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2025 DAILYLAW 3841 (HP)

Onkar Singh Guleria v. State of H. P.

2025-09-09

G S Sandhawalia, Ranjan Sharma

body2025
JUDGMENT : G.S. SANDHAWALIA, CJ. 1. Challenge in the present Letters Patent Appeal is to the dismissal of the writ petition of the appellant bearing CWP No. 2279 of 2008, Major Onkar Singh Guleria (Retd.) Vs. State of Himachal Pradesh & others, on 08.07.2014. The learned Single Judge upheld the order of dismissal dated 04.06.2007 (Annexure P-2) and Corrigendum dated 20.06.2007 (Annexure P-3), whereby it had been clarified that in the 4th line of Para-8 of the said dismissal order, the words “removal from service” may be read as “dismissal from service.” 2. The writ petitioner had also been aggrieved by the order passed by this Court on 28.11.2005, passed in CWP No. 333 of 2003, Anil Chauhan Vs. State of Himachal Pradesh & others (Annexure P-5), wherein he had been asked to appear in person and was asked as to how he, being the Deputy Director of the Sainik Welfare Kangra at Dharamshala, a subordinate functionary of the State Government as well as the Central Government, had by by-passing all the normal administrate channels, addressed the communication dated 23.11.2005 (Annexure P-5), directly to the then Chief Justice of this Court, which also contained some objectionable remarks and some uncalled for comments. 3. Resultantly, prayer had made in the writ petition by the petitioner to re-instate him alongwith all service benefits on the ground that the aforesaid orders were null & void and wrong & illegal, was rejected. 4. The petitioner had appeared in person in the Writ Petition and it was noticed by the learned Single Judge that the petitioner, in his official capacity, on 26.07.2005 had addressed a communication to the then Chief Justice of this Court regarding the handing over the possession of Sainik Rest House, Kangra, for the purpose of alternative accommodation as the construction of New Courts Complex, was to start. The said communication was put up on the judicial side in CWP No. 333 of 2003 and dealt with by the Division Bench of this Court. Thereafter, the necessary explanation had been asked for from the appellant as such keeping in view the observations made by the Division Bench at that point of time, but the appellant had not stopped and again made direct correspondence with the then Chief Justice and two Senior Judges of this Court on 26.12.2005. 5. Thereafter, the necessary explanation had been asked for from the appellant as such keeping in view the observations made by the Division Bench at that point of time, but the appellant had not stopped and again made direct correspondence with the then Chief Justice and two Senior Judges of this Court on 26.12.2005. 5. The petitioner was charge-sheeted on 01.02.2006 for this misconduct, but he had failed to appear before the Inquiry Officer, therefore, he was proceeded against ex-parte. The Inquiry Officer thereafter submitted his report by concluding that all the charges against the petitioner were of serious nature and had been duly proved in the Inquiry. Resultantly, the order dated 04.06.2007 was passed dismissing the petitioner from service. 6. Thereafter, the writ petitioner had moved an application bearing CMP No. 3253 of 2003 for being impleaded as party respondent in CWP No. 333 of 2003, which was not allowed, as the petitioner was aggrieved by order of dismissal dated 04.06.2007. The learned Single Judge came to the conclusion that though there was an alternative and efficacious remedy available to the petitioner under Central Civil Services (Classification, Control and Appeal) Rules, 1965, but since he had not appeared in person at Dharmashala, it would be harsh and oppressive, if he was relegated to his remedy. Resultantly, the order of dismissal was upheld on the ground that the charges proved against the petitioner, were of serious nature. 7. Reliance was placed upon the judgments of the Apex Court in B.C. Chaturvedi vs. Union of India and others, (1995) 6 SCC 749 and Union of India and others vs. Narain Singh, (2002) 5 SCC 11 , wherein it had been held that once the charge against a delinquent was established, the quantum of punishment was to be left for the employer and the same should not be substituted. 8. A reference was also made to the fact that the petitioner had been suspended twice on 22.4.1995 and 30.9.1999 for various misconducts and for the said charges, he was imposed penalty of withholding of three increments without cumulative effect on 27.10.1999 and again a penalty of withholding of two increments with cumulative effect on 30.6.2004. 8. A reference was also made to the fact that the petitioner had been suspended twice on 22.4.1995 and 30.9.1999 for various misconducts and for the said charges, he was imposed penalty of withholding of three increments without cumulative effect on 27.10.1999 and again a penalty of withholding of two increments with cumulative effect on 30.6.2004. Resultantly, keeping in view the fact that the petitioner had subjected the Judicial Officers of the District Judiciary and the Judges of this Court to scurrilous and indecent attack, and he, being a retired Major from the Indian Army, could not have feigned ignorance in matters relating to conduct, propriety and procedure to be followed while entering into ‘official correspondence’ etc. The writ petition was dismissed by noting that the petitioner had filed written arguments, running into 10 volumes comprising 2427 pages. The learned Single Judge came to the conclusion that the freedom of expression is there, but reckless imputations cannot be made against the impartiality of Judges deciding the cases. Resultantly, while dismissing the writ petition on 08.07.2014, suo moto notice for initiation of criminal contempt proceedings against the action of the petitioner was also issued and criminal contempt proceedings were ordered to be registered against the petitioner, which is subject matter of Cr.OPC No. 01 of 2014. 