Punjab-Haryana High Court
The Punjab State And Another vs Swinder Singh on 16 September, 2009
Author: Hemant Gupta
Bench: Hemant Gupta
RSA No. 40 of 1986 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 40 of 1986
Date of Decision: 16.9.2009
The Punjab State and another ......Appellants
Versus
Swinder Singh .......Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms. Ambica Luthra, AAG, Punjab, for the appellants.
None for the respondent.
HEMANT GUPTA, J. (Oral).
The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit for declaration challenging the order of punishment dated 1.7.1980, was decreed.
A charge sheet dated 29.2.1980 was served upon the plaintiff-respondent. Since the reply of the plaintiff to the said charge- sheet was not found satisfactory, an Inquiry Officer was appointed. The Inquiry Officer submitted his report. A show cause notice dated 19.6.1980 was served upon the plaintiff and after considering the RSA No. 40 of 1986 [2] reply, an order of punishment of termination was passed on 1.7.1980.
The learned trial Court dismissed the suit finding that the enquiry has been conducted in accordance with Rules and that there is no violation of the principles of natural justice. The plaintiff was given opportunity to cross-examine the witnesses and also given opportunity to lead his evidence. The Punishing Authority, after considering and agreeing provisionally with the findings of the Inquiry Officer issued show cause notice to the plaintiff for termination of his services. It was found that the order dated 1.7.1980 is legal and valid.
However, in appeal, the learned first Appellate Court set aside the order of termination only on the ground that Bhag Singh Hira and Kripal Singh, the two Inspectors, have admitted in the cross- examination that they have not taken down the statements of any of the passengers. In view of the said fact and relying upon the judgment passed in State of Punjab v. Madan Lal, RSA No. 146 of 1973 decided on 12.4.1983, the order of termination was set aside.
In my opinion, the following substantial question of law arises for consideration:-
"Whether the statements of passengers regarding non- issuance of tickets by the conductor, in the disciplinary proceedings relating to misconduct, vitiates the order of punishment?
The Hon'ble Supreme Court in Union of India v. T.R. Varma, AIR 1957 SC 882, has held that the Evidence Act, 1872, is not applicable to the departmental proceedings, even though they may be RSA No. 40 of 1986 [3] judicial in character. It was held to the following effect:-
"10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without him being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed."
This Court in Rajinder Singh v. State of Haryana and others, 2004(2) SCT 352, while considering the Full Bench judgment of this Court in The State of Haryana and others v. Shri Ram Chander, 1976(2) SLR 690 and State of Haryana and another v. Rattan Singh, AIR 1977 SC 1512, has held that merely because the statements of RSA No. 40 of 1986 [4] passengers were not recorded, would not render the order of termination invalid. It was held to the following effect:-
"4. Learned counsel for the appellant has argued that the case of the appellant is parallel to the case of Mohan Singh (supra). The argument is that in the said case also neither the cash was chekced nor the statement of any passenger was recorded and, thus, it was found that the inquiry against the delinquent was vitiated. A Full Bench of this Court in The State of Haryana and others v. Shri Ram Chander, 1976(2) SLR 690 has held that there is no bar against the receipt of hearsay evidence by domestic tribunals. It has been held that the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on the evidence of the checker that he found passengers travelling without tickets and the statements made by the passengers to the checker at the time of checking. The following observations would be relevant:-
"Where a bus is chekced and it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on (1) RSA No. 40 of 1986 [5] the evidence of the checker that he found passengers travelling without tickets, and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstances that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the enquiry officer's findings are based on pure hearsay or hearsay of unreliable nature."
5. Subsequently, in State of Haryana and another v. Rattan Singh, (1977) 2 SCC 491, it has been held that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. The said was also a case where a bus conductor of a State Transport undertaking was charge-sheeted for not collecting fares from certain passengers and on his guilt being established, there was simple termination of his services because of his long services and young age. It was held that merely because statements of passengers were not recorded by the Inspector of the flying squad the order that followed was not invalid. The evidence of the RSA No. 40 of 1986 [6] Inspector was some evidence which had relevance to the charge against the bus conductor."
In the present case, the order of termination was passed after following the procedure contemplated under the Punjab Civil Services (Punishment and Appeal) Rules, 1970. The plaintiff has cross- examined the witnesses produced by the Department. The plaintiff has examined witnesses in defence as well. A show cause notice was served upon the plaintiff before the order of punishment was passed. Thereafter, the order of punishment has been passed on 1.7.1980. The learned trial Court has examined the inquiry file and returned a finding that no prejudice has been caused to the plaintiff during the course of inquiry proceedings. Consequently, the termination order was found to be legal and valid.
The first Appellate Court set aside the order of termination only on the ground that the inspectors have not been examined in the inquiry proceedings. Such finding is against the judgment of the Hon'ble supreme Court referred to above as well as the Full Bench judgment of this Court in Rattan Singh's case supra.
In view of the above, the judgment and decree passed by the learned first Appellate Court is set aside and that of the trial Court is maintained. Consequently, the suit of the plaintiff is dismissed.
[ HEMANT GUPTA ] JUDGE 16.9.2009 ds