State of Punjab and etc. Vs Mansa Ram

1) By way of present Regular Second Appeal, challenge has been laid to the judgment and decree dated 25.04.1995 passed by Shri N.K. Bansal, Additional District Judge, Bathinda (hereinafter referred to as "the First Appellate Court" ), whereby the appeal preferred by the appellant-defendant was dismissed and the judgment and decree dated 26.07.1993 passed by Senior Sub Judge, Bathinda (hereinafter referred to as "the Trial Court" ), decreeing the suit, was affirmed.

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FACTS

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2) Brief facts necessary for adjudication of the present appeal are that the respondent-plaintiff, Mansa Ram, was selected by the Punjab Public Service

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RSA No. 2297 of 1995 (O&M)

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Commission as Sectional Officer (now Junior Engineer) and was appointed in the P.W.D. Public Health Department in the year 1966. He was suspended vide office order dated 02.05.1985 by the Superintending Engineer, Public Health (G.W.) Circle, Chandigarh, and a charge-sheet was served upon him vide letter dated 23.12.1985 issued by Sh. Bhupinder Singh, the then Superintending Engineer. An Enquiry Officer was appointed, who conducted the enquiry ex-parte and submitted his report to Sh. J.S. Sodhi, who was, by then, holding current duty charge of the post of Superintending Engineer.

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A show-cause notice dated 21.05.1987 was served upon the respondent, and after considering his reply as unsatisfactory, he was dismissed from service vide order dated 06.10.1988, passed by Sh. J.S. Sodhi. The appeal preferred by the respondent was rejected vide order dated 14.01.1990 by Sh. Bhupinder Singh, who was, by then, holding current duty charge of the post of Chief Engineer. Hence, the suit for declaration that the order of dismissal dated 06.10.1988 and the appellate order dated 14.01.1990 are illegal, void, arbitrary, against the rules and principles of natural justice with consequential relief of arrears of pay and allowances was filed at the instance of the plaintiff.

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3) Upon notice, the suit was contested by the State, which took up preliminary objections regarding territorial jurisdiction, maintainability and non-joinder of the Superintending Engineer. On merits, it was submitted that the plaintiff did not join the inquiry which was conducted according to the rules, despite several notices were issued to him and defended the validity of the enquiry and the impugned orders.

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4) On the pleadings, the learned trial Court framed the following issues:

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“(1) Whether the plaintiff is entitled to the declaration prayed for? OPP

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(2) Whether the civil court at Bathinda had no jurisdiction to entertain and try this suit? OPD

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(3) Whether the suit is bad for non-joinder of Superintending Engineer? OPD

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(4) Relief.”

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5) The learned trial Court, vide judgment and decree dated 26.07.1993, decreed the suit at the instance of the plaintiff, holding the impugned orders to be illegal, null and void, and recording the plaintiff entitled to all arrears of pay and allowances etc., except regarding the relief of interest.

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6) Aggrieved thereof, the defendant-State filed the first appeal, which was dismissed vide judgment and decree dated 25.04.1995, affirming each of the findings recorded by the learned trial Court. Hence, the present Regular Second Appeal.

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CONTENTIONS

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ON BEHALF OF APPELLANT(S)-STATE

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7) Learned counsel for the appellant-State submits that merely because Sh. J.S. Sodhi was holding current duty charge, he cannot be called incompetent to pass the order of dismissal as he was, in substance, discharging the full functions of the Superintending Engineer. It is further submitted that full opportunity was afforded to the respondent to participate in the enquiry which he did not avail despite notices having been published in the newspapers, and that the enquiry was conducted strictly in accordance with the Rules. Thus, the present appeal is to be allowed.

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ON BEHALF OF RESPONDENT

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8) Per contra, learned counsel for the respondent-plaintiff submits that the judgments and decrees passed by the learned Courts below are based on a

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RSA No. 2297 of 1995 (O&M)

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proper reading of the pleadings and appreciation of the evidence, and thus call for no interference.

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DISCUSSION AND REASONING

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9) I have heard learned counsel for the parties and gone through the paper book and records of the case.

