REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 16, 2010 Kuldip Singh .....Appellant VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. K. Arya, Advocate, for the appellant. Ms. Ambika Luthra, AAG, Punjab, for the State. **** RANJIT SINGH, J. An Ex. Police Constable has filed this appeal to impugn the judgment passed by the Trial Court as well as by the First Appellate Court, dismissing his suit in which he has challenged his order of termination from service. The appellant was serving with 3rd Commando Battalion, when he was dismissed from service on 21.4.2003 due to his absence for 32 days and few hours. As per the allegation, the appellant was found absent in the evening roll call on 27.10.2002. A show cause notice dated 21.3.2003 was served on him. In response he filed a reply on 17.4.2003, mentioning that he could not report due REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 2 }: to illness of his son. No departmental appeal was filed against the termination order. It was simply averred that he had gone to his house to see his ailing son after getting verbal permission from his superiors. The doctor attending his son, however, advised him to look after his son, which he continued to do till 27.11.2002 and as such, he could not report back. His primary grievance, however, is that the Punishing Authority did not serve any show cause notice to him or to bring to his notice his previous conduct relating to his absence on 33 occasions, which had primarily weighed with the authorities to pass this order. The appellant would term this to be bad on account of double jeopardy. He would also urge that the punishment awarded is disproportionate and too harsh and that his length of service was not taken into consideration as is required under law. On being put to notice, the respondent-defendant appeared to file a written statement. A preliminary objection was raised saying that no valid notice was served under Section 80 CPC. The jurisdiction of the Civil Court to entertain the suit was also put to challenge. On merits, it was pleaded that the appellant had not filed any departmental appeal or revision and had remained absent without taking any permission or leave. The appellant was also statedly given time to file reply to the show cause notice but he neither appeared before the Punishing Authority nor submitted any reply. The notice dated 10.4.2003 was served on the father of the appellant, when he appeared on 17.4.2003. Thus, it is stated that opportunities were given to the appellant by the Enquiry Officer. Following issues were framed by the Trial Court:- REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 3 }: “1. Whether the plaintiff is entitled to declaration as prayed for? OPD 2. Whether the plaintiff has no cause of action to file the present suit? OPD 3. Whether this Court has no jurisdiction to try and entertain the present suit? OPD 4. Whether the notice served to the defendants under Section 80 C.P.C. Bv is not legal and valid? 5. Relief.” The Trial Court dismissed the suit by observing that the period of absence of the appellant was not in dispute. The Court accordingly noticed that the only aspect requiring consideration was whether Rules and principles of natural justice were followed or not while holding departmental proceedings. IN this regard, the main submission made by the appellant was that his length of service was not considered and that he was not put to notice about his previous bad conduct which was taken into consideration. Reference was made to the part of the impugned order, which was reproduced to indicate that due consideration was given to his service while passing the dismissal order. It can not be said that past record or punishment awarded to the appellant were taken into consideration while passing the dismissal order. What all noted is that:- “...the delinquent is an incorrigible person and he can not become a good police employee.” This obviously would not mean that his past punishments were taken into consideration while dismissing him from service. The REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 4 }: only fact which is mentioned in the order is that the appellant is a incorrigible person and can not become a good employee. This may, at the most, amount to making reference to his past bad record but can not be taken to mean that the past record/punishments were considered while passing the impugned order of punishment. The first Appellate Court, while considering this aspect, observed that the past record of the appellant could be made the basis of his dismissal from service but this could be done only after affording of opportunity of being heard. The Court found it as a fact that the impugned order was based only on the proven misconduct regarding absence of the appellant from 27.10.2002 to 28.11.2002 and only reference has been made to the past record, which was not relied upon. The manner in which the past record had been referred to is noticed above. The first Appellate Court is, thus, not unjustified in observing that only a reference was made to the past record and it would not show that the past record was used or that it had formed basis of ordering dismissal of the appellant. Learned counsel appearing for the appellant, however, has referred to The State of Mysore Vs. K.Manche Gowda, AIR 1964 Supreme Court 506. The Hon'ble Supreme Court in this case has viewed that if the proposed punishment is mainly based on the previous record and if it is not disclosed in the notice, it would mean that the main reason for the proposed punishment is withheld from the knowledge of the Government servant. It is also observed that the Government servant is entitled to know that these facts will be taken into consideration while inflicting punishment on him. REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 5 }: There can not be any dispute with this proposition of