Punjab-Haryana High Court
Charan Singh vs Haryana Power General Corporation ... on 3 December, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, Jaspal Singh
LPA No.980 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.980 of 2013
Date of decision: 03.12.2013
Charan Singh
Appellant
Versus
Haryana Power General Corporation Limited and others
Respondents
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Dinesh Kumar, Advocate for the appellants
in LPA Nos.980 & 1135 of 2013.
Mr. Shrey Goel, Advocate for
Mr. JK Goel, Advocate for the appellant
in LPA No.924 of 2013.
Mr. Aman Pal, Advocate for the appellants in
LPA Nos.1427 and 1447 of 2013.
Mr. Sandeep Vermani, Advocate for HPGCL in
LPA No.980 of 2013.
Mr. D.S.Nalwa, Advocate for HPGCL in
LPA No.1427 of 2013.
Mr. Jatinder Malik, Advocate for
Mr. Pardeep Singh Poonia, Advocate for HPGCL in LPA
Nos.1447, 1135 and 924 of 2013
Ajay Kumar Mittal,J.
1. This order shall dispose of LPA Nos.980, 924, 1135, 1427 and 1447 of 2013 as the factual matrix and the legal issue involved therein are identical. However, the facts have been extracted from LPA No.980 of 2013. All these appeals have been filed against common judgment dated Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 2 30.1.2013 passed by learned Single Judge whereby the writ petitions filed by the appellants against imposition of penalty of stoppage of one annual increment without cumulative effect and expunction of adverse remarks in the Annual Confidential reports have been dismissed.
2. A few facts relevant for the decision of the controversy as available on record of LPA No.980 of 2013 may be noticed. The appellant was appointed as Fireman on 19.10.1992 on regular basis in accordance with law. Respondent No.3 while working as Chief Fire Officer started harassing the Firemen including the appellant for one reason or the other. They made a complaint against respondent No.3 before the respondent authorities. Since no action was taken, they submitted a complaint to respondent No.1 to investigate the matter and take action against respondent No.3. On 9.3.2005, Annexure P.2, various Firemen submitted a complaint against respondent No.3 before the State Vigilance Bureau, Panchkula alleging that respondent No.3 purchased substandard quality of uniforms from M/s Duni Chand and Sons, Main Bazar, Panipat. When no action was taken, they made a complaint to the higher authorities and ultimately FIR was lodged against respondent No.3. On 4.1.2006, Annexure P.3, various Firemen including the appellant made a complaint before the police authorities alleging that Shri Rajinder Singh Yant in connivance with respondent No.3 tampered the official record and showed his date of birth as 13.8.1956 instead of 13.8.1952 and had got the appointment letter for the post of Fire Operator. FIR No.28 dated 23.1.2006, Anenxure P.4 against Shri Rajinder Singh Yant and respondent No.3 was registered. The respondent authorities issued charge sheet dated 30.4.2008, Annexure P.5 to the appellant alleging that he had refused to accept the uniform cloth/items inspite of repeated reminders. It was also alleged that he indulged in Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 3 notorious activities by making complaints against his superiors. Similar complaints were also made against other Firemen. The appellant submitted reply to the charge sheet and denied the allegations Thereafter, the respondent authorities appointed Enquiry Officer who conducted the enquiry and submitted his report dated 2.5.2009, Anenxure P.7 to the effect that the charges levelled against the officials did not stand established. According to the appellant, copy of the enquiry report was neither supplied by the Enquiry Officer nor by the department. On 24.6.2009, Annexure P.8, the respondent authorities issued show cause notice to the appellant stating that the competent authority had decided to impose punishment of stoppage of one annual increment without cumulative effect under Rule 7 read with Rule 4(A) (1) of the Erstwhile HSEB Employees (Punishment and Appeal) Regulations, 1990. The respondent authorities without recording any dissenting note to the report of the Enquiry Officer issued the said show cause notice. Vide memo dated 27.7.2009, Annexure P.9, orders for stoppage of one annual increment without cumulative effect were issued. Aggrieved thereby, the appellant filed appeal before the competent authority. Vide letter dated 27.9.2007, Annexure P.10, adverse remarks for the year 2005-06 were communicated to the appellant. Similarly, adverse remarks were also communicated to the appellant for the period from 1.4.2006 to 31.3.2007. The appellant submitted a detailed representation dated 11.1.2008, Annexure P.12 for expunction of the adverse remarks. Respondent No.3 again recorded adverse remarks in the ACR of the appellant for the period from 1.4.2007 to 31.3.2008 and communicated the same to him vide letter dated 2.7.2008, Annexure P.13. The representation submitted by the appellant was rejected by the respondent authorities vide order dated 24.7.2008, Annexure P.15 but the said order was never Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 4 communicated to the appellant nor an opportunity of hearing was afforded to him. Aggrieved thereby, the appellant approached this Court through CWP No.15827 of 2010 challenging the impugned orders. The respondent- authorities raised the plea that since the appeal filed by the appellant against the show cause notice was pending, the writ petition was premature. Vide order dated 13.10.2011, this Court directed the respondent authorities to decide the appeal filed by the appellant within two weeks from the date of passing of the order and communicate the order to the appellant. One of the similarly situated employee Satbir Singh also filed COCP No.3097 of 2011. Ultimately vide order dated 16.5.2012, Annexure P.16, the respondent authorities rejected the claim of the appellant and communicated the order to him. Aggrieved thereby, the appellants in all these appeals filed writ petitions in this Court. Vide order dated 30.1.2013 impugned herein, the writ petitions were dismissed by learned Single Judge. Hence the present Letters Patent Appeals.
