Civil Writ Petition No. 8617 of 2000 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 8617 of 2000 Date of Decision: October 13, 2010 H.L. Chawla …Petitioner Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Ms. Alka Chatrath, Advocate for the petitioner. Mr. Himanshu Raj, Assistant Advocate General, Haryana, for the respondents. Kanwaljit Singh Ahluwalia, J. The petitioner, who was born on 24.12.1940 and joined the Irrigation Department, Haryana, as a Junior Engineer on 13.2.1965. In the present writ petition, he has assailed the order dated 26.2.1999 (Annexure P11), whereby his pension was withdrawn and his pay and allowances for the suspension period were restricted to subsistence allowance. It was further ordered that the petitioner would not be paid any salary for the period for which he remained absent from duty i.e. from 5.3.1990 to 10.7.1990. This order (Annexure P11) was also made subject matter of an appeal by the petitioner. The Appellate Authority, vide order dated 19.6.2000 (Annexure P14) maintained the punishment, awarded to the petitioner vide order (Annexure P11), however, modified Civil Writ Petition No. 8617 of 2000 2 the order of withdrawal of pension to the extent of reduction of 50% thereof. Hence, the present writ petition has been filed. The petitioner, vide order dated 11.7.1990 (Annexure P1) was placed under suspension. Vide order dated 12.12.1990 (Annexure P2), the statement of allegations was served upon the petitioner and he was called upon to file written statement thereto, as the competent authority intended to initiate the disciplinary action against the petitioner under Rule 7 of the Haryana Punishment and Appeal Rules, 1987 (hereinafter referred to as “Rules 1987”). The statement of allegations, annexed with order (Annexure P2), disclosed the following charges:- “1) Willful absence from duty. 2) Disobeying the orders of higher officer/authorities. 3) He is negligent and careless official in performing his duties.” The allegations further stated that the petitioner remained absent from duty from 5.3.1990 to the date when he was placed under suspension i.e. 10.7.1990. Secondly, the petitioner had not obeyed the command of the Sub Divisional Officer, GWS Mechanical Sub Division No.II, Rohtak, to get the physical verification of the stores done. Vide order dated 20.9.1991 (Annexure P3), the Chief Engineer, Irrigation Department, Haryana, had increased the subsistence allowance of the petitioner from 50% to 75%. The petitioner, vide his letter dated 3.9.1993 (Annexure P4), replied that he had never remained absent from the duties and had been regularly going to office. Furthermore, he had been paid salary for the months of April, May and June 1990. He Civil Writ Petition No. 8617 of 2000 3 had approached the Sub Divisional Officer for getting the physical verification done but he had refused to do so. During the pendency of the enquiry, the petitioner had attained 55 years of age and he was compulsorily retired from the service by the Superintending Engineer. The Government of Haryana, vide order dated 29.12.1997 (Annexure P5), came to the conclusion that the Superintending Engineer was not competent to compulsorily retire the petitioner from his service and had withdrawn the said order. In response to the writ petition, in the written statement, it has been stated that the petitioner remained willfully absent from duty from 5.3.1990 and was placed under suspension on 11.7.1990. Thereafter, on 12.10.1990, a statement of allegations, under Rule 7 of the Rules 1987, was served upon the petitioner. M.R. Kawatra, Superintending Engineer, WJC West Circle, Rohtak was appointed as an Enquiry Officer. He could not complete the enquiry due to non co-operation of the petitioner. The petitioner submitted his reply to the statement of allegations to the competent authority on 3.3.1997 after a period of seven years. The competent authority had considered the reply as unsatisfactory and Jeevak Mandal, Executive Engineer, Vigilance, was appointed as an Enquiry Officer. However, he could not complete the enquiry due to heavy work load. Since the enquiry was not concluded, the petitioner was awarded selection grades and other benefits. Thereafter, Onkar Jaswal, Superintending Engineer, Construction Circle No.2, Rohtak, was appointed as an Enquiry Officer. The Enquiry Officer had fixed the date of the enquiry proceedings as 22.10.1998 but the petitioner did not attend the same. Since the date of superannuation of Civil Writ Petition No. 8617 of 2000 4 the petitioner i.e. 31.12.1998 was approaching, the Enquiry Officer had submitted his report. The findings of the Enquiry Officer are as under:- “...After going through record of witness, written statement and cross-examination, it is proved as under:- 1. The Junior Engineers are not required to mark their presence in any Attendance Register and J.E. Could not produce any evidence of his duty such as copy of T.A. Journal, copy of log book etc. The Dozer was not got shifted by him, due to his absence and he could not produce any documentary reason of not shifting of Dozer. 2. The J.E. remained willful absence from duty from 5.3.90 to onward. 3. The Junior Engineer failed to exercise physical verification of T & P. 4. Thus charges of willful absence from duty, disobeying the orders of Higher Officer/Authorities and negligence and careless in performing the duties are proved. 