C.W.P No. 10190 of 2007 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 10190 of 2007 Date of decision : March 21, 2009 Dr. Ishwar Dass Gupta, ...... Petitioner (s) v. State of Haryana and another, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.C.Chaudhary, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG Haryana for the respondents. *** 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 The petitioner joined government service as Medical Officer on 6.5.1995. In the year 2001, he was charge-sheeted for willful absence. A regular inquiry was conducted and report dated 24.2.2004 was submitted holding as under :- “......... The Inquiry Officer after examining the record and perusing the evidence of the employees and the diary C.W.P No. 10190 of 2007 ::2:: register CHC Nuh, has come to a conclusion that Dr. Ishwar Dass sent an application for leave but the same is neither available with CHC Nuh nor with Civil Surgeon Gurgaon. The absence of such an important document shows extreme negligence on the part of the employees and for this reason Ishwar Dass cannot be said to be on leave willfully w.e.f 1.12.1999. As regards earned leave application from 4.12.99 to 13.12.99, it seems that after being entered in diary register it has been misplaced. There is no doubt about the application with regard to 14.12.99 to 27.12.99. He had not given such an application, it would be wrong to declare him being absent under the rules. The Inquiry Officer had seen all the records of CHC Nuh and Civil Surgaon Gurgaon, even according to these records Dr. Ishwar Dass was never informed of the permission granted by the Directorate to join duty. For this reason, I have come to the conclusion that Dr. Ishwar Dass had not joined duty because he was not aware of the permission granted by the Directorate that he was allowed to join duty. It was the duty of Civil Surgeon Gurgaon and AMO CHC Nuh to make Dr. Ishwar Dass aware of the permission granted by the Government/Director Health Services with regard to his joining duty. In my opinion, Dr. Ishwar Dass be given permission by the Government/Director Health Services to join duty so that he may do so.” (Emphasis C.W.P No. 10190 of 2007 ::3:: supplied). A perusal of the inquiry report reveals that the Inquiry Officer did not hold the petitioner unilateral guilty of the absence but held that there was negligence on the part of the authorities as well. Thereafter, a notice was issued to the petitioner by the competent authority by stating as under :- “2. On careful consideration of the report, I agree with the conclusions reached by the Enquiry Officer that the charge levelled against you stand proved......” Consequently, the petitioner was asked to show cause as to why a penalty of removal from service be not imposed upon him. The petitioner filed reply averring that the Inquiry Officer had no where held the charge levelled against him to be proved. He further stated that the penalty of removal from service was too harsh in the circumstances of the case. Thereafter, a dissent note was recorded by the Secretary to Government of Haryana dis-agreeing with the findings of the Inquiry Officer and a fresh show cause notice issued to the petitioner. The petitioner again replied and prayed that he had made various applications ever since 4.2.2000 for permission to rejoin and that prior thereto he had admittedly sent applications right w.e.f 30.11.1999. However, by order dated 18.9.2006, the services of the petitioner were terminated. Learned counsel for the petitioner has argued that in view of the fact that the petitioner had admittedly moved applications for leave, and that within 35 days of having gone on leave he had applied for permission to join, and in view of the fact that the Inquiry Officer found that his absence was at least in part due to the inaction of the respondents, the C.W.P No. 10190 of 2007 ::4:: punishment of removal from service is too harsh and grossly disproportionate. Learned counsel has further argued that the petitioner has undertaken that he would not claim any remuneration for the period he remained out of service. Even though the power of judicial review is circumscribed, yet I draw sustenance from the observation of the Hon'ble Supreme Court in the case of Union of India and another vs S.S.Ahluwalia, 2007(7) SCC 257, wherein it has been held as follows :- “.... 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......” In view of the dictum of law as settled by the Hon'ble Supreme Court, I find that the punishment imposed is grossly disproportionate to the charge against the petitioner. The petitioner has now been on the road for more than seven years. In the circumstances, I am of the opinion that the interest of justice would be met if the petitioner is awarded a lesser punishment of withdrawal of two increments with cumulative effect. Consequently, this writ petition is allowed and the order of punishment dated 18.9.2006 is modified as indicated above. It is directed that the petitioner be reinstated C.W.P No. 10190 of 2007 ::5:: in service with all consequential benefits except remuneration for the period he remained out of service. No costs. ( AJAY TEWARI ) March 21, 2009. JUDGE `kk'