JUDGMENT
Rakesh Kumar Jain, J.
1. This writ petition has been filed by Manjit Singh under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certioraris for quashing of the orders dated 1.8.1995 (Annexure P11) and 21.5.1995 (Annexure P12).
2. During the pendency of the writ petition, petitioner Manjit Singh expired on 06.4.2006. Vide C.M. No. 14509 of 2006, filed under Order 22 Rule 3 read with Section 151 of C.P.C., his legal representatives were ordered to be impleaded on 11.9.2006.
3. It is pertinent to mention here that petitioner moved C.M. No. 3926 of 2008 for amendment of the writ petition for inserting Rule 17 of the Punjab, Department of Public Works (Building & Roads) Junior Engineers (Class-III) Service Rules, 1993 (for short, ‘the Rules’). This application was allowed on 27.3.2008 as the same was not opposed by the respondents and the amended writ petition was taken on record.
4. In brief, the facts as pleaded in the writ petition are that deceased Manjit Singh had passed a Diploma in Civil Engineering in 1972 and had joined as Junior Engineer on 15.1.1973 on National Highway Circle, Chandigarh Division, Ropar. His service was regularized in due course in 1974. On the night intervening 18/19.2.1984, between 12.00 A.M. to 1.00 A.M., 76 drums of Bitumen were stolen from the Store of P.W.D. Manawala-Jandiala, District Amritsar. Fauza Singh Chowkidar of the store informed the deceased petitioner about the theft. The matter was reported to the police. Only D.D.R. was recorded, but no F.I.R. was registered. Both petitioner and one K.K. Gaur, S.D.E. were charge sheeted. Both were held guilty but while passing the order of punishment, the case against K.K.Gaur was quashed, firstly on the ground that he had retired from Service, secondly that no financial loss has been proved against him as it was alleged that when the Bitumen was stolen, he was on leave. However, vide order dated 1.8.1995, Sh. S.K. Bangar, Secretary, P.W.D., Punjab Government, ordered that the Governor of Punjab is pleased to order compulsory retirement to Manjit Singh under Rule 5(VII) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 and ordered recovery of Rs. 38,434.62. This order is impugned as Annexure P-11 in the writ petition.
5. Mr. R.S. Sihota, Senior Advocate appearing for the petitioner inter-alia, argued that there is no dispute that service of the deceased petitioner was governed by Rule 17 of the Punjab, Department of Public Works (Building & Roads) Junior Engineers (Class-III) Service Rules, 1993. He further argued that the impugned order Annexure P-11 is unsustainable in law as it is without jurisdiction having been passed by an incompetent person in law in view of Rule 17 and Appendix B of the Rules. Rule 17 and Appendix B are reproduced below:
17. Discipline, Penalties and Appeals.- (1) In the matter of discipline, punishment and appeal, the members of the service shall be governed by the Punjab Civil Service (Punishment and Appeal) Rules, 1970 as amended from time to time;
(2) The authority empowered to impose penalty under the Punjab Civil Service (Punishment and Appeal) Rules, 1970 and the appellate authority thereunder in respect of the members of the service shall be as specified in Appendix ‘B’ to these rules.
Appendix 'B'
Sl. Designation Nature of penalty Authority Appellate
No. of post or order empowered to Authority
impose penalty
or pass order
1 2 3 4 5
-------------------------------------------------------------------------------
1. Junior Minor Penalty Superintending Chief Engineer
Engineeer Engineer
(Civil) (i) Censure;
Junior (ii) Withholding
Engineer of promotion;
(Electrical)
Junior (iii) Recovery from
Engineer his pay of the whole
(Mechanical)
Junior or pay of the any,
Engineer pecuniary loss caused by
(Horticulture) him to the Government by
negligence or breach of orders;
(iv) withholding of increments of pay,
Major-Penalty. Chief Engineer - Government.
(v) reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increment of his pay.
(vi) reduction to a lower time scale of pay, grade post or service which shall ordinarily be a bar to the promotion of the Government employee to the time scale of pay, grade posts of service from which he was reduced with or without further directions regarding conditions of restoration to the grade or post or service from which the Government employee was reduced and his seniority and pay on such restoration to that grade post or service;
(vii) Compulsory retirement:
(viii) removal from service which shall not be a disqualification for future employment under the Government and
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
6. It is contended by the learned Senior counsel that as per Rule 17(2), the authority empowered to impose penalty under the Punjab Civil Service (Punishment and Appeal) Rules, 1970 and the Appellate Authority thereunder in respect of members of service are specified in Index B. Since the deceased petitioner was awarded major penalty of compulsory retirement, the authority empowered to impose penalty or pass the impugned order was the Chief Engineer against whose order, the appeal would lie to the Government as the Appellate Authority. It is contended that since in the present case, the impugned order of imposing major penalty of compulsory retirement has been passed by the Government itself, which happened to be the Appellate Authority, the Order is vitiated as the petitioner has been deprived of his legal right of appeal. Learned Counsel has cited two decisions of the Hon’ble Supreme Court in the case of Electronics Corporation of India v. Muralidhar 2001(4) S.C.T. 391 and Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank 1995(2) S.C.T. 352, in which it has been held that if the order of termination has not been passed by the disciplinary authority but by the Appellate Authority, a valuable right of appeal is denied to the delinquent which vitiates the order of punishment and the employee is entitled to be reinstated and back-wages Although, learned Counsel for the petitioner has argued on all other aspects that when two officials who are similarly placed and were charge sheeted, one is let off and the other is punished, the order of punishment is discriminatory and arbitrary.
7. Mr. P.C. Goyal, learned Senior Deputy Advocate General, Punjab, appearing for the respondents has virtually failed to defend the action of the respondents as he could not point out as to how this order (Annexure P-11) could be passed by the Secretary of the Government who happened to be the Appellate Authority under the Rules.
8. I have heard learned Counsel for both the parties and have perused the record with their assistance.
9. It is undisputed that the impugned order Annexure P-ll has been passed by the Secretary, P.W.D. Punjab Government, on 1.8.1995 imposing major punishment of compulsory retirement upon deceased Manjit Singh under Rules 5(VII) of Punjab Civil Service (Punishment and Appeal) Rules, 1970 and had also ordered for recovery of Rs. 38,434.62 paise. It is also not disputed that service of the deceased petitioner was governed by the Rules which provide for punishment under the Punjab Civil Service (Punishment and Appeal) Rules, 1970 as per Rule 17(1) of the Rules and under Rule 17(2) of the Rules, the authority to impose punishment on petitioner was clearly pro vided as per Appendix B which has been reproduced here-in-above.
10. According to Appendix B, major penalty of compulsory retirement could be imposed only by the Chief Engineer and his order could be challenged before the Government, that is the Secretary of the Government by way of an appeal. Since the impugned order has been passed by an incompetent person who happened to be the Appellate Authority, the judgments cited by learned Counsel for the petitioner in the case of Electronics Corporation of India and Surjit Ghosh (supra) are fully applicable to the case in hand and as such, the impugned order of punishment is vitiated.
In view of the above, discussion, the present writ is allowed and the impugned order Annexures P-11 and V-12 are set aside with costs throughout. The petitioner is also entitled to consequential benefits as per law.