C.W.P No.19961 of 2006 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : May 07, 2009 1. C.W.P No.19961 of 2006 2. C.W.P No. 3968 of 2007 Gir Raj Singh vs The State of Haryana and others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.N.Lohan, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of CWP Nos.19961 of 2006 and 3968 of 2007, as common questions of law and facts are involved therein. For the sake of convenience, facts are being extracted from CWP No.19961 of 2006. The petitioner was appointed as a Conductor in the year 1996 and was regularized w.e.f 17.1.1968. In the year 1995, a charge-sheet under Section 7 of the Haryana Civil Service (Punishment and Appeal) Rules, 1987 was issued to the petitioner with regard to certain embezzlement alleged to have been made by him. An FIR was also lodged C.W.P No.19961 of 2006 ::2:: against him. However, he was acquitted by the trial Court. In the inquiry proceedings, the Inquiry Officer found that the petitioner had stated that he had made payments of Rs.87,822.10 but was not able to show any proof regarding the same. Consequently, he held the petitioner guilty of the charges. Thereafter, the petitioner was compulsorily retired by order dated 5.10.2004 (Annexure P-4). The appeal filed by him was dismissed by order dated 8.8.2005 (Annexure P-8). It is against these orders that CWP No.19961 of 2006 has been filed. As far as CWP No. 3968 of 2007 is concerned, the petitioner has challenged the order dated 28.10.2005 (Annexure P-4), whereafter by order dated 21.2.2007 (Annexure P-3), his pay was re-fixed after withdrawing the benefit of pay revision on the ground that he was not in service being under suspension. As far as CWP No.19961 of 2006 is concerned, I have gone through the impugned orders and find that the view taken by the respondents cannot be classified to be unreasonable or the punishment to be wholly dis-proportionate. In the case of Union of India and another vs S.S.Ahluwalia, 2007(7) SCC 257, the Hon'ble Supreme Court has held as follows :- “.... The scope of judicial review in the matter of imposition of penalty, as a result of disciplinary proceedings, is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case, the Court is to remit the matter to the disciplinary authority for reconsideration of the C.W.P No.19961 of 2006 ::3:: punishment. In an appropriate case, in order to avoid delay the court can itself impose lesser penalty......” In the circumstances, I find no reason to interfere with the order of compulsory retirement of the petitioner. Consequently, CWP No.19961 of 2006 is dismissed with no order as to costs. In CWP No.3968 of 2007, however, I find that the reason for re-fixation of the pay of the petitioner in the pre-revised pay scale viz that he was not in service but was under suspension is clearly misplaced. Counsel for the respondents has relied upon the second proviso to rule 6 of the Pay Revision Rules, 1996 which is to the following effect:- “ xx xx xx Provided further that where a Government servant is under suspension on the Ist day of January, 1996, the option may be exercised within three months of the date of his return to his duty if that date is latter than the date prescribed in this sub-rule : (2) The option shall be intimated by the Government servant to the Head of his office. (3) If the intimation regarding option is not received within the time mentioned in sub-rule(1), the Government servant shall be deemed to have elected to be governed by the revised scale of pay on and from the Ist day of January, 1996. (4) The option once exercised shall be final.” A bare perusal of the above provision, particularly sub clause (3) makes it clear that any person who has not given an option would be C.W.P No.19961 of 2006 ::4:: deemed to have been elected to be governed by the revised scale of pay. No other provision of law or rule has been brought to my notice under which a person who is under suspension can be denied the benefit of revised pay scale. Consequently, this writ petition is allowed, the orders dated 21.2.2007 (Annexure P-3) and dated 28.10.2005 (Annexure P-4) are set aside and the respondents are directed to release the retiral benefits of the petitioner after re-fixing his pay/suspension allowance, within a period of three months from the receipt of a certified copy of this order. The recovery of Rs.1,08,360/- effected from the petitioner shall be refunded to him forthwith along with interest @8% p.a from the date of recovery till the date of payment. ( AJAY TEWARI ) May 07, 2009. JUDGE `kk'