3. Learned counsel for the appellant submitted that copy of the enquiry report was not given to the appellant. Further, no dissenting note of the punishing authority was recorded inspite of the fact that the allegations against the appellant did not stand proved during the enquiry. It was also urged that no reasons disagreeing with the enquiry report had been assigned by the punishing authority. Thus, the order dated 16.5.2012 (Annexure P.16) impugned was violative of the principles of natural justice. The order was also assailed on the ground that it was not a speaking one.
4. On the other hand, learned counsel for the respondent-HPGCL submitted that the order imposing punishment of stoppage of one annual increment without cumulative effect was a reasoned order. Moreover, no prejudice had been caused by non supply of copy of the enquiry report and Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 5 the recording of the dissenting note. Lastly, it was urged that in case, the order was bad, right of the respondent-HPGCL be protected by allowing it to pass a fresh order after following due procedure, as may be considered appropriate by this Court in accordance with law.
5. We have heard learned counsel for the parties and perused the record.
6. The Hon'ble Apex Court in Canara Bank v. V.K. Awasthy AIR 2005 SC 2090 while dealing with principles of natural justice had noticed as under:-
"9. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
10. The expressions "natural justice'' and "legal justice'' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.
11. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi- judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 6 foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta''. The classic exposition of Sir Edward Coke of natural justice requires to "`vocate interrogate and adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam'' says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat''.
12. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
13. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice."
7. Further, delving into the issue relating to the passing of the Singh Gurbax 2013.12.17 16:29 speaking order by an authority whether administrative or quasi judicial , it I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 7 was laid down by the Hon'ble Supreme Court in M/s Kranti Associates Pvt. Ltd. and another v. Sh. Masood Ahmed Khan and others, (2010) 9 SCC 496 as under:-
"17. The expression `speaking order' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report).
18. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the 'inscrutable face of a Sphinx'.
19 to 50 XX XX XX
51. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by Singh Gurbax superior Courts.2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 8
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".Singh Gurbax 2013.12.17 16:29 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.980 of 2013 9
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future.
Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
8. Adverting to the factual matrix in the present appeals, the impugned order dated 24.7.2008, Annxure P.15 and affirmed vide order dated 16.5.2012, Annexure P.16 does not satisfy the tests noticed hereinbefore as the principles of natural justice were not adhered to as no opportunity of hearing was provided to the appellants and copy of the enquiry report was not supplied to them. It cannot be held to be a speaking order as no reasons for disagreeing with the enquiry report were given. No dissenting note was recorded inspite of the fact that the charges levelled against the appellants did not stand proved during the enquiry.
9. In view of the above, the impugned orders dated 24.7.2008 and 16.5.2012, Annexures P.15 and 16 respectively in LPA No.980 of 2013 being non-speaking orders and passed in violation of the principles of natural justice as per law laid down by the Hon'ble Supreme Court in V.K. Awasthy and M/s Kranti Associates Pvt. Ltd's cases (supra) are hereby quashed. The appeals are allowed. The judgment of learned Single Judge dated 30.1.2013 is set aside. However, it shall be open for the respondent authorities to pass a speaking order afresh after affording an opportunity of hearing to the appellants in accordance with law.
(Ajay Kumar Mittal)
Judge
December 03, 2013 (Jaspal Singh)
'gs' Judge
Singh Gurbax
2013.12.17 16:29
I attest to the accuracy and
integrity of this document
High Court Chandigarh