9. The record would go on to show that apparently, the petitioner was appointed to the post of Zila Sainik Welfare Officer, Class-I on 31.01.1990 (Annexure P-1) in pursuance to the application given by him as he was an Ex-Army Officer having retired from Armed Forces as a Major. Thereafter, on 11.04.1990, he was appointed as Deputy Director in Sainik Welfare at Nahan w.e.f. 05.03.1990 (Annexure P-1/A in the Writ Petition). 10. Apparently, the petitioner was agitated by the fact that the Sainik Rest House ought not to be used for the purpose of Court Complex, and, therefore, he had objected to the taking over of the same and in his communication dated 26.07.2005 (Annexure P-4), he had written directly regarding this aspect to the then Chief Justice of this Court. The said letter was also addressed to the various other Officers including the Judicial Officers of the District Courts and the Registrar of the Hon’ble Supreme Court. The said letter was also addressed to the various other Officers including the Judicial Officers of the District Courts and the Registrar of the Hon’ble Supreme Court. In the said letter, a reference was made to the KARGIL MARTYRS and the treatment being received by the Army Personnels, which had led to the start of his problems. 11. It would be clear that when the petitioner was charge-sheeted, he chose not to appear before the Inquiry Officer and remained unwilling to attend the inquiry proceedings in spite of opportunities given, which eventually led to passing of the Dismissal Order dated 04.06.2007 (Annexure P-2) by the then Chief Secretary to the Government of Himachal Pradesh, while exercising powers under Rule 11(ix) of the Central Civil Services (Classification, Control, and Appeal) Rules, 1965. Thereafter on 20.06.2007, Corrigendum (Annexure P-3) was issued, which clarified that in the 4th line of para-8 of the said Dismissal Order, the words “removal from service” may be read as “dismissal from service.” 12. We had heard the matter partly on 05.08.2025 and following order was passed: “Keeping in view the fact that criminal contempt proceedings had been initiated on the basis of the observations made by the learned Single Judge on 08.07.2014, we grant an opportunity to the contemnor to file his affidavit indicating whether he tenders an unconditional apology for his earlier conduct, so that the proceedings can be given a decent burial. List on 09.09.2025.” 13. The necessary affidavit dated 22.08.2025 has now been received from the appellant, wherein it has been mentioned that he is now 74 years old and is suffering from various diseases such as cancer, hypertension and chronic constipation and is disabled of the right foot and has also shifted from Kangra to Mohali on account of the ongoing treatment of the aforesaid diseases. He has also tendered unconditional apology and withdrawn all his previous statements. In the said affidavit, it has also been mentioned that he had served as Deputy Director Sainik Welfare, H.P. w.e.f. 09.03.1990 to 04.06.2007 and his services were terminated without pay and allowances w.e.f. September, 2006 onward and in normal circumstances, he would have superannuated on 30.11.2009. He has prayed that all major and minor penalties, which had been imposed upon him as such, be quashed. He has prayed that all major and minor penalties, which had been imposed upon him as such, be quashed. He has requested to accept his unconditional apology and drop criminal contempt proceedings initiated against him and to reinstate him with back wages and all consequential benefits. 14. Keeping in view all these cumulative factors, we are of the considered opinion that although there is no infirmity as such in the order of the learned Single Judge, more particularly keeping in view the constant and firm conduct and attitude of the appellant at that point of time which is in line with the fact that he hails from an Army background, but the fact remains that he has served the State for 17 years w.e.f. 09.03.1990 till 04.06.2007. The punishing Authority concerned, apparently did not take this fact into consideration while dismissing him from service on account of his misconduct and apparently, as noticed above, he has lost his service benefits, i.e. his pensionary rights and gratuity. The intention of the letters as such addressed to the then Chief Justice, apparently was mis-directed by the Ex-serviceman to protect his turf on account of being misguided. It was not any personal adversary as such of the Ex-serviceman and he was only aggrieved by the fact that Zila Sainik Rest House was taken over for the purposes of Court Complex temporarily and, therefore, no such personal attribution can be attributed to him being an Ex-Serviceman, as noticed having retired as a Major from the Indian Army. 15. The principle of question of choice and quantum of punishment was examined by the Apex Court in Ranjit Thakur Vs. Union Of India & others, (1987) 4 SCC 611 , wherein it has been held that doctrine of proportionality has to be kept in mind as part of the concept of judicial review to the offence and penalty as such should not shock the conscious. 16. The principle of proportionality was also discussed in Union of India & Another vs G. Ganayutham, (1997) 7 SCC 463 . 