Allowed

Kashmir Singh v. State of Punjab and Ors.

Punjab & Haryana HC16 Mar 2010RSA/2408/1985

Case brief

AI extract

What is this about?

Appeal dismissed where termination order set aside because employee was punished for negligence not charged in inquiry, violating natural justice. Appeal allowed; employee deemed in service until death/superannuation; pension benefits directed for legal heirs.

What did the court decide?

Regular Second Appeal allowed; impugned judgments set aside; suit decreed; appellant deemed in service till death or superannuation; legal heirs entitled to pension or pensionary benefits.

Kashmir Singh Vs State of Punjab and Ors. — Service and Employment | Punjab & Haryana HC (2010)

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REGULAR SECOND APPEAL NO.2408 OF 1985 :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: MARCH 16, 2010

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Kashmira Singh through his L.Rs

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.....Appellant

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VERSUS

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Punjab State and another

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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PRESENT: Mr. B. 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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Appellant was employed as a Conductor with Punjab

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Roadways, Tarn Taran. His services were terminated on 23.4.1982 by General Manager, Punjab Roadways, Tarn Taran.

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The facts can not be clearly discerned from the impugned judgments. A perusal of the record, however, would show that he was charge sheeted through memo dated 10.4.1981. Earlier, he was

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placed under suspension on 8.4.1981. The allegation against the appellant was made on the basis of report given by Krishan Lal,

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REGULAR SECOND APPEAL NO.2408 OF 1985 :{ 2 }:

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Inspector, who had checked the bus being conducted by the appellant on 27.3.1981. The bus was enroute from Chandigarh to Tarn Taran via Amritsar and was checked at Samrala. As per the report, the appellant had not issued four tickets from Chandigarh to Amritsar against the police vouchers. It is mentioned in the report that Inspector had checked the vouchers from police men, which had not been checked and would have led to a fraud of Rs.75/- from the Government revenue. It is on the basis of this report given on 28.3.1981 that the appellant was placed under suspension and charge sheeted. In the memo of charges, the allegations made against the appellant was on the basis of a report that he had not issued tickets to the police persons against the vouchers and, thus, an attempt was made to defraud the Government of Rs.75/-. No allegation of any negligence on the part of appellant was made.

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The appellant submitted reply to the charge sheeted denying the charges in entirety. After receipt of the reply, the Punishing Authority detailed an Enquiry Officer to go into the charges. As per the averments in the plaint, the Enquiry Officer found that the charge of embezzlement could not be proved against the appellant and he exonerated him of the allegation made in the charge sheet by finding that the police persons have not given the vouchers to the Conductors and, thus, there was no question of embezzlement. While so holding, it appears that the Enquiry Officer just made a casual reference that the appellant was found negligence in not checking the passengers.

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The Punishing Authority agreed with the finding returned by the Enquiry Officer and directed that show cause notice be issued

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REGULAR SECOND APPEAL NO.2408 OF 1985 :{ 3 }:

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to the appellant for termination. A show cause notice was accordingly issued and thereafter the impugned order terminating the services of the appellant was passed. The appellant had accordingly filed the civil suit, challenging the said order. The suit filed by the appellant was dismissed against which he filed an appeal, which was also dismissed and he accordingly had filed the present Regular Second Appeal.

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During the pendency of appeal, the appellant died on 29.4.2009. Application was moved for impleading the L.Rs of the appellant on 19.2.2010, which was allowed. The appeal has now come up for hearing.

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Number of pleas were raised by the appellant in his suit to challenge the order of his termination. The appellant had termed this order to be defective and not passed with open mind. He had also pleaded that copy of the report of the Inspector was not supplied to him despite written request. Material documents in support of the charges were, thus, not supplied to him, which according to the appellant had caused a great prejudice to his case. As per the appellant, he was not allowed to inspect the relevant documents to submit any effective reply. He was also not afforded opportunity of being heard. He would also term the enquiry to be full of illegalities and improprieties. Even the appellant was not asked to lead evidence on the charge. It is alleged that no Presenting Officer was appointed. The Enquiry Office had performed the dual role of prosecutor as well as Enquiry Officer. It is also pleaded that the appellant was not afforded opportunity to examine the witnesses and, thus, his defence was curtailed. The Enquiry Officer had not

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questioned him in regard to the case to enable him to explain the circumstances appearing in evidence against him. Despite all this, the Enquiry Officer had exonerated the appellant of the charge but still he was served a show cause notice on 12.6.1981, which was only a cyclostyled copy with the blank column filled in. Even further enquiry was held followed by a fresh show cause notice, which would be in violation of the Punishment and Appeal Rules besides being in violation of principles of natural justice.

