Punjab-Haryana High Court
Mangal Singh vs Punjab & Haryana High Court on 30 October, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No. 15314 of 2012 (O&M)
Judgement reserved on 8.10.2013
Date of Decision: 30.10.2013.
Mangal Singh --Petitioner
Versus
Punjab & Haryana High Court
and others --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Devender Punia, Advocate for the petitioner.
Mr. Suresh Monga, Advocate for the respondents.
***
TEJINDER SINGH DHINDSA.J The petitioner, who was serving as Orderly in the court of Civil Judge (Jr. Divn.)-cum-JMIC, Hisar was placed under suspension on 12.7.2008 and a charge sheet under Rule 7 of the Haryana Civil Services (Punishment & Appeal) Rules, 1987 (herein after to be referred as 1987 Rules) was served upon him vide memo dated 19.7.2008. The petitioner submitted a reply dated 5.8.2008. On 7.8.2008 the District & Sessions Judge, Hisar took a decision that as the petitioner has admitted the charges levelled against him, therefore, there is no need to conduct a regular departmental inquiry. An opinion was formed that a penalty of dismissal from service be imposed and accordingly, a second show cause notice as regards the contemplated penalty of dismissal was directed to be issued upon the petitioner. The second show cause notice dated 8.8.2008 was served upon the petitioner. The petitioner responded to the same by filing a reply dated 23.8.2008. Vide order dated 5.11.2008 passed by the District & Sessions Judge, Hisar the petitioner was dismissed from service. The Lucky petitioner preferred a service appeal dated 15.12.2008 and the same has 2013.11.06 10:14 I attest to the accuracy and integrity of this document chandigarh CWP No. 15314 of 2012 (O&M) -2- also been dismissed by this Court on the administrative side in the light of order dated 12.3.2010.
The instant writ petition has been filed impugning the order of dismissal dated 5.11.2008 at Annexure P-5 as also the order dated 12.3.2010 (Annexure P-6), whereby his service appeal has been rejected.
Learned counsel for the parties have been heard at length and pleadings on record have been perused.
It would be pertinent to take notice that learned counsel for the petitioner has submitted at the very outset that in the eventuality of this Court upholding the challenge to the impugned orders, the petitioner would not press as regards the relief towards arrears of salary for the period in question i.e. from the date of dismissal till his reinstatement, if, so ordered.
The charge sheet issued to the petitioner was under Rule 7 of the 1987 Rules which prescribes the procedure for imposition of a major penalty. Relevant portion of Rule 7 reads as under:-
"7. Inquiry before imposition of certain penalties-(1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950; no order of imposing a major penalty shall be passed against a person to whom these rules are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
(2) The grounds on which it is proposed to take such action shall be reduced to the form of definite charge or charges which shall be communicated in writing to the persons charged together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take up into consideration in passing orders on the case and he shall be required within a reasonable time or state in writing whether he admits the truth of all or any, of the charges, what CWP No. 15314 of 2012 (O&M) -3- explanation for defence, if any, he has to offer and whether he desires to be heard in person. If the punishing authority is not satisfied with the explanation given by the person charged or there are other reasons to do so shall direct that n enquiry shall be held at which all evidence shall be heard as to such of the charges as are not admitted. The persons charged shall, subject to the conditions described in sub-rule (3) be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the Officer conducting the enquiry may for reasons to be recorded in writing, refuse to call any witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds there of provided that-
(a) it shall not be necessary to frame any additional charge when it is proposed to take action in respect of any statement of allegation made by the person charged in the course of his defence; and
(b) the provisions of the foregoing sub-rule shall not apply where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal charge; or where an authority empowered to dismiss or remove him, or reduce him in rank is satisfied that, for some reasons to be recorded by him in writing, it is not reasonably practicable to give him an opportunity of showing cause against the action proposed to be taken against him or where in the interest of the security of the State it is considered not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity to defend himself under sub-rule (2) the decision thereon of the punishing authority shall be final.
(4) (a) xxx xxx xxx
(b) xxx xxx xxx
(5) xxx xxx xxx"
CWP No. 15314 of 2012 (O&M) -4-
Under Rule 7 an elaborate procedure has been prescribed. Sub rule (1) of Rule 7 provides that no order of imposing a major penalty shall be passed against a person to whom the rules apply, unless he has been given a reasonable opportunity to show cause against the action proposed to be taken. Sub rule (2) requires the ground on which the action is proposed to be taken, to be reduced in the form of a definite charge or charges and to be communicated to the delinquent. The delinquent is to be afforded an opportunity to submit his explanation for defence. If, such explanation is not found to be satisfactory, then, inquiry shall be held and evidence shall be led with regard to the charges as are not admitted. The charge sheeted employee has to be given an opportunity to cross-examine the witnesses.
