LPA NO. 1209 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA NO. 1209 of 2010 (O&M) Date of Decision 22.11.2010 Er. Mahinder Singh -----Appellant Versus Punjab Electricity Board and others ----Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Gangeshwar Walia, Advocate for the appellant. Mr. P.S. Brar, Advocate for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against the judgment dated 27.07.2010 rendered by the leaned Single Judge of this Court holding that the charge- sheet pertaining to year 1976 issued in respect of an employee who had retired in the year 2009 is liable to be quashed on the ground of delay. However, the quashing of charge-sheet has been confined to charge Nos. 2, 3, 4, 5 and 6 because no substance was found in those charges by the Punishing Authority. Even in respect of charge No.4, the learned Single Judge has opined that it could not be pressed against the appellant because the appellate authority had absolved the appellant in respect of that charge. The only charge LPA NO. 1209 of 2010 (O&M) -2- which was left is part of charge No.1, which has been limited to the extent for which appellant was earlier made liable. 2. Before dealing with the legal issue, it would first be necessary to notice few facts. The appellant was enrolled by the respondent-Board as an Apprentice Engineer on 27.01.1976. He was posted as Assistant Engineer on 27.07.1976. When he was posted as Sub Divisional Officer in TLC Sub Division No.2, Hoshiarpur, a charge-sheet (Annexure P-1) was served upon him, which was based on six incidents as disclosed in the statement of charges. There was a proposal that the appellant be subjected to enquiry in respect of those charges. He filed reply to the charge-sheet and a regular departmental enquiry was conducted against him. The Enquiry Officer held that charge No.1 was partly proved and charge No.4 was also proved against the appellant. In respect of charge Nos. 2, 3, 5 and 6, the appellant was exonerated. The punishing authority accepted the report of the enquiry officer and dismissed the appellant from service vide order dated 09.01.1986. A bird's eye view of the finding recorded by the enquiry officer has been extracted by the punishing authority in the dismissal order (Annexure P-2), which shows that charge No.1 partly and charge No.4 were proved. The aforesaid portion of the dismissal order reads as under: “4. AND WHEREAS, the inquiry officer submitted his enquiry report wherein the charge No.1 against Er. Mohinder Singh has proved to the extent (a) that LPA NO. 1209 of 2010 (O&M) -3- the respondent (Er. Mohinder Singh) demanded Rs. 800/- by way of illegal gratification but this amount was not actually paid by Sukhdev Singh (b) that the demand of this amount was made in the presence of Sh. Bhagwant Singh School teacher on 9.02.77 (c) that he retained the test report beyond the stipulated period for the purpose of extracting illegal gratification, from the consumer. The charge No.4 also proved against the officer.” 3. On an appeal filed by the appellant challenging the order of dismissal, the appellate authority converted the punishment of dismissal from service into stoppage of one annual increment with cumulative effect. Consequently, he was reinstated in service vide order dated 08.05.1986. The intervening period was to be treated as leave of the kind due. 4. The order dated 08.05.1986 inflicting punishment of stoppage one annual increment with cumulative effect was challenged by the appellant by filing a Civil Suit in the Court of Civil Judge (Junior Division), Batala. The suit of the appellant was decreed vide judgment and order dated 31.01.1996 (Annexure P-4). The civil court found that neither any show cause notice nor any opportunity of personal hearing was granted to the appellant while inflicting the punishment of major penalty. Therefore, it was concluded that there was blatant violation of principles of natural LPA NO. 1209 of 2010 (O&M) -4- justice. It was further found that the appellant was not given even an enquiry report, which was required to be furnished to the appellant to provide him an opportunity to explain the findings and his own position. Accordingly, order dated 08.05.1986 imposing the punishment of stoppage of one annual increment was set aside. The respondent-Board thereafter proceeded to issue fresh charge- sheet on all the six charges which included those charges for which the appellant was absolved earlier following the cardinal principles that a person cannot be tried or punished twice for the same charge. 