Punjab-Haryana High Court
Ravinder Pal Singh vs State Of Punjab And Others on 4 October, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.13637 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.13637 of 1993
JUDGMENT RESERVED ON. AUGUST 29, 2013
DATE OF DECISION: OCTOBER 04, 2013
Ravinder Pal Singh .......Petitioner
Versus
State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.BS Sudan, Advocate for the petitioner.
Mr.Pankaj Mulwani, Deputy Advocate General,
Punjab.
Mr.Rahul Sharma, Advocate for respondents No.2 to 4.
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TEJINDER SINGH DHINDSA, J.
The instant writ petition was instituted in the year 1993 impugning the order dated 1.10.1993, Annexure P8, whereby the petitioner while serving as Assistant Engineer in the Bicycle and Sewing Machine Research and Development Centre, Ludhiana (for short 'the Centre') was dismissed from service. The petitioner has also questioned the validity of the departmental proceedings Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 2 initiated and conducted against him which have finally culminated in the passing of the impugned order of dismissal.
2. It is pleaded that the 'Centre' is a Project of Punjab State Government and is an instrumentality of the State Government. The petitioner was initially appointed as a Purchase Assistant in the 'Centre' in the year 1985. Thereafter, having applied in response to advertisement and having been duly selected, the petitioner was appointed as Assistant Engineer with the 'Centre' on 27.11.1987. Respondent No.3 i.e. the General Manager of the 'Centre' issued a charge sheet to the petitioner dated 25.2.1993 wherein the articles of charge were to the following effect:
i) Not working and hence a burden on the Centre;
ii) irregular attendance, absenting from duties without prior permission and availing leave on false grounds;
iii)sleeping while on duty;
iv)not improving in work habits;
v) not following verbal instructions given by the seniors; and
vi)not improving inspite of assurances having been given by the delinquent.
3. The petitioner submitted his reply to the charge sheet on 24.3.1993, a copy of which is appended as Annexure P2, taking a stand that the charges were totally vague and no specific instances have been furnished in support of the allegations.
4. Respondent No.3 i.e. the General Manager of the 'Centre' informed the petitioner that the reply to the charge sheet had not been found satisfactory and as such, respondent No.4 Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 3 was appointed as the Enquiry Officer. The enquiry report was furnished vide letter dated 21/23.8.1993 returning findings against the petitioner. Respondent No.3 issued a show cause notice dated 7.9.1993 to the petitioner wherein penalty of dismissal from service was contemplated and 15 days time was granted to the petitioner to submit a reply to the same. The petitioner applied for extension of time for submitting his reply which was allowed upto 30.9.1993 in the first instance, and finally, upto 1.10.1993 in terms of letter dated 30.9.1993, Annexure P6. The petitioner furnished a detailed reply to the show cause notice on 1.10.1993. However, on the same day, memo dated 1.10.1993, Annexure P8, was issued dismissing the petitioner from service. It is against such factual backdrop that the instant writ petition has been filed.
5. Mr.BS Sudan, learned counsel appearing for the petitioner, would assail the enquiry proceedings initiated in the light of charge sheet dated 25.2.1993, enquiry report dated 21/23.8.1993, show cause notice dated 7.9.1993 as also the order of dismissal dated 1.10.1993 primarily on the following grounds.
6. Learned counsel for the petitioner would vehemently argue that there has been a complete negation of the principles of natural justice during the course of the enquiry proceedings. Towards such assertion, learned counsel would contend that the Enquiry Officer i.e. respondent No.4 had himself appeared as a witness for the Management during the course of the enquiry proceedings on 26.5.1993 and such fact had been pointed out by the petitioner by submitting an application to the General Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 4 Manager i.e. respondent No.3 on 8.6.1993 itself. Learned counsel argues that not only this, even respondent No.3 appeared before the Enquiry Officer as a witness and such fact is borne out from the enquiry report in the discussion of the Enquiry Officer in relation to Charge No.1, Part No.III. It has been argued that the Enquiry Officer, respondent No.4 as also the General Manager, respondent No.3 who had initiated the departmental proceedings and who is the author of the order of dismissal having participated in the enquiry proceedings, the order of dismissal based upon such proceedings cannot sustain.
