REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 11, 2010 Narang Singh .....Appellant VERSUS Punjab State Electricity Board, Patiala and others ....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. Girish Agnihotri, Sr.Advocate with Mr. Arvind Seth, Advocate, for the appellant. Ms. Madhu Dayal, Advocate, for the respondents. **** RANJIT SINGH, J. Taking support of highly technical miss, the appellant has raised his challenge against the findings given by the Trial Court as well as by the First Appellate Court. Respondent-Board will plead that the appellant does not deserve to be heard as he is accused of fraud, which would defeat all his legal pleas or equities, if any. The allegations against the appellant are that he had obtained his entry into the service of the Board in a fraudulent manner and has enjoyed the fruit of service for nearly 10 years, when REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 2 }: this fact was detected. As per the appellant, he was appointed on 25.8.1991 as Labourer and was made to join at Mandi Gobindgarh on 23.12.1991. To show his appointment, the appellant refers to daily attendance register maintained by Assistant Engineer, Mandi Gobindgarh, where his presence has been marked from 23.12.1991 onwards. The appellant, therefore, pleads that he was taken aback when he was charge sheeted on 8.1.1999. The allegation made in the charge sheet was that the appellant had in a fraudulent manner misrepresented himself to be already in the job and on that basis joined the post of Mandi Gobindgarh. In response, the appellant had denied the charges levelled against him. He would plead that he had joined the service of the Board on 23.12.1991 and his appointment was ordered by Member Secretary. The appellant further pleaded that he was treated in an unfair manner and was not given due opportunity to defend himself. No monthly salary was released to him from February 1999 onwards, and ultimately a final order of punishment was passed on 14.6.2000, terminating his services. The appellant had made a detailed representation. When nothing was heard, he filed an appeal. Without affording him any opportunity of hearing, the appeal was dismissed on 11.10.2000. He had accordingly filed a civil suit. The Board appeared and filed a written statement, pointing out that the appellant had suppressed the true facts. It was pointed out that appellant was never appointed in July-August 1991 and rather had managed to enter into the service by back door by misrepresenting the employees of the Board and by playing fraud on them. Though he was never in the employment of the Board, but he REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 3 }: had filed an application for his transfer by misrepresenting that he was a work charge employee of the Board. On this application, he was able to arrange an order by Superintending Engineer recommending to adjust him at M.E., Sub Station Khanna. On a complaint being made to P.S.E.B., an enquiry was made and it was found that the plaintiff had managed his entry into the service by illegal means and by misrepresenting the facts and, thus, played fraud on the Board. A charge sheet was accordingly served to the appellant. He was afforded full opportunity to explain his position and produce evidence but he did not cooperate. Having been found guilty by the Enquiry Officer, the order of termination of the appellant was passed by the Board. Plea thus is that the appellant was never an employee of the Board and had entered the service by playing fraud and, thus, has caused a loss to the Board in this manner. The suit filed by the appellant was dismissed. The appeal has also been dismissed. Learned counsel for the appellant has placed on record certain documents as Annexures A-1 to A-6. Reference is made to Annexure A-3, where it is noticed that Enquiry Officer had found the appellant guilty. As per the counsel for the appellant, enquiry report would show otherwise. Annexure A-6 is the enquiry report, where it is recorded by the Enquiry Officer that the charges are not proved against the appellant. On this basis, the plea is made that the action of the disciplinary authority to remove the appellant would amount to misreading of the documents and the material on record and, thus, can not be sustained. While noticing this contention raised on behalf of the REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 4 }: appellant, this Court on 22.7.2008, had also considered the aspect that plaintiff had admittedly entered into the service by violating equality clause and had rather, defrauded the department to obtain this job. This aspect is highlighted by the counsel for the Board to say that the finding by the Courts is that the appellant could not prove his appointment and hence, he was not even an employee of the Board. This is stated to be reason enough to terminate the appellant and the pleas raised are not required to be considered. The counsel, however, was unable to explain as to why then the Board had directed enquiry against the appellant where the finding is, as is noticed above. It is noticed in the impugned order that the appellant was found guilty by the Enquiry Officer to pass the order of termination. The plea is that there was another enquiry