IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4172/1997 Vishnu Avtar Saxena vs. State & Anr. Date of order : 21/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.P. Garg for the petitioner. Shri M.C. Gupta, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition seeks to challenge the order of penalty dated 31.5.1996 and the order rejecting review petition dated 22.7.1997. Petitioner, who was posted as Regional Deputy Director, Mahila & Bal Vikas Development Department, Bhilwara was subjected to disciplinary enquiry along with three others namely Ram Avtar Agarwal, Smt. Neelam Jain and Badri Lal Dad. The charge against the petitioner was that he while working as Dy. Director without approving the sample of `Gur' issued a supply order dated 10.3.1989 owing to which M/s. Shankar Provision Store supplied sub-standard `Gur' and he thereby gave undue benefit to such firm. Another charge levelled against him was that he without cancelling the earlier supply order dated 10.3.1989 got issued another supply order on the same date which created confusion. Third charge was that even after the C.D.P.L., Shahbad brought to his notice that the aforesaid firm M/s. Shankar Provision Store has supplied sub-standard gur, he with a view to giving undue advantage to the said firm, made payment to the said firm on 28.3.1989. Shri R.P. Garg, learned counsel for the petitioner has argued that both on the question of validity of the aforesaid order of penalty as also on the quantum of punishment. It was argued that in none of the charges the allegation that the petitioner committed a misconduct so as to give undue advantage to the firm has been found proved against the petitioner. Neither the enquiry officer in his report nor the disciplinary authority in the impugned order of penalty has recorded any such finding. Learned counsel took the court through the enquiry report as also the penalty order to show that in fact immediately when it was brought to the notice of the petitioner that the quality of the gur that was supplied was sub-standard, he forfeited the security amount and also immediately directed for lodgement of FIR against the supplier. The enquiry officer as also the disciplinary authority have made positive observations with regard to such conduct of the petitioner. Reference in particular was made to penalty order Annexure-6. In para 5 under charge no.2 thereof, it was so observed. As regards issuance of second supply order without formally cancelling the first one, it was held that the Accountant was responsible for such a lapse because once when he got the subsequent supply order approved from the petitioner, it was for him to have cancelled the earlier supply order and officer of the rank of Deputy Director could no be expected to follow the matter of issuance of such an order even upto the dispatch clerk. Learned counsel also referred to the discussion made in para 2 and 4 under charge no.3 by the disciplinary authority. It was argued that the petitioner has been held guilty of only supervisory negligence and that too, attributing him a responsibility which in fact was that of CDPO. It was argued that the petitioner could not be accepted to approve all the samples which was the function of the CDPO. The petitioner was retired from the services on 31.5.1995 and now he is more than 71 years old. The impugned order of penalty as also the order rejecting the revision petition are therefore liable to be quashed and set aside. Shri M.C. Gupta, learned Additional Government Counsel opposed the writ petition and argued that the enquiry officer found the charge of supervisory negligence proved against the petitioner and it was to that extent that the petitioner has been held responsible. Learned counsel however could not dispute that the enquiry officer as well as the disciplinary authority has made positive observations with regard to conduct of petitioner on number of places especially the immediate steps taken by him for withholding of payment, forfeiture of security and lodging of criminal case against the supplier. In view of the totality of circumstances and the fact that petitioner should not be alone responsible for non approval of the samples which liability was to be shouldered by CDPO. Though it cannot be said that the petitioner could be entirely exonerated of his supervisory negligence, but at the same time, I find that the imposition of penalty or stoppage of 30% of pension for a period of five years could not be justified for such a supervisory negligence particularly when the allegation of extending undue advantage to the firm has not been found proved against the petitioner, for such a minor charge, penalty of stoppage of 30% pension for a period of 5 years appears to be rather disproportionate to the gravity of charge proved. Keeping in view the gravity of the charge proved for such incident of 1989, the charge sheet was served upon the petitioner on 17.6.1993 when his retirement was approaching on 31.3.1995 and actually the order of penalty was passed on 31.5.1996, ends of justice would be met if the penalty of stoppage of 30% of pension is reduced to stoppage of 5% of pension for a period of 5 years. Since the effect and operation of the aforesaid order was stayed under the order of this Court dated 28.7.1999, with the order of penalty having been modified by this Court as aforesaid, it shall now be given effect to for a period of five years in the terms so directed. The writ petition is allowed in part. (MOHAMMAD RAFIQ), J. RS/