IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1456 of 2005 (O&M) Date of Decision: 19.5.2009 Punjab Small Industries and Export Corporation Limited. ....... Appellant through Shri A.R.Takkar, Advocate. Versus Daljit Singh. ....... Respondent through Shri R.K.Arora,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 25.2.2003 and 27.1.2005 passed respectively by the Additional Civil Judge (Senior Division), Amritsar (hereinafter described as `the trial Court') and the Additional District Judge, Amritsar (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff- respondent was decreed and the appeal filed by the Managing Director of the Punjab Small Industries and Export Corporation Limited (for short, `the P.S.I.E.C.L.'), the Manager, P.S.I.E.C.L. at Amritsar and the Punjab State was dismissed, whereas the cross appeal of the plaintiff-respondent was accepted. As per the note given on the memorandum of parties, the R.S.A.No.1456 of 2005 -2- .... instant appeal has been preferred by the P.S.I.E.C.L. through its Senior Law Officer, who is duly authorised officer, being a government company within the meaning of Section 617 of the Companies Act having its corporate entity and capable of suing and be sued in its own corporate name and, therefore, variation in the description of the parties from the one given in the plaint/ impugned judgments has occurred. The respondent had filed a suit for declaration to the effect that order of dismissal dated 20.7.1999 passed by the Managing Director of the P.S.I.E.C.L. is totally illegal, unconstitutional, unwarranted, against the provisions of the Punjab Civil Services (Punishment & Appeal ) Rules (for short, `the Rules'), principles of natural justice and, therefore, inoperative,null & void and not binding on his rights and that he is still continuing in service on the same terms and conditions of employment and is entitled to all the emoluments attached to the post held by him with interest thereon at the rate of 18% per annum till the date of realisation. It was pleaded by the respondent that he was employed as Head Craftsman in the P.S.I.E.C.L. and he was dismissed from service vide order dated 20.7.1999 on the allegation of producing a bogus experience certificate at the time of appointment. It was further pleaded that vide memo dated 23.12.1992, he was charge sheeted with the aforesaid allegation,but the same was totally wrong and his reply thereto was not considered. The respondent had averred that the documents on the basis of which the charges were sought to be sustained were not supplied to him despite the demand made by him and he was not given proper opportunity of hearing. It R.S.A.No.1456 of 2005 -3- .... was specifically averred that to prove the charge against him, the P.S.I.E.C.L., during the course of enquiry conducted by Shri R.K.Sharma, the then Manager (Export), produced two witness, out of whom Shri H.S. Randhawa, whose examination-in-chief was recorded, did not come present for cross-examination and, therefore, the enquiry report dated 6.6.1995 submitted by Shri Sharma as well as the show cause notice dated 12.1.1996 issued on its basis, were unsustainable. The respondent pleaded that after he had submitted his reply to the said show cause notice, a fresh enquiry was ordered and Shri M.M.Oberoi, a retired I.A.S. Officer was appointed the enquiry officer, who submitted his report dated 7.7.1997 in which he recorded the conclusion that since the main witness did not appear before him, the allegation against the delinquent officer remained unproved due to lack of acceptable and valid evidence. After receipt of enquiry report of Shri Oberoi, the Managing Director of the P.S.I.E.C.L. issued show cause notice dated 9.9.1997 proposing imposition of a penalty of termination from service upon the respondent while dissenting with the view of the enquiry officer. However, a copy of the enquiry report was not supplied to the respondent, although he had made oral and written requests in that behalf. However, in the meantime, the P.S.I.E.C.L. referred the matter back to Shri M.M.Oberoi vide letter dated 10.11.1997 that statement of Shri Sohan Singh, Managing Director of Randeep Theater and M/S 20th Century Exp. Pvt. Limited, Amritsar be recorded and the respondent be allowed to cross-examine him. However, the said Shri Sohan Singh could not be produced by the P.S.I.E.C.L. and Shri Oberoi sent his report dated R.S.A.No.1456 of 2005 -4- .... 29.4.1998 while sticking to his earlier report. Thereafter, the Managing Director differed with the report of the enquiry officer and directed issuance of a show cause notice to the respondent. It was pleaded that show cause notice dated 17.7.1998 was issued proposing termination of his service. The copy of the enquiry report or the dissenting note was not sent to him for which he made requests time and again. It was alleged that another show cause notice dated 16.6.1999 was issued to the respondent and it was mentioned therein that copy of the enquiry report submitted by Shri Oberoi has already been provided to him and he was given ten days' time submit his reply. It was averred that a detailed reply was filed to the said notice but the same was not considered and the order of dismissal from service of the respondent was passed. Upon notice, the Managing Director and Manager of the P.S.I.E.C.L., who were impleaded as defendant nos. 2 & 3 filed their joint written statement contesting the suit. A number of preliminary objections were taken with regard to lack of jurisdiction of the Court at Amrtisar, the suit being premature and bad for misjoinder of parties were taken. On merits, it was admitted that the respondent was dismissed from service vide order dated 20.7.1999 for producing a bogus experience certificate at the time of filing application for appointment. The other allegations of the respondent were denied in toto being wrong. It was averred that before the enquiry officer on 22.3.1994, Shri H.S.Randhawa had stated that experience certificate dated 10.6.1989 was neither signed by him nor by any body from M/S 20th Century Expo (P) Ltd. It was further averred that the said fact was R.S.A.No.1456 of 2005 -5- .... got verified later on through General Manager (Admn.), who also confirmed that no person by the name of Daljit Singh Kapoor had ever worked in that company. It was pleaded that the reply submitted by the respondent was considered and he was also given opportunity of personal hearing. It was further pleaded that the copy of the enquiry report was personally given to the respondent and the action taken against him was perfectly legal. The parties went to trial on the following issues:- 1. Whether the order of dismissal dated 20.7.99 passed by defendant no.2 is totally illegal, unconstitutional, unwarranted, null and void, against the provisions of Pb.Civil Services (P&A) Rules and principles of natural justice?OPP 2. Whether the plaintiff is entitled to the emoluments attached to the post, with interest thereto @ 18% p.a. till the date of realisation?OPP 3. Whether this Court has no territorial jurisdiction to entertain and try the present suit?OPD 4. Whether the suit filed by the plaintiff is premature?OPD 5. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit of the respondent with costs and declared that the order of dismissal dated 20.7.1999 passed by the Managing Director of the P.S.I.E.C.L. was totally illegal, unconstitutional, unwarranted, against the provisions, null, void and not binding on his rights and he was entitled to the emoluments attached to the post with interest thereto at the rate of 12% R.S.A.No.1456 of 2005 -6- .... per annum till the date of realisation. However, the department was set at liberty to conduct a fresh enquiry as per rules. Feeling aggrieved, the Managing Director and Manager of the P.S.I.E.C.L. as well as the Punjab State, who were impleaded as defendants in the suit, filed an appeal, whereas the respondent preferred cross appeal making a grouse of the liberty given by the trial Court to conduct fresh enquiry against him as per rules. The First Appellate Court, after perusing the entire record and hearing the counsel for the parties, concluded that the appeal of the Managing Director and Manager of the P.S.I.E.C.L. and the Punjab State did not have any merit, whereas the appeal of the respondent deserved acceptance. This has given rise to the filing of the instant appeal by the P.S.I.E.C.L. Learned counsel for the appellant has assailed the judgments of the Courts below primarily on the following grounds:- (i)that the findings have been recorded contrary to the enquiry report dated 31.5.1995 wherein the allegations against the respondent stood established; (ii) that from the material on record including the registered letter dated 19.10.1992, initial onus to prove the charge against the respondent stood discharged and the onus to prove the authenticity of the certificate shifted on him which he has failed to discharge; R.S.A.No.1456 of 2005 -7- .... (iii) that detailed and valid reasons were recorded in show cause notice dated 17.7.1998 for arriving at a conclusion to disagree with the report of the enquiry officer; (iv) that a personal hearing was afforded to the respondent on 10.6.1999 and he had sought time to prove the certificate and hence, the onus was on him to show that he had worked with M/S 20th Century Expo. (P) Ltd. and to establish that the experience certificate was genuine; and (v) that it is a settled proposition of law that a person, who has acquired public employment on fraud and misrepresentation, does not warrant any leniency and indulgence by the employer. It was, thus, contended by the learned counsel for the appellant that the findings recorded by both the Courts below are erroneous