Dr.Vijay Khariwal vs State Of Punjab & Another on 5 April, 2013

[Cites 15, Cited by 5]

Punjab-Haryana High Court

Dr.Vijay Khariwal vs State Of Punjab & Another on 5 April, 2013

1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing the enquiry report dated 19.08.1994 (Annexure P-21) against the petitioner wherein it had been held that he was absent from duty deliberately and was not in a position to return back to duty. The consequential order of dismissal from service dated 06.05.1997 (Annexure P-25), passed by respondent No.1, is also subject matter of challenge.

2. The pleaded case of the petitioner is that he was appointed as Medical Officer on 03.01.1983 in the Punjab Civil Medical Service('PCMS') after selection by the Punjab Public Service Commission(PPSC), being a qualified Doctor having specialty in Orthopaedics. He was posted at Civil Hospital Jalalabad (W), District Ferozepur in January 1990 and was working in the hospital and performing spine and hip surgeries. He had also done family planning work due to which certain private Doctors had started to suffer. News items dated 17.11.1991 and 24.11.1991 were published against the petitioner where an attempt was made to defame the petitioner. CWP No.17854 of 1997 2 The main aim was to spoil the functioning of the hospital by defaming the petitioner so that he could not work at that place. The petitioner filed a criminal complaint under Section 499/500 Indian Penal Code against the Editor of the said newspaper and the Press Reporter after taking due permission from the Senior Medical Officer. The petitioner also made representation dated 30.11.1992 to the Civil Surgeon, Ferozepur and the Director, Health and Family Welfare to take appropriate action against the Editor as well as the aforesaid Press Reporter.

3. An enquiry was initiated by the District Family Welfare Officer vide letter dated 21.01.1992 in which the petitioner had given his statement on 31.01.1992. The Editor of the local newspaper became revengeful and subsequent reports were also published on 03.05.1992, 07.06.1992, 10.06.1992 and 23.08.1992, spoiling the reputation of the petitioner. Thereafter, another enquiry was conducted by the District Immunization Officer and the Editor of the newspaper was also asked to attend the enquiry but he did not come. Affidavit levelling serious allegations regarding the personal integrity and character of the petitioner, his wife and the Advocate who was engaged for filing the criminal complaint and his wife, which maligned the character of the petitioner was circulated throughout the hospital. The petitioner made various representations that he had been blackmailed and it was not possible for him to work. No FIR had been lodged against the culprits and the wife of the petitioner fell ill and had gone in depression and he also lost his peace of mind and proceeded on leave on 17.10.1992. He had also given a representation dated 30.11.1992 to the Civil Surgeon but the Department, instead of protecting him and allowing him to discharge his duties, put hurdles in the path of performance CWP No.17854 of 1997 3 of his duties. He was not able to join his duty after the expiry of the leave period and he requested the Senior Medical Officer for extending his leave which was declined on 23.12.1992 and he had been asked to report for duty. The petitioner had shown his helplessness to join duty due to his family circumstances vide letter dated 27.04.1993 and he had requested for the release of his salary for the month of October, 1992 but to no avail.

4. He was chargesheeted vide charge sheet dated 16.10.1993 and was given an incomplete chargesheet, without any covering letter and an enquiry officer was appointed and the petitioner was called to participate in the enquiry proceedings. The statement of the petitioner was taken on 19.08.1994 by the enquiry Officer who had asked him whether he wanted to continue his job and the petitioner had replied that under the circumstances existing, he was unable to join again at Jalalabad. The criminal complaint filed against the Editor was withdrawn on 16.03.1996 in view of the fact that the services of the Reporter had been terminated. The petitioner had given a representation dated 21.05.1996 to the Department in which he had shown his willingness to join duties and requested to give him a place of posting. However, vide letter dated 12.09.1996, while being supplied the enquiry report, the petitioner was asked to give his reply within 21 days and appear before the Special Secretary, Health on 08.10.1996. The petitioner was called for personal hearing again on 22.11.1996, 02.12.1996 and 11.12.1996 but hearing could not be given by respondent No.1 inspite of the fact that the petitioner always cooperated and participated in the proceedings.