7. Learned counsel for the petitioner has further argued that respondent No.3 i.e. the General Manager of the 'Centre' not being the Appointing Authority of the petitioner could not assume upon himself the powers of the Punishing Authority. In this regard, it is contended that the Appointing/Punishing Authority of the petitioner would be the Director of Industries, State of Punjab. Towards such assertion, reliance is placed upon the relevant extract of the advertisement appended as Annexure P11 in response to which the petitioner had applied for the post of Assistant Engineer and had been recruited as such. It is contended that the order of dismissal, as such, is wholly without jurisdiction.
8. Challenge to the impugned order of dismissal has been raised on yet another ground, that it is a totally non-speaking order which does not furnish any reasons on the basis whereof the extreme penalty of dismissal from service has been imposed. Learned counsel for the petitioner would contend that it was Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 5 obligatory upon the Authority to have taken into consideration the various submissions and grounds raised by the petitioner in the detailed reply furnished to the show cause notice. Learned counsel would advert to the order of dismissal dated 1.10.1993, Annexure P8, to contend that the contents of the reply to the show cause notice submitted by the petitioner have not even been noticed, much less dealt with, while passing the order of dismissal.
9. It has been argued that the services of the petitioner have been dismissed on account of vindictive attitude and with a pre-determined mind. In this context, learned counsel would submit that the reply to the show cause notice was submitted by the petitioner on 1.10.1993 by 2.00 p.m. and immediately thereafter, on the same very date, he was handed over the dismissal order. Learned counsel would also raise a question as regards the quantum of punishment. It has been urged that even if the allegations contained in the charge sheet were taken to be factually correct, yet the imposition of the major penalty of dismissal from service was not warranted as the allegations could not be construed to fall within the term "grave mis-conduct"
attributable to the petitioner.
10. Mr.Rahul Sharma, learned counsel appearing for contesting respondents No.2 to 4, would justify the action of imposition of major penalty of dismissal by stating that a regular departmental enquiry was conducted in which the petitioner had been duly associated. It has been argued that the petitioner having been found guilty by the Enquiry Officer, there would be Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 6 no scope for interference insofar as quantum of penalty is concerned. It has further been stated that the Governing Council of the Society, which manages the Centre, had duly delegated the powers of appointment of technical and clerical staff to the General Manager and as such, the Appointing Authority in the case of the petitioner was the General Manager i.e. respondent No.3. In this regard, the resolution of the Governing Council delegating the administrative and financial powers to the Chairman and General Manager contained in item No.83.1.3 stands re-produced in para 14 of the joint written statement filed on behalf of respondents No. 2 to 4. Even though, Mr.Rahul Sharma, Advocate would admit the participation and appearance of the Enquiry Officer, respondent No.4 and General Manager, respondent No.3 in the enquiry proceedings as witnesses but in the same breath, it is contended that the same cannot be said to have prejudiced the case of the petitioner. Furthermore, learned counsel would argue that there was no bar upon the General Manager to have appeared before the Enquiry Officer during the course of departmental proceedings which are in the nature of quasi-judicial proceedings. As regards the order of dismissal being a non-speaking order, the stand taken on behalf of the respondents is that the Punishing Authority was not required to pass a detailed reasoned order for each and every point raised by the petitioner in the reply to the show cause notice and such requirement would stand dispensed with as the findings of the enquiry report had been duly accepted.
11. Learned counsel for the parties have been heard at Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 7 length and the pleadings on record have been perused.
12. At the very outset, it would be pertinent to note that even though during the course of arguments, Mr.Rahul Sharma did not raise any objection as regards the maintainability of the writ petition, yet in the reply, it has been stated that the 'Centre' is a Society registered under the Societies Registration Act, and the management and affairs of which are vested in a Governing Council. A plea has been taken that such Society cannot be held as a State within the meaning of Article 12 of Constitution of India. In this regard, the categoric averments made in the writ petition to the effect that the 'Centre' is a project of the Punjab State Government and is liable to provide the training facilities, land/building equipments and to contribute to pay the local salaries and appropriate allowances as per the project document have not been denied. Rather, the Constitution of the Governing Council of the Society has been furnished in para 2 of the written statement wherein the Director of Industries, Punjab is the Chairman and Industrial Advisor, Directorate of Industries, Punjab is the Vice-Chairman. That apart, the representative of Finance Department, Punjab, Managing Director, Punjab State Small Industries Corporation/representative and Managing Director, Punjab Financial Corporation/representative are the members of the Governing Council. Clearly, there is deep and pervasive administrative control of the State Government apart from financial involvement in the 'Centre' and as such, this Court would proceed in the matter by holding the 'Centre' to be amenable to the writ jurisdiction under Article 226 of the Constitution of India. Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 8
13. The broad facts of the present case are not in dispute. The admitted position is that respondent No.3 i.e. the General Manager of the Centre issued the charge sheet to the petitioner; considered the reply submitted thereto and appointed his subordinate i.e. respondent No. 4 as an Enquiry Officer; accepted the enquiry report; issued the show cause notice contemplating the imposition of major penalty; and passed the order of punishment i.e. dismissal of the petitioner from service on the same very day on which the reply to the show cause notice was issued. The question that arises for consideration is as to whether such a course is permissible in law?