dated 8.12.1999, where the appellant was clearly blamed for defrauding the Board in getting the appointment and the punishing authority had made reference to this report in the order referred to above. In fact, the perusal of Annexure A-3 would show that while mentioning that the appellant was found guilty, reference is made to report issued through letter dated 8.12.1999 now placed on record. Reference is not made to the enquiry finding. The plea also appears to be that the Punishing authority in the Board had not agreed with the finding of the Enquiry Officer, where the appellant was found not blameworthy and rather had relied upon a report dated 8.12.1999, where the appellant was in fact blamed for having committed the fraud. The plea of the appellant as raised, thus, prima-facie is not made out. However, the Board has also not been able to show that it had followed the correct procedure. REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 5 }: The counsel appearing for the Board has not been able to take proper stand before the Court. The counsel insisted in stating that the appellant being not the employee must show first his appointment and only then the Board can be asked to explain. This is not the correct or the proper approach to test the validity of the impugned judgments. Once the appellant was charge sheeted and enquiry ordered, the appellant can complain about the manner of holding enquiry. The appellant can also plead that finding by the Enquiry Officer is based on no material. The appellant can take advantage of finding in his favour as returned by Enquiry Officer to plead that the punishing authority was wrong in saying that the charges were proved. Even if, the plea is that the appellant had obtained the appointment by fraud, this fact was also required to be established to take action against the appellant. The termination can not simply be ordered on the ground that the appellant was not an employee of the Board, especially so, when he had placed material on record to show that he was in receipt of pay for nearly 10 years. The sole plea raised on behalf of the appellant is that the order passed by the disciplinary authority while terminating the appellant was on the basis that the Enquiry Officer had found the appellant guilty, which is factually inaccurate. If reference is made to communication dated 8.12.1999, then the observation made by the Punishing Authority can not be said to be inaccurate. Otherwise, it is not clear from the record if any dissent or disagreement note was given by the Disciplinary Authority against the finding returned by the Enquiry Officer either otherwise or on the basis of communication dated 8.12.1999. At the most, it can be stated that there was some REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 6 }: defect and infirmity in the procedure for recording the note of disagreement and then taking action against the appellant. The ratio of law laid down by the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad and others v. B.Karunakara and others, 1993(4) SCC 727, would clearly regulate such like situation. Even if some defect is noticed in the procedure, there may not be need to set-aside the termination order. This can be so noticed by the following observations made by the Hon'ble Supreme Court:- “The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on a count of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.” The Supreme Court further observed that:- “ The Court/Tribunal should not mechanically set aside REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 7 }: the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 8 }: according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.” A person who enters the service by fraudulent means, can not plead for reasonable opportunities of being heard. His very entry was in violation of the equality clause. He defrauded the Board in getting appointment, fruits of which he has enjoyed for considerable period. Fraud defeats all equitable consideration. Normally, no different consequences may follow even if the appellant is heard. The case set up is that Disciplinary Authority had disagreed with finding, may be on the basis of report dated 8.12.1999. This needs to be clearly brought out. It may be open for the disciplinary authority to accept or disagree with the enquiry and then follow the procedure in accordance with the law or regulation applicable to the Board and pass any appropriate order in accordance with law. While doing so, opportunity of hearing ought to be afforded to the appellant by providing him the copy of dissent note and then pass an order afresh in accordance with law. The case is remanded back to the Disciplinary Authority to consider the same from the stage from the submission of the enquiry report. The appellant need not be taken back in service for the purpose of passing a fresh order, which may REGULAR SECOND APPEAL NO. 191 OF 2008 (O&M) :{ 9 }: be so done by ignoring the earlier order passed by the disciplinary Authority. For the purpose of passing this order, the appellant need not be taken back in service and would also not be entitled to claim any wages etc. This Regular Second Appeal is disposed of in the above terms. May 11, 2010 ( RANJIT SINGH ) khurmi JUDGE