Second appeal against orders dismissing a civil suit filed by a PSU employee challenging his charge sheet, punishment order, and non-implementation of a higher authority's order granting medical leave and declaring his attendance as leave. The High Court allowed no case.
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RSA No. 3404 of 2004 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA No. 3404 of 2004 (O&M) Date of decision: 01.02.2013
The Punjab State Electricity Board, Patiala and others
....Appellants
Vs.
Lajpat Rai
....Respondent
CORAM: HON'BLE MR. JUSTICE A.N. JINDAL
Present:Mr. R.S. Dadwal, Advocate, for Mr. Aman Chaudhary, Advocate, for the appellants.
Mr. M.K. Bhandari, Advocate, for the respondent.
A.N. JINDAL, J (ORAL)
This is defendants-appellants' (hereinafter referred as 'the defendants) second appeal against the consistent views taken by both the Courts below in the impugned judgments.
Factual matrix of the case is that the plaintiffrespondent (hereinafter referred as 'the plaintiff'), was appointed in the Punjab State Electricity Board (for brevity 'the Board') as a regular employee on 25.03.1968. When he was working as a Head Draftsman in Sangrur Division, he proceeded on sanctioned leave of 174 days w.e.f. 20.04.1983, which was further extended up to 09.12.1983. However, due to demise of his father, he requested the Chief Engineer, his appointing authority, to post
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him in Sangrur Division, but his request was not accepted. Consequently, he had to proceed on leave again. The plaintiff applied for extension of leave upto 31.03.1984, but the Chief Engineer called him and sought his explanation. He was further advised to apply for a long leave by the Chief Engineer. Thus, he applied for leave up to 31.12.1984. However, in the month of April 1984, he requested for his posting orders, which were not issued to him. Rather, he was charge-sheeted on 04.05.1984. The plaintiff submitted his joining report on 08.08.1984 and waited for his posting orders, but he was asked to wait till he submitted his reply to the charge-sheet. Thereafter, the Enquiry Officer was appointed to conduct an enquiry with regard to the charge sheet dated 04.05.1984. The plaintiff repeatedly applied for copies of certain documents as also the list of witnesses, who were to appear in the enquiry. He even got served a legal notice dated 23.02.1984 on the defendants for supplying all the documents as also the list of witnesses. Ultimately, he was appointed at Talwara on 14.12.1987. However, the Superintending Engineer refused to adjust him at the said place on the pretext that the post, which he was holding, was not in existence at Talwara. Thereafter, the plaintiff was given new place of posting on 09.03.1988, in pursuance of which, he joined at the new place of posting. The Enquiry Officer, who was to look into the charges levelled against the plaintiff, held the enquiry proceedings, wherein the plaintiff also submitted his written submissions on 31.05.1988. But to the surprise of the plaintiff, vide order dated 12.12.1988, the appellant No.2 appointed another Enquiry officer. In the meantime, the
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plaintiff fell ill and applied for medical leave, duly supported by the medical certificate. But, the Civil Surgeon did not give him the certificate, as the plaintiff got treatment from Ayurvedic Vaid. The District Ayurvedic Officer issued the countersigned medical certificate, issued by the Ayurvedic Dispensary. Since the health of the plaintiff was not permitting him to continue in service, therefore, he submitted his application for seeking premature retirement on 26.12.1988 and gave three months' notice in this regard. Eventually, the defendants, after completing the enquiry, passed an order dated 04.02.1992 imposing a punishment against him, whereupon the plaintiff challenged the charge sheet and the punishment order by way of a suit.
The suit was contested by the defendants, wherein, while admitting about the joining of the plaintiff in the defendantboard and his absence, it was submitted that the plaintiff was initially granted the leave up to 09.12.1983. However, the plaintiff did not join the duty even after the expiry of extended period of leave up to 09.12.1983. Since, his request for extension of leave was refused, therefore, a charge sheet was issued to him, to which, he did not respond. Thereafter, an enquiry was conducted. While admitting other enquiry proceedings as well as the civil litigation between the parties, the defendants stated that the orders dated 04.02.1992 and 28.10.1998 are quite legal and valid. From the pleadings of the parties, following issues were framed by the trial Court:-
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The trial Court decreed the suit on 07.03.2001. The appeal preferred by the defendants-appellants (hereinafter referred as 'the defendants') was dismissed on 26.04.2004.
Heard, the admitted facts between the parties are that the plaintiff was posted as Head Draftsman in the Punjab State Electricity Board on 25.03.1968. He proceeded on leave on 20.04.1983. Thereafter, he retired on 29.03.1989. Vide order dated 04.05.1984, he was charge-sheeted on the ground that he remained absent from duty. Ultimately, the enquiry was finalized even after his retirement on 04.02.1992. He challenged the enquiry report by filing a civil suit before the Senior Sub Judge, Patiala, on 25.09.1989. The said suit was decreed vide judgment and decree dated 28.10.1992 while declaring the charge sheets dated 04.05.1984 & 23.06.1989 as illegal. The order of penalty dated 04.02.1992 passed by the defendants was also quashed.
