Quashed

Lal Chand v. State of Haryana and Ors.

Punjab & Haryana HC4 May 2012CWP/1792/2010

Case brief

AI extract

What is this about?

The single-judge High Court of Punjab and Haryana held that an order terminating the petitioner's services could not be sustained because the Punishing Authority considered unproven charges of embezzlement not included in the show cause notice. The order violating natural justice and relying on pending proceedings was quashed, while the appeal order was set aside.

What did the court decide?

The order dated 7.2.2008 terminating services was quashed; the appeal order dated 30.3.2009 was set aside; liberty granted for fresh proceedings.

Lal Chand Vs State of Haryana and Ors. — Service and Employment | Punjab & Haryana HC (2012)

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C.W.P.No.1792 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P.No.1792 of 2010 Date of Decision:- 04.05.2012

Lal Chand

....Petitioner(s)

vs.

State of Haryana and others

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....Respondent(s)

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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH

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Present:Mr.R.S.Malik, Advocate, for the petitioner.

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Mr.Harish Rathee, Sr.DAG, Haryana.

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AUGUSTINE GEORGE MASIH, J. (Oral)

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Petitioner has approached this Court impugning the enquiry report dated 20.8.2000 (Annexure P-1), show cause notice dated 1.2.2001 (Annexure P-2) and impugned order dated 7.2.2008 (Annexure P-3) passed by the Administrative Officer-cum-Joint Director (Administration)respondent No.3 and order dated 30.3.2009 (Annexure P-4) passed by the Commissioner and Director, Secondary Education Department, Haryana, dismissing the appeal preferred by the petitioner.

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It is the contention of the counsel for the petitioner that the petitioner was appointed as a Clerk in the respondent-Department on 16.1.1981. Because of the heart disease, he could not attend to his duties from 12.3.1997 till 11.12.1998. Enquiry was held against the petitioner in

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C.W.P.No.1792 of 2010

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which he was held guilty of absence from duty. Show cause notice was served on the petitioner on 1.2.2001 (Annexure P-2) to which the petitioner submitted his reply but the same did not find favour leading to the passing of the order dated 7.2.2008 (Annexure P-3) vide which the services of the petitioner were terminated as penalty. Petitioner preferred an appeal against this order which was rejected by the Commissioner and Director General, School Education, Haryana on 30.3.2009 (Annexure P-4).

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It is the contention of the counsel for the petitioner that the order of termination passed by respondent No.3 cannot sustain as the Punishing Authority has taken into consideration a charge-sheet dated 23.2.1996 which has been issued to the petitioner on account of embezzlement/indiscipline and absence from duty. These proceedings have yet not been finalized. Apart from the enquiry report submitted by the Inquiry Officer in the charge-sheet where only allegation of absence from duty w.e.f. 12.3.1997 to 11.12.1998 is levelled, there is no mention of the said enquiry or charge-sheet of embezzlement or indiscipline. In the show cause notice, which has been served on the petitioner dated 1.2.2001, there is no mention of any enquiry/charge-sheet and, therefore, the petitioner has no occasion to respond to such allegation. In any case, he submits that since the disciplinary proceedings initiated on the basis of charge-sheet dated 23.4.1999 have not attained finality, the same could not have been taken into consideration for passing the order of termination dated 7.2.2008. He, on this basis, contends that the impugned order dated 7.2.2008 (Annexure P-3) and order dated 30.3.2009 (Annexure P-4) cannot be sustained. His further contention is that the petitioner has served the respondents for more

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than 26 years and, therefore, the length of service should have been taken into consideration by the respondents while passing the punishment order. He, on this basis, prays for quashing of the impugned orders and allowing the present writ petition.

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On the other hand, counsel for the respondents submits that only a passing reference has been made by the Punishing Authority in the order dated 7.2.2008 (Annexure P-3). It was not the sole basis for passing the said order and the order primarily is based upon the enquiry held against the petitioner for absence from duty. His further contention is that the petitioner does not deserve a lenient action as he has absented himself from duty for more than one and a half years without informing the Department. He, accordingly, submits that the present writ petition deserves to be dismissed.

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I have considered the submissions made by the counsel for the parties and with their assistance gone through the records of the case.

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A perusal of the charge-sheet, enquiry report and the show cause notice indicates that there was no notice issued on the petitioner with regard to the charges of embezzlement nor was any mention made therein with regard to the charge-sheet dated 23.2.1996 served on the petitioner under Rule 7 on account of embezzlement/indiscipline. If that be so, the Punishing Authority while passing the order of punishment dated 7.2.2008 could not have taken that into consideration. It is not merely a passing reference which has been made in the said order but in the conclusions also, it is apparent that the financial embezzlement which has been committed by the petitioner as per the enquiry report in the said charge-sheet has weighed

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on the mind of the Punishing Authority while passing the order of punishment. The same could not have been taken into consideration and by taking the same into consideration, the Punishing Authority has over-steps its jurisdiction and mandate as per the statutory rules. The order dated 7.2.2008, therefore, cannot pass the test of complying with the principles of natural justice as no opportunity was given to the petitioner to respond to the said allegations which have been made one of the basis for passing the impugned order. In any case, the same could not at all be taken into consideration as these were independent departmental proceedings which have not yet attained finality as admittedly no show cause notice, after the submission of the enquiry report in the chargesheet dated 23.4.1999 has been served on the petitioner.

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In view of the above, impugned order dated 7.2.2008 (Annexure P-3) cannot sustain and is hereby quashed. Since the appellate order dated 30.3.2009 is primarily based upon the order of punishment, the same also cannot be sustained and is, therefore, set aside.

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Liberty is granted to the respondents to proceed against the petitioner in accordance with law and pass a fresh order. While passing the fresh order, the contention of the counsel for the petitioner with regard to his length of service may also be taken into consideration.

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May 04, 2012 poonam

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( AUGUSTINE GEORGE MASIH ) JUDGE

Lal Chand v. State of Haryana and Ors.

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Lal Chand v. State of Haryana and Ors.

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