5. The learned Single Judge accepted the contention raised by the appellant. The aforesaid contention is based on a Division Bench judgment of this Court rendered in the case of Parkash Nath Saidha, Naib Tehsildar v. The Financial Commissioner (Revenue) Punjab, Chandigarh and others, 1972 SLR 601. Accordingly, the only charge which survived for fresh adjudication were part of charge No. 1 and charge No.4. In respect of charge No.1, the enquiry officer in his earlier report dated 09.01.1986 has recorded following findings, which reads thus: “i) S. Sukhdev Singh s/o Bhan Singh r/o vill. Thuliwal had applied for a 25 BHP connection in Op. Sub Divn. Sherpur. Er. Mohinder Singh, SDO who was then posted as SDO Op. Sub Divison Sherpur harassed Sukhdev Singh aforesaid by not releasing his applied connection firstly by raising baseless objections at the time of verifying his test LPA NO. 1209 of 2010 (O&M) -5- report and secondly after the service connection order had been issued, because the prospective consumer did not pay him the sum of Rs. 800/- demanded as illegal gratification by Er. Mohinder Singh, SDO. The demand of this illegal gratification was made by the SDO in the presence of S. Bhagwant Singh s/o Inder Singh r/o vill. Nangle a School teacher on 9.2.77. Due to non payment of illegal gratification by this prospective consumer, the SDO did not release his 25 BHP, SP connection till he remained posted as SDO Sherpur. The demand of illegal gratification was also brought to the notice of Sh. Chand Singh Chopra, Ex-MLA r/o village Hamidi PS Barnala who has raised voice publically as well as in the Punjab State Assembly. In consequence thereof the incident was also published in the weekly paper/ 'Lok Lehar' on 29.03.77. S/Sh. Ram Singh, consumer Clerk and Mukand Singh IS of Sherpur Sub Divn. have stated that the SDO had raised unnecessary and uncalled for objections while verifying the test report of Sukhdev Singh aforesaid for the ulterior motives. The test report passed by the said SDO was retained by him for 40 days in order to extract illegal gratification from this prospective consumer.” LPA NO. 1209 of 2010 (O&M) -6- 6. In the order of dismissal, the findings of the enquiry officer have been cited on the aforesaid charge, which reads thus: “4. AND WHEREAS, the Inquiry Officer submitted his enquiry report wherein the charge No.1 against Er. Mohinder Singh has proved to the extent (a) that the respondent (Er. Mohinder Singh) demanded Rs. 800/- by way of illegal gratification but this amount was not actually paid by Sukhdev Singh (b) that the demand of this amount was made in the presence of Sh. Bhagwant Singh school teacher on 9.2.77 (c) that he retained the test report beyond the stipulated period for the purpose of extracting illegal gratification, from the consumer.” 7. In respect of charge No. 4 findings recorded were that the said charge is proved, which reads thus: “iv) S. Bhaga Singh s/o Sarwan Singh r/o village Gurbaksh pura has also affirmed that a sum of Rs. 300/- was demanded and accepted by Er. Mohinder Singh, SDO on 15.2.77, from him for passing his test report of the tubewell applied in the name of his uncle Kapur Singh, being their joint property.” 8. Mr. Gangeshwar Walia, learned counsel for the appellant has vehemently argued that no fresh charge-sheet even in respect of partly proved charges i.e. charge No.1 and charge No. 4 could be LPA NO. 1209 of 2010 (O&M) -7- issued because the civil court's decree dated 31.01.1996 (Annexure P-4) does not leave it open to the respondent-Board to issue a fresh charge-sheet. The learned counsel has argued that the specific permission from the Court was required to be obtained particularly when mandatory provisions of Punjab State Electricity Board Employees (Punishment and Appeal) Rules, 1971 have been found to be flagrantly violated. He has further submitted that such a permission would have been declined at the time of passing of decree on 31.01.1996 because the charges are stale and pertain to year 1976. Learned counsel has pointed out that there is no possibility of producing evidence after more than 30 years and the case of the appellant would be completely prejudiced. In any case, holding of de novo enquiry has been objected by the learned counsel for the appellant and it is urged that the issuance of fresh enquiry report, especially when the appellant has retired would be wholly improper and deserves to be quashed. He has further submitted that the pensionary benefits of the appellant have not been released, therefore, direction be issued for releasing of the pensionary benefits without further delay. 