Civil Writ Petition No. 14162 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 14162 of 2008 Date of decision:-12.07.2011 Jang Singh ...Petitioners Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.S. Modi, Advocate for the petitioner. Mr. Puneet Gupta, Addl.A.G. Punjab. RITU BAHRI J.(Oral) The petitioner has sought quashing of inquiry report dated 31.1.2007 (Annexure P-6) and order dated 26.7.2007 (Annexure P-7) whereby petitioner has been awarded the punishment and the order dated 29.7.2008 by which the recovery is being effected from the petitioner. In the year 2004 certain renovations were carried in Punjab Bhawan, Chandigarh. Some old articles were moved at the time of renovation and shifted to Circuit House, Sector 39, Chandigarh. The abovesaid articles were shifted in the supervision of Gurvinder Singh and the petitioner. The petitioner was issued a show-cause notice dated 29.3.2006 stating that the articles which were shifted in November 2004 have been lost. The Committee was constituted to look into the matter. Shri Gurvinder Singh, Supervisor and the Assistant Director, Hospitality Shri K.L. Arora did not present themselves. Shri K.L. Arora died on 25.5.2005. The petitioner appeared and gave his clarification. The Committee had recommended disciplinary action against all the erring officers as per the report dated 17.4.2006. A charge-sheet was served on the petitioner (Annexure P-2) Civil Writ Petition No. 14162 of 2008 -2- giving details of the articles, which were shifted from Punjab Bhawan, Sector 3, Chandigarh to Circuit House, Sector 39, Chandigarh. The shifting was conducted without any orders from any office, to whom the articles belonged. A sum of Rs.28090/- bearing bill No.26925 dated 07.4.2005 and amount of Rs.2,000/- bearing bill No.26922 dated 06.5.2005 have not been deposited by the petitioner. Further, reply was given by the petitioner. In his reply, the petitioner has denied the allegations. Mr. M.M. Oberoi (IAS) retd. was appointed as Inquiry Officer. He gave his report (Annexure P-6) dated 31.1.2007 holding the petitioner guilty for the first charge but exonerated him in the second charge. Vide order dated 26.7.2007 the petitioner was punished by stoppage of one increment with cumulative effect. The recovery, after finalization of the value of the articles, misappropriated was to be made from the petitioner. Eventually, vide order dated 29.7.2008 (Annexure P-8) recovery of Rs.70910+9905=80815/- was ordered after deducting Rs.1000/- per month from his salary. Counsel for the petitioner has argued that Gurvinder Singh, who was Supervisor did not appear before the Inquiry Officer and because of his non-appearance presumption cannot be drawn that the petitioner was also guilty of misappropriation of the articles shifted from Raj Bhawan, Punjab, Sector 3, Chandigarh. After placing the articles in the driver's room, the key was handed over to the Supervisor and thereafter the petitioner cannot be held responsible for any misappropriation of the articles. The articles, which were lying in the guest house, Sector 39, Chandigarh could not be removed without the approval of the Incharge of the Guest House i.e. Trilochan Singh. This fact has been ignored by the Inquiry Officer. No action has been taken against Trilochan Singh, who was incharge of the Guest House at Sector 39, Chandigarh. The petitioner was following the orders of his immediate senior officer and he acted in good faith, to which he cannot be held liable. Civil Writ Petition No. 14162 of 2008 -3- Reply was filed by the respondents. Mr. Puneet Gupta, Addl. Advocate General, Punjab has vehemently argued that when the renovation started in Punjab Bhawan, the electric gadgets like air conditioner, geysers, heaters etc. were removed and handed over to Shri Gurbinder Singh and Shri Jang Singh-petitioner by the electrical/Public Health Wings of the P.W.D. against proper receipts. These articles were shifted to Sector 39, Chandigarh and stored in the driver's room of the Circuit House of Sector 39, Chandigarh under their lock and key. When the keys were found lost, a departmental committee was constituted to look into the losses. A regular inquiry was conducted and petitioner was found guilty. Gurbinder Singh did not appear and was dismissed from services after following due procedure. Taking the lenient view, petitioner was let off by imposing stoppage of one increment with cumulative effect. In order to make up the recovery of loss amounting to Rs.1,01,805/- is being sought from the petitioner. I have heard counsel for the parties and have gone through the case file carefully. As per the inquiry report, the petitioner when deposited the goods in Sector 39 Guest House, did not take any receipt from the employees of the Guest House. Therefore, he was responsible. At the time of leaving the Punjab Bhawan, Sector 3, Chandigarh they had issued receipts for taking the articles in the truck but after depositing them the receipts were not taken by the employees of the Guest House of Sector 39, Chandigarh. The petitioner has committed negligence by not taking the receipts of articles after keeping them in the driver's room of the Guest House of Sector 39, Chandigarh. Petitioner had given receipts of a number of articles, which were kept in the room, therefore, he is totally responsible for the same. After receiving the articles from the PWD employees he was unable to give the receipts to new employees on his transfer. Civil Writ Petition No. 14162 of 2008 -4- The allegation No.1 against the petitioner is proved and petitioner has been discharged from allegation No.2. From the evidence of Gurbachan Singh, witness No.3 it is clear that when the goods was sent to the Punjab Bhawan, a list was prepared of which one copy was given to the petitioner and second copy was retained in the office. As per the report, it was the duty of Gurbinder Singh to transfer all the articles to the new employee and the petitioner was transferred/relieved. Such instructions had been given in the Head Office to Gurbinder Singh. These instructions were not followed by him. Reference has been made through a departmental order dated 23.2.2005 in which directions were given to the petitioner and Bhupinder Singh to send the list of these articles to the concerned Executive Engineer of the Public Works Department so that they could take appropriate action at their own level as per rules. There was no direction to the petitioner to issue receipt of the said goods and deposit them in the Guest House of Sector 39, Chandigarh. Case of the petitioner is that he was orally instructed from his senior that he had taken the goods to Sector 39 Guest House. No evidence or written proof has been led by the petitioner. After depositing the goods no receipt was taken from the employees of the Guest House of Sector 39, Chandigarh by the petitioner. In view of the detailed report, no ground to interfere in the inquiry report dated 31.1.2007 (Annexure P-6) is made out. The Supreme Court in B.C. Chaturvedi versus Union of India and others (1995) 6 Supreme Court Cases 749 has restricted this Court regarding interference by the High Court in the punishment orders under Article 226 of the Constitution of India. In paragraph 17 of this judgment, the Supreme Court has observed as under :- “The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orrisa v. Bidyabhushan Mohapatra AIR 1963 SC 779 Civil Writ Petition No. 14162 of 2008 -5- held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. In Rangaswami versus State of T.N. 1989 Supp. (1) SCC 686 a Bench of three Judges of his Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority.” In the facts of the present case a lenient view has been taken after the petitioner was found guilty of the charge of misappropriation of the goods kept in Sector 39 Guest House. As per the report Supervisor Gurbinder Singh, who has been dismissed from service, was responsible for misappropriation to the tune of Rs.6,11,856/-. Recovery of Rs.80815/- has been ordered, which is not disproportionate to the role attributed to the petitioner. The Writ petition is dismissed. July 12, 2011 ( RITU BAHRI ) Vijay Asija JUDGE