L.P.A. No. 1269 of 2000 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 1269 of 2000 (O&M) Date of decision: October 28, 2009 State of Haryana and others ...Appellants Versus Adarsh Kumar ...Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Rameshwar Malik, Additional Advocate General, Haryana, for appellants. None for the respondent. ORDER 1. This appeal has been preferred by the State against the judgment of the learned Single Judge, setting aside the order of dismissal and directing reinstatement of the respondent without back wages. It was directed that the period from the order of dismissal till reinstatement will be counted only for the purpose of pension. 2. The respondent was employed as a Junior Engineer in PWD (B&R) Branch in the State of Haryana at Narnaul from 1976 to 1979. A charge sheet was given to him alleging the following acts of misconduct:- “1. He evaded handing over charge of store to Shri M.L. Khattar J.E. And remained willfully absent from duty for 125 days and disobeyed the orders of his superiors. 2. That he embezzled Govt. stores worth Rs. 67552.80 and caused loss to this extent to the Govt. and also L.P.A. No. 1269 of 2000 (O&M) 2 temporarily embezzled Govt. stores worth Rs. 31500/- and caused temporary loss to the state Govt. to this extent.” 3. An inquiry was held. The Inquiry Officer, vide report dated 24.12.1985, held the charges to have been proved. This lead to passing of the removal order dated 14.11.1986. Against the said order, review petition was dismissed by Secretary to Government, vide order dated 18.12.1987, Annexure P-7. 4. The contention raised in the petition was that the findings of the Inquiry Officer were not based on any evidence. On the charge of alleged embezzlement, criminal trial was also held in which the respondent was acquitted. The respondent further submitted that since alleged absence from duty was not willful and in any case even if the said charge was proved, the order of removal was disproportionate to the charge. 5. The appellants contested the petition. The learned Single Judge held that there was no evidence whatsoever in support of the charge No.2. Not a single witness was examined by the Department before the Inquiry Officer and the Inquiry Officer held the charge proved merely on the statement of the Presenting Officer. On behalf of the appellant reliance was placed on letters Annexures R/2 and R/3 dated 29.11.1979 and 1.9.1980 purporting to be confession by the respondent. Learned Single Judge held that tenor of these letters showed that the respondent agreed to deposit the amount in dispute but the said letters could not amount to confession. 6. With regard to charge No.1, learned Single Judge held that the department did not produce copies of the leave applications and other relevant record to prove absence from duty. The stand of the respondent L.P.A. No. 1269 of 2000 (O&M) 3 was that he had been granted leave for his own marriage and when he reported for duty, he was not allowed to join. While the learned Single Judge did not interfere with the finding of absence from duty, it was held that though misconduct of absence from duty was proved, the penalty of dismissal was grossly disproportionate to the charge. However, having regard to all the circumstances, it was directed that the respondent be reinstated without backwages. The respondent had also made a statement before the Court that he will not claim back wages or even continuity of service, except for the purpose of pension. 7. We have heard learned counsel for the appellant and perused the record. He submitted that scope of interference by this Court in the matter of award of punishment in departmental proceeding was limited. He relied on judgment of the Hon'ble Supreme Court in AIR 1999 SC 2407 Bank of India Vs. Degala Suryanarayana. Once the charge has been held to be proved, this Court ought not have interfered with the penalty of dismissal. 8. There is no doubt that it is for the disciplinary authority to impose the punishment but even such power has to be exercised rationally and keeping in mind the principle of proportionality. Learned Single Judge held that charge No.2 was not supported by any evidence. We are in agreement with the said finding. However, charge No.1 having been established, question of punishment called for a fresh look. 9. None appears for the respondent to support the impugned judgment. The judgment was stayed during pendency of this appeal. 10. We find substance in the plea that matter should have been remitted to reviewing authority for passing a fresh appropriate order, instead L.P.A. No. 1269 of 2000 (O&M) 4 of directing reinstatement. 11. Accordingly, we partly allow this appeal and modify the impugned order to the effect that the matter will stand remanded to the Secretary to Government, Department of PWD (B&R) Branch, Haryana, for a fresh decision with regard to quantum of punishment. Decision may be taken within three months from the date of receipt of a copy of this order. (ADARSH KUMAR GOEL) JUDGE October 28, 2009 (GURDEV SINGH ) prem JUDGE Note:- Whether this case is to be referred to the Reporter .....Yes/No