RSA No.214 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.214 of 2009 (O&M) Date of Decision: 24.12.2009 State of Punjab and another .... Appellants. Versus Karam Chand Kaler and another ..... Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Arvind Mittal, Addl.AG Punjab for the appellants. Mr.Rohit Ahuja, Advocate for respondent No.1. RAKESH KUMAR JAIN J. The defendants are in second appeal in a suit for declaration filed by the plaintiff-respondent challenging the order dated 7.6.2001 whereby his 100% pension has been ordered to be withheld. Brief facts of the case are that plaintiff-respondent retired as Deputy Registrar, Co-operative Societies, Punjab on 30.11.1996. At the time of his retirement, he did not owe anything to the defendants and the retirement order was unconditional without any rider. After few days of his retirement, the defendants issued him a charge sheet dated 10.10.96 containing six allegations. The plaintiff filed reply to the charge sheet but without considering the reply, an enquiry officer was appointed, who after conducting the enquiry, submitted his finding to the department and on the basis of the finding of Enquiry Officer, order of withholding of 100% pension was passed. The plaintiff challenged the enquiry report on the basis of personal bias against the plaintiff. In the written statement, besides taking RSA No.214 of 2009 -2- technical objections, it is averred on merits by the defendants that the plaintiff was allowed to retire on 30.11.1996 by defendant No.1 vide office order dated 28.11.1996 with an endorsement to defendant No.2 that pensionary benefits to the plaintiffs should not be released till the decision of the suit is pending. The appointment of the Enquiry Officer was admitted, however, it was denied that enquiry has been conducted with a biased and prejudiced mind. Defendant No.3 filed separate written statement taking preliminary objection that the suit is liable to be rejected as no notice under Section 79 of Punjab Co-operative Societies Act, 1961 read with Punjab Cooperative Societies Rules, 1963 has been given. It is also alleged that the enquiry has been conducted as per the provisions of Punjab Civil Service (Punishment & Appeal) Rules, 1970. From the pleadings of the parties, the following issues were framed: (i)Whether the order dated 7.6.2001 passed by the defendant No.1 is illegal, null and void? OPP. (ii)Whether the plaintiff is entitled for declaration and mandatory injunction as prayed for? OPP. (iii)Whether the suit is not maintainable in its present form? OPP. (iv) Whether the plaintiff has got no cause of action? OPP. (v)Whether the civil court has got no jurisdiction to entertain and try the present suit? OPP (vi)Relief. The plaintiff examined himself as PW1 and Bharat Bhushan as PW2 whereas the defendants examined Sham Sunder Sahi as DW1 and defendant No.3 Puran Singh Gill as DW2 in order to substantiate their respective case. Learned trial Court while deciding issues No.1 and 2, RSA No.214 of 2009 -3- observed as under: “I find that the plaintiff has been able to prove on record that he was heading a committee for appointment of the employees. The case of the daughter of defendant No.3 Puran Singh Gill was put before him. But as Namarata Gill was not completing the qualifications laid down by the department, so she was not appointed. The plaintiff has been able to examine Bharat Bhushan Clerk of Nawanshahr Central Co-Operative Bank. He proved the complete facts that the plaintiff was member of the committee for appointments. The letter is Ex.PW2/B. The application for appointment is Ex.PW2/C which was applied by Namarata Gill, daughter of Sh.P.S.Gill. Namarata Gill was not appointed as Junior Clerk. In these circumstances, I find that despite the letter issued by the plaintiff to the department, the enquiry officer was not changed for the reasons best known to the defendants. It was for the department to change the enquiry officer if it was not acceptable due to the reason above to the plaintiff. The case would have been otherwise if there was another enquiry officer. Despite repeated requests of the plaintiff, the defendant did not change the enquiry officer and I find that the justice should be apparent on the record. It should not have been done but it should also appear to have been done. Though, no illegality has been pointed out by learned counsel for the plaintiff in the enquiry while arguing the case. But I find that while passing the order in enquiry report, the mind of the Enquiry Officer was biased. Accordingly, I find that the enquiry should have been done by independent person and not by a person who is already having grudge due to the fact that his daughter has not been selected by the plaintiff while sitting as a member in the selection committee. In these circumstances, I find that the impugned order, which was based on an enquiry report given by defendant No.3, is illegal, null and void, against the principles of natural justice. However, the department is at RSA No.214 of 2009 -4- liberty to conduct a fresh enquiry from any other officer except the defendant No.3. This Court does not indicate any special enquiry officer of the choice of the plaintiff, but the enquiry officer should have been an independent person. If the mind of the enquiry officer is prejudiced against the delinquent officer, then the presumption is always there that he has given a wrong report. Keeping in view of this situation, I find that the impugned order, based on the enquiry report dated 7.6.2001, is illegal, null and void. Accordingly, the same is set aside. On the other hand, the plaintiff has sought mandatory injunction that he is entitled to disburse hundred percent pension as if impugned order dated 7.6.2001 was never passed, along with interest @ 18% p.a. I find that this relief cannot be granted to the plaintiff. As observed earlier, the impugned order has been set aside but the department has been given an opportunity to get an enquiry re-held from a person who has no grudge against the plaintiff or any other person, other than defendant No.3. Accordingly, issue No.1 is decided in favour of plaintiff and issue No.2 goes with the finding of issue No.1 as the plaintiff is not entitled to any consequential benefits or mandatory injunction till a new enquiry report is there and after that, the final order should be passed.” On the basis of the aforesaid findings, the suit was partly decreed and defendants were directed to hold fresh enquiry with a new Enquiry Officer. The judgment and decree of the trial Court dated 27.7.2007 was not assailed in appeal by the defendants, therefore, it became final against them, however, the plaintiff being aggrieved of having not been released 100% pension, filed his appeal which has been allowed by the Additional District Judge, Jalandhar vide judgment and decree dated 23.9.2008 in which it has been observed as under : RSA No.214 of 2009 -5- “No oral evidence of the parties is required to be discussed. Only the interpretation of the relief clause of the judgment under appeal is sufficient. The learned lower Court while deciding issue No.1 held the plaintiff entitled to the declaration that order dated 7.6.2001 is illegal, null and void and further gave opportunity to the defendants to get the matter re-enquired but at the same time, a rider was placed on the plaintiff that he is not entitled to any monetary benefits. When the impugned order has been declared as illegal and void, then appellant ipso facto is entitled to all the service benefits i.e. pay, increments and right of consideration for promotion etc. Reliance can be placed on the authority of our own Hon'ble High Court reported in 1988(7) SLR 14 Pritam Singh Toor Vs. State of Punjab and another. Vide impugned order dated 7.6.2001 hundred percent pension of the plaintiff was with held. When the order itself has been declared by the ld.lower court as illegal, null and void then the plaintiff is automatically entitled for the release of his hundred percent pension. Further reliance is placed upon full bench authority of our Hon'ble High Court reported in 1997(7) SLR 8.” Unsuccessful but unfazed defendants have come up in second appeal assailing the judgment and decree of the trial Court as well as of the Appellate Court. The appeal was filed after a delay of 9 days, notice of motion was issued on 13.1.2009 and operation of the impugned judgment and decree was ordered to be stayed. Learned counsel for the appellants has argued that trial Court while partly decreeing the suit of the plaintiff/respondent had directed to hold fresh enquiry with a new Enquiry Officer and did not grant any benefit to the plaintiff. The appellants/State did not file the first appeal because they were not aggrieved against the judgment and decree of the trial court. Since no consequential relief was granted to the plaintiff and in terms of the RSA No.214 of 2009 -6- judgment of the learned trial Court, fresh enquiry by a new Enquiry officer was ordered. The first appeal was filed by the plaintiff/respondent who was aggrieved against both the orders of holding of fresh enquiry as well as non- payment of the consequential benefits. The appeal was accepted and the judgment and decree of the trial Court was upheld with the modification that the plaintiff shall be entitled to the release of his 100% pension according to the Rules. Learned counsel for the appellant/State has further argued that the at the time when second appeal was filed enquiry against the plaintiff was pending therefore, question of law was framed “Whether respondent is entitled to get all the consequential benefits when a new enquiry is being conducted against him which is pending”. He relies upon a decision of the Supreme Court in the case of State of Punjab and others versus Dr.Harbhajan Singh Greasy 1996(3) RSJ 82 to contend that where the enquiry was found to be faulty it would not be proper to direct reinstatement of the delinquent with consequential benefits. It is also submitted that during the pendency of the appeal, the enquiry report has come on record on 20.8.2008 indicting the plaintiff of the charges contained therein. However, it is also submitted that no action has been taken pursuant to the enquiry report which is neither brought on record by way of an application for additional evidence nor any order in pursuance thereof has been passed with regard to punishment. As against this, counsel for plaintiff/respondent has argued that till date there is no punishment awarded to the plaintiff/respondent in terms of the enquiry and in view of Rule 2.2(b) of The Punjab Civil Services Rules ( for short `Rules') until and unless the pensioner is found guilty, his pensionary rights cannot be withheld . Rule 2.2.