R.S.A. No.2915 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2915 of 1987 Date of Decision:20.7.2010 Charan Singh .....Appellant Vs. Punjab State through the Collector .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.S. Hundal, Senior Advocate with Mr. Dinesh Trehan, Advocate for the appellant. Mr. P.C. Goyal, Additional Advocate General, Punjab. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 6.5.1987 passed by the Court of learned Additional District Judge, Amritsar whereby he dismissed the appeal filed by Charan Singh against the judgment/decree dated 8.11.1985 rendered by the Court of learned Sub Judge II Class, Amritsar vide which he dismissed the suit of the plaintiff. The facts which led to the filing of the suit are that the plaintiff who was serving in Punjab Home Guards, fell ill in 1981 on account of gall bladder disease and was hospitalised. In his absence, the store was checked at the time of annual inspection on 25.1.1982. On joining his duty in the month of February, 1982, he came to know that he has already been placed under suspension on 27.1.1982. He was charge-sheeted and after holding an inquiry, he was dismissed from service vide order dated 24.8.1984 which R.S.A. No.2915 of 1987 -2- he has impugned by way of a declaratory suit that the inquiry has not been conducted according to rules and that the documents relied upon during inquiry have not been delivered to him and that opportunity of being heard in person has also not been afforded to him. In the written statement, the defendant has inter-alia pleaded that the inquiry has been conducted in accordance with rules by providing full opportunity to the plaintiff to cross- examine the witnesses and to lead his defence evidence. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the order dated 24.8.84 passed by the Commandant General, Punjab Home Guard and Director Civil Defence, Punjab dismissing the plaintiff from the services, and forfeiting the arrears of the pay of the plaintiff for suspension period, is arbitrary, cryptic, illegal, etc., as alleged in the plaint? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the notice u/s 80 CPC is illegal and invalid? OPD 4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 5. Whether the suit is not maintainable and justi- fiable? OPD 6. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit of the plaintiff. R.S.A. No.2915 of 1987 -3- Feeling aggrieved therewith, the plaintiff went up in appeal, which was also dismissed by the Court of learned Additional District Judge, Amritsar. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the plaintiff has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.S. Hundal, Senior Advocate on behalf of the appellant stressing his every nerve maintained that as would be apparent on the face of the impugned judgment, the learned Additional District Judge, Amritsar has merely relied on the show cause notice dated 10.6.1983 to come to the conclusion that the appellant had been given proper opportunity of personal hearing during the course of departmental inquiry. As a matter of fact, the said notice is not in conformity with the requirements of Article 311 of the Constitution of India as also the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter to be referred as `the Civil Services Rules'). Furthermore, the learned Lower Appellate Court has not been able to appreciate the fact that the order dated 24.8.1984 is cryptic one as it does not disclose the application of mind by the punishing authority before inflicting punishment on the appellant. A bare perusal of this order would reveal that the punishing authority has not referred to the evidence on record produced during the course of departmental inquiry. He has merely relied upon the inquiry report and imposed the punishment of dismissal along with forfeiture of the arrears of the entire pay of the suspension period. A copy of charge-sheet having not been supplied to the appellant, he was rendered incapable of submitting his effective explanation to the alleged charges against him. Besides this, the copies of the statements of witnesses as well R.S.A. No.2915 of 1987 -4- as the inquiry report were also not supplied to the appellant with the result he was materially prejudiced in his right and could not prepare his defence in a desired manner. It is well settled that if such statements and the documents collected during preliminary inquiry are not supplied to the delinquent employee, the entire inquiry proceedings would be vitiated. Mere obtaining of signatures of government employee under the statements of witnesses would not establish that he was given an opportunity to cross- examine the witnesses appearing against him in the inquiry. The Courts below have given an undue importance to the second show cause notice issued to the appellant in order to come to a conclusion that proper opportunity had been given to the appellant to defend himself. Mere issuing of such notice would not make good the deficiency of non-supply of relevant documents during the course of inquiry. The store was inspected in the absence of the plaintiff- appellant while he was on leave due to his gall bladder disease. The inspection was made on 25.1.1982 at his back and so was prepared the inspection note of which copy was also not supplied to him. He was placed under suspension with effect from 27.1.1982 while he was on leave. He was in the state of convalescence after hospitalisation, but nonetheless, he was compelled to attend the inquiry proceedings. Had he been joined in the inspection of store, he would have been able to explain or make good or search the articles alleged to be short. The admission made by the respondent- State in the written statement that the store was inspected on 25.1.1982 in the absence of the appellant, when he was on leave and the fact that 249 live .303 rounds had been issued by him to the volunteers much before his sickness and the same could have collected by the appellant himself, have been ignored by the Courts below. It clearly indicates that the R.S.A. No.2915 of 1987 -5- charge against the appellant has not been established. This apart, there is no allegation of misappropriation of the material found deficient during inspection. The Courts below have also gravely erred in ignoring the fact that the procedure for imposing major penalties as prescribed in Rule 8, sub- rules 1 to 23 of the Civil Services Rules has not been followed by the Inquiry Officer during the course of inquiry. As required under Rule 8(3) ibid, no statement of relevant facts or any