CWP No.2664-CAT of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2664-CAT of 2007 DATE OF DECISION: August 13, 2009 UNION OF INDIA AND OTHERS ...PETITIONERS VERSUS OM PARKASH BAGRI AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. NAMIT KUMAR, ADVOCATE FOR THE PETITIONERS. MR. BIPIN SHARMA, ADVOCATE FOR RESPONDENT NO.1. ASHUTOSH MOHUNTA, J. The Union of India is aggrieved of the order dated 7.11.2006 (Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal') whereby the Original Application filed by respondent No.1 Om Parkash Bagri has been allowed and the order of dismissal has been modified into compulsory retirement. Briefly the facts of the case are that respondent No.1 Om Parkash Bagri while working as Postal Assistant at Nai Mandi Post Office at Hisar is alleged to have made payments amounting to Rs.55,800/- (inclusive of interest) of Kisan Vikas Patras (for short 'KVPs') on 15.6.1999 and 17.6.1999, on the basis of NC-32 (application for transfer of KVPs from one post to another). The KVPs were issued by Shamli Post Office (U.P.) and payment of Rs.74,400/- was made at Hisar Head Office on the basis of identity slips issued by Bareilly Cantt. Post Office without obtaining identification of the payees. A departmental enquiry was instituted against respondent No.1 CWP No.2664-CAT of 2007 -2- and the case was also reported to the Police and FIR No.332 dated 23.7.1999 and FIR No.333 dated 4.8.1999, was registered at Hisar City Police Station for all the cases of bogus payments. An enquiry into the charges was held by Sh. V.S. Jain, ASPO and the charges against respondent No.1 were held to be proved vide enquiry report dated 31.5.2001. Respondent No.1 submitted a representation dated 10.7.2001, which was considered by the disciplinary authority and vide order dated 31.7.2001, punishment of dismissal from service was imposed upon respondent No.1 vide order Annexure A-1. Being aggrieved of the said order, respondent No.1 preferred an appeal which was considered and dismissed by the appellate authority vide its order dated 31.10.2002. Respondent No.1 also filed a revision petition which was also dismissed vide order dated 26.7.2003. Thereafter, respondent No.1 filed O.A. No.1018-HR-2004 challenging the orders of his dismissal, rejection of his appeal and revision which has been allowed by the Tribunal vide order Annexure P-4 and accordingly the order of dismissal has been set aside and instead respondent No.1 has been ordered to retire compulsorily. It is against this order that the present writ petition has been filed by the Union of India. Counsel for the Union of India has argued that if an order is to be set aside on technical grounds, liberty is required to be given to the competent authority to proceed against the employee from that stage. It has further been submitted by the learned counsel on behalf of the Union of India that the Tribunal has modified the order of dismissal into that of compulsory retirement, primarily on the ground that Sh. S.C. Sethi, who was the Deputy Post Master at the relevant time, has been awarded milder CWP No.2664-CAT of 2007 -3- punishment, whereas respondent No.1 has been given the extreme penalty of dismissal from service. It has been argued that Sh. S.C. Sethi was awarded the punishment of recovery of Rs.10,000/- and reduction of pay for four months from Rs.7250/- to Rs.7100/-. On the basis of aforementioned facts it is argued that the punishment awarded to Sh. S.C. Sethi cannot be said to be mild. As the charges leveled against respondent No.1 and Sh.Sethi were different, therefore, different punishments have been awarded to both these persons. It has lastly been argued that it is a well settled proposition of law that under normal circumstances, the Court should not interfere in the quantum of punishment unless the punishment is shockingly disproportionate to the offence committed and it pricks the conscious of the Court. Reliance in this regard has been placed on 2004(4) SCT 332, 2005 (1) SCT, 745. The arguments raised by the counsel for the Union of India have been controverted by the counsel appearing on behalf of respondent No.1. It has been argued that respondent No.1 made the payments on the basis of oral directions given by his immediate superior Sh. S.C. Sethi who was the Deputy Post Master. The payments of KVPs were duly approved and passed by Sh. Sethi and thus, as the orders were passed by the senior officer of respondent No.1, hence he was duty bound to comply with the same. It has been also been argued that Sh. Sethi who was also proceeded against in connection with these payments was awarded the punishment of recovery of Rs.10,000/- and reduction of pay for four months from Rs.7250/- to Rs.7100/-, whereas respondent No.1 has been CWP No.2664-CAT of 2007 -4- discriminated against as he has been awarded extreme penalty of dismissal from service. Counsel for respondent No.1 has also highlighted the observations of the Tribunal wherein it has been held as under:- “In the present case, we have noticed that it is not a case of any financial gain to the applicant, when he misconducted for the above charges or causing any financial loss to the State Exchequer. It is also not a case of withdrawal of