9. Mr. P.S. Brar, learned counsel for the respondent-Board has vehemently argued that there was no necessity to seek specific permission from the Court because as a matter of law, it is open to the respondent-Board to re-start the enquiry proceedings against the appellant. According to the learned counsel, power to institute de novo enquiry is inherent with the respondent-Board and it is not LPA NO. 1209 of 2010 (O&M) -8- dependent merely on the permission of the Court. 10. Having heard learned counsel for the parties and keeping in view the totality of the circumstances, we are of the view that the matter deserves to rest at this stage because the appellant stands retired in the year 2009. He had successfully challenged order dated 08.05.1986 inflicting upon him punishment of stoppage one annual increment with cumulative effect. It is pertinent to notice that the view of the appellate authority on charge No.1 and charge No.4 as recorded in the order dated 08.05.1986 reads as under: “4. AND WHEREAS, the Inquiry Officer submitted his enquiry report wherein the charge No.1 against Er. Mohinder Singh has proved to the extent (a) that the respondent (Er. Mohinder Singh) demanded Rs. 800/- by way of illegal gratification but this amount was not actually paid by Sukhdev Singh (b) that the demand of this amount was made in the presence of Sh. Bhagwant Singh school teacher on 9.2.77 (c) that he retained the test report beyond the stipulated period for the purpose of extracting illegal gratification, from the consumer. The charge No.4 also proved against the officer.” 10. AND WHEREAS the plea given by Sh. Mohinder Singh was considered and it was concluded that charge No. IV has not been fully LPA NO. 1209 of 2010 (O&M) -9- established by any independent evidence, nor has it been corroborated by circumstantial evidence beyond doubt. In regard to charge No.1, no exchange of money has taken place and dismissal of Sh. Mohinder Singh from service on this partly proved charge is on high side. Accordingly, it was decided that Sh. Mohinder Singh be reinstated and the punishment changed to stoppage of one increment with cumulative effect. The intervening period i.e. the date of which he relinquished charge and the date on which he will taken ever will be treated as leave of the kind due.” (Emphasis added) 11. A perusal of the aforesaid findings recorded by the appellate authority as well as by the enquiry officer would show that the charge of accepting illegal gratification has not been proved and even in respect of charge No.4, the appellate authority says that it has not been fully established by any independent evidence nor it has been corroborated by any circumstantial evidence beyond doubt. After passing of order, the appellant went to civil court and after 10 years of litigation, his suit was decreed. The respondent-Board did not file any appeal against the judgment and decree dated 31.01.1996. It has also failed to secure any express order from the civil court to hold an enquiry afresh. It is also worthwhile to notice that no Letters Patent Appeal or cross objection have been filed LPA NO. 1209 of 2010 (O&M) -10- against the view taken by the learned Single Judge. Moreover, the appellant stands retired in the year 2009. Therefore, in the peculiar facts and circumstances of this case, we are of the view that it would be futile exercise to permit holding of enquiry even in respect of a part of charge No.1. We are further of the view that the decree of the civil court dated 31.01.1996 should govern the right of the parties and it should not now be permitted to tinker with. 12. We have taken the aforesaid view on account of peculiar facts and circumstances of this case. This order shall not be taken to mean that a general principle of law has been laid down. We have not determined any question of law and have decided the matter on the peculiar facts and circumstances of the case. 13. As a sequel to the above discussions, the appeal succeeds and the charge-sheet dated 30.05.1996 even in respect of the part of charge No.1 and charge No.4 is hereby quashed. As the appellant has not been paid his pensionary benefits after superannuation, the same be released to him expeditiously, as early as possible within a period of three months. 14. The appeal stands disposed of in the above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE November 22, 2010 Atul