary authority for reconsideration of the penalty to be imposed upon the workman. The disciplinary authority was directed to issue notice to the workman and after affording an opportunity of being heard to him, on the facts and circumstances of the case, imposed the appropriate penalty upon the petitioner. 6. The respondents-Corporation vide order dated 7.7.2004 set-aside the order of penalty dated 29.9.1981 vide which the petitioner was removed from service. A show cause notice dated 7.7.2004 was wrongly, illegally issued to petitioner by Regional Manager proposing therein to impose major penalty. The petitioner filed reply on 19.7.2004 to the show cause requesting therein for reinstating him in service and also paying him all monetary benefits due and admissible to him. The Regional Manager without considering the reply of the petitioner vide order dated 23.10.2004 imposed the penalty of removal from service on the petitioner. The petitioner preferred representation/appeal against the order dated 23.10.2004 which was rejected by respondent No.2 vide memo dated 18.3.2005. There is no further statutory appeal but Managing Director being the head of the Corporation, the petitioner approached him vide representation dated 23.4.2005 which has not been decided. 7. In the meantime, the petitioner filed CWP No. 1155 of 2005 which was allowed to be withdrawn on 26.10.2006 with liberty to file Original Application before the Tribunal. The petitioner 4 thereafter filed O.A. in the Tribunal which on abolition of the Tribunal has been transferred to this Court and registered as CWP(T) No. 15042 of 2008. 8. The petition has been contested by filing reply. It has been stated that the orders passed by the disciplinary authority and the appellate authority are based on findings of inquiry report wherein the workman was found guilty. The penalty imposed was justified. It has been submitted that proper procedure under CCS (CCA) Rules, 1965 was followed. The Divisional Manager has perused the entire record and after perusal came to the conclusion that the petitioner is not a fit person to be retained in the Corporation. The petitioner is not entitled to even back wages on the principle of ‘no work no pay’. The prayer has been made for dismissal of the petition. 9. I have heard the learned counsel for the parties. The Labour Court vide award dated 6.4.1999 set-aside the punishment and dismissal imposed on the petitioner and awarded penalty of withholding of two increments with cumulative effect . The petitioner was denied back wages. The award dated 6.4.1999 was assailed by the petitioner as well as Corporation. The High Court by common judgment dated 23.3.2004 allowed both the petitions, set- aside the award dated 6.4.1999 imposing the penalty of stoppage of two increments with cumulative effect as well as the penalty imposed by the disciplinary authority on the workman. The case was remitted to the disciplinary authority for reconsideration of the penalty to be imposed upon the workman. The disciplinary authority 5 i.e. Regional Manager issued show cause notice dated 7.7.2004 and vide office order dated 23.10.2004 imposed penalty of removal from service. The operative part of office order dated 23.10.2004 is as follows:- “Now therefore, after carefully going through the whole record, reply etc; the undersigned in exercise of the powers vested in him under CCS(CC&A) Rules, 1965 and all other powers enabling him in this behalf hereby order to impose upon Sh.Bhupinder Singh, Conductor, HRTC Parwanoo (Now Solan) the penalty of “REMOVAL FROM SERVICE”. 10. The petitioner filed detailed representation/appeal dated 24.11.2004 against the order dated 23.10.2004 in which he has raised several issues. The representation/appeal dated 24.11.2004 of the petitioner was rejected vide memo dated 18.3.2005 of respondent No.2 which is as follows:- “Reference your representation/appeal dated 24.11.2004 to the subject cited above. In this context, it is to inform you that your aforesaid representation has been considered by the competent authority and rejected after due consideration.” 11. The High Court vide judgment dated 23.3.2004 by remitting the case to the disciplinary authority directed the disciplinary authority for reconsideration of the penalty to be imposed upon the workman. The perusal of office order dated 23.10.2004 indicates that the disciplinary authority has not re-considered the case of the petitioner as per the letter and spirit of the direction given in judgment dated 23.3.2004. The office order dated 23.10.2004 does not show due application of mind on the basis of material on 6 record by the disciplinary authority for re-considering the case of the petitioner for imposing penalty. The same error has been committed by the appellate authority while rejecting the representation/appeal of the petitioner vide memo dated 18.3.2005. The petitioner in the representation/appeal dated 24.11.2004 has taken several points but memo dated 18.3.2005 does not show that those points have been considered. It appears representation/appeal has been rejected in routine. In these circumstances, the office order dated 23.10.2004 and memo dated 18.3.2005 are not sustainable and are liable to be quashed. 12. The petitioner was charge-sheeted on 10.2.1981 for alleged revenue loss to the Corporation amounting to Rs.8.75. it is almost now 30 years when the alleged occurrence took place. It is for the disciplinary authority, appellate authority to impose the penalty but in the present case both the authorities have failed to discharge their duties and have not re-considered the case of the petitioner for imposition of penalty in accordance with law despite specific direction dated 23.3.2004 of this Court. How many times a case can be sent back again and again for re-consideration for imposition of penalty. The petitioner has already suffered the agony of disciplinary proceedings for the last 30 years. Now, it is enough and in my opinion, the matter does not require to be sent back to the disciplinary authority for re-considering the penalty to be imposed. In the facts and circumstances of the case, I am satisfied that withholding of two increments with cumulative effect penalty is 7 sufficient and commensurate with the misconduct imputed to the petitioner. 13. In view of the above, the petition is allowed. The office order dated 23.10.2004 and memo dated 18.3.2005 are quashed. The penalty of with-holding of two increments with cumulative effect is imposed on the petitioner with a direction to the respondents to reinstate the petitioner immediately with continuity of service for the purposes of seniority, pensionary benefits but no back wages. No costs. ( Kuldip Singh ), February 21, 2011 Judge. (GR)