Punjab-Haryana High Court
P.K.Sehgal vs Haryana Vidyut Prasaran Nigam Limited ... on 6 February, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUN JAB AN D HARYANA AT
CHANDIGARH
Civil Writ Petition No.4990 of 2003
DATE OF DECISION: February 06,2014
P.K.Sehgal
.......Petitioner
Versus
Haryana Vidyut Prasaran Nigam Limited and others
......Respondents
CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr.Ashwani Talwar, Advocate for the petitioner.
Mr.Sudhir Hooda, Advocate for the respondents.
DAYA CHAUDHARY, J.
The present petition has been filed by the petitioner for issuance of a writ in the nature of Certiorari for quashing the impugned order dated 24.1.2003 (Annexure P.1) whereby the petitioner has been removed from service from the post of Assistant Executive Engineer (Civil).
The petitioner joined the service of respondent Board on 10.4.1979 as Graduate Technical Apprentice in the Civil Organisation of the erstwhile Haryana State Electricity Board. He applied for posting on foreign assignment which was allowed initially for a period of two years vide order Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 2 Civil Writ Petition No.4990 of 2003 dated 3.8.1993. The said period of deputation was extended for a period of three years upto 2.8.1998. While he was in foreign country he fell ill due to kidney problem. He was operated for kidney biopsy in the month of January 1997. It took more than 1-1/2 years to recover as he was advised by the doctor for another kidney biopsy in the month of October 1998. During this period, the petitioner requested the respondent Board to allow him to stay for more period because of the ailment. The petitioner was asked to send the copy of the prescription/medical report which was supplied. Ultimately, the petitioner returned to India on 18.2.1999. The petitioner was charge sheeted vide order dated 22.5.2002 for remaining absent after expiry of period of deputation with effect from 7.8.1998. The charge sheet was responded by filing the reply and thereafter inquiry was conducted and ultimately the petitioner was removed from service vide order dated 22.5.2002.
The present petition has been filed by the petitioner to challenge the order of removal/termination on the ground that circumstances for remaining away after expiry of period of sanctioned leave were beyond the control of the petitioner and intimation in this regard was also sent for grant of leave. Learned counsel for the petitioner also submits that the petitioner was having good service record and all medical documents were supplied as required by the Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 3 Civil Writ Petition No.4990 of 2003 respondent-Board. Learned counsel also submits that the punishment awarded to the petitioner is on the excessive side as order of removal from service is not only harsh but incommensurate with the allegations. Learned counsel also submits that under similar circumstances one Surender Kumar Saini approached this Court by way of filing CWP No.3945 of 1996 as he also overstayed like the petitioner and his writ petition was allowed by the Division Bench of this Court vide order dated 7.10.1996 and order of termination of service was substituted by an order of compulsory retirement.
Learned counsel for the respondents has not disputed the factum of decision in case of Surender Kumar Saini but submits that the petitioner has been found guilty of serious misconduct as he remained wilfully absent for a long period without sanctioned leave. The allegations in the charge sheet were duly proved by the Inquiry Officer and no interference is required with order of quantum of punishment.
Heard arguments of learned counsel for the parties and have also perused the impugned order as well as other documents on the file.
Admittedly, the petitioner went abroad as his leave was sanctioned by the competent authority. The reasons for remaining absent were duly explained and it Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 4 Civil Writ Petition No.4990 of 2003 cannot be said that the petitioner remained there for any other purpose except for his treatment. The absence of the petitioner was not intentional as circumstances were beyond his control which has been duly proved by medical documents. Moreover, the petitioner had been informing the respondent authorities while requesting for extension of leave. The Hon'ble Supreme Court in B.C.Chaturvedi v. Union of India and others AIR 1996 (Supreme Court) 484 held that the Court has power and discretion to go into the matter regarding quantum of punishment which has been observed in para Nos.21 to 23 of the said judgment:
"21. I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do "complete justice", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No. doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 5 Civil Writ Petition No.4990 of 2003 that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the concerned person. It may be remembered that the framers of the Constitution permitted the High Court to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference? May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long lines of decisions of this Court, to which reference is not deemed necessary, as the position is well settled Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 6 Civil Writ Petition No.4990 of 2003 in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked a High Court only when the punishment/penalty 490 awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provisions like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Court too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a Court of plenary jurisdiction like of High Court. Of course, this power is not as wide which this Court has under
Article 142. That, however, is a different matter."Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 7
Civil Writ Petition No.4990 of 2003 Similarly in Surender Kumar Saini's case also the punishment was modified from removal to compulsory retirement. The relevant portion of the judgment is reproduced as under:
"After hearing learned counsel for the parties, we are of the view that as argued by the learned counsel for the petitioner we need not go into the findings of the Enquiry Officer regarding the guilt of the petitioner as we are of the view that the punishment awarded to the petitioner under the circumstances of the case is too excessive and incommensurate with the proven guilt. From the facts and circumstances already noticed above it would be evident that the petitioner had not gone to Canada for a holiday or for seeking a job there or that he had obtained a job and was trying to stay there on one pretext or the other for his own benefit. Sufficient material has been put on the file which was also put on the record with the Board to show that the petitioner's father was really very sick and was getting treatment in different clinics and ultimately expired on August 3, 1994. It is not unusual that a son may stay with his father to serve him during his illness. The petitioner had also been writing letters to the Board for extension Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 8 Civil Writ Petition No.4990 of 2003 of leave. No doubt the same was not sanctioned but could the petitioner under the circumstances come back or his not joining the Department was beyond his control. We are of the view that his joining the Department was really beyond his control. It is not disputed that the petitioner has unblemished record of service. Further, he had put in more than 25 years of service after the date he wanted to be prematurely retired i.e. from October 30, 1969, to January 4, 1995. Considering all these facts, we are of the view that the punishment awarded to the petitioner of termination of his service is too harsh and incommensurate with the proven guilt. The punishment awarded to the petitioner has shocked our judicial conscience. The order of termination sets at naught the entire good service rendered by the petitioner for more than 25 years. We are of the view that the punishment of compulsory retirement would have been proper in the present case considering the facts and circumstances of the case.
Consequently, we allow this writ petition to the extent that the impugned order of termination of service dated August 8, 1995, copy Sehra Kamal Deep 2014.02.17 14:42 I attest to the accuracy and integrity of this document High Court. Chandigarh 9 Civil Writ Petition No.4990 of 2003 Annexure P.25, would be substituted by an order compulsorily retiring the petitioner from service. The impugned order stands modified to that extent. We make no order as to costs."
Keeping in view the facts and circumstances of the present case and decision in Surender Kumar Saini's case, I am of the view that punishment of termination of service is not only harsh but excessive also keeping in view the proven guilt. Nothing has been said that her conduct during past was not good. The punishment of compulsory retirement would have been just and proper.
Accordingly, the present petition is allowed to the extent that the impugned order dated 24.1.2003 is substituted by an order of compulsory retiring the petitioner from service with no order as to costs.
February 06,2014 (Daya Chaudhary)
KD Judge
Sehra Kamal Deep
2014.02.17 14:42
I attest to the accuracy and
integrity of this document
High Court. Chandigarh