IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2907 of 2007 (O&M) Date of decision: August 16, 2010 Attar Singh Dhoor .. Appellant Vs. State of Punjab and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Subhash Ahuja, Advocate for the appellant. Mr. C.S. Brar, DAG, Punjab for the respondents. A.N. Jindal, J This regular second appeal is directed against the judgment and decree dated 6.2.2007 passed by the learned Additional District Judge, Chandigarh accepting the appeal, setting aside the judgment dated 1.8.2006 and dismissing the suit of plaintiff-appellant (herein referred as 'the plaintiff'). The factual matrix of the case is that the plaintiff was duly selected and appointed as Tehsil Welfare Officer in July, 1961 and owing to his hard work and good performance, he was selected by Punjab Public Service Commission as District Welfare Officer in the year 1978. At the instance of Niranjan Singh, Assistant Director, some false complaints were made against him, on the basis whereof, he was charge sheeted by the department on 27.12.1983. The matter was enquired into by J.R. Kundal, Director, Welfare of Schedule Castes/Backward Classes and the plaintiff was exonerated. However, the defendant No.2 did not agree with the report made by J.R. Kundal, Director and ordered for full dressed enquiry. The defendant No.2 fixed pay scale of the plaintiff in compliance with the order dated 29.10.2002 and 27.11.2002 and directed to release the monetary benefits to him. On 27.11.2002, a letter was written to the Finance Department to accord necessary permission to release monetary benefits. It has been further averred that when the case of the plaintiff was at the initial stage for release of monetary benefits, the defendant No.2 passed another order dated 24.6.2003 reviewing the order dated 29.10.2002 and ordering R.S.A. No. 2907 of 2007 -2- *** the de-novo enquiry. Then the Enquiry Officer without recording evidence and without proving documents on record submitted an ex-parte enquiry report on 10.9.2003 against the plaintiff, on the basis of which the defendant No.3 vide order dated 14.5.2004 removed the plaintiff from the services with retrospective effect w.e.f. 1.6.1990. On notice, the defendants No.1 to 3 filed their joint written statement raising the preliminary objections viz the suit is not maintainable and the suit is barred by limitation. It has been further averred that since the judgment and decree dated 10.1.2001 had permitted the defendants to pass appropriate order, therefore, the appointment of Enquiry Officer vide order dated 24.6.2003, was in consonance with the said judgment. The plaintiff intentionally did not appear before the Enquiry Officer and refused to receive the report made against him. He was given opportunity of personal hearing by way of public notice but still he did not appear for personal hearing. On merits, defendants refuted the whole claim of the plaintiff and reiterated that the order of punishment passed by the competent authority is legal, valid and justified. Short affidavit was filed on behalf of the defendant No.4 pleading that it was impleaded as proforma party and it has nothing to do with the matter. On the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 3. Whether the suit of the plaintiff is time barred?OPD 4. Whether the suit filed by the plaintiff is not maintainable?OPD 5. Relief. R.S.A. No. 2907 of 2007 -3- *** The parties led evidence and ultimately the suit of the plaintiff was decreed with costs vide judgment dated 1.8.2006. Feeling aggrieved, the defendants filed an appeal which was accepted by the learned Additional District Judge, Chandigarh, vide judgment dated 6.2.2007 consequently, the appellant court set aside the judgment and decree dated 1.8.2006 passed by the trial court. Aggrieved by the aforesaid judgment and decree dated 6.2.2007, the plaintiff has come came up in regular second appeal. The following substantial questions of law arise in this appeal :- (i) Whether a retired employee can be dismissed retrospectively? (ii) Whether the order of retirement can be recalled/reviewed after the expiry of six months? (iii) Whether a de-novo enquiry could have been ordered in the facts and circumstances of the present case? Arguments heard. Record perused. It has been strenuously contended by the learned counsel for the appellant that he stood superannuated on 31.1.1995, however, the order of his dismissal was passed on 14.5.2004 with retrospective effect i.e. from 1.6.1990, which is not sustainable in the eyes of law. A person who is no more in service could not be dismissed from the service because the punishment and appeal rules apply to only those who are in the employment. After retirement, the department could at the most take action under Rule 2.2 (b) of Punjab Civil Services Rules, Volume II, on the basis of the departmental proceedings initiated prior to his retirement in case he had caused any financial loss to the State exchequer. Having pondered over the arguments and going through the record of the case, it may be observed that the predecessor of the plaintiff had recommended the purchase of the land @ Rs.400/- per marla, whereas, the plaintiff had recommended the value of the land to be purchased @ Rs.580/- per marla. Consequently, vide order dated 20.1.1983, a R.S.A. No. 2907 of 2007 -4- *** departmental enquiry was ordered against him, which reached into culmination on 10.10.1984 (Ex.P3) and it was observed Sh. J.R. Kundal, Enquiry Officer that there was no malafide on the part of the plaintiff. Thereafter, on another enquiry report dated 3.8.1986 (Ex.P4), ultimately, the plaintiff was terminated from service with effect from 30.5.1990 (Ex.P5). Earlier order of punishment was challenged before the civil court wherein the civil court while decreeing the suit vide judgment and decree dated 10.1.2001 had held the enquiry as de-novo. Consequently, pursuant to the judgment dated 10.1.2001, the defendants withdrew their orders dated 29/30.5.1990 and 11.2.1992 being illegal. There is also no denying a fact that enquiry officer held the enquiry in favour of the plaintiff. His date of retirement was taken as 31.1.1995 instead of 30.5.1990. Thereafter, when the case of the plaintiff for pension and release of other monetary benefits was pending with the defendants, the defendant No.2 passed the order dated 24.6.2003 reviewing the order dated 29.10.2002 and ordered to hold de-novo enquiry which is not permissible in the eyes of law. There is no dispute that the order of retirement of the plaintiff was passed on 29.10.2002 which was recalled on 24.6.2003 i.e. after a period of six months, for holding a de-novo departmental enquiry. The defendants had no authority to review its order after expiry of six months under Rule 21 of Punjab Civil Services (Punishment & Appeals) Rules 1970 which reads as under :- “21. Review- (1) Notwithstanding anything contained in these rules - (i) The Governor; or (ii) the appellate authority, within six months of the date of the order proposed to be reviewed; or (iii) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order; a) confirm, modify or set aside the order; or b) confirm, reduce, enhance or set aside the penalty R.S.A. No. 2907 of 2007 -5- *** imposed by the order or impose any penalty where no penalty has been imposed; or c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or d) pass such other orders as it may deem fit.” Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the specified in clauses (v) to (ix) or Rule 5 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in rule and except after, consultation with the Commission, where such consultation necessary.” A perusal of the aforesaid Rule specially Rule 21 (i) (ii) reveals that the Appellate Authority has discretion to review an order passed under the provisions of the 1970 Rules within a period of six months. Reliance, if any, could be placed on a Division Bench judgment of this court passed in the case of Inder Singh Brar and others vs. State of Punjab and another 2004 (1) RSJ 615 wherein it was observed as under :- “......... In our view, in view of the limitation stipulated under Rule 21 (i) (ii), the order dated 24.8.1995 could have been reviewed only within a period of six months thereafter. Since the decision to review the order dated 24.8.1995 was taken by the Appellate Authority only on 28.2.2000, the same was clearly beyond the purview of Rule 21, as period manifold than R.S.A. No. 2907 of 2007 -6- *** the stipulated period had expired by the time the Appellate Authority i.e. the Secretary, Department of Food and Supplies, Punjab took a decision (on 28.2.2000), to review the order dated 24.8.1995.” From the bare reading of Rule 21 and the Punjab Civil Services (Punishment & Appeal) Rules, 1970 and law laid down in Inder Singh Brar's case (supra) it is patent that the power of review can be exercised within a period of six months only. As such, the order dated 24.6.2003 passed by the defendants holding a de-novo enquiry proceedings as well as the consequential order dated 14.5.2004 of dismissal are void and stood vitiated in law. It may further be noticed that the plaintiff was only one of the five members of the Committee constituted for selecting and negotiating the rates for the purchase of the land from the landowners as per provisions of the Assistance to Schedule Caste for Development of Manurial Pites Rules, 1980. The rates negotiated by the Committee were further subject to the approval of the defendant No.3. Thus, the plaintiff being only one of the members cannot beheld responsible for fixation of rates by the Committee. It has also been established on record that no action had been taken against the other members of the Committee. In these circumstances, the action taken by the defendant department in taking action against the plaintiff alone itself is arbitrary, discriminatory and against the law. Similar view was taken by the Apex Court in case Bongaigaon Refinery & P.C. Ltd. and others vs. Girish Chandra Sarmah, 2007 (4) RSJ 548 wherein it was observed as under :- “8. ....... but in the present case what appears us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the land owner was Rs.30 lakhs. But, this was tentative price given by the land owner and the authorities negotiated with the land owner and she quoted the R.S.A. No. 2907 of 2007 -7- *** price at Rs.61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C. Goswami, General Manager (Marketing) who was the Chairman of the Tender Negotiating Committee and even otherwise also just because that one of the Officers has submitted a preliminary report intimating the price given by the land owner as Rs.30 lakhs for 7 acres of land, that does not bind the land owner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant Company who had inquired from the land owner cannot be found guilty. The respondent cannot be held responsible for the same and more so in the present case the price has been negotiated by the Price Negotiating Committee. Therefore, simply because the preliminary report was submitted by the respondent and all the three Committees in which he was member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committee are equally responsible. Therefore, such findings given by the enquiring authority cannot be countenanced.' It has come on record that no land was purchased by the department on the basis of the earlier proposal or on the basis of the proposal made by the Committee of which the plaintiff was also one of the members. As such, it cannot be said that any loss has been caused to the State exchequer. It has also been established on record that pursuant to the order of retirement, the pay of the plaintiff was fixed and he was paid for the period he remained under suspension. This fact has further been substantiated by the Principal Secretary to the defendant department in his affidavit dated 3.3.2010 wherein it is admitted that the plaintiff was paid Rs.29074/-. It has been well settled by now that once an order passed by the competent authority has come into operation and has been implemented, the same cannot reviewed by his successor in office. In the instant case, as is evident from the aforesaid affidavit as well as order dated 24.6.2003, the decision to recall the earlier order 29.10.2002 was passed on the basis of the R.S.A. No. 2907 of 2007 -8- *** communication from the Finance Department and not by the Administrative Department of the plaintiff. Under these circumstances, the order dated 24.6.2003 enquiry report dated 10.9.2003 and order dated 14.5.2004 termination of services deserved to be declared as invalid. The first appellate court appears to have fallen in error while not taking note of the aforesaid facts of the present case, as such, interference at my end has become inevitable. All the substantial questions of law are answered in favour of the plaintiff. Resultantly, the instant appeal is allowed, the impugned judgment and decree dated 6.2.2007 is set aside and the suit filed by the plaintiff-appellant is decreed. However, there is no order as to costs. August 16, 2010 (A.N. Jindal) deepak Judge