IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 3900 of 1988
Date of Decision: April 1, 2009
Bhupinder Singh Rattan
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
Present: Mr. Roshan Lal Sharma, Advocate,
for the petitioner.
Ms. Sudeepti Sharma, DAG, Punjab,
for the respondents.
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
Challenge in this petition filed under Article 226 of the
Constitution is to the order dated 14.7.1987 (P-10) passed by the
respondent State by treating the period of absence from 21.10.1971 to
22.11.1974 as ‘dies non’. In other words, the aforesaid period is not
to be considered for pension, leave, seniority or any other purposes.
2. The case of the petitioner is that he was appointed as
Sectional Officer in the year 1965 in the respondent department i.e.
Beas Setluj Link Project. He was transferred on 8.2.1971 to join
Concrete Production Division, Pandoh and was relieved on 2.7.1971
CWP No. 3900 of 1988 2
for joining new place of posting. He applied for leave on the ground
of ill health of his mother, which was granted and later sought
extension till 9.10.1973. Respondent No. 3 refused to sanction the
leave. Accordingly, the petitioner stated to have reported back for
duty on 10.10.1973. However, his services were terminated on
8.1.1974 (P-3), which order was withdrawn on 22.11.1974 (P-5). The
respondents did not take any decision with regard to the period of
absence of the petitioner although he was given posting on
30.11.1974 (P-6).
3. On 3.11.1977, the petitioner was then issued charge sheet
for remaining absent from duty (P-7) and an Enquiry Officer was
appointed vide order dated 6.4.1978 (P-8). The competent authority
after taking into account the report of the Enquiry Officer, reply of
the petitioner and other documents reached the conclusion that
punishment of stoppage of two increments with future effect would
met the ends of justice and accordingly the aforesaid punishment was
inflicted on the petitioner under Rule 5 of the Civil Services
(Punishment and Appeal) Rules, 1979. However, the dispute remains
as to how the period of absence from 21.10.1971 to 22.11.1974 was
to be considered. The recommendation made by the appointing
authority to treat the same as a period of extra ordinary leave did not
find favour with the Government and accordingly order dated
14.7.1987 (P-10), impugned in the instant petition, was passed
holding that the period may be treated as ‘dies non’. In other words,
the period of absence from duty was to be treated as non-existence for
the purposes of pension, leave, seniority or any other purposes.
CWP No. 3900 of 1988 3
4. Reply only on behalf of respondent No. 4, namely,
Director, Plant Design & Administration, Beas Sutlej Link Project,
Sunder Nagar, has been filed and no reply has been filed by the State
of Punjab-respondent Nos. 1 and 2.
5. The question which requires determination for the instant
petition is whether an order which has civil consequences passed on
14.7.1987 (P-10) could be sustained in the eyes of law without
issuing show cause notice and also whether it would amount to
inflicting two punishments for the same lapse.
6. Mr. Roshan Lal Sharma, learned counsel for the
petitioner has argued that the matter is covered in favour of the
petitioner by a Single Bench judgment of this Court rendered in the
case of Bhim Singh v. State of Haryana, 1991 (1) RSJ 408. It has
been held in the aforesaid judgment that any order imparting break in
service would amount to double jeopardy if in a regular inquiry, for
the same lapse of absence from duty, an employee has been punished
by a separate order.
7. Ms. Sudeepti Sharma, learned State counsel has,
however, submitted that both the orders have different consequences
and there is no question of double jeopardy.
8. Having heard learned counsel for the parties and
perusing the paper book with their able assistance, I am of the
considered view that the impugned order dated 14.7.1987 (P-10), is
liable to be set aside on both the counts. The petitioner admittedly
has not been given any show cause notice before passing the
impugned order. Any order which has civil consequences could not
be passed without following the basic minimum principles of ‘audi
CWP No. 3900 of 1988 4
alter partem’. The period from 21.10.1971 to 22.11.1974 was
already subject matter of disciplinary proceedings for which the
petitioner had been inflicted with punishment of stoppage of two
increments with future effect. The second order declaring the
aforesaid period as a ‘dies non’ could not be passed because it would
amount to inflicting double punishment for the same lapse. The
opinion expressed by the learned Single Judge in Bhim Singh’s case
(supra) would be attracted to the facts of the present case as in para 4
it has been observed that after inflicting the punishment of warning
for unauthorized absence from duty the order treating the period of
absence as break in service was not warranted. Therefore, order
dated 14.7.1987 (P-10) cannot be sustained in the eyes of law. The
same is accordingly set aside. The period from 21.10.1971 to
22.11.1974 shall be treated as period of extra ordinary leave. The
petitioner shall be entitled to all consequential benefits and refixation
of his pay which may result into revision of his pension. The needful
shall be done within a period of three months from the date of receipt
of a certified copy of this order.
9. The writ petition stands disposed of in the above terms.
(M.M. KUMAR)
April 1, 2009 JUDGE
Pkapoor