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The plaintiff was also ordered to be treated as on duty for the period w.e.f. 10.12.1983 to 20.03.1988. A direction was also issued to the defendants to sanction the leave of the plaintiff from 03.05.1988 to 28.03.1989 on medical grounds and to treat the plaintiff as voluntarily retired w.e.f. 29.03.1989 (forenoon). The Court also directed the defendants to release all the benefits along with interest at the rate of 12% per annum.
It is also not in dispute that the defendants had filed an appeal before the first Appellate Court, which was accepted on 25.11.1997 and the plaintiff was directed to file a departmental appeal with Punjab State Electricity Board authorities. Thereafter, he filed an appeal before the concerned authorities, which was decided vide office order No.121 dated 27.10.1998 while quashing the charge sheet dated 23.02.1998, besides ordering sanctioning of medical leave of the plaintiff from 02.05.1988 to 27.03.1989 and acceptance of voluntarily retirement w.e.f. 29.03.1989. The period from 09.08.1984 to 20.03.1988 was also ordered to be treated as compulsory waiting period, besides issuance of letter of censure. The defendants did not implement the aforesaid orders without assigning any reasons. According to the order dated 27.10.1998, the alleged absence period w.e.f. 10.12.1983 to 08.08.1984 has been ordered to be treated as leave of the kind due and remaining period from 09.08.1984 to 20.03.1988 has been ordered to be treated as 'dies non'.
Learned counsel for the plaintiff has submitted that the aforesaid orders dated 23.02.1998 and 28.04.1998 were required to be conveyed to the plaintiff because the appeal of the plaintiff
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was to be considered by the Administrative member only being the competent Appellate Authority, therefore, the same are illegal; against the principles of natural justice and had not been passed by any competent authority. The appellate authority had also not considered, as to “whether the procedure, as envisaged under law, had been adopted or not.” It was further submitted that the enquiry report was not supplied to the plaintiff and no reason regarding non issuance of posting orders of the plaintiff has been disclosed.
The order dated 27.10.1998 passed by the Deputy Secretary, Punjab State Electricity Board, was illegal as he was not a punishing authority or an appellate authority. However, the administrative member was the appellate authority, who had decided the appeal in favour of the plaintiff on 23.02.1998. He also allowed the medical leave of the plaintiff from 02.05.1988 to 27.03.1989 and the plaintiff was treated as voluntarily retired w.e.f. 29.03.1989. It was further ordered that the period from 10.12.1983 to 08.08.1984 be treated as leave of kind due and period from 09.08.1984 to 29.03.1988 be treated as compulsory waiting period. But, this order was not implemented by the defendantboard for the reasons best known to it. However, this order was never quashed by any Court.
The argument raised by learned counsel for the defendants that the joining time could not be granted to the plaintiff for more than 30 days in accordance with the instructions of the Finance Department and before the orders of Administrative Member, are complied, file be put up before Finance Department.
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Thereafter, the matter was considered by the Finance Department and the whole time member and the impugned order was passed. Thus, it is clear that the impugned order, vide which the appeal of the plaintiff was decided, has not been rightly passed by the appellate authority, rather it was passed by the senior to the appellate authority, therefore, the said order was without jurisdiction. Rather, the appeal decided by the Administrative Member was quite within the jurisdiction and as per Rules. It is also established on the record that no reasonable opportunity of making a representation against the penalty proposed, has been given to the plaintiff by the authority, deciding the appeal. Thus, the order passed by the senior officer to the appellate authority being without jurisdiction, could be treated as bad and unforceable. As such, the order dated 27.10.1998 was quite illegal and not binding upon the plaintiff.
As regards the objection with regard to nonexamination of the plaintiff at the time of evidence, the same cannot be treated as fatal. The present case could be decided on the basis of the evidence before the Court, therefore, the argument that non-examination of the plaintiff is fatal to the case, is of no consequence.
As regards the voluntary retirement, it may be observed that before seeking voluntary retirement, the plaintiff had issued the required notice. The said notice was never replied, therefore, his retirement would be treated as effective after the expiry of the period of notice. Such retirement will be equally good and will not stand as a disqualification for claiming pension, as he
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had already completed more than 20 years of service and there is no document on record to show that the defendants had refused or not accepted his notice of voluntary retirement. In that situation, the plaintiff would be treated to have retired with permission, which enables him to claim pension.
Both the Courts below appears to have taken right
view of the matter.
No substantial question of law arises for
determination.
Dismissed.
(A.N.JINDAL) February 01, 2013 JUDGE ajp
3 issues framed by the court
Whether the appeal was rightly dismissed by the Courts below.
Whether any substantial question of law arises for determination.
Whether the appelants have established any error in the lower court judgments.
Punjab State Electricity Board and others
Lajpat Rai
A.N. Jindal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