law. As already noticed, in the present case, past punishment or record has not been made the basis of the proposed punishment and it can not be said that the punishment was based on the previous record of the appellant. The case of State of Haryana Vs. Mohinder Partap, 1997 (2) S.C.T. 120, relied upon by the counsel would also not apply to the fact situation in the present case. This was a case where the Constable was dismissed on account of his misconduct and a previous bad conduct. That is not the situation available in the present case. Similarly, State of Punjab and others Vs. Jaspinder Singh, 2008 (3) RSJ 461 was a case where previous punishments were taken into consideration without supplying the copies thereof to the delinquent employees. This was held to be against the principles of natural justice, besides being violation of Rule 16.24 of the Punjab Police Rules. As already noticed, in the instant case, no previous punishments have been taken into consideration while imposing this punishment and it is only noticed that the appellant is incorrigible. This would only mean that only reference was made to his past record and the same was not relied. This issue has recently been considered by the Hon'ble Supreme Court in the case of Union of India and others Vs. Bishamber Das Dogra, JT 2009 (9) SC 175. The issue under consideration in this case was also whether while imposing the punishment, it is permissible to take into consideration, the past conduct of an employee, if it is not so mentioned in the show cause notice. This very question was earlier considered by the Hon'ble REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 6 }: Supreme Court in the case of State of Assam Vs. Bimal Kumar, AIR 1963 Supreme Court 1612. It was observed that while issuing show cause notice, the Disciplinary Authority naturally has to come a tentative or provisional conclusion about the guilt of the charged employee as well as the punishment which would meet the requirement of justice in the case. Having reached this conclusion, the Disciplinary Authority is required to issue such a show cause notice. In State of Mysore Vs. Manche Gowda, AIR 1964 Supreme Court 506, it was viewed that the Disciplinary Authority should inform the delinquent employee that it was likely to take into consideration the past conduct while imposing the punishment, unless the proved charges are so grave that these may independently warrant the proposed punishment. The observations made in the case of India Marine Service (P) Ltd. Vs. Their Workmen, 1963 (3) SCR 575, would be relevant to note where it was held that when past records was taken into consideration, it would not follow therefrom that the same was the effective reason for dismissing him. While passing the termination order, if it is added as an additional reason to arrive at the decision in this regard, it would not mean that past record was taken into consideration. In Director General, RPF v. Ch. Sai Babu , JT 2003 (1) SC 557, the Court viewed that the punishment imposed should not normally be disturbed by the High Court or the Tribunal except in appropriate cases that too only after reaching a conclusion that punishment imposed is grossly or shockingly disproportionate after examining all relevant factors including the nature of charges proved against the past conduct, the penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 7 }: exactness expected of and discipline required to be maintained. The contention that past record can not be taken into consideration unless it is part of the charge sheet was also considered by the Court in Govt. of A.P. & Ors. v. Mohd. Taher Alia, 2007 (8) SCC 656. This contention was rejected by saying that there can be no hard and fast rule that merely because the earlier misconduct was not mentioned in the charge sheet, it can not be taken into consideration by the Punishing Authority. The consideration of earlier misconduct is often necessary only to reinforce the opinion of the authority. It has also been emphasized that in all such cases the application of doctrine of prejudice is also required to be taken into consideration. The Courts would not normally interfere with the order of punishment, when such a course may not be in the interest of justice. As has been noticed that interest of justice would equally demand that the guilty should be punished and the technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. As is observed, principles of nature justice are but the means to achieve the ends of justice. As held in M.C. Mehta versus Union of India & Ors. JT 1999 (5) SC 114, an order passed in violation of natural justice need not be set-aside in exercise of writ jurisdiction, unless it is shown that the same has caused prejudice to the person concerned for the reason that quashing of such an order may revive another order which in itself is illegal or unjustified. In view of the above noted legal position, it can be said that while passing the impugned order, the past record may have REGULAR SECOND APPEAL NO.150 OF 2009 (O&M) :{ 8 }: been added as an additional reason which would not mean that the past record was taken into consideration. (See India Marine Service (P) Ltd.'s case (Supra). The observation that the appellant is incorrigible would only mean that reference was made to the past record but this was not an effective reason for passing the impugned order. The substantial question of law as to whether there was need to serve notice on the appellant about his past record before taking into consideration and whether there was any violation of principles of natural justice in this regard is answered accordingly. It is not a case where past record was taken into consideration. The judgment under appeal, thus, has been rightly passed and would not call for any interference. The Regular Second Appeal is, therefore, dismissed. March 16 , 2010 ( RANJIT SINGH ) khurmi JUDGE