S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. :: ORDER
:: S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Wd/o late Sh. Kanhaiya Lal Gupta Vs. State of Rajasthan & Anr. Date of Order ::::
16. h September, 2014. PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI Appearance: Mr. Ankur Mathur, for the petitioner, along-with petitioner. Mr. Ajit Singh Shekhawat, Addl. Govt. Counsel. -- BY THE COURT:
1. The petitioner, widow of late Sh. Kanhaiya Lal Gupta (deceased Government servant), has filed this writ petition on 12.03.2003 with the following prayers: - “It is, therefore, humbly prayed that this writ petition may kindly be allowed and by issuing an appropriate writ, order or direction: S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 2/8 1. The respondents may kindly be directed to make payment of amount accruing to the petitioner's husband on account of his fixation, grant of yearly increments, in accordance with directions of this Hon'ble Court vide Annex.P/1 along with interest on the arrears at the rate of 12% per annum; 2. The respondents may also kindly be directed to assign proper seniority to husband of the petitioner as also allow him all consequential promotions, from the date his juniors were promoted with all consequential benefits and reliefs, in accordance with directions given by this Hon'ble Court vide judgment Annx.P/1 and to make payment of arrears accruing therefrom, along with interest at the rate of 24% per annum; 3. That the impugned orders Annxs.P/7, P/9 and P/11 may kindly be quashed and set aside, with all consequential benefits and reliefs, as if same were never so passed against husband of the petitioner.
4. The costs of this writ petition may kindly be awarded in favour of the petitioner.
5. Any other writ, order or direction which your Lordship may deem just and proper S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 3/8 in the facts and circumstances of the case, may also kindly be issued in favour of the petitioner.”. 2. Besides the reliefs of pay fixation, seniority etc., the main grievance of the petitioner seems to be that on account of penalty imposed upon the husband of the petitioner (for short, hereinafter referred to 'delinquent official') of removal from the service, who was serving as Upper Division Clerk (UDC), in the respondent-Department of Technical Education, vide the impugned order (Annex.P/7) dated 28.04.1998, which order was up-held by the appellate and reviewing authority also subsequently vide the orders (Annex.P/9) dated 18.09.2000 and Annex.P/11 dated 28.10.2002.
3. Mr. Ankur Mathur, learned counsel for the petitioner urged that looking to the charges levelled against the delinquent official of not receiving the transfer order by which he was sought to be transferred from one I.T.I. to another I.T.I. as UDC, he tore the envelop and left the office without handing-over the charge to the concerned person; and thereafter also when such orders were sought to be served upon him by registered AD posts, the same could not be served upon him for considerable period and, therefore, treating the same as 'misconduct', an enquiry was held against the delinquent official, which ultimately culminated in the enquiry and proving of the charges against him and consequently S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 4/8 by the impugned order (Annex.P/7) dated 28.04.1998, the punishment of removal of service was imposed upon him, resulting in loss of retiral benefits and family pension after his death to the present petitioner and other legal representatives.
4. The delinquent official (petitioner's husband) unfortunately expired soon after passing of the impugned removal order on 25.11.1999 and, therefore, the present writ petition was filed by the wife, Smt. Kishna Devi in this Court assailing the impugned orders, for release of consequential benefits.
5. Learned counsel for the petitioner also urged that the appellate and reviewing authorities' orders have been passed mechanically without application of mind to the facts and circumstances of the case and even without providing an opportunity of hearing to the petitioner or the delinquent officer, when he was alive. The impugned appellate and the reviewing authorities' orders were passed after the death of delinquent official on 25.11.1999. Counsel for the petitioner also urged that though sufficient and plausible explanation was given by the delinquent official to the charges levelled against him, even if it is assumed for arguments' sake, that charges are rightly held proved against him, the punishment imposed of removal from the service by the disciplinary authority is highly disproportionate S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 5/8 penalty and same, therefore, deserves to be interfered with by this Court in the present writ petition.
6. Per contra, Mr. Ajit Singh Shekhawat, learned Additional Govt. Counsel, appearing for the respondent- State, reiterated the submissions made in the reply filed on behalf of State, and supported the impugned orders.
