Punjab-Haryana High Court
The Secretary To Govt. Punjab, ... vs Amar Nath And Anr. on 5 December, 2007
Equivalent citations: (2008)2PLR190
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. The plaintiff, respondent herein, was imposed 'penalty of stoppage of seven increments vide order No. 260/TA dated 11.8.1977, Order No. 1166 dated 31.3.1978, Order No. 207/TA dated 8.8.1977; order No. 2662/TA dated 20.10.1977 and order No. 147/TA dated 19.1.1977, passed by the General Manager, Punjab Roadways, Jalandhar Depot. Validity of these orders was challenged in the suit instituted in the Court of learned Sub Judge, Jalandhar, primarily, on the grounds of non observance of the statutory rules viz Inter-alia, without holding disciplinary enquiry and non observance of the principle of natural justice. The appellants herein, resisted the suit on the grounds that the same is barred by limitation and suffers from misjoinder of cause of action.
2. The learned trial court framed the following issues:
1. Whether the order dated 11.8.70, 31.3.78, 8.8.77, 20.10.77 and 19.1.77, are illegal, null and void as alleged in the plaint? OPP
2. Whether the suit is barred by limitation? OPD
3. Whether the suit is bad for misjoinder of cause of action? OPD
4. Relief.
3. The trial Court found that the punishment of withholding of seven increments with cumulative effect is a major punishment which could be inflicted ,only after holding an enquiry contemplated under Rule 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as "the Rules"). Though it is found that before passing of some of the orders, show cause notices were issued to the plaintiff-respondent herein, yet it was observed that the orders imposing penalty are, non-speaking and, thus, are illegal and void in law. Consequently, judgment and decree dated 28.11.1983 came to be passed by the learned trial Court setting aside the impugned orders. An appeal preferred by the State also failed and came to be dismissed vide judgment and decree dated 17.12.1984 passed by the learned Additional District Judge, Jalandhar. Validity of these orders is in question in the present appeal.
4. None appeared on behalf of the respondents and, thus, the appeal was accordingly, heard in their absence.
5. It is the admitted case of the appellants that service conditions of the respondent who was an employee of the Punjab Roadways, were/are governed and regulated by the Punjab Civil Services (Punishment and Appeal) Rules. 1970. Rule 5 of Part-III of these Rules, deal with penalties that can be imposed upon a government employee/ employees of the Corporation. Relevant extract of Rule 5 is reproduced hereunder:
5. Penalties:- Following penalties may for good and sufficient reasons, and as hereinafter provided, be imposed on a Government employee, namely:
Minor Penalties:
(i) ...
(ii) ...
(iii) ...
(iv) withholding increments of pay without cumulative effect.
Major Penalties:
(v) withholding of increments of pay with cumulative effect or reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period reduction will or will not have the effect of postponing the future increments of his pay;
(vi) ...
6. For imposing major penalties, procedure to be followed is prescribed under Rules 8 and 9 of, Part-IV. The relevant extract of Rules 8 and 9 are reproduced below:
8. Procedure for imposing major penalties:
(1) No order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 5 shall be made except after an inquiry held, as far as may be in the manner provided in this rule and Rule 9 or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. (2). Whenever the punishing authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government employee, it may itself inquire into, or appoint under this rule or under the provisions of the Public (Inquiries) Act, 1850, as the case may be, (an authority or any retired officer) to inquire into the truth thereof.
Explanation:- Where the punishing authority itself holds the inquiry, any reference in Sub-rules (7) to (20) and in Sub-rule (22) to the inquiring authority shall be construed as a reference to the punishing authority.
(3) Where it is proposed to hold an inquiry against a Government employee under this rule and Rule 9, the punishing authority shall draw up or cause to be drawn up:
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct article of charges;
(ii) a statement of imputation of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government employee;
(b) a list of documents by which and a list of witness by whom, the articles of charge are proposed to be sustained.
(4) The punishing authority shall deliver or cause to be delivered to the Government employee, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government employee to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(4-A) If on receipt of written statement of defence1, the punishing authority is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 5 should be imposed on the Government employee and for that reason the punishing authority does not consider it necessary to enquire into the articles of charges for imposing any of the penalties specified in Clauses (v) to (ix) of rule 5, it shall, after following the procedure specified in Rule 10, make an order imposing any of the penalties specified in Clauses (i) to (iv) of rule 5.
(5)(a) Subject to the provisions of Sub-rule (4-A) on receipt of the written statement of defence, the punishing authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint under Sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government employee in his written statement of defence, the punishing authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 9;
(b) If no written statement of defence is submitted by the Government employee, the punishing authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint under Sub-rule (2), inquiring authority for the purpose.
(c) Where the punishing authority itself inquiries into any article of charge or appoints as inquiring authority for holding an inquiry into such charge, it may by an order appoint a Government employee or a legal practitioner, to be known as the "Presenting Officer" to present on its' behalf the case in support of the articles of charge.
7. From the perusal of the penalties defined under Rule 5 of the Rules, it is evident that the punishment imposed on the respondent-plaintiff falls under Clause (v) of Rule 5 and is a major penalty. For imposing major penalty, procedure prescribed under Rule 8 of the Rules, is 'to be followed which clearly prescribed holding of an inquiry in the manner provided under Rules 8 and 9. Sub-rule 3 of Rule 8 requires framing of Articles of charges along with statement of imputations of misconduct or mis-behaviour in support of each article of charge and statement of all relevant facts including any admission or confession made by the Government servant along with list of documents and list of witnesses by whom the articles of charge are proposed to be sustained. Rule 4 requires delivery or service of all the articles of charge, statement of imputations and misconduct or mis-behaviour and a list of documents and witnesses upon the charged official and asking him to file his written statement in his defence followed by an enquiry as contemplated by Sub-rule (5) of Rule 8.
8. It is not in dispute that even though punishment imposed is a major penalty, procedure contemplated under Rule 8 of the Rules, has not been followed at all. No charge sheet was ever served upon the respondent-plaintiff. Statement of imputations of misconduct or mis-behaviour or the list of documents and list of witness was never served upon the respondent-plaintiff. The respondent-plaintiff was never provided any opportunity to file the written statement. No enquiry as contemplated by the rules was ever ordered or initiated what to say of conducted against the respondent-plaintiff. The impugned orders imposing major penalty are thus, totally illegal, invalid and without any authority of law. Both the learned Courts below have rightly set aside the punishment imposed upon the respondent-plaintiff. This case is squarely covered by a judgment of the Hon'ble Supreme Court in the case of Kidwant Singh Gill v. The State of Punjab 1991(1) R.S.J. 413. While interpreting and examining the scope of Rule 5, the Apex Court has held as under:
4. ...Rule 5(v) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding enquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5 (v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.
5. The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance. Conducting an enquiry, de horse the rules is no enquiry in the eye of law. It cannot be countenanced that the presence of an enquiry without reasonable opportunity of adducing evidence both by the Dept. as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules.
In view of the dictum of the above said judgment and rules position, there is no in the present appeal and the same is hereby dismissed with no order as to costs.