5. The petitioner filed CWP No.3051 of 1997 for directing the respondents to allow him to join duty and to decide his representation and CWP No.17854 of 1997 4 pay all wages. This Court, vide order dated 03.03.1997, disposed of the writ petition directing the respondents to pass final order of disciplinary proceedings, within two months. Thereafter, the petitioner received the dismissal order dated 06.05.1997, inspite of the fact that he had requested for personal hearing but he was not afforded any opportunity of personal hearing. Accordingly, the said order was challenged on the ground that the authorities had failed to take note of the fact that he had proceeded on leave because of the inaction on the part of the Department and on the ground that he was being humiliated and his long service record had not been taken into consideration.

6. The respondents, in their reply, stated that the petitioner had absented himself from 17.10.1992 onwards which resulted in his dismissal from service on 06.05.1997, for willful absence. This order was passed with the concurrence of the PPSC. The petitioner had filed proceedings in the Court against the Editor of the local newspaper and therefore, no departmental action was needed on the part of the Department and the matter was not pursued further. The petitioner had filed criminal complaint against the Editor of the local newspaper without getting any permission from the Civil Surgeon, Ferozepur, being his personal affair. The earned leave was not sanctioned and his request for extension was rejected and he was asked to join duties after getting approval of the Government but he was not willing to join. The question of releasing the salary for the month of October, 1992 did not arise as he had absented from 17.10.1992 onwards. He was chargesheeted for his willful absence and it was served upon him in proper form. He did not file any reply to the chargesheet which contained all the documents as required under The Punjab Civil Services (Punishment CWP No.17854 of 1997 5 & Appeal) Rules, 1970 (for brevity, the 'Rules') and the Enquiry Officer had correctly proceeded against him and the copy of the enquiry report was supplied to him vide memo dated 12.09.1996. He had been given opportunity to appear for personal hearing on 08.10.1996, 22.11.1996 and 02.12.1996 and his representation for hearing was rejected as the dismissal proceedings were referred to the PPSC. The personal hearing could not mature as the Special Secretary, Health was out of station. The petitioner did not turn up on 16.11.1994. A detailed speaking order was issued on 09.05.1997 and even the proposal to dismiss the petitioner from the service along with the relevant documents were forwarded to the PPSC for seeking their advice/approval and after receiving their concurrence, the said order was passed. The quantum of punishment of dismissal from service was not disproportionate to the charge levelled against him and the action was, accordingly, defended.

7. The petitioner filed replication submitting that non-sanction of leave had never been conveyed to him and the respondents could not say that they had no knowledge since two enquiries had been conducted by the authorities regarding the news items and it was the duty of the employer to provide peaceful atmosphere to its employees. The publishing of the news items was not a personal affair and that permission had been granted by the authorities to file the complaint. It was denied that any personal hearing was given on 16.11.1994 and it was mandatory for the respondents to wait for the representation of the petitioner before referring the matter to the PPSC.

8. Counsel firstly for the petitioner has, accordingly, submitted that principles of natural justice had been violated as the petitioner was never CWP No.17854 of 1997 6 given an opportunity of hearing before passing of the dismissal order, despite the fact that he was called time and again but respondent No.1 was not available. It is further contended that the order of dismissal suffers from non-application of mind and was arbitrary, in the facts and circumstances of the case, which had a detailed history as has been narrated above. Thirdly, it has been submitted that the quantum of punishment was too severe and the authorities had failed to take into consideration the length of service. Lastly, it has been submitted that the advice of the PPSC was to be taken into consideration before passing the order of dismissal and the proposal to dismiss the Doctor was not to be sent to the PPSC.

9. Counsel for the State, on the other hand, submitted that no fault could be found in the enquiry proceedings as the enquiry Officer had himself recorded the statement of the petitioner that he did not want to join duty. Regarding the violation of principles of natural justice, it was pointed out that rule did not provide that a hearing is to be given after enquiry and the punishing authority had examined the record in totality and come to a just conclusion that the charges had been proved and the employee had remained absent from 17.10.1992. It was pointed out that the representation of the petitioner was full of caveats as to certain conditions should be fulfilled before he was taken back to duty. Accordingly, it is submitted that the opportunity of hearing was to be given only at the stage of reply before the enquiry Officer and not at the stage of punishment. Rule 9(4) of the Rules provided that the advice of the Commission was to be taken into consideration before making an order, imposing such penalty. The petitioner would have been gainfully employed during the period and therefore, no benefit should be given to him, at this stage. CWP No.17854 of 1997 7

10. As per the facts and pleadings inter se between the parties, the issues which would have to be decided are:

(a) Whether the petitioner was required to be given an opportunity of hearing at the time of the passing of the dismissal order and in the absence of the same, the order was vitiated?