14. To furnish an answer to such question, it would be apposite to refer to certain judicial precedents wherein the principles of natural justice, equity and fair play have been laid down.
15. The Supreme Court of India in State of U.P. v. Mohd. Noor, AIR 1958 SC 86 rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case and observed as under:
"The two roles could not obviously be played by one and the same person.......the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 9 impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding."
16. A similar view was re-iterated by Hon'ble Apex Court in Rattan Lal Sharma v. Managing Committee, Dr.Hari Ram (Co- education) Higher Secondary School & Ors., 1993(3) S.C.T. 525 observing that a person cannot be a witness in the enquiry as well as the Enquiry Officer.
17. The legal position stands crystalized that if a person appears as a witness in disciplinary proceedings, he cannot be an Enquiry Officer, nor can he pass the order of punishment as a Disciplinary Authority. Such rule would have to be held as sacred. An apprehension of bias operates as a disqualification for a person to act as an adjudicator. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has an interest in the disciplinary proceedings must keep away from such proceedings. Not adhering to such rule would amount to violation of the principles of natural justice which, in turn, would render the final order to be null and void.
18. This Court is of the considered view that the Enquiry Officer, respondent No.4 and the General Manager, respondent Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 10 No.3 who passed the final order of dismissal having participated in the enquiry proceedings themselves, any order resulting in the culmination of such proceedings cannot sustain.
19. The contention raised on behalf of contesting respondents No. 2 to 4 that even though the Enquiry Officer and the General Manager had participated in the departmental proceedings, yet the petitioner has not been prejudiced on account of the same is wholly mis-placed. In such matter, the Court is not to enquire whether the delinquent was actually prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced that would be sufficient to quash the decision. In S.Parthasarthy v. State of Andhra Pradesh, 1974(3) SCC 459, 459 the Hon'ble Supreme Court observed as follows:
"The tests of "real likelihood", and "reasonable suspicion" are really inconsistent with each other. The reviewing authority, therefore, must make a determination on the basis of the whole evidence before it, whether a reasonable man would, in the circumstances, infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an Inquiring Officer, he must not conduct the enquiry: nevertheless, there must be a real likelihood of bias. Surmise or Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 11 conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision."
20. In Ranjit Thakur v. Union of India, (1987)4 SCC 611, the real likelihood test was again applied and it was held as under:
"As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look as his own mind and ask himself, however, honestly, "Am I biased?"; but to look at the mind of the party before him".
21. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. Reference in this regard may be made to the decision of the Hon'ble Supreme Court in State of Punjab v. V.K.Khanna, 2001 (1) SCT 933.
933
22. The apprehension of bias has to be seen from the view point of the delinquent. In the facts and sequence of events that have unfolded in the present case, bias and arbitrariness are writ Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 12 large. Not only that the Enquiry Officer i.e. respondent No.4 has appeared in the enquiry proceedings and certified his own testimony to be true, but even the authority who passed the order of dismissal i.e. respondent No.3, the General Manager of the Centre, appeared as a witness in the enquiry proceedings. The vindictive and pre-determined mind of respondent No.3 against the petitioner would be borne out from the fact that a detailed reply dated 1.10.2003 at Annexure P7 was submitted by the petitioner to the show cause notice and immediately thereafter on the same date, the order of dismissal had been passed. Even such order is totally non-speaking and cryptic.