He is further permitted to lead evidence in defence.
In the facts of the present case there were three precise Articles of Charge drawn up against the petitioner and to the following effect:-
"STATEMENT OF CHARGES AGAINST SHRI MANGAL SINGH, ORDERLY (UNDER SUSPENSION) OF THE COURT OF SHRI SUNIL KUMAR, CIVIL JUDGE (JUNIOR DIVISION)-CUM-JUDICIAL MAGISTRATE 1ST CLASS, HISAR I, S.S. Lamba, District & Sessions Judge, Hisar do hereby charge you Shri Mangal Singh, orderly (under suspension) of the court of Shri Sunil Kumar, Civil Judge (Junior Division)-cum-Judicial Magistrate 1st Class, Hisar on the basis of statement of allegations enclosed as under:-
1. Firstly, in the evening of 10.7.2008 you attended the camp office of Shri Sunil Kumar, Civil Judge (Junior Division)-
cum-Judicial Magistrate 1st Class, Hisar in whose court you were posted as orderly in drunken condition and created nuisance there in the presence of his family members. This fact was also witnessed by Shri A.K. Gautam, Superintendent who CWP No. 15314 of 2012 (O&M) -5- is residing in the next house to his house.
2. Secondly, you came in the Judicial Court Complex on the same day i.e. 10.7.2008 at 7.00 P.M and hurled abuses with Shri Rajinder Singh, Chowkidar and with Shri Vikas Sharma, Process Server, who was directed to perform the duty of Chowkidar on that day in place of Shri Mahavir Singh, the then Chowkidar, who had been granted rest on that day.
3. Thirdly you came to the court on 11.7.2008 at 07.35 A.M and you did not appear in the court despite giving repeated call bells by your Presiding Officer till 09.00 A.M. These facts show that you have been grossly negligent and careless in performing your duties and your behaviour tantamounts to grave insubordination and misconduct which is unbecoming of a Public Servant. You have rendered yourself liable for action under Rule 7 of the Punishment and Appeal Rules, 1987 and other relevant rules.
Sd/-
District & Sessions Judge, Hisar.18/7."
The petitioner submitted his reply dated 5.8.2008 which stands appended as Annexure R-1 along with the written statement filed on behalf of respondents no.1 to 3. A perusal thereof would reveal that in so far as the first and second charges were concerned, the petitioner admitted the same to some extent and in the same breath offered an explanation in regard thereto stating that he was under depression due to family circumstances and was not in a conscious state of mind and it was after duty hours that he had consumed some alcohol. He further stated that he had gone to the camp office of the Presiding Officer and where he had some talk with the Presiding Officer but had not created any nuisance. Even with respect to the second charge the petitioner stated that some altercation had taken place with the Chowkidar on duty. As regards the third charge of having not appeared in the court despite giving repeated call bells by the Presiding CWP No. 15314 of 2012 (O&M) -6- Officer till 9.00 A.M the petitioner categorically denied such charge and stated that on 11.7.2008, the Presiding Officer was angry in respect of the incident that had occurred on the previous date i.e. 10.7.2008 and as such, he had not allowed him to perform his duty and rather he had been asked to sit by the side of the court. Clearly, the reply dated 5.8.2008 at Annexure R- 1 cannot be construed as an admission with regard to the charges levelled against the petitioner. Charge no.3 stood denied and in so far as the first and second charges, there was an admission but only to a certain extent. A perusal of the order dated 7.8.2008 at Annexure R-2 and 8.8.2008 i.e. the second show cause notice served upon the petitioner at Annexure R-3 makes is apparent that the punishing authority i.e. the District & Sessions Judge, Hisar has proceeded on the presumption that the petitioner has admitted the charges levelled against him and as such has taken a view that there would be no requirement of holding a regular departmental inquiry as contemplated under Rule 7 of the 1987 Rules.
I am of the considered view that such course of action adopted against the petitioner was clearly unfair, unreasonable and in violation of the 1987 Rules. A major penalty of dismissal could not have been imposed upon the petitioner without holding a regular departmental inquiry more so in view of the fact that in response to the charge memo issued upon him under Rule 7 i.e. with regard to imposition of a major penalty, the petitioner had specifically denied one charge and only admitted part of the other two charges. At this stage, it would be useful to refer to a Full Bench decision of this Court rendered in case of Dr. K.G. Tiwari Vs. State of Haryana & Ors., 2002 (2) S.C.T 915, wherein after examining the 1987 Rules, it had been held that even a minor penalty could not have been imposed after the CWP No. 15314 of 2012 (O&M) -7- issuance of a charge sheet under Rule 7 of the 1987 Rules without holding of a regular departmental inquiry.
