IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 3056 of 2008. Decided on 23.3.2011 Tej Ram ..…Petitioner. Versus State of Himachal Pradesh and another. …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. K.D. Shreedhar, Advocate. For the respondents : Mr. J.S. Guleria, Assistant Advocate General. V.K. Sharma, Judge (Oral) The petitioner had joined the employment of the respondent-department as Patwari on 16th February, 1981. During the relevant period, he was posted as such in Patwar Circle, Shikari, Tehsil Banjar, District Kullu, H.P. In September, 1995, there had been unprecedented heavy rains in the area causing heavy loss to houses, cow sheds and crops etc. It was in such circumstances that the State Government decided to compensate the affected persons by way of compensation. For this purpose, the Revenue Department carried out a survey to assess the damages. It was alleged that during verification of the loss assessment report submitted by the petitioner, it was found that in as many as 17 cases either there had been no loss to the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 property or the loss had been exaggerated. It was in such circumstances that a show cause notice dated 5.1.1996, Annexure A-2, was served upon the petitioner along with list of those 17 cases to which he filed reply and stated that he was pressurized by the concerned persons to inflate the damages. However, since it was found that the petitioner was to be proceeded against departmentally for imposition of major penalty, the disciplinary authority instead of accepting his version and acting upon the same, decided to chargesheet the petitioner on the above count. Consequently, a chargesheet was submitted upon him, to which he filed a detailed reply denying the charges and submitting his explanation in respect of each of the 17 cases. However, the same did not find favour with the disciplinary authority and consequently District Revenue Officer, Kullu, was appointed as Inquiry Officer, who submitted his report Annexure A-6, on the basis of which the impugned order dated 30.5.1997, was passed by respondent No.2, removing the petitioner from Government service. 2. The petitioner has challenged the order of penalty Annexure A-1, mainly on the ground that the admission, if any, made by him could not have been made basis for returning a finding of guilt against him. In this regard, reliance has been placed on Thotapalli Radhakrishna Murthy vs. The Divisional Manager, United India Insurance Co. Ltd; Guntur, 1982 LAB. I.C. 1745 and Natavarbhai S. Makwana and Union Bank of India and others, 1985 (2) LLJ, 296. 3 3. It was next contended that in any case, the penalty imposed upon the petitioner is highly disproportionate to the misconduct allegedly established against him and more so, when there has been no undue gain to him and any corresponding loss to the State exchequer, as no compensation was released on the basis of assessment made by him. On this aspect, the petitioner is seeking support from the law laid down in U.P. State Road Transport Corpn and others vs. Mahesh Kumar Mishra and others (2000) 3 Supreme Court Cases, 450, paras 7 to 9 whereof being relevant are extracted below : “7. A three Judge Bench of this Court in B.C. Chaturvedi v. Union of India laid down as under : (SCC p. 762, para 18) “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate 4 authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings. 9. Another three-Judge Bench of this Court in Colour-Chem Ltd. Vs. A.L. Alaspurkar has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the court to interfere.” 4. Reliance has also been placed on Director General, RPF and others vs. Ch. Sai Babu (2003) 4 Supreme Court Cases 331 with specific reference to paras 6 and 7, which lay down as under: “ 6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the 5 respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works. 7. In the present case we do not find that there has been a consideration of all the relevant facts and the learned Single Judge has not recorded reasons in order to modify the punishment imposed. The Division Bench of the High Court also did not examine the matter in proper 6 perspective but simply concurred with the order passed by the learned Single Judge. Normally in cases where it is found that the punishment imposed is shockingly disproportionate, High Courts or tribunals may remit the cases to the disciplinary authority for reconsideration on the quantum of punishment. In this case the disciplinary proceedings were initiated in the year 1989 and to shorten the litigation, we think it appropriate to set aside the impugned order and remit Writ Appeal No.952 of 1998 to the Division Bench of the High Court to reconsider the case only on the quantum of punishment imposed on the respondent having regard to all relevant factors including the fact that the respondent was a member of the Railway Protection Force and in the light of the observations made above. Since the proceedings are pending for quite some time, we request the High Court to dispose of the writ appeal expeditiously. The impugned order is set aside and the appeal is ordered in the above terms. No costs.” 5. True it is that the scope of powers of this Court under Section 226 of the Constitution in such matters is very limited. However, the fact remains that in rare and exceptional cases where the penalty imposed is shockingly disproportionate to the misconduct established against the delinquent, the Court can always either remit the case to the disciplinary authority for reconsideration on this count or substitute the penalty appropriately on its own. 7 6. However, it may be noticed that though the petitioner had statutory right to appeal against the impugned order dated 30th May, 1997, visiting him with the penalty of removal from service and any order passed on such appeal was further subject to revision to the next higher authority. But, these remedies were not resorted to by the petitioner. 7. In view of the above, the petition is disposed of with liberty reserved to the petitioner to submit an appeal against the impugned order of penalty dated 30th May, 1997, to the concerned authority within thirty days from today. In exercise of such right of appeal by the petitioner, period of limitation, if any, for preferring such appeal would not come in his way as he has been prosecuting the matter earlier before the Administrative Tribunal, since July 1997, that is, soon after the impugned order of penalty Annexure A-1, was passed on 30.5.1997 and thereafter, before this Court till date. As and when the appeal is filed the appellate authority shall consider the same and take a final decision in the matter in accordance with law particularly the law laid down in the judgments referred to hereinabove as also keeping in view the fact that in the given circumstances, the penalty imposed upon the petitioner, per se appears to be grossly disproportionate to the alleged misconduct proved against him and more so when nothing incriminating is attributable against him during his past service of about 16 years. The appeal shall be decided as expeditiously as possible and in any case by 30.06.2011 as the matter is hanging fire for the last more than 13 years. 8 8. The petition stands disposed of, so also pending CMP (s), if any. Copy dasti. (V.K. Sharma) Judge 23rd March, 2011. cs