JUDGMENT
G.S. Singhvi, J.
1. Removal from service is one of the major penalties specified in Clause (viii) of Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short, the Rules’) which the government can impose on a delinquent employee for good and sufficient reasons. Rules 8 and 9 of the Rules contain the procedure for imposing major penalties. Sub-rule (1) of Rule 8 declares that no order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 5 shall be made except after an enquiry held, as far as may be in the manner provided in this rule and Rule 9 or in the manner provided by the Public Servants (Inquiries) Act, 1850 where such enquiry is held under that Act. Sub-rule (2) of lays down that whenever the punishing authority is of the opinion that there are grounds for enquiring into the truth of any imputation of misconduct or misbehaviour against a government employee, it may itself enquire into or appoint an officer to make enquiry. Sub-rules (3) and (4) of Rule 8 postulate framing of charges and delivery thereof to the employee concerned together with the statement of imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained. The concerned employee is required to be told that he can submit written statement of defence and also state whether he desires to be heard in person. Sub-rule (5) lays that on receipt of the written statement of defence, the punishing authority may itself enquire into such of the articles of charge as are not admitted or appoint an enquiring authority for the purpose. If all articles of charge are admitted by the employee, then the punishing authority can record the finding on each charge and act in the manner laid down in Rule 9 (Sub-rule (5)(a)]. Clauses (b) and (c) of Sub-rule (5) and Sub-rules (6) to (23) of Rule 8 envisage various steps to be taken by the enquiring authority and/or the punishing authority. These include recording of evidence in the presence of the delinquent employee, giving of opportunity to him to cross-examine the witnesses and produce defence evidence; recording of findings by the enquiry authority: submission of enquiry report to the punishing authority: consideration of report by the punishing authority and passing of final order of penalty, Rule 11 of the Rules provides for communication of the order of punishment to the delinquent employee. Rule 13 provides for special procedure in certain cases where any penalty is imposed on a delinquent employee on the ground of conduct which has led to conviction on a criminal charge or where the punishing authority is satisfied for the reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry in the manner provided in the Rules or the Governor is satisfied that in the interest of the State, it is not expedient to hold any enquiry in the manner provided under the Rules. Rule 15 provides for appeal, Rule 21 contains a non-obstante clause and lays down that the Governor or the Appellate Authority or any other authority specified in this behalf may review the order of punishment.
2. I have prefaced the disposal of this writ petition by making a reference to the detailed procedure contained in Rules 8 and 9 of the Rules and the provisions relating to special cases, appeal and review because the main ground on which the petitioner has challenged order Annexure P4 dated 27.4.1987 passed by the Government of Punjab, Department of Health and Family Welfare vide which he was removed from service is that the same was passed in violation of the provisions of Rules 8 and 9 of the Rules and without giving him reasonable opportunity of defence.
3. For deciding the legality of the order impugned in the writ petition, it will be appropriate to briefly notice the facts.
4. After passing MBBS the petitioner joined Punjab Civil Medical Service on 19.8.1963. He was appointed as Demonstrator in Pathology on, 1.5.1965. He was promoted as Lecturer on 28.10.1966: as Assistant Professor on 1.5.1973 and as Associate Professor on 22.12.1979. From 14.9.1982 to 29.12.1982, he worked Professor in Pathology. In June, 1982 the petitioner applied for leave to attend his ailing father, who was operated for pro-static enlargement at Medical College, Amritsar. His father was shifted to Post Graduate Institute of Medical Science and Research, Chandigarh, in October, 1982. There he was operated thrice but without success. He was discharged in January,1983. During this period, the petitioner applied for leave which was sanctioned up to 22.6.1983. However, his prayer for the vacation leave from 23.6.1983 to 31.7.1983 rejected. His further prayer for grant of leave from 1.8.1983 to 29.10.1983 was also rejected.
5. After remaining absent from duty for almost two years, the petitioner sent letter dated 22.3.1985 for being allowed to joint duty. (For the reasons best known to the petitioner, he has not placed on record a copy of that letter). The concerned authority did not respond to his letter apparently because a departmental enquiry had been initiated against him. Dr. Balwant Singh Tung, Principal Medical College, Amritsar, who was appointed as enquiry officer vide government letter dated 14.1.1985, sent communication dated 9.4.1985 (Annexure P1) to the petitioner requiring him to appear on 23.4.1985 at 10.00 a.m. in connection with the enquiry. On receipt of Annexure P1, the petitioner sent letter dated 13.4.1985 (Annexure P2) to the enquiry officer for adjournment by stating that he had to take his father to some good Urology Centre for further treatment. Thereupon, the enquiry officer sent letter dated 22.4.1985 to the petitioner at his last given address, but the same was returned undelivered.