and are liable to be set aside. According to him, the following law points arise in the instant appeal for consideration of this Court:- (1)Whether the services of a person, who obtains public employment by fraud, can be terminated on such ground or not? (2) Whether the Courts below were justified in invalidating the dismissal order dated 20.7.1999 on the ground that the department failed to substantiate the fabrication of the experience certificate during the second enquiry? (3) Whether disciplinary authority was entitled to disagree with R.S.A.No.1456 of 2005 -8- .... the conclusions of the enquiry and record its independent conclusion while issuing show cause notice dated 17.7.1998 which preceded the dismissal order dated 20.7.1999? (4) Whether the Courts below could nullify the dismissal order dated 20.7.1999 in spite of the failure of the -respondent to support the experience certificate, on the basis of which he secured public employment, despite abundant opportunity during enquiry, personal hearing and even during the present proceedings? In support of his contentions/ submissions, learned counsel for the appellant placed reliance on Union of India Versus H.C.Goel, AIR 1964 S.C. 364; R.Vishwanatha Pillai Versus State of Kerala and others, (2004) 2 S.C.C. 105 and Bank of India and another Versus Avinash D.Mandivikar and others, (2005) 7 S.C.C. 690. On the other hand, learned counsel for the respondent contested the contentions raised by the learned counsel for the appellant by contending that the charge was levelled by the appellant against the respondent that he had obtained employment by producing a bogus certificate and,therefore, it was incumbent upon its functionaries to have proved such a charge against him and failure to do so, has resulted in the order of dismissal being set aside by the Courts below as a natural corollary. He further contended that once the functionaries of the appellant failed to substantiate that charge against the respondent, the order of dismissal could not have been sustained under any circumstance. He sought to justify the R.S.A.No.1456 of 2005 -9- .... reasoning given by the Courts below in favour of the respondent. To support his contentions, he relied upon State of Assam and another Versus Bimal Kumar Pandit, 1964 (2) S.C.R. 1; Ram Kishan Versus Union of India and others, 1995(6) S.C.C. 157; Punjab National Bank Versus Kunj Behari Misra, 1998(7) S.C.C. 84; State Bank of India and others Versus N.P.Narayanan Kutty, 2003(2) S.C.C. 449; and Parkash Nath Saidha, Naiba Tehsildar Versus The Financial Commissioner (Revenue), Punjab, Chandigarh, and ors., 1972 S.L.R. 601 (P&H) (D.B.). After hearing the learned counsel for the parties and perusing the impugned judgments and the record, I commence upon to determine the controversy by referring to the charge which was levelled against the respondent. The statement of allegations which was served upon the respondent along with the charge sheet, reads as under:- “Statement of allegations against Shri Daljit Singh Kapoor, Head Craftsman. .... Shri Daljit Singh Kapoor submitted an application in the Corporation for the appointment of Head Craftsman on 10.06.1989 and appended therewith certificate purportedly issued by 20th Century Expo. Private Limited, Amritsar regarding his experience on the post of Head Craftsman. On enquiry with respect of this certificate from Manager (Carpet), carpet and Weaving Centre,Amritsar from the concerned firm, it has been found that Shri Daljit Singh Kapoor never worked R.S.A.No.1456 of 2005 -10- .... in this firm nor the said firm ever issued aforementioned certificate. This shows that experience certificate submitted by Shri Daljit Singh Kapoor along with his application on 10.06.1989 is forged. Accordingly, he is guilty of misrepresentation and fraud in securing the appointment to the post of Head Craftsman in the Corporation on the basis of the forged certificate. For the above act he has rendered himself liable for action under Rule 8 of Punjab C.S.R. (Punishment and Appeal) Rules,1970. Sd/- Managing Director” The first enquiry which was initiated against the respondent was entrusted to Shri Raj Kumar Sharma. A perusal of his report dated 31.5.1995 (submitted on 6.6.1995) reveals that it ultimately centred around the statement of Shri H.S.Randhawa, who is said to have given certificate dated 10.6.1989 which is alleged to have been used by the respondent for obtaining employment on the strength of misrepresentation and fraud. Shri Randhawa was produced by the appellant during the enquiry and he denied his signatures on the certificate dated 10.6.1989 in his statement made on 22.3.1994 and thereafter, the respondent was given an opportunity to cross- examine him, who had asked for deferment of his cross-examination as he required to refer to the records of M/S 20th Century Expo (P) Ltd., his erstwhile employer. Thereafter, Shri