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As per the appellant, the department could not produce even an iota of evidence against him and, thus, he was exonerated of the charges. Still, the Punishing Authority with a prejudicial mind and in a biased manner had passed the impugned order.

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Though number of pleas as noted above were raised in the plaint and were considered by the Courts below, yet before me, the learned counsel for the appellant has pressed a solitary submission on the basis of finding returned by the Enquiry Officer exonerating the appellant of the allegation. The counsel would contend that once the appellant was exonerated of the allegation made against him, which was agreed to by the Punishing Authority, there was no basis for passing the order of termination and, thus, the entire action would stand vitiated on this ground. The counsel would also submit that the action on the basis of negligence, as has apparently been taken, could not have been directed, once there was no charge framed against the appellant for any negligence and he was, thus, taken by complete surprise by award of this punishment as he never got any opportunity to show that there was even no negligence on his part. The counsel had accordingly framed following

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substantial questions of law in this case, which were taken on record during the course of arguments:-

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“1. Whether an employee can be removed from service on charges not incorporated in the charge-sheet and against which no opportunity to represent has been given to the employee?

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Whether order of removal of the plaintiff from service passed by the Punishing Authority holding charges levelled against plaintiff are reported to have been proved, can be sustained when infact Inquiry Officer has held charges levelled are not proved and exonerated him of charges and the Punishing Authority has also agreed with finding of the Inquiry Officer.”

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Indeed, these questions of law would arise in this case. It is not disputed in any manner that the charge for which the enquiry was held against the appellant was for embezzlement of an amount of Rs.75/- on the basis of a report given by the Inspector. The finding by the Enquiry Officer on this charge while exonerating the appellant is as under:-

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“The allegation is that on 27.5.81, the conductor had taken the voucher of four passengers from the police personnels travelling from Chandigarh to Amritsar and had not issued the tickets worth Rs.75/- to them and he had embezzled an amount of Rs.75/-. But it is clear from

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the prosecution witness Krishan Lal Inspector in his statement given to the General Manager which is at page 71 of the file that he had collected four vouchers from the

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REGULAR SECOND APPEAL NO.2408 OF 1985 :{ 6 }:

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police personnels themselves and had not collected the same from the Conductor, and so is the report of the Inspector at page 41 of the file. The police vouchers which are at pages 51 to 53 of the file bears the noting to the effect that these vouchers had been collected by the Inspector from the police and not from the conductor. While I had examined the Inspector myself, he gave statement contradictory to the facts and said he had taken the voucher from the conductor. In this situation and on the evidence of the documents it can undoubtedly be said that the Inspector is clearly telling lie in view of his report, his noting given on the police vouchers on 11.5.81 and his statement before the General Manager and the allegation levelled against the conductor that he collected the vouchers from the police and tried to embezzle the amount of Rs.75/- is totally incorrect and baseless. The Conductor is exonerated of the allegation as mentioned in the charge sheet as the Police personnel had not given the vouchers to the Conductor and no question of embezzlement had arisen.”

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It would be, thus, seen that the star witness produced by

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the prosecution side was found to be telling lies. This was on the basis of the report lodged by him, verbally as well as in writing, where he had clearly conceded that he had collected four vouchers from the police persons themselves and not from the Conductor. The Enquiry Officer, thus, found that the allegation of an attempt on the part of the appellant to embezzle the amount was totally incorrect and

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baseless. The Punishing Authority had agreed with this finding returned by the Enquiry Officer and had endorsed the following remarks on the report of the Enquiry Officer:-

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“I agree with the finding of E.O. Issue show cause notice for termination.”

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Once, the Punishing Authority had agreed with the finding

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of the Enquiry Officer, it may sound a bit strange to find that still directions were issued to serve a show cause notice for termination to the appellant. This perhaps was on account of the following observations made by the Enquiry Officer, which when translated in English would read:-

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“However, the Conductor has not checked 47 passengers, which included four police persons without tickets, which should have been in his knowledge, for which I consider him blameworthy.”

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The question, thus, would arise whether the Enquiry Officer was justified in giving finding of negligence when there was no charge framed in this regard against the appellant. Once there is no charge, it would be beyond the purview of the Enquiry Officer to return a finding and, thus, beyond jurisdiction of the Punishing Authority to punish an employee for something for which he was never charged. In support, my attention is drawn to Jagdish Kumar, Assistant Food & Supplies Officer Vs. State of Punjab, 1994 (4) S.C.T 256. This Court has viewed that order of punishment would be vitiated where the Punishing Authority travel beyond the scope of charges incorporated in the charge sheet served on the delinquent employee and take into consideration the material not brought to the

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REGULAR SECOND APPEAL NO.2408 OF 1985 :{ 8 }:

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notice for the explanation of the employee.