(b) Whether the petitioner had been prejudiced and the quantum of punishment of dismissal was too severe and the entitlement of the petitioner for his retiral dues was not taken into consideration and whether it was an arbitrary and non-speaking order?

(c) Whether the advice of the PPSC was to be taken into consideration and supplied to the petitioner or was it only the Government's decision which was to be reiterated?

11. Counsel for the petitioner, as noticed above, has submitted that he was severely prejudiced in the absence of any opportunity of personal hearing even though he had given a representation dated 21.05.1996, showing his willingness to join duty. He had been asked to reply within 21 days and he had submitted his reply dated 24.09.1996 and asked for personal hearing which had been fixed also but no decision was taken on it and he had also approached this Court which had passed a direction that the final order should be passed. Reliance is, accordingly, placed upon judgment of the Hon'ble Apex Court in G.Vallikumari Vs. Andhra Education Society & others (2010) 2 SCC 497.

12. Counsel for the State, on the other hand, placed reliance upon the language of Rule 9 (4) of the Rules to contend that it was not necessary to CWP No.17854 of 1997 8 give a Government employee any opportunity of making representation on the penalty proposed to be imposed. Accordingly, reliance was placed upon the judgment of the Hon'ble Apex Court in Secretary, Central Board of Excise and Customs and others Vs. K.S.Mahalingam 1986 (3) Services Law Reporter 144 to submit that after the amendment of Article 311 (2) of the Constitution of India, the petitioner cannot claim another opportunity of hearing on the proposed penalty and there was no such right. It was, thus, submitted that the enquiry had become final and it was admitted by the petitioner that he had been absent from 17.10.1992 without permission on the ground that his circumstances were such that it was not possible for him to return back to the duty. Accordingly, reliance was placed upon the judgments of the Hon'ble Apex Court in Union of India & others Vs. Mohd. Ramzan Khan 1991 (1) SCC 588 and Managing Director, ECIL, Hyderabad Vs. B. Karunakar 1993 (4) SCC 727.

13. The submission of the counsel for the petitioner that the petitioner had a legal right before the said penalty of dismissal should be passed upon him, however, does not stand good for him, in view of the provisions of the rules and the settled law against him on this issue. A perusal of Rule 9(4) of the Rules would show that it is not necessary to give the Government employee any opportunity of making a representation on the penalty proposed to be imposed once the evidence had been adduced during the enquiry. Sub-rule (4) of Rule 9 reads as under:

"(4) If the punishing authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of opinion that any of the penalties specified in clauses (v) to (ix) of Rule 5 should be imposed on the Government employee, it shall make an order imposing such penalty and it shall not be necessary to CWP No.17854 of 1997 9 give the Government employee any opportunity of making representation on the penalty proposed to be imposed ;

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the punishing authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government employee."

14. A Constitution Bench of Hon'ble Supreme Court in Union of India Vs. Tulsi Ram Patel (1985) 3 SCC 398, while examining the issue of the right of the Government servant to be heard before an adverse order is passed against him, held that no second opportunity of show cause notice against the proposed punishment is necessary and thus, there was no provision of law under which the Government servant could claim such right. The relevant observations reads as under:

"68. The question which then arises is, "Whether the Constitution (Forty-second Amendment) Act, 1976, which further amended the substituted clause (2) of Article 311 with effect from 1st January 1977, has made any change in the law?" The amendments made by this Act are that in clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government servant was deleted and in its place the first proviso was inserted, which expressly provides that it is not necessary to give to a delinquent government servant any opportunity of making representation on the proposed penalty. Does this affect the operation of the original proviso which, by the Constitution (Forty-second Amendment) Act, became the second proviso? Such obviously was not and could not have been the intention of Parliament. The opening words of the second proviso remain the same except that the word 'further' was inserted after the word 'Provided', because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show cause notice at the punishment stage was originally there as a CWP No.17854 of 1997 10 result of the interpretation placed by the Judicial Committee in Lal's case and by this Court in Khem Chand's case upon the phrase "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him".

Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chand's case. The words which originally found a place in clause (2), "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", do not any more feature in clause (2). All that clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not provide, expressly impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of clause (2), which part was deleted by the Constitution (Forty-second Amendment) Act. Thus, when the second proviso states in its opening words that "Provided further that this clause shall not apply" it means that whatever safe-guards are to be found in clause (2) are wholly taken away in a case where any of the three clauses of the second proviso is attracted. In this connection, the following observations of this Court in the case of Suresh Koshy George v. The University of Kerala & others (at page 326-7) are pertinent:

"There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course."

In Associated Cement Companies Ltd. v. T.C. Shrivastava & others, 1984 (2) S.L.R. 156 : [1984] 3 S.C.R. 361,369, this CWP No.17854 of 1997 11 Court held that "neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary". Since a right to such opportunity does not exist in law, it follows that the only right which the government servant had to make a representation on the proposed penalty was to be found in clause (2) of Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act. This right having been taken away by the Constitution (Forty-second Amendment) Act, there is no provision of law under which a government servant can claim this right."

15. However, the right to examine the said order in appeal and to show whether the said employee was prejudiced, in the absence of any hearing, was noted. The order passed can always be examined; as to whether the order was arbitrary and had caused prejudice to the employee. The right of the employee to put-forth that the order was bereft of reasons was preserved which could be adjudicated before the appellate proceedings or in writ petition and could be struck down, if found cryptic or devoid of reasons. Similarly, in Mohd. Ramzan Khan's case (supra), while noticing that the right of second opportunity of hearing had been done away with, however, it was necessary to supply the copy of the enquiry report where there was a proposed punishment to be inflicted as it would be against the principles of natural justice. In Managing Director, ECIL, Hyderabad (supra), the position was further clarified that there were two stages of departmental proceedings; the first is the enquiry stage and after the enquiry, the disciplinary authority had to take into consideration the findings of the report and the penalty which is to be proposed belonged to the second stage, which was taken away by the Forty-second amendment. It was, however, held that the opportunity of making a representation on the report of the enquiry officer was there. Relevant portion of the judgment CWP No.17854 of 1997 12 reads as under:

"27. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.

28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to CWP No.17854 of 1997 13 the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges."

16. Keeping in view the above position and the fact that in the present case, the enquiry against the petitioner had been concluded on 19.08.1994 in which he had admitted his absence from 17.10.1992 till then and accordingly, the charges were established. However, admittedly thereafter, on 12.09.1996, the copy of the enquiry report was supplied to the petitioner and he was asked to furnish his reply and defence within 21 days and it was observed that if no reply was received within the stipulated period, nothing was to be done and further action on the enquiry report was to be taken. The petitioner was also given opportunity to submit his defence on 08.10.1996 in the office of respondent No.1. The petitioner, vide representation dated 24.09.1996, put-forth his ground as to why he could not join duty due to the defamation which had been carried out of his character and stressed that he was willing to do his work but the department failed to protect him and he had to leave the town of Jalalabad. He also CWP No.17854 of 1997 14 sought an opportunity of hearing for explaining the entire episode and the reasons for his absence from duty. A perusal of the pleadings would show that even earlier, the petitioner had represented on 21st May, 1996 that he should be apprised the outcome of the pending enquiry and he be taken back to duty. Thereafter also, hearing could not be given on 11.12.1996 though the petitioner had attended the office of respondent No.1 which would be clear from Annexure P-3. Accordingly, he was constrained to approach this Court by filing CWP No.3051 of 1997 bringing forth the fact that he had been attending the hearings fixed by the disciplinary authority but he had not been heard and he wanted that the final order should be passed at an early date. Accordingly, a Division Bench of this Court, vide order dated 03.03.1997, directed the respondent No.1 to pass final orders in the disciplinary proceedings, in accordance with law. In pursuance of the said directions, respondent No.1 was bound by the orders of this Court and the impugned order dated 06/09.05.1997 (Annexure P-25) was passed.