H.S. Randhawa failed to appear despite numerous letters having been sent to him which were received undelivered for the reason that M/S 20th Century Expo (P) Ltd. had closed R.S.A.No.1456 of 2005 -11- .... down. This enquiry officer went on to indict the respondent and held that the charge had been proved against him. Pursuant to the report submitted by Shri R.K.Sharma, a show cause notice dated 12.1.1996 was issued to the respondent and he submitted a reply thereto. Thereafter, he was also afforded an opportunity of personal hearing. The competent authority, after hearing the respondent, accepted his plea and ordered a fresh departmental enquiry against him and accordingly, Shri M.M.Oberoi was appointed as an enquiry officer. In his report dated 7.7.1997, Shri Oberoi concluded as under:- “Considering the total facts and circumstances of the case, the Corporation has not proved its onus. In spite of the fact that many chances were given to produce Shri H.S.Randhawa and for firm record, but Corporation neither could produce Shri H.S.Randhawa as witness nor could prove certificate given by the Managing Director as false. Shri D.K. Sharma could not inquire anything regarding fakeness of the certificates from firm's Managing Director. They sent letter to Head Office considering the letter of Shri H.S.Randhawa as correct, and they stated that the certificate shown at the time of appointment by Delinquent Officer was bogus and fake. Shri Sharma, witness should have verified the letter before sending it to Head Office that the certificate has been signed by Shri H.S.Sandhu, Managing Director or not and on what post the Delinquent Officer was working in the firm. R.S.A.No.1456 of 2005 -12- .... As all these inquiries and investigations are not there the main reason to hold any certificate as bogus is the witness of Shri H.S.Randhawa who has sent the concerned letter to Shri Sharma since Shri Randhawa did not appear himself during the inquiry, therefore, his letter could not be said to be proved as per rules and laws. In the aforementioned circumstances, the allegation against Delinquent Officer remain unproved due to lack of acceptable and valid evidence.” The Managing Director of P.S.I.E.C.L., however, disagreed with the enquiry report dated 7.7.1997 and observed as follows in the show cause notice dated 8.9.1997 issued to the respondent:- “Whereas vide office order issued under Endst. Nol.PSIEC/ Admn/1-4/9495-97 dated 23.7.1996, Shri M.M.Oberoi, IAS (Retd.) was appointed as Enquiry Officer to conduct the enquiry afresh. The Enquiry Officer submitted his report on 7.7.1997. The Enquiry Officer could not conduct the enquiry properly in view of the non appearance of the main witness in the case. The General Manager (Admn) was deputed to Amritsar to ascertain the factual position. He met Shri Sohan Singh, Managing Director of Pandeep Theatres and M/S 2oth Century Expo (P) Ltd. on 20.8.1997, who also confirmed the statement of Shri H.S.Randhawa given on 22.3.1994, before Shri R.K.Sharma, the Enquiry Officer that no such person named Shri Daljit Singh Kapoor has ever worked in M/S 3oth R.S.A.No.1456 of 2005 -13- .... Century Expo (P) Ltd. On the basis of report of General Manager (Admn), the undersigned differs with the findings of the Enquiry Officer and hold you responsible for submitting bogus/ fictitious experience certificate. You are, therefore, asked to show cause within 15 days from the date of issue of this letter as to why your services should not be terminated under bye Law 6.1 and 6.2 of the Employees Service Bye Laws of the Corporation. In case, no reply is received within the stipulated period, it will be presumed that you have nothing to say in your defence and further action will be taken accordingly.” The respondent once again filed his reply to the aforementioned show cause notice and appeared before the Chairman of the P.S.I.E.C.L., who remanded the enquiry back to the same Enquiry Officer, i.e., Shri M.M.Oberoi, for fresh enquiry. Shri Oberoi again submitted his report on 29.4.1998, the relevant extract of which is reproduced below:- “The production of witnesses during departmental proceedings is the responsibility of the Corporation. The Corporation has failed to discharge its responsibility in the present case. Even though, the departmental proceedings were fixed at Amritsar. The statement of Shri Sohan Singh could not be recorded due to his absence. The pendency of the present proceedings are not likely to be fruitful. The Corporation has failed to produce the R.S.A.No.1456 of 2005 -14- .... above witnesses. Since no fresh evidence has been produced, the earlier report already submitted in this behalf may be considered.” The Managing Director of the P.S.I.E.C. once again disagreed with the report of the Enquiry Officer and recorded the following order:- “ I have gone through the details of the case and I