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The reference has been made to the charges preferred against the appellant-employee. The appellant was clearly required to defend the allegation of having defrauded the Government of Rs.75/-. There was no allegation of negligence on his part ever made in the charge sheet. The question, thus, would have to be considered if the Enquiry Officer could validly find him responsible for any negligence as he has done and whether on this basis the Punishing Authority could award him punishment that too of termination. This Court in Jagdish Kumar (supra) has clearly held that in the absence of allegation having been levelled, a person concerned would not have any opportunity to meet the allegation and, thus, he would stand condemned unheard. Reference here can also be made to Sur Enamel and Stampling Works Ltd. v. Workmen, AIR 1963 SC

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1914. In this case, the Hon'ble Supreme Court has held that enquiry can not said to have been properly held unless following aspects are satisfied:-

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i. The employee proceeded against has been informed clearly of the charges levelled against him.

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ii. That the witnesses are examined ordinary in the presence of the employees in respect of the charge.

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iii.That the employee is given a fair opportunity to crossexamine the witnesses.

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iv.That the employee is given a fair opportunity to examine witnesses including himself in his defence, if he so desires.

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v. That Enquiry Officer record his finding with reasons.

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Having said so, the Court found in the said case that the charge being for causing damage to the property and the Enquiry Officer report being the same, the dismissal order was made for something else, which in itself would be sufficient ground for settingaside the order of dismissal. In State of Punjab v. Bakhtawar Singh, AIR 1972 S.C.2083 , a member of State Electricity Board was found removed for a charge, which was not levelled against him. In this case, the Court held as under:-

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“It may be noted that Shri Bakhtawar Singh has not charged with having not discharged his duties impartially. None of the charges levelled against him accused him of not discharging his duties impartially. Hence the Minister was not justified in taking into consideration a charge in respect of which the member was not given any opportunity to explain his position.”

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Somewhat similar view is taken by the Supreme Court in

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Virendra Kumar Vs. Chief of the Army Staff , 1982 (2) SCC 1276 . The action of the Bar Council in removing the petitioner from the role on the basis of a charge of which he was absolved was declared bad on the ground of violation of principle of natural justice.

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The ratio of law that would emerge from the abovementioned cases is that an employee can not be punished for a charge, which was not framed against him. Where it is done, it will be in violation of the principles of natural justice and it would render the order, so passed, to be a nullity. It stands to logic and reasons. It is an elementary rule of natural justice that man must know what is

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alleged against him to enable him to offer his explanation or defence. If the appellant had been charged for negligence, he would have had an opportunity to defend the same by showing that he was not negligent in any manner and his explanation may have been accepted. Since he was not charged for negligence, he never got any opportunity to defend himself on this aspect and this finding returned by the Enquiry Officer is, thus, clearly in violation of the principles of natural justice, as has been held in the judgments noticed above.

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This infirmity alone is enough to set-aside the proceedings, which also would suffer from some other serious infirmities. Once the appellant was charged for embezzlement for which he was exonerated, with which the Punishing Authority had agreed, there was no misconduct for which the appellant could have been punished. It is not a case where any note of disagreement was recorded. The note of concurrence recorded by the Punishing Authority has also been noted above. A perusal thereof would show that the Punishing Authority had with a pre-determined mind taken a decision to terminate the services of the appellant and the said view about the punishment was not expressed in any tentative manner but would convey a decision. This will also indicate bias on the part of the Punishing Authority to act against the appellant with pre-judged manner. Once the appellant was charged with the allegation of embezzlement, which could not be established, it was for the Punishing Authority to see if the punishment of dismissal or termination of services was appropriate, even if some negligence was proved on his part, though he was not charged for the same. It appears that the appellant was not fairly treated and has suffered a

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prejudice.

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For the reasons as afore-mentioned, the judgment under appeal can not be sustained. The substantial questions of law, as formulated, thus are answered accordingly. The case reveals clear violation of principles of natural justice inasmuch as the appellant was not informed of the charges for which he was found guilty and punished and, thus, he did not get proper opportunity to represent his case or defend himself.

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The Regular Second Appeal is accordingly allowed. The judgments under appeal are set-aside. The suit shall stand decreed. Since the appellant is no more, he shall be deemed to be taken in service from the date of his dismissal to the date of his superannuation or death, whichever is earlier. Thereafter, the present L.Rs, who are prosecuting the appeal, would be entitled to claim the pension or pensionary benefits.

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March 16, 2010 ( RANJIT SINGH ) khurmi JUDGE

Kashmir Singh v. State of Punjab and Ors.

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Kashmir Singh v. State of Punjab and Ors.

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