Regular Second Appeal No.82 of 1994 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 28, 2010 The Punjab State Cooperative Supply and Marketing Federation Limited, Sector 17, Chandigarh ...Appellant VERSUS Amrik Singh ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Amar Vivek, Advocate, for the appellant. Mr.H.S.Saini, Advocate, for Mr.R.K.Gupta, Advocate, for the respondent. ***** RANJIT SINGH, J. The Punjab State Cooperative Supply and Marketing Federation Limited through its Managing Director, has filed this Regular Second Appeal to impugn the judgment passed by the Addl.District Judge, Amritsar. Amrik Singh Sandhu, an employee of the appellant- Regular Second Appeal No.82 of 1994 : 2 : Federation, had filed a suit to challenge the order dated 11.3.1980 through which he was dismissed and so also the order in appeal dated 1.9.1982 and the order dated 16.11.1983 passed by the Revisional Authority on the ground that these were null & void. Respondent-plaintiff was working as a Field Inspector. Having been initially appointed on probation, he was made regular. Accusation of shortages of wheat bags was attributed to the respondent-plaintiff. As per him, this was wrongly done. The respondent-plaintiff would submit that his superiors were totally satisfied with his work, which was otherwise satisfactory without there being any complaint. During March, 1977, respondent-plaintiff was posted at Gurdaspur. He was detailed to do physical verification of the wheat stocks at Mill, named, C.M.S.Ajnala. The respondent-plaintiff did the verification from 18.3.1977 to 17.4.1977. The locks of the godown were broken and the stock was placed at the disposal of one Sham Lal Mehta F.S.I. Subsequently, respondent-plaintiff was transferred to Amritsar and lateron the allegations were made that there were shortages in the stock. On the basis of above allegations, enquiry was ordered against the respondent-plaintiff. A charge sheet (wrongly referred as show cause notice) was served on the respondent-plaintiff on 23.8.1979 and he submitted his reply to the same. No documents were supplied in support of the allegations made. The respondent- plaintiff, however, was told that he may inspect the record. Enquiry Officer was appointed. As per the respondent-plaintiff he was not supplied the list of witnesses. The enquiry was held and the report Regular Second Appeal No.82 of 1994 : 3 : submitted. Copy of the report was also not supplied to him. Respondent-plaintiff would contend that the enquiry was an eye- wash and was carried with pre-determined mind and on the instructions of the Managing Director, who carried a personal bias against the respondent-plaintiff. The impugned order of dismissal was accordingly passed without serving any show cause notice and without supplying copy of the enquiry report and without even waiting for the reply from the respondent-plaintiff. The respondent-plaintiff accordingly contended that the impugned order was against the canons of justice, malafide, illegal, null & void and was also in violation of principles of natural justice. The respondent-plaintiff had preferred an appeal against this order of his dismissal and followed it by filing a revision. Appeal as well as revision were dismissed on 16.11.1983 and 15.11.1986. He had accordingly filed the suit to challenge the said orders. The appellant-Markfed raised various preliminary objections in the reply filed stating that the suit was not maintainable and that the court had no jurisdiction. Suit was also termed as bad for want of notice under Section 79 of the Punjab Cooperative Societies Act. Plea of limitation was also raised. On merits, it was pleaded that the respondent-plaintiff was appointed as a Field Inspector. It was then stated that immediately after his appointment, he was involved in the case of mis-appropriation and, thus, was proceeded against. While responding to the averment made in regard to the conduct of enquiry etc., it was stated that the opportunities were afforded to the respondent-plaintiff to inspect the record. He was given opportunity to cross-examine the witnesses. Regular Second Appeal No.82 of 1994 : 4 : The copies of the requisite documents were also statedly supplied. It was, thus, stated that proper enquiry was conducted affording full opportunity to the respondent-plaintiff. It was conceded that the copy of the enquiry report was not supplied on the ground that there was no provision for supply of such documents in the rules governing the appellant-Markfed. The personal hearing concededly was not granted as the respondent-plaintiff as he did not ask for it and accordingly the impugned orders were justified. On the basis of pleadings, following issues were framed:- “1. Whether the order dated 11.3.80 passed by the defendant is legal and binding on the plaintiff? OPP 2. Whether the plaintiff is entitled to the declaration prayed for? OPP 3. Whether the suit is maintainable in the present form? OPP 4. Whether this court has jurisdiction to try and decide the suit? OPP 5. Whether the suit is within limitation? OPP 5A. Whether notice u/s 79 of Punjab Co-operative Society Act? If so its effect? OPP 6. Relief. The trial Court dismissed the suit against which the respondent-plaintiff filed an appeal, which was allowed by the first Appellate Court. Appellant-Markfed, thus, has filed this Regular Second Appeal. The appeal filed by the respondent-plaintiff was allowed on number of grounds which can be summerised as under:- Regular Second Appeal No.82 of 1994 : 5 : The first Appellate Court found that the punishing authority of the respondent-plaintiff was administrative committee and not the Managing Director and as such the charge sheet could not have been framed by the Managing Director. In this regard, reference is made to Rule 2.10 of the rules applicable to the Markfed. The first Appellate Court upheld this contention by observing that appointing