17. 16. The principle of proportionality was also discussed in Union of India & Another vs G. Ganayutham, (1997) 7 SCC 463 . 17. Apparently, the learned Single Judge has also noticed the judgment of B.C. Chaturvedi, (supra), but to some context, has missed out paragraph 18 thereof, wherein it has been held by the Apex Court that the direction can be given to the Appellate Authority to reconsider the penalty imposed, or to shorten the litigation in appropriate, exceptional and rare case. impose appropriate punishment with cogent reasons. The relevant part of the judgment reads as under:- “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof.” 18. In Onkar Vs. Union of India, 2001 (2) SCC 386 , it has been held by the Apex Court that long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases the Court can substitute its own view as to the quantum of punishment. 19. The said view was also noticed by the Apex Court in Regional Manger, U.P. SRTC Etawah & others Vs. Hoti Lal and another, (2003) 3 SCC 605 , by holding that scope for interference is very limited and is restricted to exceptional cases. The various aspects, such as, mental set up, the type of duty performed and similar relevant circumstances and the person holding the post and the misconduct in question, should be noticed and reasons are to be given for following the said path. 20. in Deputy Commissioner, Kendriya Vidyalaya Sangthan & others Vs. The various aspects, such as, mental set up, the type of duty performed and similar relevant circumstances and the person holding the post and the misconduct in question, should be noticed and reasons are to be given for following the said path. 20. in Deputy Commissioner, Kendriya Vidyalaya Sangthan & others Vs. Hussain, (2013) 10 SCC 106 , the said principle was again discussed that in the case of punishment proportionate to the nature of charge, the matter can be referred to the Disciplinary Authority to take an appropriate view. 21. In Union of India Vs. P. Gunasekaran, (2015) 2 SCC 610 , the principle of compulsory retirement which had been interfered by the High Court was restored by holding that under Articles 226 and 227 of the Constitution, the Court would not:- (i) re- appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence and the reliability of the same; (iv) would not correct the error of fact however grave it may appear to be; (v) and also would not go into the proportionality of punishment unless it shocks its conscience. 22. It is thus, to be kept in mind that it is not a case of integrity or a moral turpitude, as we have noticed that at this point of time, the appellant is 74 years old and is suffering from various ailments including Cancer. In these circumstances, we are of the considered opinion that the said principle would be invoked as it is an extraordinary case, which led to initiation of proceedings and continuance to be also in view of the quantum of punishment imposed for the misconduct as such. 23. In such circumstances, we are of the considered opinion that the punishment as imposed, is one which shocks the conscious of the Court. If the appellant had been compulsory retired at that stage, it would have been a sufficient deterrent to him and also to resolve the issue which had arisen on account of his mis-directed communications. The taking over of the premises was only meant to utilize the premises for a limited purpose as the Court Complex had to be constructed. If the appellant had been compulsory retired at that stage, it would have been a sufficient deterrent to him and also to resolve the issue which had arisen on account of his mis-directed communications. The taking over of the premises was only meant to utilize the premises for a limited purpose as the Court Complex had to be constructed. In these circumstances, keeping in view the fact that the appellant had suffered for a long period of time and it has been almost 20 years since he had first wrote to the then Chief Justice on 26.07.2005 and then had put in appearance on 28.11.2005 and he has been divested from his pay during this period and all of his pensionary benefits, we are of the considered opinion that though no fault can be found in the order of the learned Single Judge. The issuance of the contempt notice was on account of the belligerent attitude of the ex-Army Officer who apparently tried to hold his ground keeping in view the military background and failed to notice that the premises were to be used for larger public good. 24. However, keeping in view the fact that now an unconditional apology has been tendered by the appellant by way of an affidavit and the appellant as such is now a senior citizen in the evening of his life, we feel that it would be appropriate to convert the punishment as such from dismissal into an order of compulsory retirement and to substitute the same from the date, it took effect, keeping in view the wordings of the English Poet Alexander Pope “to err is human and to forgive is divine”. We also accordingly drop the proceedings against him in the criminal contempt. 25. Accordingly, the appeal is partly allowed with a direction to the State to consider the case of the appellant for release of all consequential benefits in view of the order of dismissal from service being substituted by the order of compulsorily retirement from the date it took effect. The needful be done within a period of two months. 26. Rule is also discharged in the Contempt proceedings. 27. Accordingly, the Appeal and the Contempt Petition are disposed of. 28. Pending application(s), if any, also stands disposed of.