5. It is added that salary for absence period of 4/90 and 5/90 was released by SDO Incharge for which the defaulter may be Civil Writ Petition No. 8617 of 2000 5 asked for lapses...” The Enquiry Officer has submitted his report vide letter dated 12.1.1999 (Annexure P8) after the retirement of the petitioner. On the basis of the findings, arrived at by the Enquiry Officer, the punishment order dated 26.2.1999 (Annexure P11), was passed and the following punishment was imposed upon the petitioner:- “...1. To withdraw his pension completely. 2. To restrict the pay and allowance for the suspension period to what has already been drawn by him i.e. Subsistence allowance. 3. No salary to be paid for the period of absence from duty i.e. 5.3.90 to 10.7.90. 4. To take steps for recovery of T & P articles from the JE. 5. Disciplinary action should be taken against the SDO Shri S.K. Sodhi, SDO, who released pay for the month of April and June 1990 to Sh. Hrabans Lal Chawla, JE who had been willfully absenting himself from performing duty during the period. For this purpose, reference should be made to Govt. to take disciplinary action against the delinquent officer Sh. S.K. Sodhi...” The order dated 26.2.1999 (Annexure P11) was challenged in Civil Writ Petition No. 8617 of 2000 6 the appeal. The Appellate Authority, while deciding the appeal, had modified the order (Annexure P11) and instead of withdrawing pension completely, reduced the same to 50% by observing as under:- “...After carefully examining and considering the all relevant records i.e. Charge sheet, reply to the charge sheet, departmental proceedings, findings of Inquiry Officer and version of Mr. Jagia, Advocate, I found that punishment awarded by the GM(P) vide orders dt. 26.2.99 is harsh which require lenient view and order to reduce the pension to fifty percent without any change in other punishment awarded by GM(P). The appeal is allowed to the extent of above orders. I order accordingly...” In the present writ petition, learned counsel for the petitioner has submitted that the Authorities have taken nine long years to conclude the enquiry and for this period, the petitioner has been kept under suspension. The delay, according to the petitioner, had occurred because the Superintending Engineer had compulsorily retired the petitioner on attaining the age of 55 years and lateron it dawned upon the Government that the Superintending Engineer was not competent authority to pass order of retirement and, thus, the said order was withdrawn and the Enquiry Officer was appointed. The Officer, so appointed, due to heavy work load, could not complete the enquiry. Furthermore, it is submitted that the petitioner had joined the services of the department in the year 1965. He had rendered 33 years of service and the punishment awarded is too harsh and not in commensurate with Civil Writ Petition No. 8617 of 2000 7 the alleged charges. Furthermore, the Appellate Authority itself found that the punishment, so awarded, is harsh. It had not considered the length of service of 33 years rendered by the petitioner while converting withdrawal of pension to 50% award of pension. It is stated that the Appellate Authority had not spelt out the aggravating and mitigating circumstances and had not given any reason as to how the reduction of 50% of the pension would be justifiable on the facts and circumstances of the case. I have given my due attention to the arguments advanced by learned counsel for the parties. Though normally this Court does not interfere with the quantum of penalty in the writ under Article 226 of the Constitution of India if the charges are established. The doctrine of proportionality being a part of non arbitrariness can be invoked where the punishment is grossly unjust. Support can be drawn from the judgment rendered by Hon'ble the Apex Court in State of U.P. v. Jaikaran Singh 2003(9) Supreme Court Cases 228. The Courts have consistently held that where the punishment is grossly excessive disproportionately high or unduly harsh, the employer cannot claim immunity from the judicial scrutiny and it will also be open for the Court to interfere in such penalty in the appropriate cases. After taking the above said parameters into consideration, this Court is of the view that the petitioner cannot be denied fruits of 33 years of service rendered by him. Therefore, forfeiture of 50% of pension is not just and commensurate to the allegations levelled against the petitioner. This Court cannot ignore the fact that the allegation against the petitioner is that he remained absent from duty from Civil Writ Petition No. 8617 of 2000 8 5.3.1990 to 10.7.1990, when he was placed under suspension. It is not the case of the department that the petitioner was the habitual absentee. Except for the period for which there is a dispute regarding absention, as per the department, the petitioner had never remained absent earlier thereto. Learned counsel for the petitioner has submitted that the petitioner had been reporting for duty and had also been paid salary for the months of April, May and June 1990. He has further submitted that since the immediate superior of the petitioner was inimical towards him, therefore, the petitioner has been made to suffer the agony of suspension for a long period of eight years. Taking the mitigating circumstances into consideration, this Court is of the view that the order (Annexure P11) whereby the 50% pension was withdrawn can be modified to the extent that the petitioner is entitled to the pension for the period, for which he had rendered the service. However, the other punishments, so awarded by the Punishing Authority in the order (Annexure P11), are upheld. The arrears of the pension be calculated and paid to the petitioner. With the observations made above, the present writ petition is disposed of, with no order as to costs. (Kanwaljit Singh Ahluwalia) Judge October 13, 2010 “DK”