amount through forged documents. We have also observed that one Sh. S.C. Sethi, Dy. Postmaster burdened with higher responsibilities as per Rules, has been awarded very minor punishment, while holding him guilty only for administrative lapses.” It is submitted that as no financial loss of any kind was caused to the State Exchequer nor there was any financial gain to respondent No.1 and hence the setting aside of the order of dismissal from service and ordering respondent No.1 to retire compulsorily is just and fair and calls for no interference. Counsel for the respondent No.1 has also placed reliance on the case of Sh.R.C. Indora relating to release of KVPs and NSCs in which there were similar allegations against Sh. Indora as in the present case. He was also ordered to be dismissed from service. However, the revisional authority vide order dated 31.8.2004, set aside the order of his dismissal from service and instead allowed him to retire compulsorily. We have heard learned counsel for the parties at length and have perused the record. A perusal of the aforementioned facts clearly shows that apart CWP No.2664-CAT of 2007 -5- from respondent No.1, Sh. S.C. Sethi, who was the Deputy Post Master at Hisar was also responsible for the misconduct. The payments against KVPs were virtually made on the directions of Sh. S.S. Sethi. The KVPs were duly approved by Sh. S.C. Sethi and he was awarded the punishment of recovery of Rs.10,000/- and reduction of pay for four months from Rs.7250/- to Rs.7100/-, whereas, respondent No.1 has been awarded penalty of dismissal from service. It is, thus, clear that the punishment awarded to the two officers who misconducted themselves in making payment of KVPs was different. One officer has been let off lightly whereas, the other has been dealt with the extreme penalty of dismissal from service. We find that the Tribunal has rightly balanced the disproportionate punishment meted out to respondent No.1 and has modified the punishment to that of compulsory retirement w.e.f. 31.7.2001. Apart from the above, another officer Sh. R.C. Indora who was working as Postal Assistant was ordered to be dismissed from service, however, the revisional authority had converted the punishment of dismissal to that of compulsory retirement. It is pertinent to mention here that there were similar allegations against Sh. Indora also. Thus, we see no reason why respondent No.1 should not be allowed to retire compulsorily. Further, a perusal of the findings of the Tribunal clearly shows that no financial loss has been caused to the Exchequer nor respondent No.1 has got any illegal gains by virtue of his misconduct. It is also not a case where some amounts have been withdrawn by way of forging documents. Thus, although there is no doubt that respondent No.1 had misconducted himself in making payments against KVPs, but the punishment of dismissal from service for such a conduct is definitely disproportionate to the gravity CWP No.2664-CAT of 2007 -6- of guilt of delinquent and is too harsh. The argument raised by the counsel for the Union of India that the Court should not interfere in the quantum of punishment imposed upon the delinquent, is also without merit. It is a well settled law that the Court can always look into the aspect of punishment if the same is disproportionate to the gravity of guilt of the delinquent and is unconscionable and too harsh. In Punjab State Co-operative Supply and Marketing Federation Ltd. Vs. Presiding Officer, Labour Court and another, reported as 2008(3) SCT 107, it has been held that “a person who is appointed by the authorities on a higher rank and gets more salary cannot be simply let of by saying that he was a mere supervisor. He being overall incharge is as much guilty of the charge as the workman- respondent herein. The workman could not be treated differently than the supervisor.” In Dev Singh vs. Punjab Tourism Development Corporation Ltd., reported as AIR 2003 SC 3712, it has been held by the Apex Court that “the Courts will not ordinarily interfere in the punishment imposed in the disciplinary proceedings to substitute its own conclusion on penalty, except where the punishment imposed is found to be shockingly disproportionate to the misconduct proved against the delinquent.” To the same effect were the views of the Hon'ble Supreme Court in U.P. State Road Transport Corporation and others Vs. Mahesh Kumar Mishra and others, reported as 2000(3) SCC 450. In the present case, Sh. S.C. Sethi who was also proceed departmentally on the same charges as respondent No.1, has been awarded a much lighter punishment whereas, punishment of dismissal from service has been imposed on respondent No.1. Not only this, even in the case of CWP No.2664-CAT of 2007 -7- another officer Sh. Indora, against whom there were similar charges as respondent No.1, was awarded the punishment of compulsory retirement and thus, it is clear that the punishment of dismissal from service imposed upon the applicant-respondent No.1 was disproportionate to the misconduct committed by him. We find no infirmity in the impugned judgement and accordingly the writ petition is dismissed. (ASHUTOSH MOHUNTA) JUDGE August 13, 2009 (NIRMALJIT KAUR) Gulati JUDGE