High Court Punjab-Haryana High Court

Union Of India And Others vs Om Parkash Bagri And Another on 13 August, 2009

Punjab-Haryana High Court
Union Of India And Others vs Om Parkash Bagri And Another on 13 August, 2009
                        CWP No.2664-CAT of 2007                            -1-


IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                               CWP No.2664-CAT of 2007

                                  DATE OF DECISION: August 13, 2009

UNION OF INDIA AND OTHERS                               ...PETITIONERS

                                 VERSUS

OM PARKASH BAGRI AND ANOTHER                            ...RESPONDENTS

CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
       HON'BLE MS. JUSTICE NIRMALJIT KAUR.

PRESENT: MR. NAMIT KUMAR, ADVOCATE FOR THE PETITIONERS.
         MR. BIPIN SHARMA, ADVOCATE FOR RESPONDENT NO.1.


ASHUTOSH MOHUNTA, J.

The Union of India is aggrieved of the order dated 7.11.2006

(Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh

Bench, Chandigarh (for short ‘the Tribunal’) whereby the Original

Application filed by respondent No.1 Om Parkash Bagri has been allowed

and the order of dismissal has been modified into compulsory retirement.

Briefly the facts of the case are that respondent No.1 Om

Parkash Bagri while working as Postal Assistant at Nai Mandi Post Office

at Hisar is alleged to have made payments amounting to Rs.55,800/-

(inclusive of interest) of Kisan Vikas Patras (for short ‘KVPs’) on 15.6.1999

and 17.6.1999, on the basis of NC-32 (application for transfer of KVPs from

one post to another). The KVPs were issued by Shamli Post Office (U.P.)

and payment of Rs.74,400/- was made at Hisar Head Office on the basis of

identity slips issued by Bareilly Cantt. Post Office without obtaining

identification of the payees.

A departmental enquiry was instituted against respondent No.1
CWP No.2664-CAT of 2007 -2-

and the case was also reported to the Police and FIR No.332 dated

23.7.1999 and FIR No.333 dated 4.8.1999, was registered at Hisar City

Police Station for all the cases of bogus payments.

An enquiry into the charges was held by Sh. V.S. Jain, ASPO

and the charges against respondent No.1 were held to be proved vide

enquiry report dated 31.5.2001. Respondent No.1 submitted a representation

dated 10.7.2001, which was considered by the disciplinary authority and

vide order dated 31.7.2001, punishment of dismissal from service was

imposed upon respondent No.1 vide order Annexure A-1. Being aggrieved

of the said order, respondent No.1 preferred an appeal which was

considered and dismissed by the appellate authority vide its order dated

31.10.2002. Respondent No.1 also filed a revision petition which was also

dismissed vide order dated 26.7.2003.

Thereafter, respondent No.1 filed O.A. No.1018-HR-2004

challenging the orders of his dismissal, rejection of his appeal and revision

which has been allowed by the Tribunal vide order Annexure P-4 and

accordingly the order of dismissal has been set aside and instead respondent

No.1 has been ordered to retire compulsorily. It is against this order that the

present writ petition has been filed by the Union of India.

Counsel for the Union of India has argued that if an order is to

be set aside on technical grounds, liberty is required to be given to the

competent authority to proceed against the employee from that stage. It has

further been submitted by the learned counsel on behalf of the Union of

India that the Tribunal has modified the order of dismissal into that of

compulsory retirement, primarily on the ground that Sh. S.C. Sethi, who was

the Deputy Post Master at the relevant time, has been awarded milder
CWP No.2664-CAT of 2007 -3-

punishment, whereas respondent No.1 has been given the extreme penalty

of dismissal from service. It has been argued that Sh. S.C. Sethi was

awarded the punishment of recovery of Rs.10,000/- and reduction of pay for

four months from Rs.7250/- to Rs.7100/-. On the basis of aforementioned

facts it is argued that the punishment awarded to Sh. S.C. Sethi cannot be

said to be mild. As the charges leveled against respondent No.1 and

Sh.Sethi were different, therefore, different punishments have been awarded

to both these persons.

It has lastly been argued that it is a well settled proposition of

law that under normal circumstances, the Court should not interfere in the

quantum of punishment unless the punishment is shockingly

disproportionate to the offence committed and it pricks the conscious of the

Court. Reliance in this regard has been placed on 2004(4) SCT 332, 2005

(1) SCT, 745.

The arguments raised by the counsel for the Union of India

have been controverted by the counsel appearing on behalf of respondent

No.1. It has been argued that respondent No.1 made the payments on the

basis of oral directions given by his immediate superior Sh. S.C. Sethi who

was the Deputy Post Master. The payments of KVPs were duly approved

and passed by Sh. Sethi and thus, as the orders were passed by the senior

officer of respondent No.1, hence he was duty bound to comply with the

same.

