JUDGMENT 1. - This writ petition has been filed by the petitioner challenging the order dated 16.12.1993 passed by the respondents, by which he was removed from service with stipulation that his removal would not disqualify him for any further employment. 2. Petitioner was employed on the post of Clerk Grade-II with the respondents on 20.12.1969 and was promoted on the post of Superintendent (Works) Accounts. The petitioner along with one Shri K.S. Negi, Senior Superintendent of Stores. Shri Hari Ram Helper and other employee of canteen contractor and truck driver on 11.8.1992 went to return the empty bottles of cold drinks to M/s Sunil Agency and M/s Shrinath Graders, for which a letter dated 6.8.1992 addressed to M/s Sunil Agency was also handed over to Shri K.S. Negi, Senior Superintendent Stores. This letter required M/s Sunil Agency to refund the amount of Rs. 2,100/- against the 13 crates of empty bottles so returned. The petitioner was served letter on 17.8.1992 by Manager (P&IR) of the respondents in which he was required to confirm about the note appended by M/s Sunil Agency stating that a sum of Rs. 1,764/- was refunded by him. In the said letter, explanation of the petitioner was called for as to why he has not deposited the said amount of Rs. 1,764/-. The petitioner submitted reply to this letter on 18.8.1992 in which he has stated that he had merely abided by the confidential instructions of the Officer Incharge of the Canteen and Stores. The said instructions were confidential, therefore, the petitioner could not give the details thereof. He prayed that the explanation should be accepted and the proceeding should be dropped. Another letter was issued to the petitioner on 29.10.1992 again asking him to inform whether he has deposited the said amount of Rs. 1,764/- with the accounts department. The petitioner submitted reply to this letter on 7.11.1992. in which this time he stated that he has not received any such amount from M/s Sunil Agency. Another letter was issued to the petitioner by Manager (P&IR) on 5.11.1992, in which he was informed that in case the petitioner failed to deposit the amount, he shall be liable to pay the said amount with interest @ 21.75%. The petitioner reiterated his earlier stand by submitting reply to this letter on 11.11.1992. Another letter was issued to the petitioner by Manager (P&IR) on 5.11.1992, in which he was informed that in case the petitioner failed to deposit the amount, he shall be liable to pay the said amount with interest @ 21.75%. The petitioner reiterated his earlier stand by submitting reply to this letter on 11.11.1992. In these circumstances, the respondents served upon him a charge-sheet on 5.12.1992 to which the petitioner submitted his reply on the same day reiterating his stand that he has not received any such amount. The respondents thereupon nominated the Enquiry Officer and the Presiding Officer by their order dated 14.12.1992. In the enquiry, charges against the petitioner were found proved. The Enquiry Officer submitted his report on 15.4.1993. Copy of enquiry report was served upon the petitioner on 31.5.1993. Disciplinary Authority served a notice upon the petitioner requiring him to submit his representation on the proposed penalty of removal. The petitioner submitted his representation on 13.8.1993 again denying the factum of receiving the aforesaid amount and asserting that he was not liable for any amount. The Disciplinary Authority thereafter passed the order of his removal on 16.12.1993 with the stipulation that his removal would not disqualify him from any further employment. 3. I have heard Shri Sanjay Maherishi, learned Counsel for the petitioner and Shri N.K. Maloo, learned Counsel for the respondents. 4. Mr. Sanjay Mehrishi, learned Counsel for the petitioner has argued that the petitioner was not accorded full opportunity of hearing to defend himself inasmuch as the petitioner during the course of enquiry requested the Enquiry Officer to summon the proprietor of M/s Sunil Agency. He in this connection referred to application dated 17.3.1993 and 19.3.1993. In fact, the petitioner produced before the Enquiry Officer a letter dated 16.3.1993 written by proprietor of M/s Sunil Agency to return the empty crates and the petitioner R.B. Dewaidi was one of them but cash payment was not made to the petitioner. Learned Counsel submitted that the petitioner thereafter again submitted application on 24.3.1993 to the Enquiry Officer requesting him to issue gate pass to the proprietor of M/s Sunil Agency Shri Bhagchand so that he could appear before the Enquiry Officer. The Enquiry Officer however returned the application with the remark that the petitioner should adopt the procedure prescribed by the Management of the respondents. The Enquiry Officer however returned the application with the remark that the petitioner should adopt the procedure prescribed by the Management of the respondents. It was argued that had the gate pass been timely issued by the Enquiry Officer, it would have enabled the petitioner to produce the proprietor of M/s Sunil Agency. The Enquiry Officer has deprived the petitioner of the valuable right to produce his evidence. The petitioner has been prejudiced by inaction on the part of the Enquiry Officer and this has resulted in violation of principles of natural justice. The Enquiry Officer on the contrary relied on the second letter dated 23.3.1993 issued by proprietor of M/s Sunil Agency, which was produced before him by the Presenting Officer of the respondents. In that letter, it was stated that the petitioner exchanged torn currency notes with the new ones from the representatives of the said firm. Learned Counsel argued that not a single witness was produced by the respondents from the said M/s Sunil Agency, to prove correctness of version contained in letter dated 23.3.1993. All witnesses, who were examined to prove the charges against the petitioner, were employees