R.S.A.No. 1086 of 1989 (O&M) -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 1086 of 1989(O&M) Date of decision: 21.12.2011. Punjab State Electricity Board, Patiala Appellant Versus Raghbir Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: Mr. P.S.Thiara, Advocate for the appellant. None for the respondent. ***** G.S.SANDHAWALIA, J (ORAL). Civil Misc.No.1957 of 1989 and Regular Second Appeal No.1086 of 1989. 1. The present appeal has been filed by the Punjab State Electricity Board, Patiala (hereinafter referred to as “the Board”) against the judgment and decree dated 30.11.1988 whereby the appeal of the plaintiff-respondent was allowed by the Addl. District Judge, Patiala while setting aside the judgment and decree dated 7.6.1988 of the trial Court and the order dated 2.2.1987 passed by the Superintending Engineer whereby he had ordered recovery of Rs.75292.20 paise. Accordingly the same was declared null and void and the defendants were restrained from giving effect to the said order of recovery by decreeing the suit. 2. The case of the plaintiff, who was working as Linesman with the Board was that he was served with charge sheet dated 10.6.1986 by R.S.A.No. 1086 of 1989 (O&M) -2- *** the Executive Engineer and he duly replied to the same. Thereafter, another memo dated 19.8.1986 was issued to him pointing out certain infirmities and he submitted reply to the memo dated 19.8.1986 and was again served with memo dated 7.10.1986 by the Executive Engineer to which he submitted reply on 27.10.1986. Eventually the impugned order dated 2.2.1987 whereby recovery of Rs.75292.70 paise had been imposed upon the plaintiff which had been passed by the Superintending Engineer which is null and void being penal in character. In the plaint, it was also alleged that the Superintending Engineer did not apply his judicious mind to the facts of the case and the order was against the provisions of law and principle of natural justice. 3. The defence taken by the Board in its written statement was that the reply of the plaintiff was duly considered and it was thought to inflict the minor punishment upon the plaintiff and the impugned order was passed thereafter which is a minor punishment as contained in the P.S.E.B. Employees (Punishment and Appeal) Regulations and no regular enquiry is to be conducted in such cases. The case of the Board was further that full opportunity had been given to the plaintiff to explain his case and order had been passed by the competent authority. The allegation regarding non application of the judicious mind was also denied in the written statement. 4. On the basis of the said pleadings, the following issues framed by the trial Court:- “1. Whether order No.17 dated 2.2.1987 is illegal, null and void as alleged?OPP 2. Whether the plaintiff is entitled to declaration prayed for?OPP R.S.A.No. 1086 of 1989 (O&M) -3- *** 3. Whether the plaintiff has got the cause of action?OPD 4. Relief.” 5. The trial Court, however, came to the conclusion that since show cause notice was issued and the order was passed after taking explanation from the plaintiff, therefore, the order passed was a speaking order in which all the objections/points raised by the plaintiff had been noticed. 6. The plaintiff aggrieved by the said judgment and decree preferred an appeal before the District Judge, Patiala and the said appeal has been accepted as noticed above by the Addl. District Judge, Patiala on the ground that order dated 2.2.1987 (Ex. P3) was non speaking. Against the said judgment, the Board is now in appeal. 7. Learned counsel for the Board has argued that under the P.S.E.B. Employees (Punishment and Appeal) Regulations recovery of amount from an employee of the Board is a minor punishment and no enquiry is to be held for recovery of such amount and has, thus, assailed the judgment and decree passed by the Addl. District Judge. However, a perusal of Ex. P3 goes on to show that the order is totally non-speaking and only records the fact that an explanation was asked for from the plaintiff and which was considered and the order of recovery was thereafter passed which was to be effected in such a manner that the carry home salary of the plaintiff would not be less than 40%. This fact has also been noticed by the Lower Appellate Court and reliance has been placed upon Dr. P.K.Mittal Vs. State of Punjab and others 1982(3) S.L.R. 222 and General Manager, Punjab Roadways, Jalandhar Vs. Balbir Singh, A.C.Conductor 1988 (1) S.L.R. 255 to hold that once a punitive order was being passed, it should have contained the reasons and the basis for the R.S.A.No. 1086 of 1989 (O&M) -4- *** recovery. 8. That by virtue of the impugned order dated 2.2.1987 (Ex. P3) a huge amount of recovery of Rs.75292.70 paise was ordered by the Superintending Engineer against the plaintiff, who was a linesman. As noticed above, the said order does not even mention as to on what basis the said recovery is being effected and whether it was on account of some shortages and how the plaintiff was liable for the said recovery. The order entails serious civil consequences and the officials of the Board could not have passed such an order without giving reasons even though if no formal enquiry was to be held. Learned counsel for the Board has placed reliance upon the judgment reported as Punjab State Electricity Board, Patiala Vs. Avtar Singh and another 2000(1) RSJ 70 to contend that the plaintiff had only to be afforded an opportunity of hearing and in the present case the said explanation had been asked for. In the opinion of this Court, the said judgment is not applicable to the facts and circumstances of the case as opportunity was granted to the plaintiff but the order imposing the punishment is without any reason or is a non-speaking order whereby recovery of Rs.75292.70 paise is sought to be effected. If such amount is to be recovered then it was the duty of the Board officials to record valid reason before such recovery could be effected so that the Court could examine whether the recovery was on some basis and was valid. The order cannot be justified subsequently and has to indicate reasons because of which the action was taken against the plaintiff. However, the reasons for coming to the conclusion for effecting the recovery is a separate arena than the reason for which the action was taken against the employee. These two cannot intermingle and in the absence of any reason no fault can be found with the judgment and decree of the Lower Appellate R.S.A.No. 1086 of 1989 (O&M) -5- *** Court whereby the said order has been set aside. 9. Learned counsel for the Board has also contended that an opportunity for sending the matter back to the Board should be given so that a fresh order can be passed after hearing the plaintiff/employee. Keeping in view the fact that the order was passed on 2.2.1987 and was set aside by the Lower Appellate Court on 30.11.1988 and in view of the fact that more than two decades have passed, I do not deem it fit to relegate the employee who would be now retired and in the evening of his life, to go through the rigour of appearing before the officers of the Board. 10. It is also pertinent to mention that the Board had also filed an application No.1957-C of 1989 under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for additional evidence to impress upon the fact that the comments were called from the Executive Engineer which led to the amount of recovery being reduced against the plaintiff. Therefore, there was justification in passing of the order and the reply of the employee was taken into consideration to reduce the amount of the recovery. This argument is not acceptable in view of the fact that the Court is to see the impugned order which has been passed and whether any reason has been recorded while coming to the conclusion of ordering the recovery which entails civil consequences and subsequent justification that the reply of the employee was taken into consideration for giving him benefit and the recovery was reduced cannot be reason to uphold the order which does not in any manner show or justify the ground for which the recovery was being effected. Accordingly, the present application for additional evidence is dismissed since even other wise the said application does not fall within the provisions of ambit of Order 41 Rule 27 of the CPC as the said documents were in the knowledge of the Board but were never R.S.A.No. 1086 of 1989 (O&M) -6- *** produced before the Courts below. 11. Accordingly the present appeal is dismissed as no substantial question of law arises for consideration by this Court. December 21, 2011 (G.S.SANDHAWALIA) Pka JUDGE