disagree with the findings of the Enquiry Officer Shri M.M.Oberoi. If the main witness Shri H.S.Randhawa did not appear for evidence it does not mean that the certificate was not bogus. The enquiry conducted earlier by Shri Ram Kumar Sharma in which Shri Randhawa had appeared at pages 224-225/C clearly proves that the said certificate was bogus as Shri Randhawa had given a statement that no such person named S.Daljit Singh had ever worked in their factory. Secondly, the verification carried out by GM(Admn.) at page 119/N also proves that no such person named S.Daljit Sing has ever worked in M/S 20th Century Expo Pvt. Ltd. Shri H.S.Randhawa had confirmed that the letter dated 19.10.1992 at page 86/cor was written by him confirming that no such person had ever worked in their organisation. I find sufficient proof that the said certificate is bogus one and accordingly I do not agree with the findings of the E.O. Shri MM Oberoi. Show Cause Notice, duly vetted from Legal Cell, may be issued to S.Daljit Singh for removal from service.” R.S.A.No.1456 of 2005 -15- .... Thereupon, a notice was issued to the respondent on 17.7.1998 to show cause as to why his services may not be terminated. He submitted his reply on 1.8.1998. An opportunity of personal hearing was also afforded to him on 10.6.1999. At that time, he had demanded a copy of enquiry report submitted by Shri M.M.Oberoi and it is evident from letter dated 16.6.1999 written to him by the Manager (Personnel) of the P.S.I.E.C.L. that a copy thereof was already supplied to him and he was asked to submit documentary evidence regarding his being a bona fide employee of M/S 20th Century Pvt. Ltd., Amritsar within ten days. Ultimately, the order dated 20.7.1999 was passed by the Managing Director of the P.S.I.E.C.L. dismissing the respondent from service. The relevant portion of that order is extracted below:- “Whereas Sh. D.S.Kapoor submitted his reply to the letter dated 16.6.99 but no documentary evidence regarding his bona fide service with the aforementioned firm was supplied by him with the letter. Whereas after considering the Enquiry Report and other available record and personal verification conducted at Amritsar by the General Manager (Admn) I find this as sufficient proof to hold that the experience certificate submitted by Sh.Daljit Singh Kapoor while applying for the aforementioned post is bogus and forged by him. Thus he has indulged in forgery of experience certificate which was a pre- requisite condition for employment. This is a very serious R.S.A.No.1456 of 2005 -16- .... matter and adversely reflects upon his character. Therefore, I, G.Vajralingam, IAS,Managing Director, Punjab Small Industries and Export Corporation Ltd.; exercising the powers conferred upon me under bye-law 6.1 and 6.2 read with Rule 6.4 of the Employees Service Bye-laws of the Corporation, order the dismissal of Sh. Daljit Singh Kapoor, Head Craftsman, CWTC, Amritsar from the service of the Corporation with immediate effect.” (Emphasis supplied). A perusal of the above sequence of events detailing the course of enquiry proceedings reveals that the enquiry report submitted by Shri R.K.Sharma indicted the respondent, but the same was not accepted by the Chairman of the P.S.I.E.C.L., who ordered fresh enquiry which was conducted by Shri M.M.Oberoi. After conducting the proceedings, Shri Oberoi submitted his report and found that there was no sufficient evidence to hold the respondent guilty of the charge levelled against him. That report was not found satisfactory and he was required to go afresh in the matter and while doing so, he reiterated his earlier report by holding that the charge was not proved against the respondent and it was the duty of the appellant to prove that the certificate was bogus. Strangely, the Managing Director of the P.S.I.E.C.L., who disagreed with the findings of the enquiry officer, has referred to the statement of Shri H.S.Randhawa which was recorded during the course of enquiry conducted by Shri R.K.Sharma whose report was discarded by the Chairman of the P.S.I.E.C.L. In any eventuality, the statement of Shri Randhawa could not have been taken into R.S.A.No.1456 of 2005 -17- .... consideration without this person being subjected to cross-examination by the respondent. After recording the statement, this witness did not appear at all for the reason which is reflected in the enquiry report of Shri R.K.Sharma that M/S 20th Century Expo Pvt.Ltd., Amritsar had closed down and Shri Randhawa might have changed his address. Thus, the statement of Shri Randhawa had gone untested. Therefore, it could not have been used against the respondent. The only other material which has been used against the respondent is that a personal verification was done. There is no material on record to show as to whether this report of personal verification was put to the respondent or that he was