authority of the respondent-plaintiff was the administrative committee and not the Managing Director. While commenting upon the resolution relied upon by the appellant-Markfed authorising the Managing Director to be the appointing as well as punishing authority, it was observed that the resolution could not be proved. It was next submitted that the charge sheet was framed in a manner that it amounted to holding the guilt of the respondent-plaintiff. This would, according to the respondent-plaintiff, showed pre-determined mind of the officer. In the charge sheet, it was mentioned that the delinquent official was responsible for the shortage in the stocks of the value of Rs.14,10,000/-. He was only asked to explain as to why he should not be punished for the above allegations. The ground which impressed the first Appellate Court was that the documents had not been supplied to the respondent-plaintiff and so also the list of witnesses. Another ground which was held in favour of respondent- plaintiff was that on completion of enquiry, copy of the enquiry report was not supplied to the respondent-plaintiff. It was also noticed that the Enquiry Officer was appointed even without waiting for the reply having been received to the charge sheet. Yet another ground, as noticed in the impugned judgment, was that the Enquiry Officer Regular Second Appeal No.82 of 1994 : 6 : Mr.K.N.Chopra was detailed, but he was not the one who had completed the enquiry and the same was subsequently conducted by one Mr.Tej Singh without there being any order on record in this regard. Though the appeal filed by the respondent-plaintiff was allowed on various grounds as noticed above, there is a serious debate raised before me on some of the points, like competency of the Managing Director to pass this order in view of the power of appointment being available with the administrative committee and that neither the list of witnesses nor the documents were supplied to the respondent-plaintiff, which has caused prejudice to his case. Counsel for the respondent-plaintiff has made reference to a view taken by the Hon'ble Supreme Court in the case of State of U.P.& Ors. Vs. Saroj Kumar Sinha, 2010(1) SCT 811, where it is observed that non-supply of documents for which the disciplinary authority is duty bound, would be a basic requirement of principles of natural justice and if an employee is deprived of this basic right, his defence is completely prejudiced. In this regard only, the counsel for the respondent-plaintiff has made reference to the case of Union of India and others Vs. Mohd.Ramzan Khan, 1991(1) S.C.T. 111, which is also related to non-supply of the copies, which was found to be a requirement to follow the principles of natural justice. Non- supply of enquiry report before imposing a penalty has also been held to be an essential requirement in large number of cases. Mr.Amar Vivek appearing for the appellant-Markfed, however, will seriously join issues on the findings returned by the Regular Second Appeal No.82 of 1994 : 7 : first Appellate Court in regard to the power of the Managing Director to pass the punitive order. According to him, the situation would change in view of the resolution which was passed authorising the Managing Director to pass the order of punishment. The question of law whether the power of punishment can be delegated by competent authority would, thus, arise. I have considered all the contentions. I am of the view that there is no need to go into these aspects as urged before me by the respective parties. I find that the respondent-plaintiff was put to a serious prejudice on yet another count to which the counsel for the appellant would also not have much to say. The charge alleged against the respondent-plaintiff was that he had shown fictitious shortage in wheat stocks thereby embezzling the stocks and causing financial loss to Markfed to the extent of Rs.14,10,000/-. The Enquiry Officer in his enquiry report, however, found that charge of embezzlement as alleged was not made out. Respondent-plaintiff was found responsible for only lacking in supervisory role. Perusal of the charge sheet/show cause notice would show that there was no allegation made against the respondent-plaintiff for being lacking in performing his supervisory duties. Still, he was blamed and ultimately dismissed from service. Apparently, thus, he was dismissed from service for the allegation, which was never urged against him in the charge sheet. The finding of the enquiry is that charge of embezzlement against the respondent-plaintiff cannot be held to be established particularly because it has not been proved that he had been handed over the charge of stocks. He was, however, found guilty of dereliction of performance of duties and acting in a most Regular Second Appeal No.82 of 1994 : 8 : careless, negligent and irresponsible manner in the matter of carrying out physical verification. This was not the charge urged against the respondent-plaintiff. The impugned order of dismissal does not indicate if this aspect that the charge as alleged against respondent-plaintiff was not established was taken into consideration or not. This aspect alone would be sufficient enough to show that case of the respondent-plaintiff was unfairly considered and he, thus, suffered a serious prejudice on that count. There is, thus, no cause made out to interfere in the impugned order. Even without going into the submissions that have otherwise been made and which had generally weighed with the first Appellate Court to come to the rescue of the respondent-plaintiff. The substantial question of law in regard to punishing an employee for something for which there was no allegation made against him, thus, would arise in this case and even if not pleaded would be enough to call for consideration. The Regular Second Appeal accordingly is dismissed. May 28, 2010 ( RANJIT SINGH ) ramesh JUDGE