6. Thereafter the State Government passed order dated 27.4.1987 removing the petitioner from service. The relevant portion of that order is reproduced below;-
“Whereas Dr. Ved Parkash Pathak, Associate Professor or Pathology while posted at Medical College, Amritsar has been absent from duty since 23.6.1983.
And whereas he has not joined duty in spite of repeated instructions of the State Govt. for resuming duty and is therefore guilty of gross misconduct.
And whereas he has been given reasonable opportunity to explain his position.
And whereas the Punjab Public Service Commission on consideration of the circumstances of the case has agreed to his removal from service.
Now therefore, in exercise of the powers conferred by Rule 8 of the Punjab Civil Services (P&A) Rules, 1970 and all other powers enabling him in this behalf the Governor of Punjab is pleased to impose upon Dr. Ved Parkash Pathak the penalty of removal from services with immediate effect.”
7. Dr. Balram K. Gupta, Senior Counsel appearing for the petitioner invited our attention to the averments contained in paragraphs 7 and 8 of the writ petition and argued that the punishment of removal imposed upon his client is liable to be voided on the ground of wholesale violation of Rule 8 of the Rules, inasmuch as, the punishing authority, namely, the State Government, did not issue the charge sheet so as to enable him to submit reply to the allegations on which the enquiry was proposed to be held: the enquiry officer did not give notice after 13.4.1985: the copy of enquiry report, if any, submitted by the enquiry officer was not make available to him and he was not given show cause notice and opportunity to make representation against the adverse finding, if any, recorded by the enquiry officer and the proposed punishment. Dr. Gupta further argued that the order of punishment is also vitiated due to violation of the provisions contained in Article 311 of the Constitution and basic rules of natural justice because at no stage the petitioner was given opportunity to defence himself.
8. Ms. Rita Kohli, learned Deputy Advocate General, Punjab expressed her inability to show whether any charge sheet was issued to the petitioner in terms of Rule 8(3) and (4) of the Rules: whether Dr. Balwant Singh Tung recorded any evidence: whether the enquiry officer submitted report: whether the show cause notice was issued to the petitioner in terms of Article 311(2) of the Constitution and Rule 9 of the Rules (unamended), but tried to defend the impugned order by laying emphasis on the fact that he had absented from duty for a period of almost two years. She also tried to justify the procedure adopted by the enquiry officer by pointing out that registered letter dated 22.4.1985 sent at the last available address of the petitioner was returned undelivered.
9. In my opinion, there is no merit in the submission of the learned Deputy Advocate General. The procedure prescribed under Rules 8 and 9 of the Rules for holding enquiry which constitutes a condition precedent for imposition of any of the major penalties specified in Rule 5 of the Rules is mandatory and represents the statutory embodiment of the rules of natural justice and concept of reasonable opportunity enshrined in Article 311 of the Constitution. Therefore, the wholesale infraction of the procedure laid down by the rule-making authority has the effect of vitiating the order of punishment. At rival violation of one or the other steps envisaged under Rules 8 and 9 of the Rules may not be sufficient to invalidate the order of punishment, but where the procedure is vitiated at every stage and results in prejudice to the delinquent, as has happened in the present case, there is no choice left with the Court except to nullify the order of punishment.
10. At the cost of repetition. I deem it proper to observe that in the petitioner’s case, the procedure contained in Rules 8 and 9 of the Rules for holding an enquiry for major penalty and provisions of Article 311 of the Constitution were vitiated at every stage, he was not served with the charge-sheet so as to enable him to file written statement of defence; he was not given list of documents and witnesses; he was not given effective opportunity to appear before the enquiry officer; the copy of enquiry report, if any, prepared by the enquiry officer was not made available to him; no show cause notice was given to him and he was not given opportunity to make representation against the adverse findings, if any, recorded by the enquiry officer and the punishing authority or the proposed punishment. It is, thus, evident that the impugned order was passed in gross violation of the Rules and the provisions of the Constitution and on that ground, it is liable to be quashed Khem Chand v. Union of India,1 A.I.R. 1958 S.C. 300; State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan,2 A.I.R. 1961 S.C. 1623; Major U.K. Bhatt v. Union of India,3 A.I.R. 1962 S.C. 1344; The State of Mysore v. K. Manche Gowda,4 A.I.R. 1964 S.C. 506; Moti Ram Deka v. General Manager, North East Frontier Railway,5 A.I.R. 1964 S.C. 600; State of Uttar Pradesh v. Om Parkash Gupta,6 (1969)3 S.C.C. 755; Uttar Pradesh Government v. Sabir Hussain,7 A.I.R. 1975 S.C. 2045 and Kashinath Dikshita v. Union of India and Ors.,8 A.I.R. 1968 S.C. 2118.
11. In view of the above conclusion, I do not deem it necessary to deal with other points raised in the petition.
12. For the reasons mentioned above, the writ petition is allowed. Order Annexure P4 is quashed leaving the State Government free to take further action in accordance with law.