Partly allowed

Kashmir Singh v. State of Punjab

Punjab & Haryana HC11 Mar 2010RSA/2299/1986

Case brief

AI extract

What is this about?

An appeal by a driver against disciplinary orders including forfeiture of pay. The court held Rule 8(11) did not apply as the appellant appeared. The lack of co-worker assistance was not substantiated by evidence. The order forfeiting pay during suspension was set aside for lack of a show-cause notice.

What did the court decide?

The part of the order directing full pay and allowances for the suspension period was set aside; liberty granted to the State to serve a show-cause notice and reconsider. Other appeals dismissed.

Kashmir Singh Vs State of Punjab — Pension and Retirement Benefits | Punjab & Haryana HC (2010)

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Regular Second Appeal No. 2299 of 1986

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IN THE HIGH COURT OF PUNJAB AND HARYANA

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AT CHANDIGARH

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Regular Second Appeal No. 2299 of 1986 Date of decision: 11.03.2010

Kashmir Singh

...Appellant

Versus

Punjab State and another

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...Respondent

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CORAM: HON'BLE MR. JUSTICE RANJIT SINGH

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Present: Mr. D.R. Mahajan, Advocate for the appellant.

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Ms. Ambika Luthra, AAG, Punjab for the State.

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RANJIT SINGH J.

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Kashmir Singh, who was working as Driver with the Punjab Roadways, Pathankot has filed this Regular Second Appeal to impugn the judgment passed by the trial court as well as by the First Appellate Court. Through order dated 31.12.1983, the appellant was brought down to the minimum time scale of pay for 5 years period permanently. Besides it was also ordered that balance of pay during the period of suspension would also stand forfeited.

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The appellant had challenged these orders by filing a civil suit. The appellant would complain that charges were framed against him only on the basis of suspicion. The inquiry officer did not hold the inquiry as per the service rules. Though exonerated of the one charge but still was punished without affording any reasonable opportunity to defend himself and was also denied, the assistance of co-worker during the stage of inquiry where he was also not supplied

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Regular Second Appeal No. 2299 of 1986

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the copies of statement of witnesses. Rather the appellant would say that the General Manager while disagreeing with the finding returned by the Inquiry Officer did so arbitrarily as no reasons were given for this disagreement. The appellant would also plead that it was a composite charge and when he was exonerated of the major part of the charge, there would not be any reason for him to give bad names to the management. The suit was resisted by the defendant-State. Respondent-defendant would plead that all the requisite procedures were followed and after considering the reply, order punishing the appellant was passed. Following issues were framed on the basis of pleadings:-

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Whether order no. 98-100/ST/GM dated 31.12.83 is illegal, null and void, ineffective, unconstitutional, against the principles of service rules as alleged?OPP.

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Whether the plaintiff is entitled to the declaration prayed for with consequential relief? OPP

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Whether notice u/s 80 CPC served on the defendants is invalid?OPD.

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Whether the Civil Court has no jurisdiction to try the present suit?OPD.

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Whether the suit is bad for non joinder of necessary parties i.e. Director State Transport, Punjab?OPD.

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Relief.

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The trial Court dismissed the suit and held that the inquiry was conducted in accordance with the rules and procedure. The First

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Regular Second Appeal No. 2299 of 1986

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Appellate Court also dismissed the appeal filed by the appellant and accordingly he has filed the present Regular Second Appeal.

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Counsel for the appellant has impugned the judgment under appeal on 4 different counts. He would first contend that provisions of Rule 8 (11) of Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as 'Rules') are violated as the case was not adjourned for 30 days, which was statutorily and mandatorily required to be so done. In support, he would refer to Anil Kumar Das versus Senior Superintendent of Post Offices, Kamrup Division, Gauhati and others AIR 1969 Assam and Nagaland 99, Shri H.L. Sethi, Ex-Sanitary Inspector, Municipal Corporation, Simla vs. The Municipal Corporation Simla and others 1982 (3) SLR 755 and S.D. Bhardwaj versus Union of India and others 1983 (1) SLR 33. All these judgments have interpreted Rule 14 (11) of Central Civil Services (Classification Control and Appeal) Rules, 1965, which according to the counsel is para materia to Rule 8 (11) of the rules. Rule 8(1) of the rules is as under:-

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(11) The inquiry authority shall if the Government employee fails to appear within the specified time or refuses or omits to plead, require the presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government employee may for the purpose of preparing his defence:-

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Regular Second Appeal No. 2299 of 1986

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(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents, specified in the list referred to in sub-rule (3);

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(ii) submit a list of witnesses to be examined on his behalf;

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(iii) apply orally or in writing for the supply of copies of the statements, if any recorded, of witness mentioned in the list referred to in Sub-rule 3, in which case the inquiring authority shall furnish to him such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the punishing authority; and

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(iv) give a notice within ten days of the order or within such further time not exceeding ten days, as the inquiring authority may allow for the discovery or production of any document which is in the possession of Government, but not mentioned in the list referred to in Sub-rule (3) and the Government employee shall also indicate the relevance of the document required by him to be discovered or produced by the Government.

