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
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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
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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