7. Having heard the learned counsel for the parties and having perused the record, this Court is of the opinion that the punishment of removal imposed on the Government servant, late Sh. Kanhaiyalal Gupta, the then UDC, in the I.T.I., Jodhpur, is highly disproportionate. From a bare reading of the impugned order (Annex.P/7) dated 28.04.1998, it seems to be simply an act of same insubordination and not accepting the envelop containing the transfer order of the delinquent official. However, later on, the said transfer order was complied with by the delinquent official and he joined his duties at Sagwada, to which place he was transferred from Kota. The momentary avoidance of taking the service of transfer order on the spur of moment, and then taking medical leave to avoid service thereof, although may amount of a sort of insubordination, but in the considered opinion of this Court, it is not such a grave misconduct on the part of the delinquent official, which should entail the penalty of removal from the service, even if it is assumed for arguments' sake that S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 6/8 charges as levelled in that regard are found to be proved in the enquiry report. The disproportion of punishment, which shocks the conscience of the Court can be interfered with by this Court. This Court in a judgment in the case of Prem Sukh Somani vs. State of Rajasthan (SBCWP No.1598/2001), rendered today itself, has so held and distinguishing the case of State of U.P. & Ors. Vs. Nand Kishore Shukla & Anr. reported in 1996 (3) Supreme 242, the Court has quashed the removal order in that writ petition as well.
8. It was also held in the case of Union of India & Ors. Vs. Narain Singh reported in (2002) 5 SCC11that the scope of judicial review against the punishment on the issue of quantum of punishment cannot be described in a straitjacket manner. In the said case, the Hon'ble Apex Court held that where charges were proved and were of serious nature, the Court or Tribunal cannot interfere with the quantum of punishment awarded. In the peculiar facts of that case, where the respondent/employee was being punished of the third time and the charges were of serious nature, where the delinquent Constable, disobeyed the lawful order of his superior and assaulted him breaking his front tooth, it was held that penalty of dismissal from the service was commensurate and proper. S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 7/8 9. The facts of present case are quite distinguishable and charges as described above, are of not of such a grave nature, which can be said to be a grave misconduct on the part of the delinquent official. From the impugned orders, successively passed by the authorities below, it appears that these aspects relating to quantum of punishment have not been given any serious thought by these authorities and the appellate and the reviewing authorities, who are expected to independently apply their mind not only to the charges and enquiry findings, but also to the quantum of punishment have not done so and mechanically affirmed the findings of the disciplinary authority in the punishment order passed by him.
10. This Court is, therefore, of the opinion that there has been mis-carriage of justice in these circumstances and, therefore, the present writ petition deserves acceptance. The other relief/s sought of pay fixation etc. is the matter of representation to the respondent and those issues are required to be considered by the competent authority of the respondent Department in accordance with law.
11. In view of above, the writ petition filed by the petitioner, Smt. Kishna Devi, is allowed and the impugned punishment orders passed against the delinquent official (husband of the petitioner) vide order (Annex.P/7) dated S.B. CIVIL WRIT PETITION No.1452/2003. Smt. Kishna Devi Vs. State of Rajasthan & Anr. Order dated 16/09/2014 8/8 28.04.1998 and order (Annex.P/9) dated 18.09.2000 and order (Annex.P/11) dated 28.10.2002, are quashed and set aside. The delinquent official shall be deemed to have been reinstated back in the service from the date when he was removed from the services and the present petitioner, widow and other legal heirs, would be entitled to the consequential benefits in accordance with law. The respondents shall compute the benefits due to the petitioner, as if the impugned orders have not been passed and decide the other issues relating to pay fixation, seniority etc. in accordance with law. Such benefits may be computed within a period of three months from today and may be paid to the petitioner with interest @ 6% per annum from the date they became due, till the date of payment within aforesaid period of three months. No orders as to costs. A copy of this order be sent to the concerned parties forthwith. (Dr. VINEET KOTHARI), J.
DJ/- H-10