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I. RE: COMPETENCE OF THE DISMISSING AUTHORITY

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A perusal of the record shows that it stands duly admitted by the appellants-defendants in their written statement that Sh. J.S. Sodhi was holding only current duty charge of the post of Superintending Engineer, and not the post on regular basis, when he passed the order of dismissal dated 06.10.1988. It is equally undisputed that the Superintending Engineer was the appointing authority of the respondent. In such circumstances, the officer holding mere current duty charge cannot, in the humble opinion of this Court, be said to exercise the substantive disciplinary powers, including the power of dismissal, attached to the post he does not substantively hold.

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10.1) The aforestated principle also flows from the constitutional guarantee under Article 311(1) of the Constitution of India that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. There is a real and substantial difference between an officer appointed to officiate on a higher post and one merely placed in charge of its current duties: the latter is an administrative arrangement, without statutory basis, intended only to keep the work of the office moving, and does not by itself clothe the incumbent with the disciplinary powers attached to the post, including the power to impose a penalty as extreme as dismissal, unless a statutory provision so permits. The contention raised on behalf of the State that Sh. Sodhi was, in substance,

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discharging the full functions of the post is answered by the appellants' own admission on record, and requires no independent evidence to displace. No perversity is shown in the concurrent finding on this aspect.

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II. RE: BIAS AND DENIAL OF PERSONAL HEARING

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11) It has come on record that the appeal of the respondent-plaintiff came to be decided by Sh. Bhupinder Singh, the very officer who, as Superintending Engineer, had initiated the disciplinary proceedings and caused the charge-sheet to be served upon the respondent, and who, by the time the appeal was decided, was holding current duty charge of the post of Chief Engineer. It is a basic postulate of natural justice, captured in the maxim nemo judex in causa sua , that no person can adjudicate a matter in which he has already formed and expressed a view or has a personal stake in the outcome. An officer who has set the departmental proceedings in motion against a delinquent cannot thereafter don the mantle of an unbiased appellate authority in the very same matter.

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12) Moreover, it further stands admitted in the written statement by the appellant-defendants that the appeal was rejected without affording personal hearing to the respondent despite his specific request. A perusal of the order dated 14.01.1990 (Exhibit P-6) shows that it is a cryptic, non-speaking order. The Hon’ble Apex Court, in Ram Chander v. Union of India and others, AIR 1986 SC 1173 , has held that an effective consideration of an appeal by a delinquent servant is possible only where he is heard and given a genuine opportunity to satisfy the appellate authority, and that considerations of fair play require a personal hearing where sought. This principle has been consistently followed by this Court, including the Hon’ble Division Bench in The United

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RSA No. 2297 of 1995 (O&M)

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Commercial Bank v. S.C. Girotra, 1991(1) SCT 419 . The relevant portions of Ram Chander’s Case (supra) and S.C. Girotra’s Case (supra) are extracted hereunder:-

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RAM CHANDER’S CASE

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“Such being the legal position, it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasise that reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and give a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fairplay and justice also require that such a personal hearing should be given. ”

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S.C. GIROTRA’S CASE:

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“5. As far as the question of denying opportunity personal hearing to the petitioner by the Appellate Authority is concerned, there is force in this contention. Simply because the Service Rules of the Bank provide that written briefs can be given to the Appellate Authority is no substitute for personal hearing. After Article 311(2) of the Constitution was amended and the requirement of the second show cause notice before imposing punishment was taken away, it has been held by the Supreme Court in Ram Chander v. Union of India and others, AIR 1986 Supreme Court 1173 that the Appellate Authority must given an opportunity of hearing to the delinquent officer. In the present case also, there is no provision in the second show cause notice is required to be given before imposing punishment. That being so, it was incumbent on the Appellate Authority to have given personal hearing to the appellant. That being the position in law, the order passed in appeal (Annexure P-4) cannot be sustained. While

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RSA No. 2297 of 1995 (O&M)

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upholding the order of dismissal dated 6th February, 1986 (Annexure P-3), we quash the order passed by the Appellate Authority (Annexure P-4) and remand the case to the Appellate Authority to decide the appeal areas after affording an opportunity of personal hearing to the respondent. ”

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13) Compliance with the principles of natural justice acts as a linchpin to keep the wheel of administrative decisions moving in line with the basic rule of law, and the power to punish places a heavy burden on the authorities concerned to adopt a homogeneous approach to the basic principles governing the administration of justice in the discharge of their quasi-judicial functions. In the present case, since the punishment order stands merged into an appellate order that is itself vitiated for want of personal hearing, absence of reasons, and institutional bias, neither order can be sustained.

