IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.537 of 2005 Decided on : March 31, 2009 Virinder Singh …Petitioner. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : M/s Surinder Sharma & Paresh Sharma, Advocates. For the Respondent : Mr. P.K. Sharma, Additional Advocate General. Per Surit Singh, J ( Oral ) Petitioner has approached this Court, under Articles 226 and 227 of the Constitution of India, for judicial review of order dated 5th April, 2005, passed by the H.P. State Administrative Tribunal (now scrapped), on Original Application No.3995 of 2000, moved by the petitioner for quashing and setting aside the order of his removal from service, passed by his employer, the respondent herein. 2. We may first sum up the relevant facts. Petitioner having served in the Indian Army as Commissioned Officer was re-employed as Zila Sainik Welfare Officer in the year 1980, in the Department of Sainik Welfare of Himachal Pradesh. The post was lateron re-designated as Deputy Director, Sainik Welfare. In the year 1997, disciplinary Whether reporters of the local papers may be allowed to see the judgment? …2… proceedings were initiated against the petitioner for various acts of delinquency/dereliction of duty. The charges were that he remained wilfully absent from duty from 15th January, 1995 to 5th March, 1995 and again from 19th August, 1995 to 5th September, 1995 (total period 68 days), developed illicit relations with a lady warden of Children Home at Una and was arrested by the police and that during this period, while posted at Una as Deputy Director, he did not perform his duties satisfactorily and failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant. Chargesheet was framed and served upon the petitioner. He filed reply denying all the charges. Disciplinary Authority then appointed an Inquiry Officer, who submitted report that all the charges were proved by the evidence led during the course of inquiry. Copy of the inquiry report was supplied to the petitioner and he was afforded an opportunity to make a representation against that report. He made no representation, in writing, but requested for being heard in person. He was heard in person on 10th July, 2000, by the Financial Commissioner-cum-Secretary (GAD). In the course of that hearing, petitioner allegedly admitted that he had committed mistakes and requested for being shown leniency in the matter of award of punishment. Finally, the order of his removal from service was passed. Disciplinary Authority observed while passing the order of penalty that all the charges stood proved against the petitioner. …3… 3. Petitioner challenged the order of his removal from service, before the State Administrative Tribunal, by filing the aforesaid Original Application. Tribunal has dismissed the application, holding that all the charges against the petitioner stand established and the charges being of serious nature, penalty of removal from service has rightly been imposed. 4. We have heard the learned counsel for the petitioner as also the learned Additional Advocate General appearing for the respondent and gone through the record. 5. It is not in dispute that the petitioner had not attended his office from 15th January, 1995 to 5th March, 1995 and again from 19th August, 1995 to 5th September, 1995, but his plea is that during both the aforesaid spans of his absence from duty he was hospitalized at Dharamshala. However, he did not lead any evidence during the course of inquiry suggesting that he was in fact hospitalized. Learned counsel for the petitioner has placed reliance upon a communication, which was written by someone from his office to the Director, Sainik Welafare Department, per which the wife of the petitioner had informed, on 17th January, 1995, that the petitioner had been admitted to Civil Hospital, Dharamshala, for medical treatment. However, the petitioner did not produce any record in support of his claim nor did he himself appear as a witness to say so, during the course of inquiry. The aforesaid letter, which is Annexure RX-I, by itself, does not prove that the petitioner was, in fact, admitted to the hospital in January, 1995. The fact could have been proved …4… only by producing the record of admission. Not only that there is no record of the admission of the petitioner in any hospital, during the aforesaid two spells of his absence from duty, but we find atleast one document, indicating that he was not admitted to any hospital and had been advised only rest. The evidence is in the nature of two medical certificates, Annexures RX-II and RX-III, produced by the petitioner himself to his employer. As per these certificates the doctors certified that absence from duty of the petitioner from 15th January, 1995 to 4th March, 1995 was necessary for the restoration of his health, as he had been suffering from relapsing pancreatitis. 6. In view of the abovestated position, we do not find any merit in the petitioner’s plea that charge regarding willful absence is not established, as he was hospitalized during the period of alleged willful absence. 7. However, it is made out even from the inquiry report itself that there was no evidence in support of the charge that the petitioner had developed illicit relations with a lady staff member of children home at Una. Inquiry Officer made the following observation, while dealing with this particular charge: “……… However, for want of sufficient evidence, it is not established whether the charged officer was having illicit relations with Smt. Sundla Devi, or not. The charge of misconduct on the part of charged officer on account of his relationship with Smt. Sundla Devi stands established.” …5… 8. Now, when there was not sufficient evidence, as per the observation of the Inquiry Officer himself, how could he have held that the charge stands established. Similarly, the Disciplinary Authority also could not have held that the charge stands established. Failure on the part of the Disciplinary Authority to notice the aforesaid observation in the inquiry report suggests that there was not proper application of mind, while taking the decision for imposition of penalty. 9. Third charge was too vague. Specific instances of dereliction of duty and failure to redress the grievances of the Ex-servicemen were not there in the chargesheet nor was there any evidence, except a written complaint, allegedly made by a number of Ex-servicemen of the area to the Director, Sainik Welfare. However, none of those complainants was examined to prove the complaint or the allegations made therein. Department also examined the then Director, Sainik Welfare, who stated that he found the petitioner absent from office on a number of visits to his office, while passing through Una. However, he did not specify the dates of such visits or the absence of the petitioner from office. Thus, the charge could not have been held to have been proved. 10. In view of the fact that only the charge of willful absence from duty stands proved against the petitioner, we are of the considered view that the imposition of penalty of removal from service is too severe and also disproportionate …6… to the charge which shocks the conscience of the Court. Petitioner had been in service of the Sainik Welfare Department for about 20 years, at the time when the order of removal was passed. The Disciplinary Authority did not consider this aspect of the matter. Also, the Disciplinary Authority appears to have been swayed by the erroneous finding of the Inquiry Officer that the petitioner had developed illicit relations with a staff member of children home at Una. Since the charge of only willful absence from duty was clearly established, the Disciplinary Authority should not have imposed the penalty of removal from service. At the most, it could have considered imposition of penalty of compulsory retirement from service or some other penalty, like reduction in pay or stopping of increments. 11. For the foregoing reasons, we allow this writ petition, set aside the impugned order of the H.P. State Administrative Tribunal (now scrapped), as also the impugned order of punishment, Annexure PF, and remit the case to the Disciplinary Authority for passing appropriate order with regard to imposition of penalty, in accordance with the Rules and the observations made hereinabove, and such order shall be passed within three months from today. Writ petition stands disposed of. ( R.B. Misra ), J. March 31, 2009(sd) ( Surjit Singh ), J.