1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2432/2006. : : Dr. Harendra Mohan Sareen Vs. State of Rajasthan & Ors. : : Date of Order 22.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.A.K.Bhargava for the petitioner. Mr.R.K.Sharma for the respondents. Mr.Shyam Sunder Sharma, Govt. Counsel for the State. Heard learned counsel for the parties. This writ petition seeks to challenge the order dated 26.12.2005 by which penalty of withholding of 25% amount of the pension of the petitioner for the period of five years has been imposed. The petitioner who was working as CHMO, Churu was served with charge-sheet on 15.3.2003 on allegation that he gave orders for supply of gauze and bandage to the Rajasthan State Bunkar Sangh Ltd., Jaipur by two orders respectively on 23.8.99 and 21.10.99, which supplies were received in the Hospital in December, 1999. As per the instructions of the Government dated 3.7.1996, he was required to get the supplied material checked with regard to its quality. He however, made payment in the sum of Rs.1,96,850/- in full and final settlement of the bills. The 2 petitioner in his defence before the Enquiry Officer stated that the Government vide its circular dated 3.7.1996 reiterated its earlier instructions of 9th April, 1997, according to which 90% of the payment was required to be made to the Rajasthan State Bunkar Sangh Ltd., Jaipur in advance for purchase of gauze, bandage, bad sheet, carpets etc. The Enquiry Officer accepted the explanation of the petitioner and held that since according to the aforesaid instructions of the Government, 90% payment was required to be made along with purchase order, there does not appear any mistake on the part of the petitioner. The Disciplinary Authority dissented with the Enquiry Officer and issued a notice to the petitioner accordingly on the premise that without getting the supplied material checked and without ensuring that it was in conformity with the specification of Drug and Cosmetic Act, 1940 and the rules framed thereunder payment could not be made. Learned Government Counsel submitted that punishment of withholding of only 25% pension of the petitioner for five years has been imposed upon the petitioner, which is minor, given the fact that petitioner caused loss of Rs.1,96,850/-. 3 Learned counsel for the petitioner however, contested this plea and submitted that the supply of the material is not in dispute and in fact the petitioner had sent the samples for test/checks. Reference in this respect was made to the relevant part of the enquiry report where the Enquiry Officer referred to Ex.P/8, P/9 and P/10 where under the samples were sent for test/check. The testing report by the Government Analyst is on record which indicates that samples do not conform to the quality with respect to Dimension (Length), Threads per dm. (Weft No. & Warp No.), and Fluorescence. Learned counsel also argued that in exactly identical circumstances one Dr.Sushila Saran also charged similarly was exonerated by order dated 30.5.2005. Upon consideration of the arguments aforesaid, what is evident is that the earlier instructions of the Government dated 3.7.1996 was super imposed by subsequent instructions dated 9.7.1997, according to which if the supplies were procured from Rajasthan Bunkar Sangh Ltd., 90% of the amount was to be paid to such corporation in advance. Moreover, this is also not in dispute that supplies were actually received in hospital and, therefore, the contention that it was straight loss of Rs.1,96,850/- cannot be accepted. The Enquiry Officer has also found substance in 4 the submission of the petitioner that it was because of the Government instructions aforesaid requiring 90% payment to be made in advance that the petitioner bonafidely made the payment. The record however, reveals that the petitioner made the 100% payment on 30.7.1997 whereas as per his showing sample were sent for test check and report of the Government Analyst was received thereafter on 15.12.2000. thus, it is evident that although a case of minor supervisory negligence, but at the same time the contention that it was total loss to the State Government cannot be accepted. Argument that another Dr.Sushila Saran was let out scot free on the same charges cannot be accepted because it is not evident from the order of exoneration that whether she made 100% payment in full and final settlement of the bills or only 90%. In view of this, the penalty of stoppage of 25% of the pension of the petitioner for the period does not appear to be proportionate to the gravity of the charge which can be legally taken proved, for minor negligence of this nature. Ends of justice would be met if the penalty of stoppage of 25% is modified and reduced to penalty of stoppage of pension of 5% for five years. 5 In the result, this writ petition is partly allowed. The order of penalty is modified accordingly. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/-