JUDGMENT
S.K. Jain, J.
1. Gurdeep Singh, plaintiff-appellant herein was employed as a Conductor in Punjab Roadways, Nawanshaher. He was conducting Bus No. PBQ 4150 from Chandigarh to Jalandhar on 5.8.1981 when he was intercepted and checked by Saroop Singh Chief Inspector, Tarlok Singh and Som Nath Inspectors. It was found that he had charged fare amounting to Rs. 9.60P. from 12 passengers for their travel from Kharar to Kurali without issuing any ticket. He was charge sheeted on 20.8.1981. The reply to the charge sheet having been found unsatisfactory a departmental enquiry was held into the said charge. According to the enquiry report, although he was not found guilty of misappropriation yet he was found negligent in his duty. After issuing a show cause notice, considering his reply and hearing him in person, his services were terminated on 26.4.1982.
2. Feeling aggrieved the plaintiff-appellant filed Civil Suit No. 148 on 20.1.1984 against the Slate of Punjab etc. for a decree for declaration to the effect that the order dated 20.4.1982, passed by the General Manager, Punjab Roadways Nawanshaher, vide which his services had been terminated was illegal, wrong, ultravires malafide biased, against Punjab Civil Services (Punishment and Appeal) Rules, 1970 principle of natural justice, departmental instructions and was null and void.
3. The suit was contested by the defendant-respondents. On the pleadings of the parties, the following issues were framed:-
1. Whether order dated 26.4.1982 passed by the General Manager, as alleged in the head note of the plaint is null and void? OPP.
2. Relief.
4. After the parties led evidence their counsel were heard. Learned Sub Judge III rd class, Jalandhar, dismissed the suit vide his judgment and decree dated 22.11.1984. Civil Appeal No. 113 of 1985 filed by the plaintiff was also dismissed by the Additional District Judge, Jalandhar vide his judgment and decree dated 28.8.1986. It is that judgment and decree of the First Appellate Court which has been impugned in (his Regular Second Appeal and which requires my examination of its sustainability.
5. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.
6. Learned counsel for the appellant has vehemently argued that admittedly the plaintiff-appellant was charged for having collected an amount of Rs. 9.60 P. from 12 passengers, but did not issue tickets and mis-appropriated the said amount to his own use and that a departmental enquiry was held into the said charge. This charge was not established but the Enquiry officer returned a finding of negligence and the services of the appellant were terminated on the basis of the said report. It could not have been done for the reasons:-
i) That the plaintiff-appellant was never charge sheeted for negligence and inquiry was not held into the said charge. He had no opportunity to cross-examine the witnesses of the department on this point nor he could lead evidence in defence;
ii) that negligence in itself is not a mis-conduct.
7. Learned Assistant Advocate General, Punjab, has argued supporting the impugned judgment.
8. I find force in the submission made by the learned counsel for the appellant. Admittedly, the appellant was charged for having collected a sum of Rs.
9.60 P. from 12 passengers for their travel from Kharar to Kurali without issuing tickets and he having mis-appropriated this amount of his own use. No charge of negligence was framed against him nor an enquiry was held into the said charge. Disciplinary proceedings can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons. The Punjab Civil Services (Punishment and Appeals) Rules, 1970, provide for disciplinary action and imposition of penalties also and in accordance with the said Rules. The plaintiff-appellant was charge sheeted for mis-appropriation of the government amount i.e. Rs. 9.60 P. But the Enquiry officer found that said charge had not been proved against him. On the other hand, of his own he recorded a finding that he was guilty of negligence.
9. In this case there is manifest infirmity. For one thing, the appellant was never told that he was being charged for neglect entailing the penalty of termination of service. He might have pleaded something in extenuation. As it is the appellant was concerned only to disprove the charge of misappropriation which is said to have been resulted from his neglect. The finding of Enquiry Officer shows clearly that the charge of misappropriation cannot be said to have been established from evidence. The finding of Enquiry Officer, therefore is liable to be set aside as it is not based on evidence and is utterly founded on conjectures.
10. In holding the above view, I am fortified by ratio laid down by this Court in Saina Pati Malhotra v. Union of India and Ors., 1966 Current Law Journal, 19.
11. In view of the above discussion, the impugned judgment and decree cannot be sustained which are hereby set aside. Sequelly, this appeal is allowed. There will, however, be no order as to costs.