LPA No.2068 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.2068 of 2011 Date of Decision: November 11, 2011 Housing Board, Haryana .......Appellant Versus Sh.S.B.Kumar, Asstt.Engineer & another .......Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Mr.Arun K.Bakshi, Advocate for the appellant. Ms.Gargi Kumar, Advocate for the Caveator. <><><> TEJINDER SINGH DHINDSA, J. Housing Board Haryana filed Civil Writ Petition No.17232 of 2011 impugning the order dated 21.1.2011 passed by the Financial Commissioner and Principal Secretary to Government of Haryana, Housing Department, Haryana whereby the order dated 13.3.2003 imposing the penalty of dismissal upon respondent No.1 herein, has been set aside and he has been held entitled to all consequential benefits. Learned Single Judge having dismissed the writ petition vide impugned judgment dated 14.9.2011, resultantly, the Housing Board is before us in the instant Letters Patent Appeal. LPA No.2068 of 2011 2 2. The brief factual backdrop would be necessary: Respondent No.1, who was a permanent employee of the Housing Board, Haryana was given current duty charge of the post of Executive Engineer and was associated with a project of construction of 600 four-storeyed flats in Sector 14, Panchkula in the year 1993. He was placed under suspension on 3.7.1995 and thereafter served with five charge sheets between the period 16.5.1996 to 25.9.1996. The Enquiry Officer held respondent No.1 guilty of the charges by furnishing enquiry report dated 30.7.1999, and after issuance of a show cause notice, order dated 13.3.2003 was passed dismissing respondent No.1 from service. Respondent No.1 availed of his statutory remedy of filing an appeal, and vide orders dated 22.12.2003, the Appellate Authority directed his re-instatement. However, the Board of Directors of the Housing Board took a view that the Appellate Authority should take a fresh view on the matter, vide its resolution dated 14.9.2005. In pursuance of such decision, the Appellate Authority passed order dated 10.12.2007 disposing of the appeal being without any force. Against such orders, respondent No.1 filed a revision petition which was accepted by respondent No.2 and orders dated 21.1.2011 were passed and the order of dismissal passed against respondent No.1 was set aside. The Revisional Authority further held that the suspension period of respondent No.1 from 3.7.1995 to 13.3.2003 stood regularized and he was entitled to full back wages. Recovery of Rs.4,20,12,463/- imposed upon respondent No.1 was also set aside. It was such order dated 21.1.2011 passed by the Revisional Authority that was challenged by the Housing Board in Civil Writ Petition No.17232 of 2011. 3. Mr.Arun K.Bakshi, learned counsel appearing for the appellant- LPA No.2068 of 2011 3 Housing Board, Haryana has strenuously argued that the order dated 21.1.2011 passed by respondent No.2 was not as a Revisional Authority but has been passed in the capacity of an Appellate Authority. He has also contended that respondent No.2 has over-stepped his revisional jurisdiction inasmuch as evidence could not have been re-appreciated in the manner in which it has been done. It has also been contended before us that the order dated 21.1.2011 violates the principle of 'no work no pay' as respondent No.1 has been held entitled to full pay and wages for the period he was under suspension i.e. 3.7.1995 to 13.3.2003 and thereafter from 13.3.2003 to the date of superannuation of respondent No.1 i.e. 31.1.2008. Learned counsel submits that respondent No.1 having not discharged his duties for the period aforementioned, no pay and wages could have been granted. 4. We have minutely perused the pleadings on record. A few glaring facts emerge therefrom. An enquiry was marked to the Haryana Vigilance Department in relation to the execution of the project in question and in addition thereto, the Government had also taken a decision to seek a technical opinion of Shri RK Aggarwal, the then Engineer-in-Chief of the Building and Roads Department. In terms of the opinion of the Engineer-in Chief, there had been an enhancement in the scope of work and the same was attributed to an Officer of the rank of Chief Engineer. The Haryana Vigilance Department having gone through the entire records and having recorded statements of various persons submitted its enquiry report in September, 1995 and had held in the following terms: “That the Housing Board Colony which had been constructed is a modern type of colony and has been constructed with the latest technique and all the houses of this colony have been LPA No.2068 of 2011 4 sold, by which the Board has earned a profit of Rs.13 crores inclusive of about Rs.8 crores as interest and administrative charges. The houses constructed in the Housing Board Colony appear to be of good quality and occupants of these houses have also appreciated the quality and construction of the houses and there is no violation of the financial rules”. 5. As such, the vigilance enquiry as also the technical opinion sought by the Government had returned no finding at all against respondent No.1. Rather he stood virtually exonerated of all the allegations. It so transpires that the Chief Administrator of the Housing Board then forwarded a proposal to the Housing Commissioner on 27.11.1995 to seek approval for a technical audit of Panchkula Division including the project in question by a technical Committee comprising of one Shri V.P.Gupta, Superintending Engineer, amongst others. The Housing Commissioner vide communication dated 18.12.1995 clearly opined that a technical audit is advisable and should be conducted. However, it was stated that Shri V.P.Gupta may not be associated with such Committee as he himself had been making dozens of complaints and as such, was an interested party and, therefore, bias could be alleged against him. In spite of such view of the Government, the Chief Administrator of the Housing Board vide order dated 8.2.1996, directed Shri V.P.Gupta, Superintending Engineer to head the Committee for purposes of the technical audit. Such Committee, which was to submit its report within ten days, finally submitted the same in September, 1996 i.e. after a period of seven months. It is a 34-points biased report furnished by aforesaid Shri V.P.Gupta that has been heavily relied upon by the Enquiry Officer appointed to look into the charges raised in the LPA No.2068 of 2011 5 five separate charge sheets served upon respondent No.1. Suffice it to say that it is in pursuance to such enquiry findings that the major penalty of dismissal from service was imposed upon respondent No.1. 