17. A perusal of the said order would go on to show that the disciplinary authority-respondent No.1 noticed that the enquiry report had been supplied to the petitioner through registered post at his last known address but was returned undelivered. It had been decided that a personal hearing be given on 16.11.1994 and a communication was sent to the petitioner through registered post but it had never been returned undelivered but the petitioner did not turn up on the given date. The punishing authority, however, failed to take into consideration the fact that thereafter, his office had itself given dates on 08.10.1996, 22.11.1996, 02.12.1996 and 11.12.1996 to the petitioner on which the hearing could not materialise due to the non-availability of respondent No.1, being out of station, which is CWP No.17854 of 1997 15 admitted in the written statement. The punishing authority, thereafter, while noticing that even a writ had been filed by the petitioner in which the order dated 03.03.1997 had been passed, came to the conclusion that the petitioner had remained absent unauthorizedly and should be dismissed. It was also noticed that the proposal to dismiss the petitioner from service had been forwarded to the PPSC for seeking its advice/approval and the PPSC had sent its concurrence on 22.04.1997. Thus, from the above noted discussion, it can be concluded that though the petitioner was not required to be heard under the Rules at the time of passing of the dismissal order. But keeping in view the fact that from the date the enquiry concluded on 19.08.1994 and he was submitting his representations that he should be posted somewhere and his absence was due to reasons of the publications done and he had also approached this Court for the said relief, respondent No.1 violated the principles of natural justice by not hearing him at the time of passing of the order and therefore, the first question is answered against the respondents.

18. Further, it would be clear that at no stage, the petitioner was even put to notice that in pursuance to the charge which he had admitted, there was a proposal to dismiss him. The enquiry officer had merely held that the charge was proved but had not opined on the proposed punishment, at any stage, in the enquiry report dated 19.08.1994. The petitioner had been representing for joining duty on 21.05.1996 and 24.09.1996 and asking for a hearing and been consistently visiting the office of respondent No.1 but was not given any opportunity of hearing though dates had been fixed. He had also filed CWP No.3051 of 1997 praying that he be given a posting and his representation be decided. Thus, he was totally taken with surprise CWP No.17854 of 1997 16 as to the harsh punishment of dismissal imposed upon him which would be totally violative of the principles of natural justice. The Hon'ble Apex Court in Canara Bank & others Vs. Debasis Das & others (2003) 4 SCC 557 held that the basic element of fair hearing is to be given and whether the rules of natural justice have been violated and have caused prejudice to the employee which was the minimum protection which could be granted to the individual. It was further held that the Court is to see whether any prejudice has been done to the petitioner by the administrative authorities which has led to failure of justice. Relevant portion of the judgment reads as under:

"13.Natural justice is another name for common sense 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 common sense 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.

14. 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.

15. 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 foremost principle is what is commonly CWP No.17854 of 1997 17 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, 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".

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.

16. 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.

xxxx xxxx xxxx

19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of CWP No.17854 of 1997 18 natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

19. Keeping in view the position of law laid down by the Hon'ble Apex Court and in view of the fact that the petitioner had been begging for an opportunity of getting heard and had explained the reasons of absence from duty due to the publication of the articles in the newspaper against him and his inability to continue to work at Jalalabad and the fact that he was wanting to join duty provided that he be protected from such attacks, it was incumbent upon respondent No.1 to have heard the petitioner and then come to the conclusion as to what punishment should have been imposed upon him.

20. As noticed above, the petitioner was not even aware that he was to be dismissed from service since from the communication dated 12.09.1996, there was not a whisper as to what was the proposed punishment and on the advice of the Commission, he was dismissed on 09.05.1997. The petitioner had already served from 03.01.1983 till the date of dismissal and it was for respondent No.1 to examine, at that point of time, the length of service of the petitioner also and as to whether the extreme order of punishment was commensurate with the alleged misconduct of absence which was not of any misappropriation or of moral misdemeanor. The petitioner had also been CWP No.17854 of 1997 19 agitating his rights against the newspaper items, in accordance with law and had filed a criminal complaint also for defamation which he eventually withdrew on 06.04.1996 on account of the fact that the Reporter had left the services of the newspaper. In S.N.Narula Vs. Union of India & others 2011 (4) SCC 591, the Hon'ble Apex Court held that where an employee was not communicated the advisory opinion of the Union Public Service Commission and neither heard by the disciplinary authority but was only communicated the same advice along with the final order would lead to violation of principles of natural justice. Accordingly, it was held that the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed. The present case also is of such a situation since the show cause notice dated 12.09.1996 does not talk about any advice received by the PPSC and the order of dismissal, similarly, talks about the concurrence of the proposal of dismissal vide the order dated 22.04.1997 of the PPSC which was subsequent to the show cause notice sent to the petitioner. Thus, the action of respondent No.1, while passing the order, was prejudicial to the petitioner. The relevant paragraphs, examining the case of the petitioner, on merits, reads as under:

"5. And whereas after proper examination of the matter in totality, it was found that apart from the charges against the doctor having been proved in the department enquiry, the delinquent doctor did not abide by the rules/instructions of the Govt. and remained absent unauthorisedly in blatant violation of rules and instructions on the subject.