admission or any list of documents or list of witnesses was drawn up or delivered to the appellant, who was also not afforded any opportunity to state his defence orally or in writing. The appellant was also not given any opportunity to examine himself or his witnesses in his defence. Last of all, Mr. Hundal pressed into service that it is in the statement of Parkash Chand Sharma PW2 (available in the enquiry file Ex.P1) that “not all but some items were definitely checked, which were found in order.” This piece of evidence absolutely exonerates the plaintiff- appellant of the charges levelled against him. Mr. P.C. Goyal, learned Additional Advocate General, Punjab countered these arguments by urging with great vigour that a careful delving into the inquiry proceedings Ex.P1 would reveal that the inquiry has been conducted by following the Civil Services Rules in stricto sensu and that being so, no holes can be picked in the judgments recorded by both the Courts below. Before proceeding further, it is pertinent to point out here that no substantial question of law arises for determination herein. On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that submissions made by Mr. P.S. Hundal are R.S.A. No.2915 of 1987 -6- unsustainable for the discussion to follow hereunder. A glance through the inquiry file Ex.P1 would reveal that Mr. G.S. Boparai, Battalion Commander, Punjab Home Guards Patti was appointed as the Inquiry Officer vide order dated 1.7.1982 and the witnesses, namely, Sarvshri P.L. Kapoor, Parkash Chand Sharma, Jagir Singh and Nityanand were cross-examined at length by the plaintiff- appellant and the incriminating circumstances appearing in the prosecution evidence were put to the plaintiff- appellant, who had sought time to produce medical certificate, which or any other evidence, he could not produce. Thus, it does not lie in the mouth of the plaintiff- appellant to contend that he was not afforded opportunity to cross-examine the witnesses or that the articles of charge were not served upon him. The signatures of the plaintiff- appellant appear to be there under the statements of all the witnesses. When he appeared as PW1 in the trial Court, under the stress of cross-examination, he admitted his all signatures in the inquiry proceedings Ex.P1. It is in his examination-in-chief that “I was charge-sheeted, but due to non-availability of the documents, I could not submit my effective reply.” One thing is clear that he was served with charge-sheet. He went on to say in his examination-in-chief that “on account of my illness, I was not fit to participate in the inquiry, but the inquiry continued and I was not given an opportunity to cross-examine the witnesses. I was not given an opportunity to defend my case,” though as noticed supra, he was given due opportunity to cross-examine the witnesses. As per Ex.P1, he participated in the enquiry proceedings from start to finish. He has come up with a plea that due to gall bladder disease, he remained hospitalised. In his reply filed to the show cause notice as finds place at Page 73 of Ex.P1, he has alleged that the R.S.A. No.2915 of 1987 -7- wounds of his operation being unhealed and secreting or exuding, he could not think as to what statement was being made by him. If he had undergone gall bladder laparoscopy or operation, in all probabilities, he would have produced and proved the operation notes by examining the Surgeon, whosoever had carried out his operation. There being no such evidence, how his such plea can be accepted. Furthermore, this Court is not to sit in appeal over the impugned order. This Court is only to see whether the Civil Services Rules insofar as are applicable to the plaintiff's case have been violated during the course of inquiry proceedings. But to the utter dismay of the plaintiff- respondent, host of arguments raised on his behalf are nullified by the documentary evidence available in Ex.P1. Of Course, Mr. Parkash Chand has stated, as has been pointed out by the learned counsel for the appellant, but it is apt to be borne in mind that he has merely stated that only a few items were checked which were found in order. He has nowhere stated that the entire stock of the store was checked and no shortage was found. There is nothing on the record to show that the departmental authorities in any manner were inimically disposed of towards the plaintiff- appellant and for that reason, the deficiency of items in store at the time of annual inspection has been shown without any basis. May be that when the annual inspection was drawing near, there being shortage of items in the store, the plaintiff- appellant managed to get himself admitted in the hospital to circumvent situation of annual inspection. As follows from the second show cause notice in the inquiry file, the plaintiff- appellant was called upon by the punishing authority to file his written explanation, if he so desires and he submitted a detailed explanation. It is also mentioned in this notice that if he wants audience with the punishing authority i.e. R.S.A. No.2915 of 1987 -8- Commandant General Punjab Home Guards, he can avail it. It goes a long way in proving that due and proper opportunity of being heard in person has also been afforded to him. As emanates from the impugned orders, the punishing authority after having applied his mind to the inquiry report as also the reply filed by the plaintiff- appellant to the show cause notice, had come to the conclusion that there was a shortage of 249 live .303 rounds. There is nothing on the record to reveal that the show cause notice containing all the details, is violative of the Civil Services Rules. The punishing authority is not supposed to discuss the entire evidence in his order while concurring with the findings arrived at by the inquiry officer. It is not being evidenced by the inquiry report or the impugned order that the proceedings conducted during preliminary inquiry, if any, were relied upon or taken into consideration. If the missing articles were issued by the plaintiff- respondent to the volunteers etc., he could have accounted for the same by producing the relevant record in his defence. To conclude finally, there is nothing on the record to show that either the Inquiry Officer or the punishing authority at any stage, had acted in derogation of the Civil Services Rules. Consequently, the findings returned by both the Courts below warrant no interference. As a sequel of the above discussion, the appeal fails and is dismissed with no order as to costs. July 20, 2010 ( HARBANS LAL ) renu JUDGE