6. The argument raised by the learned counsel as regards respondent No.2 having passed the order dated 21.1.2011 in the capacity of an Appellate Authority as opposed to a Revisional Authority requires to be dealt with at the very outset. Admittedly, the order dated 13.3.2003 imposing the penalty of dismissal upon respondent No.1 was passed by the Punishing Authority i.e. the Chief Administrator, Housing Board, Haryana. An appeal preferred by respondent No.1 against the penalty of dismissal was dealt with by the Appellate Authority i.e. the Chairman of the Housing Board. The remedy of revision against an order passed by the Appellate Authority was before the Financial Commissioner and Principal Secretary to the Government of Haryana, Housing Department, Haryana and as such, the order dated 21.1.2011 was passed by respondent No.2 in exercise of his revisional powers. Rule 13 of the Haryana Civil Service (Punishment and Appeal) Rules, 1987 (hereinafter to be referred to as '1987 Rules') reads as follows: “13. Right of revision – After an appeal or the second appeal provided in rule 12 has been rejected, a person to whom these rules apply, may apply for revision to such superior authority as may be prescribed in the rules regulating his condition of service: Provided that the powers of revision shall be exercised only - (a) if the appellate authority is one other than Government; and (b) on the ground of material irregularity in the proceedings of LPA No.2068 of 2011 6 the Enquiry Officer or appellate authority, or on the discovery of new and important matter of evidence, which after the exercise of diligence was not within the knowledge of the petitioner, or could not be produced by him when the orders were passed against him or on account of some mistake or error on the face of the record.” 7. The remedy of revision is in the nature of a statutory safeguard available to an employee under the 1987 Rules. Under no circumstances can it be regarded as a mere eye-wash. A perusal of the order dated 21.1.2011 passed by respondent No.2 would make it apparent that material irregularities in the proceedings of the Enquiry Officer have been noticed. To be specific, respondent No.2 has taken a specific note of the fact that the biased reports of the technical Audit Committee headed by Shri V.P.Gupta, Superintending Engineer were examined and relied upon by the Enquiry Officer and the same were also taken on record at the back of respondent No.1. Respondent No.2 has, accordingly, held such conduct of the Enquiry Officer to be against basic principles of equity, fair play and natural justice. We find that respondent No.2 has acted well within the scope and ambit of Rule 13 of the 1987 Rules in passing the order dated 21.1.2011, whereby the order of imposition of penalty of dismissal upon respondent No.1 has been set aside. 8. It has also been argued before us that respondent No.1 could not have been granted full pay and wages for his period of suspension as also from the date of imposition of the penalty of dismissal till his date of superannuation. We are mindful of the fact that under normal circumstances, the principle of 'no work no pay' would apply where an LPA No.2068 of 2011 7 employee has not discharged the duties of his post for any particular period. However, the facts of the instant case are peculiar. After having been placed under suspension in the year 1995, the matter was entrusted to the Vigilance Department for an enquiry. A technical opinion as regards execution of the work/project with which respondent No.1 was associated, was also sought. In spite of no finding having been returned against respondent No.1, a technical audit is also approved and that too, at the hands of an Officer which the State Government had, itself, opined to be an interested and biased person. Ultimately, it is such report which is relied upon by the Enquiry Officer while holding respondent No.1 guilty. The matter does not end here. Upon having imposed the penalty of dismissal vide order dated 13.3.2003, the Appellate Authority sets aside the order of dismissal vide order dated 22.12.2003. In spite of such order, respondent No.1 is not permitted to join back. The Board of Directors then passed a resolution and took a decision for the Appellate Authority to take a fresh look at the matter. Accordingly, in terms of order dated 14.9.2005, the Appellate Authority passes a fresh order disposing of the appeal filed by respondent No.1. It is only in 2011 that respondent No.2, exercising its revisional jurisdiction, passes the order dated 21.1.2011 setting aside the order of dismissal and holding respondent No.1 to be entitled to all consequential benefits including full pay and wages for the period he had been under suspension, as also from the date of passing of the dismissal order i.e. 13.3.2003 till his date of superannuation i.e. 31.1.2008. Under such circumstances, the fault, if any, is attributable to the employer and not to the employee. The Hon'ble Supreme Court in the matter of The Commissioner, Karnataka Housing Board v. C.Muddaiah reported as LPA No.2068 of 2011 8 2007(4) SCT 452 observed as under: “The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may, in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court LPA No.2068 of 2011 9 of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant – Board, therefore, has no substance and must be rejected.” 9. We have no hesitation in observing that the Housing Board, Haryana has made a clear attempt to victimize and harass respondent No.1. The order dated 21.1.2011 passed by respondent No.2, whereby the order of dismissal from service of respondent No.1 has been set aside and he has been held entitled to all consequential benefits does not warrant any interference. 10. For the reasons recorded above, we are in agreement with the view taken by the learned Single Judge in the impugned judgment dated 14.9.2011 passed in Civil Writ Petition No.17232 of 2011 upholding the order dated 21.1.2011 passed by respondent No.2. 11. The appeal being without merit is, accordingly, dismissed. ( PERMOD KOHLI ) ( TEJINDER SINGH DHINDSA ) JUDGE JUDGE November 11, 2011 SRM Note: Whether referred to the Reporter? Yes/No