Punjab-Haryana High Court
Chetan Dev Chawla vs State Of Haryana And Others on 5 August, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.2942 of 2010
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.2942 of 2010
Date of Decision: 05.08.2013
Chetan Dev Chawla
..... Petitioner
Versus
State of Haryana and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. S.B. Kaushik, Advocate,
for the petitioner.
Ms. Kirti Singh, DAG, Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This matter has been remanded by the Supreme Court by order dated 02.01.2013. On receipt of the order, notices were issued to the parties. They have appeared.
Heard learned counsel for the parties.
The petitioner was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment & Appeal) Rules, 1987 while he was working as an Assistant at the Moti Lal Nehru School of Sports, Rai, District Sonepat. Three charges were levelled against the petitioner in the statement of allegations contained in Appendix 'A' with the charge docket. They were as follows:-
"(a) He concealed the fact that he was in occupation of Govt.
accommodation at Motilal Nehru School of Sports, Rai andMittal helped Manju his 2013.08.14 16:04 I attest to the accuracy and integrity of this document Chandigarh CWP No.2942 of 2010 -2- wife to draw house rent allowance fraudulently.
(b) As per the record his wife Smt. Hardevi has draw House rent allowance for the period from 17.9.05 to 3.5.07.
(c) He failed to submit a certificate while occupying Govt. accommodation that his wife is a Govt. servant and is serving in Agriculture Deptt., Haryana posted at Sonipat and is drawing house rent allowance from her parent department."
The petitioner's wife is also a Government servant and at the relevant time, she was posted in the Agriculture Department at Sonepat and was drawing house rent allowance from her parent department while allegedly residing in the family house. The petitioner was in possession of accommodation on campus allotted to him by the Moti Lal Nehru School of Sports at Rai. The charge against him is that his wife drew house rent allowance while living in their private house in Sonepat City from 17.9.05 to 3.5.07 and that he concealed this fact from his employer i.e. Moti Lal Nehru School of Sports, Rai, Sonepat.
On merits, the learned Single Judge of this Court has held as follows:-
"Counsel for the petitioner after making reference to the allegations made in the article of charges, would submit that no allegation of fraud can be alleged against the petitioner as he had never drawn any house rent allowance. It was his wife, who had drawn the house rent allowance and so the petitioner would urge that allegation of fraud against him can not be made out.
This line of submission as made by the counsel for the petitioner apparently is misplaced and misconceived. A perusal of the allegations would show that the petitioner is accused of concealing the fact that he was in occupation of Government accommodation and this fact helped his wife to draw house rent allowance fraudulently. Further allegation against the petitioner is that he failed to submit certificate that his wife was a Government servant and posted at Sonepat and that she was drawing house rent allowance from her parent Department. For these Mittal Manju 2013.08.14 16:04 I attest to the accuracy and integrity of this document Chandigarh CWP No.2942 of 2010 -3- allegations, the wife of the petitioner was not responsible in any manner but the petitioner alone could be held accountable on these counts. The finding as recorded in the enquiry report would clearly show that the petitioner was required to submit a certificate while occupying the Government accommodation that his wife was serving in the Agriculture Department and was posted at Sonepat. The plea by the petitioner that this was due to ignorance of the Rule can not be accepted as a valid excuse and was rightly rejected while holding him guilty.
Counsel for the petitioner thereafter has made an attempt to show that the petitioner was entitled to Government accommodation as his wife was posted at Sonepat whereas accommodation was allotted to the petitioner at Rai, which is a different station. It was revealed during the enquiry proceedings that Civil Writ Petition No.7177 of 1987 was filed by 45 employees of the school, including the petitioner. Vide its decision dated 25.2.2003, this Court has held that the petitioner and the other employees were not entitled for house rent allowance and only then, the petitioner was allotted House No.B-26 by School on 5.9.2005. The petitioner had kept this house locked and did not stay therein. This is indicated from the meter reading of 19 months, which showed consumption of only 71 units. Thus, it is alleged that the petitioner had misused the Government accommodation. Since both the husband and wife are Government employees, the wife could not have claimed house rent allowance as Sonepat City has been treated as local in terms of the decision dated 22.2.2005 rendered in Civil Writ Petition No.5228 of 2004. Thus, this plea of the petitioner also can not be accepted."
There is very good reason in the order to maintain it on merits. As far as the suit is concerned, it would make no material difference after it was withdrawn since at the time of filing of the writ petition, the suit was pending and ultimately withdrawn on 23.02.2010 and the present petition was filed on 17.02.2010. Notice of motion was issued on 18.02.2010. The fact that the petitioner approached this Court without withdrawing the suit would demonstrate that parallel remedies were being pursued as is evident from the contents of Para 10 of the writ petition. In the formal para where normally petitioners are expected to inform the Court of Mittal Manju 2013.08.14 16:04 I attest to the accuracy and integrity of this document Chandigarh CWP No.2942 of 2010 -4- exhaustion of alternative remedies, the fact of filing the suit is not mentioned in the formal paragraph but lies unobtrusively in the midst of paragraph 10.
The only question left to be considered and answered is as canvassed by the learned counsel for the petitioner that the punishment is disproportionate to the alleged misconduct. The major punishment of reduction in rank was imposed upon the petitioner and he was reverted to the post of Clerk from that of Assistant. Even assuming that he did not use accommodation allotted to him at Moti Lal Nehru School of Sports Campus, the act committed allegedly in connivance with the wife was not so grave as to merit major punishment of reduction in rank. It is not to suggest that the petitioner could not be inflicted major punishment in the area of discretion or within the range of choices depending much on how the administrator applies the principle of proportionality in his primary review jurisdiction. There may be something in the argument of the learned counsel for the petitioner that persuades me to the view that there may be excessive use of authority to punish in ordering demotion from Assistant to Clerk in lower pay scale and status affecting pension and pensionary benefits permanently with many other deleterious repercussions. No disciplinary action appears to have been taken against the wife of the petitioner who is herself a Government servant. Connivance may not be strictly appropriate in the circumstances. I do not express any final opinion on it in view of being largely persuaded to remit the matter to the administrator to take a fresh look at the whole thing.
Therefore, on hearing both the learned counsel at length Mittal Manju 2013.08.14 16:04 I attest to the accuracy and integrity of this document Chandigarh CWP No.2942 of 2010 -5- principally on the issue of quantum, I feel that to secure the ends of justice the matter deserves to be remitted to the disciplinary authority to reconsider the issue and award any punishment in its discretion which is below reduction in rank. Let a fresh order be passed. The passing of this order will not confer any right on the petitioner for any monetary claim against the respondents till such time as the fresh order is not passed and the respondents would have liberty to deal with the intervening period in the manner they like and in accordance with rules.
The writ petition is partly allowed. The impugned order is quashed with directions as above. Let a fresh order be passed within two months from the date of receipt of certified copy of the order after affording him an opportunity of hearing.
Since the amount of Rs.10,000/- had been imposed by this Court prior to the decision in the SLP remanding the case back for passing fresh orders on merits and that a finding has been returned that the petitioner had come to Court with clean hands since he had mentioned the pendency of the civil suit in the body of the writ petition, therefore, the amount of Rs.10,000/- deserves to be refunded to the petitioner. A direction is issued to the State Legal Services Authority, Haryana to return the amount of Rs.10,000/- to the petitioner within seven days from the date of the request made in writing by the petitioner.
(RAJIV NARAIN RAINA) 05.08.2013 JUDGE manju Mittal Manju 2013.08.14 16:04 I attest to the accuracy and integrity of this document Chandigarh