6. And whereas keeping all the relevant facts in view, the competent authority reached the provisional conclusion that the doctor should be dismissed.

7. And whereas the proposal to dismiss the doctor alongwith the relevant documents was duly forwarded to the Punjab CWP No.17854 of 1997 20 Public Service Commission for seeking its advice/approval. The Commission has sent its concurrence to the said proposal of dismissal of Dr.Vijay Kumar Khariwal vide letter No. Dis-255/97/A-7/5751, dated 22-4-1997. On receipt of advice of the Commission the matter has further been examined and decided at the competent level.

8. NOW THEREFORE, in terms of the powers conferred upon him under the Punjab Civil Services (Punishment & Appeal Rules, 1970 and all other powers enabling him in this behalf, the Governor of Punjab is pleased to dismiss Dr. Vijay Kumar Khariwal, Service No. 3597 from service with immediate effect. These orders will, however not preclude the Government from recovering the bond money, if any, or making any other recovery from the said doctor which is found due from him at any later stage."

21. As noticed above, the order of dismissal, which is under challenge, could also be termed as a non-speaking order and the disciplinary authority, without taking into consideration the representations of the petitioner and without taking into examination the matter in totality. The fact that the petitioner had been prejudiced by the publication of the libelous materials and his inability to join at that place was never taken into consideration by the punishing authority which failed also to take into consideration that notice for hearing had been given way back on 16.11.1994. The petitioner had thereafter, knocked the doors of this Court for hearing and the order was again passed in his absence despite of his request that he was wanting to join. The punishing authority had to record reasons and could not escape from the rules of natural justice, reasoning and fair play and it was not a mere formality to be undergone and it could not have stated that keeping in view the totality of the circumstances and the enquiry report, it found itself in complete agreement with the enquiry report. Thus, for the reasons stated above, it is held that the order passed by CWP No.17854 of 1997 21 respondent No.1 dated 06/09.05.1997, cannot be said to be a reasoned order and can safely be levelled as a totally arbitrary and non-speaking order and it is also liable to be quashed on this ground. Accordingly, even the third question is answered against the State that as per the Rule, the advice of the PPSC was to be taken into consideration before passing the order of penalty and the petitioner was never put to notice of the said advice received from the PPSC and was, thus, unaware that there was a recommendation of dismissal which was to be passed against him.

22. Lastly, coming to the relief which can be granted to the petitioner, it can be safely said that the extreme punishment of dismissal for absence from duty was a punishment which shocks the judicial conscious of the Court and thus, would give jurisdiction to this Court to interfere with the order of punishment. The proposition of law has been laid down by a Three Judge Bench of the Hon'ble Apex Court in B.C.Chaturvedi VS. Union of India & others (1995) 6 SCC 749 wherein it has been held as under:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."

CWP No.17854 of 1997 22

23. The said view was subsequently followed in Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi & others 2004 (4) SCC 560, by noticing that to shorten the litigation and in view of the time already lost, the punishment of removal of service could be altered by the Court. Similarly, in G.Vallikumari (supra), the Hon'ble Apex Court also substituted the punishment of removal from service imposed with the penalty of stoppage of three increments, without cumulative effect, and directed that the appellant be paid only 25% of the back wages, during the intervening period.

24. In the facts of the present case, keeping in mind the fact that the petitioner is a qualified professional and would not have kept himself idle and would have kept himself occupied, he cannot be held entitled for the back wages for all the period which he, admittedly, has not worked. Accordingly, the punishment of removal is substituted with penalty of stoppage of three increments, with cumulative effect, due to the absence from duty by the petitioner from 17.10.1992 onwards. Further, instead of the full back-wages, the petitioner would be entitled to 25% of his salary and allowances, for the period from the date of the removal from service and to the present order, provided he submits his joining report within two months from the receipt of the certified copy of this order. In case the petitioner does not submit his joining within the said period, the order of dismissal would continue to operate.

23. Writ petition is allowed in the above-said terms.




05.04.2013                                        (G.S.Sandhawalia)
sailesh                                               JUDGE

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