There is another aspect of the matter. In the impugned order of dismissal dated 5.11.2008 (Annexure P-5) the punishing authority apart from referring to the charge sheet dated 19.7.2008 has also taken into account the past adverse record of the petitioner while forming a final view to impose the extreme penalty of dismissal. The relevant extract of the impugned order to demonstrate such factual position is reproduced hereunder:-
"A perusal of the past record of the delinquent official shows that he was detained in judicial custody on 05.10.2001 in criminal case FIR No.445 dated 05.10.2001, u/s 160 IPC, Police Station City Fatehabad. In the aforesaid case, he was held guilty by the court of the then Chief Judicial Magistrate, Fatehabad vide judgement dated 23.07.2005 and sentence to pay a fine of Rs.100/- vide order dated 25.7.2005. The delinquent official was warned to remain careful in future for disobeying orders of his Presiding Officer vide order dated 26.3.2003 of the then learned District and Sessions Judge, Hisar. The delinquent official was also detained in custody on 11.10.2006 in case FIR No.493 dated 10.10.2006, u/s 294/510 IPC P.S. Civil Lines, Hisar. He was treated without pay for that day i.e. 11.10.2006 vide order dated 17.11.2006. The said case is still pending in the court of Shri Kuldeep Singh, learned Judicial Magistrate 1st Class, Hisar for 5.2.2009 for prosecution evidence. The delinquent official has been warned several times for the period of his absence. He was warned to remain careful in future vide order dated 8.9.2007 for remaining absent from duty for second half day on 22.8.2007. He was also warned to remain careful in future vide order dated 2.11.2007 for remaining absent from duty on 23.10.2007. Vide order dated 28.1.2008, the delinquent official was also CWP No. 15314 of 2012 (O&M) -8- warned to remain careful in future for remaining absent from duty for 2nd half day on 17.1.2008. The delinquent official was also warned to remain careful in future vide order dated 28.1.2008 for remaining absent from duty on 18.1.2008. He was also warned to remain careful in future vide order dated 01.4.2008 for not submitting application for casual leave in time.
The aforesaid history of the official would show that he is not having clean service record."
The same aspect has even weighed at the stage of passing of the impugned order dated 12.3.2010 at Annexure P-6, whereby his service appeal was rejected by this Court on the administrative side.
In the show cause notice dated 8.8.2008 (Annexure R-3) issued to the petitioner contemplating the imposition of penalty of dismissal, the only reference was to the charge dated 19.7.2008 issued to the petitioner under Rule 7 of the 1987 Rules. As such the petitioner was never put to notice that his past adverse record was also being taken into account as regards forming a final view for imposition of a major penalty.
The question whether consideration of the past adverse record of the petitioner and not putting him to notice in regard thereto and whether the same would have the effect of vitiating the ultimate order came up for consideration before the Hon'ble Supreme Court in case of State of Mysore Vs. K.Manche Gowda, 1964 AIR (SC) 506. Such question was answered in the affirmative and it was held as follows:-
"7. Under Article 311 (2) of the Constitution as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable CWP No. 15314 of 2012 (O&M) -9- opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam v. Bimal Kumar Pandit, Civil Appeal No.832 of 1962 D/-12.2.1963. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment; he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive."
Such view has thereafter been reiterated by the Hon'ble Supreme Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and another, 2010 (3) S.C.T 343.
The proposition laid down by the Hon'ble Apex Court is to the effect that in matters of taking disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If, the employer uses some material adverse to the employee about which the latter is not given notice, a final decision gets vitiated on the ground of violation of Rule of audi alteram partem. As such, on such ground also the impugned order of dismissal cannot sustain.
For the reasons recorded above, the present writ petition is allowed. The impugned order of dismissal dated 5.11.2008 (Annexure P-5) passed by the District & Sessions Judge, Hisar as also the order dated 12.3.2010 (Annexure P-6) dismissing his service appeal, are quashed. The petitioner is directed to be reinstated in service with all consequential benefits. The petitioner, however, shall not be paid the arrears of salary for CWP No. 15314 of 2012 (O&M) -10- the period in question i.e. from the date of dismissal till the date of his reinstatement. This shall not, however, preclude the respondent-authorities in proceeding against the petitioner afresh by strictly observing the procedure envisaged under the 1987 Rules as also in compliance with the principles of natural justice.
Petition allowed in the aforesaid terms.
(TEJINDER SINGH DHINDSA) JUDGE October 30th, 2013.
lucky Whether to be reported? Yes.