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III. RE: DEFECTS IN THE ENQUIRY

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14) Further, a perusal of the Enquiry Officer's report dated 22.10.1986 (Exhibit P-10) shows that five articles of charge were levelled against the respondent-plaintiff, but the Enquiry Officer recorded findings only qua two of them. Rule 8(23) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 required the Enquiry Officer to record a finding on each article of charge along with reasons therefor. By not doing so, the enquiry stood vitiated on this count as well, in line with the principle explained by the Supreme Court in A.L. Kalra v. The Project and Equipment Corporation of India Ltd., 1984(2) SLR 446 , the relevant portion thereof is extracted hereunder:-

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“………What prevents the authority authorised to impose penalty from giving reasons ? If reasons for an order are given, there will be less scope

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RSA No. 2297 of 1995 (O&M)

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for arbitrary or partial exercise of power and the orders ex facie will indicate whether extraneous circumstances were taken into consideration by authority passing the order. This view in Vedachala Mudaliar v. State of Madras, AIR 1952 Madras 276 was approved by this Court in Bhagat Raja v. Union of India, (1967) 3 SCR 302 at p. 320 . As pointed out earlier, the findings of the inquiry officer are merely his ipse dixit. No reasons are assigned for reaching the finding and while recapitulating evidence self-contradictory positions were adopted that either there was no misconduct or there was some misconduct or double punishment was already imposed. Rule 27 (19) casts an obligation upon the inquiry officer at the conclusion of the inquiry to prepare a report which must inter alia include the findings on each article of charge and the reasons therefor. The report is prepared in contravention of the aforementioned rule.

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29. The situation is further compounded by the fact that the disciplinary authority which is none other than the Committee of Management of the Corporation while accepting the report of the inquiry officer which itself was defective did not assign any reasons for accepting the report of the inquiry officer. After reproducing the findings of the inquiry officer, it is stated that the Committee of Management agrees with the same. It is even difficult to make out how the Committee of Management agreed with the observations of the inquiry officer because at one stage while recapitulating the evidence the inquiry officer unmistakably observed that appellant was subjected to double punishment and at another place, it was observed that granting extension of time and acceptance of documents and balance advance would tantamount to extending the time which would make the affair look wholly innocuous. This shows utter non-application of mind of the Disciplinary Authority and the order is vitiated.”

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The contention that full opportunity was afforded to the respondent to participate in the enquiry does not answer this independent

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RSA No. 2297 of 1995 (O&M)

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infirmity, which goes to the enquiry's compliance with the Rules and with Article 311(2), regardless of the respondent's participation.

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15) Moreover, the show-cause notice (Exhibit P-12) itself records that the respondent had been found guilty of all the charges levelled against him in the charge-sheet, a finding repeated in the order of dismissal dated 06.10.1988 (Exhibit P-5) as well. This indicates that the Superintending Engineer who passed the impugned order of dismissal and directed recovery of the amount, did not apply his mind to the enquiry report, and proceeded on the erroneous premise that all the articles of charge stood proved, when the Enquiry Officer himself had returned findings on only two of them. These cumulative defects in the enquiry have been rightly appreciated by the learned Courts below, and this Court finds no reason to interfere with the same.

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RELIEF

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16) In view of the discussion made hereinabove, finding no illegality or perversity in the concurrent findings recorded by the learned Courts below, and there being no misreading or misinterpretation of the pleadings and evidence on record, this Court finds no reason to interfere with the well-reasoned judgments and decrees passed by the learned Courts below. Hence, this Regular Second Appeal, being devoid of merit, is hereby dismissed .

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17) Pending miscellaneous application(s), if any, shall also stand disposed of.

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July 13, 2026 sonika

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(HARKESH MANUJA) JUDGE

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Whether Speaking/reasoned	Yes/No
Whether Reportable	Yes/No

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State of Punjab and etc. v. Mansa Ram

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State of Punjab and etc. v. Mansa Ram

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