R.S.A. No. 1924 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1924 of 2006 Date of decision: 22-7-2010 State of Punjab and another ......... Appellants Vs Raghbir Saran .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General, Punjab, for the appellant Mr. Vikas Kumar Advocate for Mr. S.K.Arora, Advocate, for the respondent HARBANS LAL, J. This appeal is directed against the judgment/decree dated 16.11.2005 passed by the court of learned Additional District Judge, Ferozepur whereby he dismissed the appeal filed by the State of Punjab and another against the judgment/decree dated 27.11.2004 rendered by the court of learned Civil Judge (Junior Division), Ferozepur vide which he decreed the suit of the plaintiff for declaration to the effect that the order bearing endorsement No. 281/ST/GM dated 18.1.1999 is illegal, null and void and the plaintiff is still continuing in service on the same terms and conditions, emoluments and is entitled to benefit of service. The factual matrix is that the plaintiff is employed as conductor having No.40 in the Punjab Roadways Depot Muktsar. The impugned order dated 18.1.1999 vide which the penalty of removal from service has been R.S.A. No. 1924 of 2006 2 imposed upon the plaintiff is illegal, null and void on the grounds that the enquiry officer was not specifically delegated with the powers to hold enquiry. The procedure adopted is illegal and no reasonable opportunity has been granted to the plaintiff to explain the circumstances appearing against him. The enquiry was conducted in gross violation of the mandatory provisions of law. The order impugned which has not been passed by the competent authority is non-speaking one and the same is based on the allegations for which he was never charge-sheeted, nor was given any opportunity to defend himself. The defendants in their joint written statement have inter alia pleaded that the plaintiff remained willfully and intentionally absent from his duty and a regular enquiry was conducted and it was thereafter that the order impugned was passed by defendant No.2 in accordance with the Government instructions as well as the law. On the pleadings of the parties, the following issues were framed:- 1. Whether the order bearing endorsement No. 281/ST/GM dated 18.01.99 is illegal, null and void?OPP 2. Whether the plaintiff is entitled to the declaration and injunction as prayed for in the plaint?OPP 3. Whether this court has no jurisdiction (territorial) to entertain and try the present suit?OPD 4. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit as noticed at the R.S.A. No. 1924 of 2006 3 outset. Feeling aggrieved therewith, the State of Punjab and another went up in appeal, which was dismissed by the court of learned Additional District Judge, Ferozepur as noticed hereinbefore. Being dissatisfied therewith, the defendants have preferred this appeal. The following substantial question of law arises for determination :- “As to whether the consideration of past service for the purpose of punishment was different as against the consideration for finding a person guilty of absenteeism?” I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal, learned Additional Advocate General, Punjab maintained with a good deal of force that the plaintiff-respondent had intentionally remained absent from his duty and he was habitual absentee. He was supplied with the list of witnesses and documents alongwith charge- sheet and was asked to have assistance of the co-employee, which he refused. He himself had cross-examined the witnesses during enquiry and was afforded full opportunity to defend his case and personal hearing was also given to him. The show cause notice accompanying the findings of the enquiry officer's report was served upon him. In Mohinder Singh Vs. Inspector General of Police(PAP) 1994(2) Service Cases Today 381 even two months willful absence from duty was considered to be a misconduct sufficient for dismissal from service and it was held that the dismissal order was not vitiated merely because the past record had been seen. Herein, this case, the courts below having not given due weightage to these observations R.S.A. No. 1924 of 2006 4 the impugned judgments are liable to be reversed. To tide over these submissions Mr. Vikas Kumar Advocate on behalf of the plaintiff-respondent, canvassed at the bar that a glance through the show cause notice would reveal that it has no where been mentioned therein that the plaintiff-respondent was a habitual absentee though this fact has been taken into consideration while passing the impugned order without affording an opportunity to explain his previous conduct. This contention merits acceptance for the reason to be recorded hereinafter. The enquiry file by way of Photostat copies has been tendered in evidence as Ex.P-5. The show cause notice dated 7.8.1998 finds place at page 139. On reading between the lines, it transpires from this show cause notice that the past record in relation to the alleged habitual absenteeism of the plaintiff-respondent has not been put to him. So by no stretch of imagination he could be expected to explain the same. A glance through the impugned order dated 18.1.1999 which finds place at page 145 of the enquiry file would reveal that virtually the past record of the plaintiff- respondent had swayed with the mind of the punishing authority though the same was never put to him during the entire enquiry proceedings or in the show cause notice. A careful delving into the written statement filed by the defendants-appellants would reveal that it has no where been mentioned that the plaintiff-respondent had been an habitual absentee. Much capital has been sought to be made out of Mohinder Singh's case (supra). In paragraph 7 of this judgment, this Court has observed as under:- “ So far as the next point that a firm finding has to be recorded that the alleged misconduct was of such a grave nature leading R.S.A. No. 1924 of 2006 5 to the conclusion that the petitioner was incorrigible, suffice it to mention that it has been noticed by the authorities that the petitioner had already been awarded quite a number of punishments earlier and there was no extenuating circumstance to reduce the punishment.” It has further been observed that from all this it is quite evident that “the petitioner did not want to serve the department honestly and keeping in view Rule 16.2 of the Punjab Police Rules and the discipline of the police department, the punishment was being awarded. This clearly goes to show that mind was applied as to whether the act complained of coupled with his earlier punishments, lead to the conclusion that the petitioner was incorrigible and would not make a good police official. Consequently, I do not find any force in this contention.” It is manifestly clear from the afore extracted observations that in the referred case, the petitioner had already been awarded a number of punishments earlier. In the present one, Mr. P.C. Goyal regretted his inability to draw attention of the court towards any punishment inflicted upon the plaintiff-respondent for being absent from duty on any earlier occasion. Thus to my mind the facts of Mohinder Singh's case(supra) cannot be equated with the present one. If the plaintiff-respondent had been punished for his such conduct on earlier occasion, the defendants-appellants would have left no stone unturned in proving on record such punishment awarded to the plaintiff. In The General Manager, Northern Railway and Others Vs. Harbans Singh and Others 1979(3) Services Law R.S.A. No. 1924 of 2006 6 Reporter 590, the previous record of service and adverse entries which had not been conveyed and which did not form the basis for framing the charges were taken into consideration for inflicting punishment. The impugned order was held to be illegal by the Division Bench of this Court. Further in State of Punjab and others Vs. Balbir Singh 1980(2) Services Law Reporter 653, the enquiry officer had relied upon the previous record of the delinquent employee without affording any opportunity. The order was held to be illegal by this Court. In Ganesh Kumar (Dead)by his LRs. Vs. State of Haryana and another 2002(4) Recent Services Judgments 736, it has been observed that the only allegations proved against the petitioner is that his leave applications were not accompanied by proper medical certificates. This charge is purely of a technical nature and does not warrant such a harsh penalty of removal from service. Petitioner's past conduct could not have been made the basis for awarding the punishment as the petitioner had not been notified about this in the show cause notice. In Mahipat Ex. Constable Vs. State of Haryana and others 1994(4) Services law Reporter 311, it has been held by this court as under:- “ It is discernible from reading of the impugned orders that while awarding the punishment of dismissal, the authority did take into consideration that the petitioner was a habitual absentee from duty and was earlier punished six times according to the record. It is clear beyond argument that the Punishing Authority did take into consideration the past record of the petitioner. There is nothing on the record, nor it was pointed out during the course of arguments by the counsel for R.S.A. No. 1924 of 2006 7 the either party that the petitioner was ever made aware of the fact that while awarding the punishment of dismissal, his previous record would be taken into consideration. No explanation or no opportunity to explain his previous conduct resulting into the alleged six times punishment for absence from duty was granted. It is violation of principles of natural justice.” In Kuldip Singh Vs. Pepsu Road Transport Corporation, Patiala and another 1996(1) Recent Services Judgments 187, it has been held that “if the punishing authority is to consider the previous record with which it is likely to be influenced in the matter of awarding punishment to the delinquent official, it is necessary that the latter be afforded an opportunity of being heard in this regard. The previous record proposed to be taken into account must be disclosed to the employee so that he may be in a position to offer an explanation, if any.” The doctrine of audi alteram partem contemplates that no one should be condemned unheard. If the plaintiff-respondent's past record, if any was to be taken into consideration, while passing the impugned order, it was imperative upon the punishing authority to have made mention of that very record in the show cause notice to enable the plaintiff-respondent to explain it. There can be no manner of doubt that before forming an opinion against the delinquent employee on the basis of his past conduct or blemished record, an opportunity to explain it ought to be given to him. In the present one, the plaintiff-respondent was not given an opportunity or he was not called upon to show cause against his being habitual absentee. In R.S.A. No. 1924 of 2006 8 the face of the rule laid down in the afore-quoted authorities with utmost respect and regard for Hon'ble Mr. Justice R.S.Mongia, it is very difficult for me to follow the view taken by His Lordship in Mohinder Singh's case (supra). Sequelly, the substantial question of law stands answered against the defendants-appellants and in favour of the plaintiff-respondent. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE July 22, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes