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CASE NO.: Appeal (civil)  6918 of 2003

PETITIONER: Dev Singh                                                        

RESPONDENT: Vs. Punjab Tourism Development Corporation Ltd. & Anr.  

DATE OF JUDGMENT: 02/09/2003

BENCH: N.Santosh Hegde)B.P.Singh

JUDGMENT: J U D G M E N T

Arising out of S.L.P.©No.8462 of 2002)

SANTOSH HEGDE,J.

       Leave granted.

       Heard learned counsel for the parties.   

The appellant while serving as a Senior Assistant in the  respondent-Corporation was subjected to a disciplinary inquiry on  the ground that he was responsible for the misplacement of a file  which was entrusted to him, which according to the Corporation  amounted to a misconduct under By-Law 18 of The Punjab  Tourism Development Corporation Ltd. Service By Laws. In the  inquiry that was held pursuant to the above said charge, the  appellant was found guilty of the said misconduct and the  disciplinary authority as per his order dated 6th November, 2001  while confirming the finding of the Inquiry Officer found the case  to be a fit one in which a punishment of dismissal was called for  and accordingly he ordered the dismissal of the appellant from the  service of the Corporation with immediate effect. The appellant  challenged to the said order by way of a writ petition before the  Punjab and Haryana High Court which came to be dismissed by  the impugned order, hence, the appellant is in appeal before us.

       Though learned counsel for the appellant has challenged the  finding of the Inquiry Officer on various grounds, having heard the  arguments in this regard and having perused the record, we find no  reason to disagree with the findings as to the misconduct  committed by the appellant.

Learned counsel for the appellant, however, contended that  the appellant has been serving the Corporation since 1981 with  unblemished record and there was no earlier charge of misconduct  prior to the present charge. He also contended that the charge  against the appellant was that of misplacement of a file and no  motive was attached for such misplacement of file. In such a  situation to award the extreme punishment of dismissal according  to the learned counsel would not only amount to a disproportionate  punishment but also should disturb the conscience of this Court.  The learned counsel in support of his argument, that it is open to  the superior court to interfere with the quantum of punishment in a  given set of facts, has relied upon the judgments of this Court in  the case of Bhagat Ram vs. State of H.P (1983 2 SCC 442), Ranjit  Thakur vs. Union of India (1987 4 SCC 611) and U.P.State Road  Transport Corporation & Anr. vs. Mahesh Kumar Mishra & Ors.

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(2000 3 SCC 450)                                             A perusal of the above judgments clearly shows that a court  sitting in appeal against a punishment imposed in the disciplinary  proceedings will not normally substitute its own conclusion on  penalty, however, if the punishment imposed by the disciplinary  authority or the appellate authority shocks the conscience of the  court, then the court would appropriately mould the relief either by  directing the disciplinary/appropriate authority to reconsider the  penalty imposed or to shorten the litigation its may make an  exception in rare cases and impose appropriate punishment with  cogent reasons in support thereof. It is also clear from the above  noted judgments of this Court, if the punishment imposed by the  disciplinary authority is totally disproportionate to the misconduct  proved against the delinquent officer, then the court would  interfere in such a case.

       Applying the said principles laid down by this Court in the  cases noted herein above, we see that in this case the appellant has  been serving the respondent Corporation for nearly 20 years with  unblemished service, before the present charge of misconduct was  levelled against him. The charge itself shows that what was alleged  against the appellant was of a misplacement of a file and there is  no allegation whatsoever that this file was either misplaced by the  appellant deliberately or for any collateral consideration. A reading  of the charge sheet shows that the misplacement alleged was not  motivated by any ulterior consideration and at the most could be an  act of  negligence, consequent to which the appellant was unable to  trace the file again. The disciplinary authority while considering  the quantum of punishment came to the conclusion that the  misconduct of the nature alleged against the appellant should be  viewed very seriously to prevent such actions in future whereby  important and sensitive records could be lost or removed or  destroyed by the employee under whose custody the records are  kept. Therefore, he was of the opinion a deterrent punishment was  called for. Forgetting for a moment that no such allegation of  misplacing of important or sensitive record was made in the instant  case against the appellant and what he was charged of was  misplacement of a file importance or sensitiveness of which was  not mentioned in the charge sheet. Therefore, in our opinion, the  disciplinary authority was guided by certain facts which were not  on record, even otherwise, we are of the opinion that when the  Service By-Laws applicable to the Corporation under Service By- Laws 17 provide various minor punishments, we fail to appreciate  why only maximum punishment available under the said By-laws  should be awarded on the facts of the present case. We think the  punishment of dismissal for mere misplacement of a file without  any ulterior motive is too harsh a punishment which is totally  disproportionate to the misconduct alleged and the same certainly  shocks our judicial conscience. Hence, having considered the basis  on which the punishment of dismissal was imposed on the  appellant and the facts and circumstances of this case, we think to  avoid further prolonged litigation it would be appropriate if we  modify the punishment ourselves. On the said basis, while  upholding the finding of misconduct against the appellant, we  think it appropriate that the appellant be imposed a punishment of  withholding of one increment including stoppage at the efficiency  bar in substitution of the punishment of dismissal awarded by the  disciplinary authority. We further direct that the appellant will not  be entitled to any back wages for the period of suspension.  However, he will be entitled to the subsistence allowance payable  upto the date of the dismissal order.

       With the above modifications, this appeal is allowed, the  impugned order of the disciplinary authority in so far as it directs

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the dismissal of the appellant, stands substituted as ordered by us   herein above.

       The appeal is allowed partly.