It has been also been argued that Sh. Sethi who was also

proceeded against in connection with these payments was awarded the

punishment of recovery of Rs.10,000/- and reduction of pay for four months

from Rs.7250/- to Rs.7100/-, whereas respondent No.1 has been
CWP No.2664-CAT of 2007 -4-

discriminated against as he has been awarded extreme penalty of dismissal

from service. Counsel for respondent No.1 has also highlighted the

observations of the Tribunal wherein it has been held as under:-

“In the present case, we have noticed that it is not a case of any

financial gain to the applicant, when he misconducted for the

above charges or causing any financial loss to the State

Exchequer. It is also not a case of withdrawal of amount

through forged documents. We have also observed that one Sh.

S.C. Sethi, Dy. Postmaster burdened with higher

responsibilities as per Rules, has been awarded very minor

punishment, while holding him guilty only for administrative

lapses.”

It is submitted that as no financial loss of any kind was caused

to the State Exchequer nor there was any financial gain to respondent No.1

and hence the setting aside of the order of dismissal from service and

ordering respondent No.1 to retire compulsorily is just and fair and calls for

no interference.

Counsel for the respondent No.1 has also placed reliance on the

case of Sh.R.C. Indora relating to release of KVPs and NSCs in which there

were similar allegations against Sh. Indora as in the present case. He was

also ordered to be dismissed from service. However, the revisional

authority vide order dated 31.8.2004, set aside the order of his dismissal

from service and instead allowed him to retire compulsorily.

We have heard learned counsel for the parties at length and

have perused the record.

A perusal of the aforementioned facts clearly shows that apart
CWP No.2664-CAT of 2007 -5-

from respondent No.1, Sh. S.C. Sethi, who was the Deputy Post Master at

Hisar was also responsible for the misconduct. The payments against KVPs

were virtually made on the directions of Sh. S.S. Sethi. The KVPs were

duly approved by Sh. S.C. Sethi and he was awarded the punishment of

recovery of Rs.10,000/- and reduction of pay for four months from

Rs.7250/- to Rs.7100/-, whereas, respondent No.1 has been awarded penalty

of dismissal from service. It is, thus, clear that the punishment awarded to

the two officers who misconducted themselves in making payment of KVPs

was different. One officer has been let off lightly whereas, the other has

been dealt with the extreme penalty of dismissal from service. We find that

the Tribunal has rightly balanced the disproportionate punishment meted out

to respondent No.1 and has modified the punishment to that of compulsory

retirement w.e.f. 31.7.2001.

Apart from the above, another officer Sh. R.C. Indora who was

working as Postal Assistant was ordered to be dismissed from service,

however, the revisional authority had converted the punishment of dismissal

to that of compulsory retirement. It is pertinent to mention here that there

were similar allegations against Sh. Indora also. Thus, we see no reason

why respondent No.1 should not be allowed to retire compulsorily.

Further, a perusal of the findings of the Tribunal clearly shows

that no financial loss has been caused to the Exchequer nor respondent No.1

has got any illegal gains by virtue of his misconduct. It is also not a case

where some amounts have been withdrawn by way of forging documents.

Thus, although there is no doubt that respondent No.1 had misconducted

himself in making payments against KVPs, but the punishment of dismissal

from service for such a conduct is definitely disproportionate to the gravity
CWP No.2664-CAT of 2007 -6-

of guilt of delinquent and is too harsh.

The argument raised by the counsel for the Union of India that

the Court should not interfere in the quantum of punishment imposed upon

the delinquent, is also without merit. It is a well settled law that the Court

can always look into the aspect of punishment if the same is

disproportionate to the gravity of guilt of the delinquent and is

unconscionable and too harsh. In Punjab State Co-operative Supply and

Marketing Federation Ltd. Vs. Presiding Officer, Labour Court and

another, reported as 2008(3) SCT 107, it has been held that “a person who

is appointed by the authorities on a higher rank and gets more salary

cannot be simply let of by saying that he was a mere supervisor. He being

overall incharge is as much guilty of the charge as the workman-

respondent herein. The workman could not be treated differently than the

supervisor.” In Dev Singh vs. Punjab Tourism Development Corporation

Ltd., reported as AIR 2003 SC 3712, it has been held by the Apex Court that

“the Courts will not ordinarily interfere in the punishment imposed in the

disciplinary proceedings to substitute its own conclusion on penalty, except

where the punishment imposed is found to be shockingly disproportionate

to the misconduct proved against the delinquent.” To the same effect were

the views of the Hon’ble Supreme Court in U.P. State Road Transport

Corporation and others Vs. Mahesh Kumar Mishra and others, reported as

2000(3) SCC 450.

In the present case, Sh. S.C. Sethi who was also proceed

departmentally on the same charges as respondent No.1, has been awarded a

much lighter punishment whereas, punishment of dismissal from service has

been imposed on respondent No.1. Not only this, even in the case of
CWP No.2664-CAT of 2007 -7-

another officer Sh. Indora, against whom there were similar charges as

respondent No.1, was awarded the punishment of compulsory retirement

and thus, it is clear that the punishment of dismissal from service imposed

upon the applicant-respondent No.1 was disproportionate to the misconduct

committed by him.

We find no infirmity in the impugned judgement and

accordingly the writ petition is dismissed.




                                         (ASHUTOSH MOHUNTA)
                                               JUDGE



August 13, 2009                               (NIRMALJIT KAUR)
Gulati                                            JUDGE