Punjab-Haryana High Court
Partap Singh Narwal vs Haryana State Co-Op. Agr. And Anr. on 8 March, 2004
Equivalent citations: (2004)IIILLJ910P&H, (2004)137PLR367
Author: S.S. Nijjar
Bench: S.S. Nijjar, Kiran Anand Lall
JUDGMENT S.S. Nijjar, J.
1. With the consent of the counsel for the parties, the matter is taken up today for final disposal at the motion stage.
2. The petitioner has filed this writ petition under Articles 226/227 of the Constitution of India for issue of a writ in the nature of Certiorari quashing the impugned orders (Annexures P-12 and P-17) dated 11.5.2001 and 17.2.2003 respectively purported to be passed by the Staff Committee, respondent No. 2.
3. The petitioner claims that he was appointed as Clerk in the office of respondent-Bank on 8.10.1974. He was promoted as Junior Assistant in the year 1989. On 21.7.1994, the petitioner was placed under suspension. He was allowed subsistence allowance under the Staff Service Rules. The petitioner was suspended even before the charge-sheet had been issued. The petitioner claims that he was unable to effectively reply to the charge-sheet, which was subsequently issued, as necessary documents had not been supplied to him for preparing the reply. In due course, Enquiry Officer was appointed and the petitioner was summoned to appear before him on 7.4.1997. Numerous representations made by the petitioner with regard to the supply of the documents were ignored by the respondents. The petitioner was unable to appear before the Enquiry Officer on a number of occasions due to ill health. He was, however, making necessary applications for adjournment supported by Medical Certificates. The petitioner appeared before the Enquiry Officer on 2.4.1998. On that date, the witnesses were examined. After examination of the witnesses, in the report dated 15.7.1998, the Enquiry Officer held as under:-
"In view of my above discussion, I am of the opinion that both the allegations have been erroneously proceeded to and therefore, cannot be said to proved against Shri Partap Singh Narwal exparte."
4. Without issuing any show-cause notice to the petitioner, the Managing, Director disagreed with the findings of the Enquiry Officer. A show-cause notice was issued to the petitioner on 14.9.1998 proposing a punishment of stoppage of three annual increments with cumulative effect. The petitioner submitted reply to the show-cause notice. After considering the reply to the show-cause notice, order (Annexure P-12) dated 11.5.2001 was passed in which the petitioner was warned not to misbehave in future. Operative part of the order is as under:-
"Keeping in view all the aspects of this case and taking a lenient view, Shri Partap Singh Narwal, Jr. Acctt. is warned not to misbehave in future. A copy of this warning is placed in his ACR file. He is also reinstated with immediate effect and posted in AOP Section Head Office. Further Sh. Partap Singh Narwal, Jr. Acctt. is allowed leave of the kind due to him for the period he remained under suspension with effect from 22.7.94 to the date of joining after reinstated for which orders will follow separately."
5. A perusal of the above shows that the petitioner was reinstated. He was allowed leave of the kind due for the period he remained under suspension w.e.f. 22.7.1994 to the date of joining. The petitioner joined on 1.6.2001.
6. During the pendency of these proceedings, the petitioner had been requesting for reinstatement or for increase in the subsistence allowance from 50% to 75% as under the Rules, the total period of suspension could not exceed one year. According to the petitioner, under Rule 30.3 of the Staff Service Rules, an employee could be placed under suspension for six months which could be extended for another six months. In support of the submission, the petitioner relied on a decision given by the Division Bench of this Court on 10.10.1995 in CWP No. 17949 of 1994 (Jagdish Chander, Asstt. Sales Officer v. State of Haryana etc.). Being aggrieved against the order dated 11.5.2001 (Annexure P12), the petitioner filed an appeal before the Staff Committee (Appellate Authority). The appeal filed by the petitioner was not decided within a period of four months from the date of the receipt of the appeal as required under Rule 30.4 of the Staff Service Rules. The petitioner was, therefore, constrained to move this Court by way of C.W.P. No. 19403 of 2002 which came up for hearing on 9.12.2002. This Court passed the following order:-
"Present; Mr. C.B. Kaushik, Advocate for the Petitioner.
J.S. Khehar, J, (Oral) - The solitary grievance of the learned counsel for the petitioner is that an appeal preferred by the petitioner to the Staff Committee of the Haryana State Cooperative Agriculture and Rural Development Bank Ltd., Chandigarh has not been decided. It is pointed out that the appeal was preferred on 18.6.2001.
In view of the factual position noticed above, we do not consider it appropriate to call upon the respondents to enter appearance before this Court. We are satisfied that the instant petition should be disposed of with a direction to the Appellate Authority i.e. the Staff Committee of the Haryana State Cooperative Agriculture and Rural Development Bank Ltd., Chandigarh to dispose of the appeal preferred by the petitioner dated 18.6.2001 within a period of two months from the date of the receipt of a copy of this order by passing a well reasoned speaking order.
Order dasti on payment of usual charges.
9.12.2002 Sd/- J.S. Khehar, Judge Sd/- Ashutosh Mohunta, Judge"
7. The appeal filed by the petitioner has been considered by the Staff Committee and the order (Annexure P-17) was passed on 17.2.2003, operative part of which reads as under:-
"Keeping in view the gravity of the charge, proved against the delinquent and contents of the show-cause notice, the Staff Committee unanimously set aside the order dt. 11.5.01 passed by the M.D. and resolved to stop three annual increments of Sh. Partap Singh Narwal, Jr. Acctt. with cumulative effect and not to pay anything except the subsistence allowance already paid to him for the suspension period and the Staff Committee further authorised the Managing Director to issue the orders in this regard.