of the respondents and were, therefore, bound to to the line set in the charge-sheet. It was argued that enquiry was not conducted in keeping with the principles of natural justice and fair play. Learned Counsel argued that gate pass for return of 74 crates was in fact issued in the name of Shri K.S. Negi, Senior Superintendent and Shri Hariram, Helper. Shri K.S. Negi was Incharge of the Store and obviously, only he was responsible to receive the refunded amount. Liability for his inaction has been illegally fastened upon the petitioner. Shri K.S. Negi, who illegally received the amount has been spared. Learned Counsel also referred to statement of Shri V.S. Gupta, who in his cross-examination stated that the note submitted by M/s Sunil Agency regarding refund of amount, Ex. P.1 i.e. receipt given on 11.8.1992 that he did not get this note verified from the petitioner. This according to the learned Counsel shows that the Disciplinary Authority failed to objectively apply his mind to the representation submitted by the petitioner against the proposed penalty. The aforesaid representation raised all those grounds. which have been urged before this Court. None of them however received consideration by the Disciplinary Authority. Order of removal being illegal. This according to the learned Counsel shows that the Disciplinary Authority failed to objectively apply his mind to the representation submitted by the petitioner against the proposed penalty. The aforesaid representation raised all those grounds. which have been urged before this Court. None of them however received consideration by the Disciplinary Authority. Order of removal being illegal. arbitrary and having been passed in utter violation of principles of natural justice, therefore, is liable to be quashed and set aside. Learned Counsel argued that order of removal has been passed by Additional General Manager (Engineering) whereas the appointing Authority was Chief Administrative & Personnel Officer, Instrumentation Ltd., Kota and thus the order of removal has been passed by an Authority subordinate to the appointing Authority. Protection provided to an employee under Article 311 of the Constitution of India has been violated. Learned Counsel alternatively argued that the petitioner has rendered long service of 24 years to the respondents. Removal had the effect of depriving him of all those benefits which he would receive had the lesser penalty like penalty of compulsory retirement been imposed, which penalty would have been more appropriate penalty being commensurate with the gravity of charge, if at all the same is taken to have been proved. 5. Shri N.K. Maloo, learned Counsel for the respondents opposed the writ petition and submitted that the petitioner accompanied other employees to return empty bottles of cold drinks and crates to M/s Sunil Agency. It was expected of them to collect the security deposit from M/s Sunil Agency. According to note submitted by proprietor of M/s Sunil Agency dated 6.8.1992 an amount of Rs. 1,764/- was refunded. Shri M.L. Bhatt, Junior Officer and Incharge of the canteen on return from M/s Sunil Agency informed that the said amount was received by the petitioner with the understanding that he would deposit the sane in the accounts section of the Company. The petitioner, however, did not comply with these instructions. He on 12.8.1992 again asked the petitioner to confirm in writing about the amount received from M/s Sunil Agency, but the petitioner refused to do so and asked him that he should not bother about this and the petitioner would on his own deposit the amount. The petitioner however never deposited the amount and in this manner he misappropriated the Company's money. The petitioner however never deposited the amount and in this manner he misappropriated the Company's money. In the departmental enquiry, charge against the petitioner about receiving the amount was amply proved by the evidence of Shri V.K. Goyal, Shri Ghevar Chand, Shri K.S. Negi, Shri Bhagwan Singh and Shri Hari Ram and Shri M.L. Bhatt. It was contended that reasonable opportunity was given to the petitioner to produce his evidence inasmuch as on his specific request, he was granted seven days time on 20.3.1993 to produce representative of M/s Sunil Agency. Even then the petitioner failed to produce any such representative. When the enquiry proceedings were again taken up on 29.3.1993, the petitioner was pointedly asked about the same but he submitted that whatever he wanted to say he has already said and lie he has nothing further to say. Reference in this connection was made to proceedings on 29.3.1993, which is on record at Annexure-22. Learned Counsel argued that there is no proof of the fact that the petitioner ever approached the concerned Authority for issue of the gate pass and he denied such gate pass. In fact, according to the learned Counsel the application submitted to the Enquiry Officer was nothing but to create a ground and there was no serious effort made by the petitioner. It was argued that even otherwise, the aforesaid six employees of the Company, who have appeared as witnesses before the Enquiry Officer, cannot be said to be in any manner biased or prejudiced against the petitioner. Their testimony, besides being consistent, inspires confidence and they cannot be disbelieved just because hey happen to be employees of the Company. Learned Counsel argued that charge against the petitioner was proved by oral as well as documentary evidence. The petitioner was given full opportunity to defend himself and in fact evidence has come on record that when the money was refunded, the petitioner got some of the torn currency notes exchanged with fresh ones. Learned Counsel referred to the enquiry report and especially statement of witnesses Shri M.L. Bhatt to show that the petitioner was even reminded to give in writing about receipt of the money and deposit the same but the petitioner did not do so. Shri M.L. Bhatt asked him to do so in the presence of Shri V.K. Goyal, Shri Ghevar Chand. Shri K.S. Negi, Shri Bhagwan Singh and Shri Hari Ram. Shri M.L. Bhatt asked him to do so in the presence of Shri V.K. Goyal, Shri Ghevar Chand. Shri K.S. Negi, Shri Bhagwan Singh and Shri Hari Ram. All these witnesses had accompanied the petitioner to the premises of M/s Sunil Agency and also confirmed about the receipt of the money by the petitioner. Learned Counsel argued that the argument with regard to alleged violation of Article 311 of the Constitution of India is wholly unfounded because the Additional General Manager (Engineering) is a much higher Authority than the Chief Administrative & Personnel Officer. There was thus no prejudice to the petitioner even on that count. 