Regular Second Appeal No. 1228 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1228 of 1987 Date of decision : April 07, 2010 The Punjab State .....appellant VERSUS Tara Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. Mr. V.K. Sharma, Advocate for the respondent. **** RANJIT SINGH, J. Respondent-plaintiff was serving as Conductor and was charge sheeted with the allegation that he did not issue tickets to some of the passengers who were travelling in a bus conducted by him in between Chogwan and Ajnala. On 24.12.1990, show cause notice was issued to him as to why disciplinary action be not taken against him. Respondent-plaintiff filed reply, which as per his allegation, was not considered with an open and judicial mind. He was accordingly placed under suspension. The inquiry was ordered against him and the inquiry officer detailed. Grievance of the respondent-plaintiff was that the inquiry was conducted in contravention of the procedure prescribed by law, where he was not given an adequate and reasonable opportunity to put forth his case. Plea further is that the documents relied upon by the inquiry officer Regular Second Appeal No. 1228 of 1987 2 were not made available to the respondent-plaintiff. He accordingly pleaded that the impugned order removing him from service is liable to be set aside. The respondent had thus filed a suit to impugn the order of his removal. In response to notice, appellant appeared and filed the written statement controverting all the assertions made in the plaint. It is stated that the charge sheet was served upon the respondent-plaintiff after due consideration and all the relevant material was made available to the respondent-plaintiff. It is further stated that all the rules or procedures were followed and thus there was no justification for attributing any defect or illegality in the holding of proceeding as alleged in the pleading. It was pleaded that the Court would not have jurisdiction to entertain the suit. The suit was tried on following issues:- 1)Whether the impugned order dt. 24.2.82 is illegal, ultravires, cryptic etc.? OPP. 2)Whether the Civil court has got no jurisdiction to try the suit? OPD. 3)Relief. The suit filed by the respondent-plaintiff was dismissed. He had accordingly filed the appeal against the same, which was allowed. The said judgment is now impugned through the present Regular Second Appeal. The First Appellate Court had mainly considered two aspects of conducting the inquiry. It was pleaded that the respondent-plaintiff was not given assistance of the co-worker to Regular Second Appeal No. 1228 of 1987 3 defend him during the course of inquiry. This, as per the respondent- plaintiff, was enough to vitiate the inquiry proceedings. It was secondly pleaded that the show cause notice, issued to the respondent-plaintiff did not give enough time to the respondent- plaintiff to ponder and give an effective reply to contest the proposed punishment of removal from service. Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, makes a provision for providing assistance of the Government employee to a delinquent employee to present the case on his behalf. It reads as under:- “While the Government employee is permitted to take the assistance on another Government employee or a retired Government employee to present his case, the inquiry officer should not permit him to engage a legal practitioner unless the presiding officer is a legal practitioner or the punishing authority has permitted the Government employee to engage a legal practitioner.” The main question thus arising for consideration is whether there was any requirement in law to provide the assistance of the co-worker to the respondent-plaintiff and the effect thereof if the assistance is not so provided. This prayer as made by the respondent-plaintiff is also required to be examined in the background that the inquiry officer detailed in this case was qualified in law. The record would show that the officer has been detailed Regular Second Appeal No. 1228 of 1987 4 to present the case on behalf of the Department i.e. An officer was detailed as presenting officer. Thus, the department may have been placed at some advantageous position. The appellate Court had considered the aspect of prejudice, if any caused to the respondent- plaintiff, due to the fact that he was not provided assistance of the co-worker. The factual finding returned by the court is that this aspect had caused prejudice to the case of the respondent-plaintiff as he being a low rung Constable was not acquainted with the implication of the departmental inquiry. It is also noticed that the respondent- plaintiff was incapable of defending himself and thus was prejudiced due to non-providing him the assistance of the co-worker. Nothing substantial could be pointed out by the State counsel, to rebut this factual finding. In Bhagat Ram Vs. State of Himachal Pradesh, AIR 1983 Supreme Court 454, the Court has considered this aspect and has viewed that a principle deducible in this regard upon true construction of the relevant Rule is that where the Department is represented by a presenting officer, it would be the duty to apprise the delinquent officer that he is entitled to be defended by another Government servant of his choice, more particularly where he is Class IV Government servant, whose educational equipment is such as would lead to an inference that he may not be aware of technical Rules prescribed for holding enquiry. It is further observed that if the delinquent officer is not informed of his rights then enquiry may get vitiated when an over all view of the enquiry shows that delinquent Government servant was at a comparative disadvantage compared Regular Second Appeal No. 1228 of 1987 5 to the disciplinary authority represented by the Presenting Officer, unless it is shown that he had not suffered any prejudice. Justice and fair play demands, that where in a disciplinary proceedings the Department is represented by a Presenting Officer, it would be incumbent upon the Disciplinary Authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and his right to take help of another Government servant before commencement of the enquiry. It can thus be stated that not detailing an co-employee to defend a delinquent employee before departmental enquiry may lead to vitiating the proceedings. It may also appeal that the disciplinary authority is to inform an employee of his right to be defended by a co-employee. What ultimately is to be seen is if the delinquent employee was put to any disadvantage and thus suffered any prejudice. Thus requirement may be to show that the employee is such, who was not capable of examining or cross-examining the witness because of his low rung position and he was not aware of the intricate procedure followed in the enquiry. The requirement of ascertaining this fact whether the delinquent employee would wish to be represented by a co-employee would also have to be examined in the light of the position of the employee. No doubt, the disciplinary authority may be expected to ascertain the same from the employee while detailing a Presenting Officer, yet this aspect has to be seen in the light of the facts and circumstances of each case and there may be instances where the concerned delinquent employee may still Regular Second Appeal No. 1228 of 1987 6 wish to proceed without the help of co-employee. Since in this case, the Appellate Court has found as a matter of fact that the respondent-plaintiff being low rung Constable was not acquainted with the implication of the departmental enquiry, it is possible to say that he suffered a prejudice in presenting his case and the first Appellate Court has rightly come to his rescue. In this background, it is not appropriate for me to go to see in case mere act of non-providing assistance of the co-worker would in itself lead to vitiate the proceeding or if there was any requirement on the part of the department to apprise the respondent- plaintiff about his right to defend by the co-worker. Since the factual finding has been returned in this case to say that the respondent- plaintiff was put to prejudice on this ground, I do not consider it appropriate to go into this aspect whether this in itself would be at question to consider if this would lead to vitiating the proceedings. The finding in favour of the respondent-plaintiff was returned in the year 1986. Apparently, he has continued to serve the department for all these years. As an interim measure, the payments due to the respondent-plaintiff on account of decretal amount was also directed to be paid after obtaining adequate security of funds, if necessary. In this background, I am inclined to uphold the view expressed by the First Appellate Court and would dismiss the Regular Second Appeal. April 07, 2010 ( RANJIT SINGH ) rts JUDGE