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Rule 8 (11) provides that inquiring authority shall if the Government employee fails to appear within the specified time or refuses or omits to plead, require the presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days,

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Regular Second Appeal No. 2299 of 1986

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after recording an order that the Government employee may for the purpose of preparing his defence to the things as mentioned in the rules.

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Learned State counsel would submit that provisions of Rule 8 (11) of the rules were not attracted in this case and in this regard would highlight that this requirement of adjourning the case would arise only when the Government employee fails to appear within the specified time of services or omits to plead. In the present case neither the appellant had failed to appear within the specified time nor had refused or had omitted to plead the case and accordingly the requirement of adjourning the case even though held to be mandatory would not be attracted in the present case.

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In Anil Kumar's case (supra) it is held that this rule is mandatory and is not an empty formality. It is observed that any violation of these rights prejudicially effect the defence of the Government employee must be guarded. Even the Court in this case had referred to two eventualities when this rule will be attracted. It is mainly when the Government employee fails to appear and secondly after he refuses or omits to plead guilty to the charge. Since this factual position does not arise in this case, it cannot be said that there was any violation of provisions of Rule 8 (11) of the rules. It is true that the compliance of the rule may not be empty formality but the case is to be adjourned when the employee does not appear. There is no indication that the appellant had not appeared or had ever sought any adjournment to prepare the defence. It is not a case of failing to appear but the appellant had appeared and pleaded to

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Regular Second Appeal No. 2299 of 1986

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the charges.

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In my view, offering a plea to the charge whether it be guilty or not guilty, cannot be termed that an employee had refused to or omitted to plead the charges. Refusing to plead would be when no plea is offered. Similar would be the position in case of an omission to plead. Once an employee appears in person before the inquiry officer on a date and time fixed than the provisions of Rule 8 (7) would govern the procedure and not Rule 8 (11), which only deals with those events where employee fails to appear within the specified time. Rule 8 (7) provides that Government employee shall appear in person before the inquiring authority on such date and time within 10 working days from the date of receipt of the article of charges and then further procedure is to follow. Thus, Rule 8 (11) would have no applicability where the Government employee has appeared and has offered his plea to the charges made.

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Similar is the position in S.D. Bhardwaj's case (supra), which would not be attracted to the facts in the present case.

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It is next contended by the counsel for the appellant that he was not provided the assistance of the co-worker during the inquiry. No doubt, the delinquent employee facing inquiry is entitled to seek help of co-worker and in case he prays for the same, it would be incumbent upon the department to provide him the assistance of co-worker. The counsel for the appellant would submit that it would be immaterial whether the appellant had asked for assistant of coworker or not and it was incumbent upon the punishing authority to provide the assistance once the prosecution side was represented by

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Regular Second Appeal No. 2299 of 1986

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the presenting officer. In support he has referred to 1983 (1) SLR 626 Shri Bhagat Ram Vs. State of Himachal Pradesh and others.

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In my view the ratio of law in this case was due to the peculiar facts appearing in this case. The lowly rung Class IV employee was being proceeded against and in this context, it was observed that he was not in a position to know the intricate rules governing the disciplinary proceedings. In this background, it is observed that it is incumbent upon the disciplinary authority to inform the delinquent of the fact of such application and the right of the delinquent to take help of another Government servant before commencement of the inquiry.

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As per the pleading, the appellant had averred that he was not provided the assistance of co-worker and was also not apprised of his rights in this regard. In the reply filed, this part of the pleadings were denied as incorrect though reiterated in the application. My attention was not drawn to any part of the evidence where this fact was so substantiated . Accordingly, it cannot be said whether this requirement of apprising the delinquent employee about his rights or that there was denial of providing assistance of coworker to the appellant is sufficiently established.

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The counsel would next contend that the direction to forfeit the pay scales for the period he had remained under suspension was passed without issuing any show cause notice to the appellant. He would contend that such an order could be made after following the principle of natural justice. It is next contended that there was no valid reason given, while disagreeing the finding returned by the inquiry officer and as such the order of punishment

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Regular Second Appeal No. 2299 of 1986

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would be vitiated. The First Appellate Court had referred in detail the reasons for which the punishing authority had differed with the finding of the inquiry officer. In this regard, it will not be appropriate for the Court to go into the sufficiency of the reasons given, once there is material on record to show an application of mind to differ with the finding returned by the inquiry officer. It would not be appropriate to go into this aspect at this stage.

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The State counsel is not able to justify that part of the order, where direction of full pay and allowances for the period he had remained under suspension was passed. The appellant was required to be served a show cause notice. This part of the order thus cannot be sustained and is set aside, however, liberty is given to the respondent-State to now serve a show cause notice and pass an order a fresh.

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Otherwise, there is no merit in the appeal. Except to the extent of partial relief granted, the Regular Second Appeal shall stand dismissed.

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March 11, 2010 rts

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( RANJIT SINGH ) JUDGE

Kashmir Singh v. State of Punjab

Case brief

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Kashmir Singh v. State of Punjab

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