IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 1107 of 2001 Reserved on.: 14.7.2008 Date of decision: 17.7.2008 Tej Ram Petitioner Versus State of H.P and another. Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the petitioner: Mr. Bimal Gupta, Advocate. For the respondent No.1.: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent No.2.: Mr. Neel Kamal Sood, Advocate. Per Deepak Gupta, J. This petition under article 227 of the Constitution of India is directed against the order dated 30th July, 2001 passed by the Divisional Manager, H.P.State Forest Corporation, Sundernagar. Briefly stated, the facts of the case are that the petitioner was engaged as Chowkidar on daily wage basis in the Seri Unit of the H.P.State Forest Corporation in the year 1983. On the night intervening 18/19 December, 1996, 281 tins of resin were stolen from the depot where the petitioner was posted as Chowkidar. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 Consequently, notice was issued to the petitioner and five other persons, as to why disciplinary action should not be taken against them. The petitioner in his reply stated that since his wife was unwell he had left the station after informing one shop keeper about the fact. Disciplinary proceedings against the other regular employees were initiated and finally two employees were found guilty and it was directed that the amount of loss of Rs.1,28,980/- suffered by the Corporation be recovered from the aforesaid two employees. The petitioner being a daily- wager, his services were terminated without holding any formal inquiry. The petitioner challenged the order terminating his services before the learned Tribunal by filing O.A. No. 964/1997. This original application was dismissed on the ground that an inquiry was conducted and the respondent was given an opportunity to put forth his case and since he was negligent, no fault could be found in the order. Thereafter, the petitioner approached this Court by filing CWP No. 359 of 2000. It appears that in the meantime two of the regular employees who had also been found guilty were awarded punishment of recovery of the loss suffered by the Corporation as mentioned here-in-above. Thereafter, this Court disposed of the said writ petition by passing the following order:- 3 “We have heard the learned counsel for the parties. In our opinion, it would be in the interest of justice, if we direct the respondent-authorities to consider the case of the petitioner in accordance with law keeping in mind similar cases and the actions taken thereon. Since the petition was filed in April, 2000 and is pending before this Court, it would be appropriate if we direct the authorities to consider the writ petition as representation and to take appropriate decision as expeditiously as possible, preferably by 31st July, 2001. As we are disposing the writ petition only on the ground that it will be treated as representation and appropriate decision will be taken thereon, we may not be understood to have expressed any opinion on merits of the matter. If any decision is taken against the petitioner, it is open to him take appropriate proceedings in accordance with law and the dismissal of this petition will not come in his way. With the above observations, the writ petition is disposed of. Notice discharged. No costs.” In terms of the order passed by this Court, the petition was treated as representation and the Divisional Manager by the impugned order has come to the conclusion that the petitioner was negligent in the discharge of his duties and therefore is not a fit person to be re-engaged as daily-waged Chowidar. What is the penalty to be imposed in a particular case is normally to be decided by the concerned disciplinary authority and this Court would not interfere in the same. However, in the present case, it is apparent that the petitioner had not taken any personal 4 benefit. No doubt, he had left the place of his posting without permission of his superior and a theft took place after he had left. It is, however, apparent from the record that there was only one Chowkidar posted in the depot and one Chowkidar cannot be expected to look after the depot for 24 hours a day without any break. Furthermore, this Court vide its judgement in CWP No. 359 of 2000 had specifically directed the respondent-Corporation to consider the case of the petitioner in accordance with law keeping in mind similar cases and actions taken thereon. The other two officials have been dealt with very leniently. No penalty, except the recovery of the loss, has been imposed upon them. The concerned authority has given no reason as to why the petitioner did not deserve similar leniency. The direction of this Court given in CWP No. 359 of 2000 has not been complied with. We see no reason why the petitioner who had already served for 14 years as a daily-waged Chowkidar should not be treated similarly. The maximum penalty which could have been imposed upon him was that he could have been asked to pay some portion of the amount of loss. But the termination of his services is a penalty totally disproportionate with the act of negligence committed by him. This penalty, in fact, shocks the judicial conscience 5 of this Court especially in view of the fact that similar employees have not been similarly treated. Keeping in view the aforesaid facts, we set- aside the order of termination of the petitioner. We would have normally left it to respondents to decide the penalty to be imposed upon the petitioner. However, in the present case, the petitioner has been out of job since his termination in 1997. The petitioner has already suffered immensely due to the loss of wages during this period. We, therefore, feel that no further penalty should be imposed upon him. We consequently allow the petition, set-aside the order of the learned Tribunal and direct the respondent-Corporation to re-engage the petitioner. The petitioner shall be entitled to all consequential benefits, such as, regularization, etc. by treating his period of service to be continuous. The petitioner shall, however, not be entitled to any back wages for the period he did not work. With these directions, the petition is disposed of. No order as to costs. ( Deepak Gupta ), J. 17th July, 2008 ( V.K.Ahuja), J. ™