23. The operative part of the order of dismissal reads in the following terms:
"....You submitted your reply on 1.10.93. After going through the reply carefully and considering the same, the same has not been found satisfactory. Hence you are hereby dismissed from services w.e.f. 1.10.93 after noon. You may collect your dues if any on the production of 'No Due Certificate' from all the deptts and handing over the charge.
Sd/- V.K.Bhalla (V.K.BHALLA) GENERAL MANAGER"
24. The requirement of recording of reasons by the Punishing/Disciplinary Authority is an important safeguard to ensure observance of the rule of law. Furnishing of reasons checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process. Even Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 13 the power of judicial review can be exercised effectively by the Courts only if the order under challenge contains reasons. The submission made by learned counsel appearing for respondents No.2 to 4 that the dismissal order did not require reasons to be assigned as it was in the nature of acceptance of the enquiry findings is without merit and cannot be accepted.
25. There is yet another aspect of the matter. To meet the ground raised on behalf of the petitioner that respondent No.3, the General Manager could not have issued the orders of dismissal as he was not vested with the powers of Punishing Authority, the stand taken in the written statement is that powers stood delegated by the Governing Council of the Society in favour of the General Manager. In the replication filed to the written statement, it has been categorically submitted that the Governing Council itself has no powers to create posts and to make appointments and prescribe the terms and conditions in relation to posts which carry a basic salary more than `2,000/- per month. In this regard, Regulation 52 defining the powers of the Governing Council has been adverted to and the same reads as follows:
"52. Subject to the provision of the Memorandum the Governing Council shall have full powers and authority to do all acts, matters, things, and deeds which may be necessary and expedient for the purpose of the Society and without or any manner derogating from the generality of their powers particularly in the following:-
(i) to (xi) xx xx xx xx xx Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 14 (xii) To create technical, administrative,
ministerial and other posts for the Centre under Society, other than the posts carrying a basic salary of more than `2,000/- per month and to make appointment thereto and to prescribe for them terms and conditions of the appointment emoluments, allowances, rules, regulations, discipline and other conditions of service.
Provided, however, that the appointment of
General Manager shall be made by the
Government.
Provided further that all staff other than the General Manager, will be appointed by the Society after selection transfer by a Committee consisting of:-
1. Director of Industries, Punjab.
2. Managing Director, P.S.S.I.C.
3. Managing Director, P.S.I.D.C.
4. I.A. Department of Industries Punjab
5. Representative of the Finance Deptt.
Xiii) xx xx xx xx xx"
26. The assertions made in the replication that in the case of the petitioner, his appointment had been made in the scale of `2200-4000 and as such, the delegation of powers in favour of the General Manager as per averments in para 14 of the written statement would not apply to the post of Assistant Engineer, have not met with any rebuttal in terms of any re-joinder/additional Malik Sushama Rani 2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 15 affidavit having been filed and nor at the stage of arguments. As such, on this score also, the impugned order of dismissal dated 1.10.1993 at Annexure P8 is held to be wholly without jurisdiction having been passed at the hands of respondent No.3 i.e. the General Manager who was not the Punishing Authority insofar as the petitioner is concerned.
27. For the reasons recorded above, the writ petition is allowed. It is held that the departmental proceedings conducted against the petitioner were vitiated on account of bias and arbitrariness. Consequently, the dismissal order dated 1.10.1993, Annexure P8, is quashed. The petitioner is directed to be re-
instated in service.
28. In the normal circumstances, liberty would have been granted to the respondent-authorities to proceed in the matter afresh strictly in accordance with law. However, in the peculiar facts and circumstances of the present case wherein the allegations pertain to the years 1989-1993, it would be a travesty of justice for the petitioner to be now called upon to set up his defence after a period of 20 years. Such delay would clearly work to the prejudice of the petitioner and as such, liberty in terms of initiating departmental proceedings afresh is being denied. In the facts and circumstances of the case, I am of the view that the ends of justice would be met if upon re-instatement as has been directed, the petitioner be granted all consequential benefits except arrears of salary which would be limited to 50% for the period in question i.e. from the date of passing of the order of dismissal till the date of re-instatement.
Malik Sushama Rani2013.10.05 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.13637 of 1993 16
29. Petition allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
OCTOBER 04, 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No
Malik Sushama Rani
2013.10.05 11:07
I attest to the accuracy and
integrity of this document