6. I have given my anxious consideration to the arguments aforenoted and perused the material available on record. 7. Contention that inspite of written request of the petitioner by letters dated 17.3.1993 and 19.3.1993 and thereafter on 24.3.1993 to the Enquiry Officer to ensure that gate pass was issued for producing Shri Bhagchand proprietor of M/s Sunil Agency prejudiced the petitioner's defence, cannot be accepted because the petitioner has even though submitted the application to the Enquiry Officer, but the Enquiry Officer on the application so submitted required the petitioner to go by the procedure of the Company for issuance of the gate pass. Nothing has been brought on record to show as to what efforts were made by the petitioner to procure such pass. Obviously, the Enquiry Officer himself could not issue the pass. Moreover, this argument has to be appreciated in the light of evidence otherwise on record so as to arrive at the satisfaction whether mere non- production of representative of the said firm would lead to irresistible conclusion that the charge against the petitioner was not proved. Enquiry Officer provided to the petitioner an opportunity of one week to produce the representative of the Company and when the enquiry proceedings were taken up on 29.3.1993, the petitioner on being pointedly asked, stated that he did not want any further opportunity. 8. It is evident from the enquiry report that the material available on record by way of statement of Shri V.K. Goyal, Shri Ghevar Chand, Shri K.S. Negi, Shri Bhagwan Singh and Shri Hari Ram as also Shri M.L. Bhatt, who have in one voice proved the charge against the petitioner that it was he who received the amount of Rs. It is evident from the enquiry report that the material available on record by way of statement of Shri V.K. Goyal, Shri Ghevar Chand, Shri K.S. Negi, Shri Bhagwan Singh and Shri Hari Ram as also Shri M.L. Bhatt, who have in one voice proved the charge against the petitioner that it was he who received the amount of Rs. 1,764/- and did not deposit the same with the accounts section of the Company in spite of being reminded to do so. These witnesses who had accompanied the petitioner to M/s Sunil Agency and witnessed him having received the said amount and then being reminded for depositing the same with the Company, clearly prove the charge against the petitioner by preponderance of evidence. Mere non-production of the representative of the Company would then hardly have any significance. It cannot, therefore, be said that it was such a serious infraction or violation of principles of natural justice as would vitiate the entire enquiry so as to completely disbelieve version of all these witnesses. 9. Coming now to the alternative arguments as to the penalty of removal being disproportionate to the charge proved, I find that the petitioner was initially appointed with the respondent- Company on 20.12.1969 and the order of removal in this case was passed on 16.12.1993. He in this manner had completed long service of 24 years with the respondent-Company. Although it is true that charge that is proved against the petitioner is that of receiving Rs. 1765/- and non-depositing the same, but at the same time, length of service for which the petitioner served in the respondent-Company, when examined independently, shows that he would have even otherwise been eligible to seek voluntary retirement. Apart from removal, compulsory retirement is prescribed as one of the major penalties in Clause 6(ii)(h) of the Instrumental Employees Discipline & Appeal Rules. Although the penalty of removal has been passed with he stipulation that this would not disqualify the petitioner for any further employment. At the same time, had the petitioner been retired compulsorily, he would have been entitled to receive some of the terminal benefits. Penalty of removal in the present nature of case especially keeping in view the gravity of the charge against the petitioner appear to be disproportionate to the gravity of charge proved and shocks conscience of the Court. At the same time, had the petitioner been retired compulsorily, he would have been entitled to receive some of the terminal benefits. Penalty of removal in the present nature of case especially keeping in view the gravity of the charge against the petitioner appear to be disproportionate to the gravity of charge proved and shocks conscience of the Court. But at the same time, this charge would certainly justify the penalty of compulsory retirement, which in my considered view, would be more commensurate with the gravity of charge of receiving Rs. 1765/- vis-a-vis service of 24 years rendered by the petitioner. 10. In the result, this writ petition is allowed in part and the order of penalty dated 16.12.1993 is modified and penalty of removal of the petitioner is ordered to that of his compulsory retirement from service with effect from the same date. 11. The petitioner would be entitled to receive the benefits consequent upon passing of this judgment within a period of three months from the date of its copy is produced before the respondents.Petition partly allowed. *******