(b) of the Rules is reproduced as under : RSA No.214 of 2009 -7- “The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that - (1)Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (2)Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment - (i)shall not be instituted save with the sanction of the Government; (ii)shall not be in respect of any event which took place more than four years before such institution; and (iii)shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service. (3)No such judicial proceedings, if not instituted while the officer was in service, whether before this retirement or during his re-employment shall be instituted in respect of a RSA No.214 of 2009 -8- cause of action which arose or an event which took place more than four years before such institution; and The Public Service Commission should be consulted before final orders are passed. Explanation. - For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i)in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; and (ii)in the case of a civil proceeding, on the date of presentation of the plaint in the court. (c)(1) Where any departmental or judicial proceeding is instituted under clause (b) of rule 2.2 or where a departmental proceeding is continued under clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement upto date immediately preceding to the date on which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and of final orders thereon. The gratuity, if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have RSA No.214 of 2009 -9- fallen due on the date of issue of final orders by the competent authority.” [Provided that where Departmental proceedings have been instituted under rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 for imposing any of the penalties specified in clauses (i), (ii) and (iv) of rule 5 of the said rules, the payment of gratuity or death-cum-retirement gratuity, as the case may be, shall not be withheld.] He further refers to an order of this Court in the case of present respondents passed in RSA No.15 of 2004 which reads as under : “After hearing the learned Additional Advocate General, Punjab, I find that no question of law arises for consideration of this court. It has been argued that the Courts below have mis interpreted Rule 2.2(b) Vol.II, Chapter II of the Punjab Civil Services Rules to the effect that the delinquent official has been charge sheeted before the retirement and that after his retirement, the misconduct has been established and the punishment has been awarded accordingly. It is conceded that the punishment had been awarded during the pendency of the suit but in any case the delinquent official had been charge sheeted before the retirement. It is further admitted that the delinquent official had retired much before the enquiry culminated into the punishment. The reading of the rule clearly shows that the government was not entitled to withhold the pension as the delinquent official had not suffered any kind of punishment at the time of his retirement. The government is within its right to impose penalty as envisaged under the rules but at the time of retirement if the official has not suffered any punishment, the government is not entitled to withhold the pension. Thus, the rule has been interpreted by the Courts below correctly and the pension, gratuity and other retiral benefits have been granted to the delinquent official accordingly. RSA No.214 of 2009 -10- No other argument has been raised or any question of law has been substantiated. No merit. Dismissed.” In the present case as well, the respondent was charge sheeted after few days of his retirement, therefore, neither at the time of his retirement any enquiry was pending nor he was visited with any punishment. It has been clearly held in the aforesaid RSA No.15 of 2004, that the Government is within its rights to impose penalty as envisaged under the rules, but at the time of retirement if the official has not suffered any punishment then the Government is not entitled to withhold the pension. In this case, no punishment has been imposed despite the second enquiry. In view of the above discussion, I do not find any merit in the appeal filed by the State as there involves no question of law, hence the same is hereby dismissed without any order as to costs. (RAKESH KUMAR JAIN) 24.12.2009 JUDGE Meenu