R.S.A. No. 137 of 2003 (O&M) 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 137 of 2003 (O&M)
Date of Decision : 22.1.2009
Punjab State Civil Supplies Corporation,Chandigarh & another.
.......... Appellants
Versus
Bhupinder Kumar
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. H.N.S. Gill, Advocate
for the appellants.
Mr. A.K. Walia, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
This order of mine shall dispose of two regular second appeals
i.e. RSA No. 137 of 2003 titled Punjab State Civil Supplies
Corporation,Chandigarh & another Vs. Bhupinder Kumar and RSA No.
1077 of 2004 Bhupinder Kumar Vs. Punjab State Civil Supplies
Corporation, Chandigarh & another, as they arise out of the same judgment
and decree.
For the sake of convenience, the facts are being taken from
RSA No. 137 of 2003.
The plaintiff-respondent filed a suit for declaration that office
R.S.A. No. 137 of 2003 (O&M) 2
order dated 25.7.1988 ordering his removal from service and office order
dated 19.7.1987 imposing the punishment of warning, which was ordered to
be placed in confidential report file and forfeiture of pay and allowances
other than the subsistence allowances, order treating the period as leave
without pay, are illegal, ultra vires, unconstitutional, mala fide, null and
void, against the principles of natural justice, and also against service rules
and regulations. The plaintiff also sought declaration that he continues to be
in service as if aforesaid orders had never been passed. Plaintiff also
claimed consequential benefits.
The plaintiff-respondent was suspended by the Managing
Director on 1.9.1980 and reinstated on 19.5.1982, pending departmental
enquiry. The plaintiff on allegations of serious nature was proceeded against
under the Service Rules.
The Enquiry Officer was appointed, who conducted the enquiry
and found the plaintiff-respondent to be guilty of charges. The competent
authority, however, agreed with the Enquiry Officer but while imposing the
punishment of removal from service also took into consideration the
previous misconduct of the plaintiff-respondent.
The learned trial Court dismissed the suit.
The plaintiff preferred an appeal against the judgment and
decree passed by the learned trial Court.
The learned lower appellate Court modified the judgment and
decree passed by the learned trial Court.
R.S.A. No. 137 of 2003 (O&M) 3
The learned lower appellate Court found that the enquiry was
conduced in accordance with the service rules and the contention raised by
the learned counsel for the plaintiff-respondent that there was violation of
rules, was repelled.
The learned lower appellate Court also held that it is not for the
Civil Court to go into the merit of the controversy.
However, the learned lower appellate Court came to the
conclusion that while imposing the punishment of removal from service the
competent authority took into consideration previous misconduct i.e.
absence from duty on previous occasion. The material relied upon was not
put to plaintiff/ respondent. The learned Court, therefore, held that the order
of removal could not be sustained as it was not open to the competent
authority to consider any material which was not put to the plaintiff-
respondent.
Keeping in view the judgment of the Hon’ble Supreme Court in
the case of State Bank Vs. S.K. Sharma AIR 1996-SC 1169 the judgment
and decree passed by the learned trial Court was modified by passing the
following order :-
“In case of State Bank Vs. S.K. Sharma AIR 1996-
Supreme Court 1169, it has been held that when an
order is found illegal due to violation of procedural law
or being violative of principles of natural justice, then
department should be given an opportunity to pass fresh
order for curing illegality. So, keeping in view this legal
position in mind, it is fit and appropriate to give liberty
R.S.A. No. 137 of 2003 (O&M) 4to respondents to proceed afresh against appellant on
basis of enquiry report Ex. P23. Findings of the trial
Court on Issue No.1 calls for interference in this respect
alone, but not qua any other aspect.
23. In view of above discussion, appeal of appellant
partly accepted. Impugned orders, copy of which is Ex.
P26 and which is of date 25.7.88 are set aside. However,
orders of dated 19/24.3.87, copy of which is available on
records as Ex. P-1=Ex. P9 as illegal. Respondents given
liberty to proceed afresh against appellant on the basis
of enquiry report Ex. P23. Respondents can pass any
fresh order on the basis of enquiry report Ex. P23
against appellant for imposing such penalty as it thinks
appropriate, but by taking into consideration that period
of absence of service of appellant, which is subject
matter of enquiry report Ex. P23 and chargesheet and
articles of charge Ex. P14 and Ex. P15 and not of any
other period, which is not subject matter thereof. In view
of peculiar circumstances of the case, there is no order
as to costs. Decree sheet be drawn up accordingly. Trial
Court file be sent back and appeal file be consigned.”
Mr. H.N.S. Gill, learned counsel appearing on behalf of the
appellants contends that the following substantial questions of law arise for
consideration in this appeal :-
1. Whether the proper opportunity of hearing has been
given to the respondent-plaintiff before passing the order
of removal from service ?
2. Whether in view of the concurrent finding holding that
the enquiry was conducted as per the Service Rules and
R.S.A. No. 137 of 2003 (O&M) 5the plaintiff-respondent was given full opportunity the
learned lower appellate Court modified the judgment and
decree of the learned trial Court ?
3. Whether the judgment and decree passed by the learned
appellate Court is perverse on the facts and
circumstances stood proved on record ?
On consideration of the matter, I find that the substantial
questions of law as framed do not arise for consideration by this Court and
in any case, deserve to be answered against the appellants.
The learned Courts below have recorded a concurrent finding
of fact that the enquiry against the plaintiff-respondent was conducted as
per the procedure prescribed under the Service Rules.
The appellant can have no grievance to the finding of the
learned lower appellate Court that the Civil Court can not sit in appeal over
the departmental enquiry and consider the charges on merit.
The finding of the learned lower appellate Court is in
consonance with law. It is settled law that while imposing the punishments,
the competent authority cannot take into consideration previous misconduct,
which was neither put to him in the enquiry, nor was part of the charge-
sheet.
It is not in dispute that the competent authority gave no notice
to the respondent seeking his explanation for the previous conduct while
imposing punishment by taking that in consideration for imposing the
punishment.
R.S.A. No. 137 of 2003 (O&M) 6
The learned lower appellate Court in view of the judgment of
the Hon’ble Supreme Court in the case of State Bank Vs. S.K. Sharma
(supra) was right in modifying the judgment and decree, passed by the
learned trial Court.
No substantial question of law arises for consideration by this
Court, as claimed.
No merit.
Dismissed.
22.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE