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2010 Supreme(P&H) 2895
PUNJAB & HARYANA HIGH COURT
Kanwaljit Singh Ahluwalia, J.
H.L.Chawla
Versus
State Of Haryana
Civil Writ Petition No. 8617 of 2000,
Decided On : OCTOBER 13, 2010
The doctrine of proportionality can be invoked where the punishment is grossly unjust or disproportionate, and the court can interfere in such penalty in appropriate cases.
Headnote:
PENSION - DISCIPLINARY ACTION - HARYANA PUNISHMENT AND APPEAL RULES, 1987 - Rule 7
Fact of the Case:
The petitioner, a Junior Engineer, was placed under suspension and faced disciplinary action for willful absence from duty, disobedience of orders, and negligence. The punishment included withdrawal of pension, restriction of pay and allowances, and no salary for the period of absence.
Finding of the Court:
The court found the withdrawal of 50% of the pension to be unjust and disproportionate to the allegations. It upheld the other punishments but ordered the arrears of the pension to be calculated and paid to the petitioner.
Issues: The issues included the delay in concluding the enquiry, the harshness of the punishment in relation to the petitioner's 33 years of service, and the lack of consideration for mitigating circumstances by the Appellate Authority.
Ratio Decidendi: The court invoked the doctrine of proportionality and held that the withdrawal of 50% of the pension was grossly unjust and disproportionate. It considered the petitioner's long service and mitigating circumstances in reaching its decision.
Final Decision: The court modified the withdrawal of 50% of the pension, upholding the other punishments, and ordered the arrears of the pension to be paid to the petitioner.
Kanwaljit Singh Ahluwalia, J.
1. The petitioner, who was born on 24.12.1940 and joined the Irrigation Department, Haryana, as a Junior Engineer on 13.2.1965. In the present writ petition, he has assailed the order dated 26.2.1999 (Annexure P11), whereby his pension was withdrawn and his pay and allowances for the suspension period were restricted to subsistence allowance. It was further ordered that the petitioner would not be paid any salary for the period for which he remained absent from duty i.e. from 5.3.1990 to 10.7.1990. This order (Annexure P 11) was also made subject matter of an appeal by the petitioner. The Appellate Authority, vide order dated 19.6.2000 (Annexure P 14) maintained the punishment, awarded to the petitioner vide order (Annexure P 11), however, modified the order of withdrawal of pension to the extent of reduction of 50% thereof. Hence, the present writ petition has been filed.
2. The petitioner, vide order dated 11.7.1990 (Annexure P1) was placed under suspension. Vide order dated 12.12.1990 (Annexure P2), the statement of allegations was served upon the petitioner and he was called upon to file written statement thereto, as the competent authority intended to initiate the disciplinary action against the petitioner under Rule 7 of the Haryana Punishment and Appeal Rules, 1987 (hereinafter referred to as "Rules 1987"). The statement of allegations, annexed with order (Annexure P2), disclosed the following charges:-
"1) Willful absence from duty.
2) Disobeying the orders of higher officer/authorities.
3) He is negligent and careless official in performing his duties."
3. The allegations further stated that the petitioner remained absent from duty from 5.3.1990 to the date when he was placed under suspension i.e. 10.7.1990. Secondly, the petitioner had not obeyed the command of the Sub Divisional Officer, GWS Mechanical Sub Division No.II, Rohtak, to get the physical verification of the stores done. Vide order dated 20.9.1991 (Annexure P3), the Chief Engineer, Irrigation Department, Haryana, had increased the subsistence allowance of the petitioner from 50% to 75%. The petitioner, vide his letter dated 3.9.1993 (Annexure P4), replied that he had never remained absent from the duties and had been regularly going to office. Furthermore, he had been paid salary for the months of April, May and June 1990. He had approached the Sub Divisional Officer for getting the physical verification done but he had refused to do so. During the pendency of the enquiry, the petitioner had attained 55 years of age and he was compulsorily retired from the service by the Superintending Engineer. The Government of Haryana, vide order dated 29.12.1997 (Annexure P5), came to the conclusion that the Superintending Engineer wasnot competent to compulsorily retire the petitioner from his service and had withdrawn the said order.
4. In response to the writ petition, in the written statement, it has been stated that the petitioner remained willfully absent from duty from 5.3.1990 and was placed under suspension on 11.7.1990. Thereafter, on 12.10.1990, a statement of allegations, under Rule 7 of the Rules 1987, was served upon the petitioner. M.R. Kawatra, Superintending Engineer, WJC West Circle, Rohtak was appointed as an Enquiry Officer. He could not complete the enquiry due to non co-operation of the petitioner. The petitioner submitted his reply to the statement of allegations to the competent authority on 3.3.1997 after a period of seven years. The competent authority had considered the reply as unsatisfactory and Jeevak Mandal, Executive Engineer, Vigilance, was appointed as an Enquiry Officer. However, he could not complete the enquiry due to heavy work load. Since the enquiry was not concluded, the petitioner was awarded selection grades and other benefits. Thereafter, Onkar Jaswal, Superintending Engineer, Construction Circle No.2, Rohtak, was appointed as an Enquiry Officer. The Enquiry Officer had fixed the date of
