C.W.P. No.13126 of 1993 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13126 of 1993 Date of Decision. 15.03.2010 The Haryana State Federation of Consumers' Cooperative Wholesale Store Ltd. through its Managing Director ........Petitioner Versus The Commissioner and Secretary to Govt. Haryana, Department of Cooperation, Civil Secretariat, Chandigarh and another ....Respondents Present: Mr. Rajesh Garg, Advocate for the petitioner. Mr. Ravi Dutt Sharma, DAG Haryana for respondent No.1. Mr. S.S. Dalal, Advocate for respondent No.2. 2. C.W.P. No.14605 of 1993 Yash Pal Singh Rana ........Petitioner Versus The State of Haryana through the Commissioner and Secretary to Govt. Haryana, Cooperation Department, Civil Secretariat, Chandigarh and another ....Respondents Present: Mr. S.S. Dalal, Advocate for the petitioner. Mr. Ravi Dutt Sharma, DAG Haryana for respondent No.1. Mr. Rajesh Garg, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) C.W.P. No.13126 of 1993 -2- 1. The two writ petitions arise out of the same order passed by the Commissioner and Secretary to the Government of Haryana as an Appellate Authority in the Cooperation Department when an order of punishment of dismissal made by the Managing Director, who was the Disciplinary Authority, was modified and it was converted as one of the stoppage of two increments and denying to the petitioner only the wages during the period of suspension and directing reinstatement in service. The management has filed C.W.P. No.13126 of 1993 challenging the order of the Commissioner and seeking for restoration of the punishment awarded by the Disciplinary Authority. The employee has filed C.W.P. No.14605 of 1993 challenging the direction of disallowing to the petitioner the salary during the suspension period and imposing stoppage of increments for two years. The reference to the petitioner and the respondent shall be as regards the status of the employee and the management respectively. 2. The charge against the petitioner is that he had during his service been guilty of; i) dishonesty (black-marketing of Rape Seed Oil) and ii), negligence in the performance of his duties and acting prejudicially to the interest of the store to cause serious losses. The specific acts that gave rise to the charge-sheet were that the petitioner, while working as a District Manager, CONFED at Rohtak transferred 7 trucks of Rape Seed Oil (RSO), which had been consigned from Karnal to Rohtak and diverting the delivery at Bahadurgarh during the period of November 1986 to February 1987. The indents of RSO referred to above had been issued in favour of C.W.P. No.13126 of 1993 -3- CONFED DO, Rohtak but instead of lifting the stocks for the District Office at Rohtak, he had transferred all the products to Bahadurgarh. The imputation was that it had been so done to sell them at black market and make profits. This apart, the other charge was that the petitioner had taken part in the election campaign in Mundal Khurd Constituency in the election held to the Haryana Vidhan Sabha in 1987. The further contention was that he purchased basen, sugar and atta at higher rate in the year 1985 for supply to Panjiri Plant, Gurgaon and caused financial loss to the extent of Rs.45,570/-. He had been held guilty only for the first charge and no specific finding regarding the other charges had been rendered as proved. The Enquiry Officer's report was confirmed by the Disciplinary Authority, who inflicted on him a punishment of dismissal from service. 3. In appeal to the Commissioner, he held that the petitioner had not committed any fraud, earned any black money or indulged in any malpractice. He accepted the explanation given by the petitioner that RSO was taken to Bahardurgarh only because there was a greater demand from the consumers for this product. This explanation was taken by the Commissioner as a position, which could have been characterized as administrative lapse but did not constitute an adequate ground for dismissal from service. I have not been shown through any specific evidence that the stocks had been sold at a higher price at Bahadurgarh and the petitioner had obtained any personal benefit by indulging in a black market trade. As regards the second charge, the Commissioner had also C.W.P. No.13126 of 1993 -4- held that there is no proof of the fact that there had been any political participation in the election. 4. In the matter relating to departmental proceedings and punishment, an interference under Article 226 would not normally be called for unless the finding was totally perverse and the punishment was capricious. I do not find that the Appellate Authority has lost out any aspect, which the punishing authority has seen. Learned counsel appearing for the respondent strenuously contended that there was a specific finding by the Enquiry Officer that the petitioner had made personal benefit by selling the products in a black market but even this finding appears to be suspect, for no evidence has been brought before the Enquiry Officer about such a black market sale. The Commissioner's intervention as regards the punishment reducing the punishment of dismissal to one of stoppage of increments for two years and denying to him the salary during the suspension period was consciously undertaken in view of the fact that he found that there had been an administrative lapse on his part in lifting the stock to a place and diverting it from place to which it was originally consigned to yet another place. Even the punishment, which the Appellate Authority had given was fair, for it reduced the punishment to what it found to be only an administrative lapse but still do not let him wholly out of hook by denying to him the salary during the period when he did not work and also inflicted the punishment of stoppage of increments for two years. The order of the Commissioner has rendered substantial justice and I do not C.W.P. No.13126 of 1993 -5- think there is scope of interference in the decision taken by him. 5. By virtue of the writ petition filed by the respondent in C.W.P. No.13126 of 1993, there has been an order of stay and therefore, the petitioner has not joined his services. The petitioner had also not the benefit of salary for all these years. The Appellate Authority has stated that the reinstatement would be done only on his filing an affidavit that he would not claim salary during the period between 06.02.1992 to 06.04.1993. The matter has come to a stage when the whole service period has worked out during the pendency of the writ petition. The petitioner has not come to any material benefit of claiming reinstatement or salary during all these periods. 6. By restoring the order of the Commissioner, the particular finding denying to the petitioner a right of reinstatement without giving an affidavit in the manner indicated alone is vacated. Still the petitioner shall not be entitled to any wages during the period when he had not joined the services. Learned counsel appearing for the petitioner states that if he had been in service, he would have superannuated by now. This order shall work out only to make him eligible for claiming himself to have been reinstated on the date when an Appellate Authority-Commissioner had passed the order and he shall be entitled to a computation of his terminal benefits as though he had rejoined duty and he had continuity of service till he was liable to be superannuated. 7. Both the writ petitions are disposed of affording to the petitioner a right to claim the terminal benefits as though he was C.W.P. No.13126 of 1993 -6- reinstated on the date of passing of the order of the Appellate Authority with continuity of service. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE March 15, 2010 Pankaj*