IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No.9358 of 2001 (O&M) Date of decision : December 10, 2008 Ajmer Singh Dhillon ... Petitioner Versus Food Corporation of India & others ... Respondents *** CORAM : HON'BLE MR. JUSTICE AJAY TEWARI *** Present : Mr. R.N. Raina, Advocate for the petitioner. Mr. H.P. Verma, Advocate for the respondent. Mr. Sapan Dhir, Advocate. *** 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 petition has been filed challenging the order dated 25.04.1995 Annexure P-1 by which the petitioner was removed from service; and the orders dated 06.02.1998 and 03.11.1998 whereby his appeal and review application against the said order were rejected. The petitioner after having served for the 15 years in the Army was appointed in the year 1972 in Food Corporation of India. In the year 1994, he was working as Assistant Grade-III, when he applied for 81 days leave for visiting Canada. Admittedly, the leave was not sanctioned but the petitioner proceeded anyhow. Since he did not report back to duty despite CWP No.9358 of 2001 (O&M) -2- various reminders, the impugned order was passed for removing him from service under Regulation 63(2). Thereafter the petitioner returned to India and reported for duty on 26.07.1995 but was not permitted to do so since, as mentioned above he had already been removed from service. His appeal etc. were dismissed. Learned counsel for the petitioner has argued that, apart from everything else, the one glaring fact which emerges is that the petitioner has been imposed the extreme penalty of removal from service and in this way his entire service of 22 years has been washed away. The petitioner has also filed an affidavit 06.11.2008 wherein he has appended another order passed by the respondents of somewhat similar case where also an employee had been punished. A copy of the affidavit is taken on record. Learned counsel for the respondent has not been able to deny the authenticity of the documents appended with the said affidavit. This order reveals that in that case the employee had been dismissed for absence – however after holding a regular inquiry and not like the present case. The appellate authority had reduced the punishment to reduction in rank by one step and by the review order dated 06.06.2002 (Mark 'A' with the said affidavit) the Reviewing Authority had reduced the punsihment awarded to the employee to that of 'Censure'. Learned counsel for the petitioner further argued that the petitioner would have retired on 10.02.1996, and that by 01.01.1995 a pension scheme was introduced for the employees of the Food Corporation of India. He has also drawn my attention to the review order wherein the reviewing authority has itself noticed that under the Central Civil Service CWP No.9358 of 2001 (O&M) -3- Rules leave applied for by an employee who has less than 10 years of service left should normally not be declined. Learned counsel for the respondents has argued that the order of removal from service had been necessitated by the conduct of the petitioner in proceeding on unsanctioned leave and by his obdurate refusal to join back despite the issuance of various letters not only at his address in India but also at his address in Canada. As per the learned counsel for the respondents this was an act of grave misconduct justifying the punishment of removal from service. He has also brought to my notice that even earlier during his career the petitioner had suffered two punishments; viz stoppage of one increment, and that of censure and recovery of penalty. He has however not been able to deny that the impugned orders have neither considered the effect of the long service of the petitioner, nor, to be true, the earlier defalcations of the petitioner. In my opinion, the punishment in this case is grossly disproportionate. Even though continued absence is a serious misconduct yet it cannot be called a gravest act of misconduct. This petition can be decided without going into the other arguments raised by the learned counsel for the petitioner in respect of other infirmities in the whole process. It is true that jurisdiction of Courts in such disputes cannot be construed in any manner to be appellate and thus, beyond the pale of scrutiny on the factual aspect. However, in a situation like the present, in the face of such arbitrary discrimination, the Court cannot be silent spectator. The Hon'ble Supreme Court in the case of Union of India vs S.S. Ahluwalia reported as 2007(7) SCC 257, held as follows: CWP No.9358 of 2001 (O&M) -4- “... 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 punishment. In an appropriate case, in order to avoid delay the Court can itself impose lesser penalty.....” . Now the question which arises is as to what should be an appropriate direction. In my opinion, it would not be in the interest of justice to remit the matter back for a fresh decision after setting aside the order. The petitioner, as noticed above, would have retired in the year 1996. In my opinion, the ends of justice would be met if it is directed that the petitioner is compulsorily retired w.e.f. 01.01.1995. He will further not be entitled to any emoluments for the period he remained absent upto the said date 01.01.1995 (the date from which the Pension Scheme came into force). Needless to say the petitioner would be permitted to exercise necessary option in regard thereto. This writ petition is allowed in the above terms. December 10, 2008 (AJAY TEWARI) sonia JUDGE