Accordingly in compliance of the decision of the Staff Committee, three (3) annual increments of the delinquent are stopped prospectively with cumulative effect and the delinquent will not be paid anything except the subsistence allowance already paid to him for the period he remained under suspension from 22.7.94 to 31.5.2001 Dated 17.2.2003."
8. Mr. Kaushik, learned counsel appearing for the petitioner has submitted that the impugned orders (Annexures P12 and P17) are vitiated being arbitrary and having been passed without due application of mind as well as being contrary to the rules of natural justice and the statutory service rules.
9. Respondent No. 1 has filed the written statement. Facts as stated in the writ petition have been virtually admitted. Mr. Tewatia, learned counsel appearing for the respondents submits that the penalty was imposed as the petitioner had deliberately delayed the finalisation of the enquiry as he did not appear before the Enquiry Officer on a number of occasions.
10. We have perused the paper-book and have considered the submissions of the learned counsel for the parties.
11. We find substance in the submissions of Mr. Kaushik that the orders (Annexures P-12 and P-17) have been passed with a pre-determined mind to teach the petitioner a lesson for approaching this Court when the appeal was not decided within the stipulated period as prescribed by Rule 30.4. We are also satisfied that the petitioner has been treated unfairly throughout and the proceedings had been conducted in breach of rules of natural justice. The petitioner has been making specific requests for the supply of the documents to file reply to the charge-sheet. Specific requests had been made by the petitioner for supply of the documents as early on 18.10.1994. The petitioner had requested for a copy of the original complaint which had been made against him. This request had been repeated by the petitioner on a number of occasions. The petitioner had supported his claim for supply of the documents by citing the judgments of the Supreme Court in the cases of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, A.I.R. 1961 Supreme Court 1623 and State of Uttar Pradesh v. Mohd. Sharif (dead), through L.Rs., A.I.R. 1982 Supreme Court 937. After the receipt of the charge-sheet, the petitioner again made a request for the supply of the original complaint on 29.12.1995. He again cited the aforesaid judgments of the Supreme Court, With regard to the non-appearance before the Enquiry Officer, the petitioner has attached with the writ petition copy of the application for adjournment on 11.4.1997 supported by medical Certificate dated 10.4.1997. Again a request for adjournment has been made on 8.12.1997 along-with a medical certificate, copy of which is attached as Annexure P8 to the writ petition. The petitioner ultimately appeared before the Enquiry Officer. Witnesses were duly examined. The Enquiry Officer found that both the charges levelled against the petitioner cannot be said to be proved. This finding of the Enquiry Officer was reversed by the Managing Director with the cryptic remarks as follows:-
"After considering the report of the Enquiry Officer, it has been established that the allegation of creating nuisance in the office building after taking liquor during office hours is proved and you are found guilty of gross misconduct and deserve punishment in pursuance of the provisions laid down in the Staff Service Rules of the Bank."
12. After coming to the aforesaid conclusion, the petitioner was served with the show-cause notice as to why major punishment of stoppage of three annual increments with cumulative effect be not inflicted on the petitioner. Again the petitioner submitted a detailed reply. Without adverting to any of the submissions made by the petitioner, an order of punishment was passed, even though it was only a warning not to misbehave in future. Feeling aggrieved, and unfairly treated, the petitioner took cudgels, to file an appeal before the Staff Committee. Throughout this period, he had also been claiming increase in the subsistence allowance which was due to him under the rules. However, the statutory appeal filed by the petitioner was not being decided by the competent authority. The petitioner was, therefore, constrained to file CWP No. 19403 of 2002. As noticed above, the aforesaid writ petition was disposed of with a direction to the respondents to pass a speaking order. In an appeal filed by the petitioner against an order imposing a minor punishment of warning (Annexure P-12), the Appellate Authority has passed the impugned order (Annexure P-17) dated 17.2.2003 inflicting upon the petitioner a major punishment i.e. stoppage of three annual increments with cumulative effect, It has also been decided that the petitioner shall not be paid anything except the subsistence allowance already paid to him.
13. The aforesaid narration of facts would make it abundantly clear that the action of the respondents in passing the impugned orders (Annexures P-12 and P-17) is not fair, and therefore, violative of Article 14 of the Constitution of India. The period spent by the petitioner during suspension, which was wholly unjustified, cannot be treated as period spent on leave. It has to be treated as period spent on duty. The petitioner having been exonerated in the enquiry, was entitled to be reinstated with all consequential benefits. The impugned orders (Annexures P-12 and P-17), in our opinion, have been passed in breach of rules of natural justice and against the statutory service rules. The aforesaid orders cannot be upheld.
14. In view of the above, the writ petition is allowed. The impugned orders (Annexures P-12 and P-17) dated 11.5.2001 and 17.2.2002 respectively are hereby quashed.
The petitioner is held entitled to be reinstated in service with all consequential benefits from the date he was placed under suspension till reinstatement, by treating the period of suspension as on duty. No costs.
Sd/- Kiran Anand Lall, J.