IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 13013 of 2010 Date of Decision: 16.8.2011. Jai Karan Mattu --Petitioner Versus State of Punjab & another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Ashok Sharma Nabhewala, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) Petitioner, a Judicial Officer has been awarded punishment of compulsory retirement from service vide the impugned order dated 30.12.2008 (Annexure P-6) by the respondent no.1 pursuant to an inquiry conducted against him, wherein he was found guilty of service misconduct. Present petition has been filed challenging the aforesaid order with a further prayer for reinstatement of the petitioner in service with all consequential benefits. Validity of the impugned order has been assailed primarily on two counts. (1) That copies of the statements of the witnesses recorded during the course of inquiry were not supplied to the petitioner enabling him to submit his reply resulting in violation of principles of natural justice. (2) There is no evidence on record to establish the charge of misconduct against the petitioner. When this case came up for hearing on 10.9.2010 the Court recorded following order:- CWP. No. 13013 of 2010 -2- “ Present: Mr.A.S. Nabhewala, Advocate, for the petitioner(s). Learned counsel wants to show that rights of the petitioner vested by virtue of statutory Rules have been violated causing serious prejudice to the rights to the petitioner. In the context of facts, substantially it has been admitted that the clerk had paid the premium for insurance of the petitioner. Adjourned to 25.11.2010. Sd/- 10.09.2010 (AJAI LAMBA) shivani JUDGE” On 9.2.2011 the petitioner was granted time to apply and get the copies of the documents/evidence under the Right to Information Act and place on record. Petitioner sought various adjournments and vide order dated 13.7.2011 he was granted one week time to place on record the evidence and on failure to do so the matter was directed to be heard in absence of the evidence. The petitioner, thereafter, placed on record the complete inquiry report (Annexure P-8) along with the evidence obtained under the Right to Information Act. This petition proceeds on certain admitted facts. A charge sheet dated 17.11.2005 was served upon the petitioner. He submitted his written defence on 18.10.2007. An inquiry was held against the petitioner by the District & Sessions Judge, Vigilance (Haryana). The inquiry report was served upon the petitioner. A show cause notice dated 23.5.2008 was served upon the petitioner seeking his response to the inquiry report and to show cause why penalty under Rule 5 of Punjab Civil Services (Punishment & Appeal) Rules, 1970 may not be imposed upon him. Petitioner was informed that charges no.1 and 3 to 5 have been proved against him, CWP. No. 13013 of 2010 -3- whereas charge no.8 has been partly proved during the course of the inquiry. The petitioner replied to the show cause notice vide his reply dated 26.7.2008. On consideration of the reply of the petitioner the impugned order for compulsory retirement of the petitioner has been passed. It has been argued on behalf of the petitioner that despite various requests he was not supplied with the copies of the statements of the witnesses recorded during the course of the inquiry. To substantiate his contention, reference is made to letters (Annexure P-4) and some other letters mentioned in the writ petition, though, copies of such letters have not been placed on record. It is not in dispute that the petitioner participated in the inquiry and was offered full opportunity to lead his evidence and cross- examine the witnesses. Even when the show cause notice was served upon the petitioner on 23.5.2008, he filed his reply on 26.7.2008 after seeking time for filing the reply on the plea of obtaining the copies of the statements of the witnesses. It has been admitted in the writ petition itself that the petitioner did inspect the record before filing his reply. As regards the second contention that there is no evidence against the petitioner particularly in regard to the alleged misconduct of obtaining Rs.10,000/- from his subordinate official and threatening him to refund the amount by withholding his sanction for release of the death-cum- gratuity on retirement of the official, it is contended that the charge has not been proved against him. Charge sheet (Annexure P-1) served upon the petitioner contains as many as 9 charges. Out of these 9 charges the Inquiry Officer held charge nos.1, 3 to 5 as proved and charge no.8 as partly proved, whereas charge nos.2, 6, 7 and 9 were held not proved. CWP. No. 13013 of 2010 -4- During the course of the arguments Mr. Sharma, learned counsel appearing for the petitioner laid much emphasis on charge no.1, which is otherwise of serious nature and argued that this charge has not been proved. It is further stated that, if, this charge is held not to be proved on the basis of evidence, the penalty awarded is not sustainable. No argument was addressed regarding any other charge. Charge no.1 is reproduced hereunder:- “1. That you, while posted as Civil Judge (Sr.Divn.), Moga in Faridkot Sessions Division, had purchased an LIC Policy worth Rs.10,000/- during the financial year 2002-03 for the purpose of availing income tax rebate. The amount of Rs.10,000/- of LIC Policy was paid by Shri Tirath Ram Narang, the then C.O.C of your court. You repaid the said amount to him in equal monthly installments of Rs.2000/- completing the repayment in the month of August, 2003. Shri Tirath Ram Narang, C.O.C had retired on 31.7.2003 and his Death-cum-Retirement Gratuity papers were pending before you for signatures. On 17.5.2004, you told him that you would not sign the papers unless he returned you Rs.10,000/- of the above said LIC Policy notwithstanding the fact that you were the beneficiary of the policy. You did not sign the said papers deliberately. Further, in order to overawe the employee to get back Rs.10,000/- you issued notice bearing No.499 dated 17.5.2004 to Shri Tirath Ram Narang aforesaid. Thus, you have raised a loan from your subordinate employee without the prior permission of this court and by issuing notice dated 17.5.2004 (ibid) to him by using threatening language, have misconducted yourself and violated the provisions of the Rule 3 and Rule 16(4) (1) (3) of this Govt. Employees Conduct Rules, 1966 and thus acted in a manner unbecoming of a Judicial Officer.” It has been vehemently argued that the findings by the Inquiry Officer on this charge are perverse as the same is based upon no evidence. It is pertinent to note here that the petitioner has not challenged the inquiry report or any of the findings recorded by the Inquiry Officer in the present CWP. No. 13013 of 2010 -5- petition. What has been challenged is the final order of compulsory retirement. Even though, this argument of the petitioner should not have been entertained, however, with a view to satisfy the conscience of the Court, the petitioner was allowed to refer to the evidence in respect to charge no.1. Mr. Sharma has read the statement of Sh.Tirath Ram Narang the then C.O.C in the office of petitioner at Moga. Charge no.1 pertains to the allegations of securing Rs.10,000/- from Sh.Tirath Ram Narang for payment of LIC premium and later threatening the official to return the amount paid by the petitioner in installments to him after his retirement as a condition to sanction his death-cum-retirement gratuity. I have gone through the statement of Sh.Tirath Ram Narang recorded during the inquiry. It is admitted case of the petitioner that he borrowed Rs.10,000/- from Sh.Tirath Ram Narang the then C.O.C in his office for payment of the LIC policy secured by him to get income tax benefit. It is equally admitted position that this amount of Rs.10,000/- was paid by the petitioner to Sh.Tirath Ram Narang in monthly installments of Rs.2,000/-. The entire amount of Rs.10,000/- was repaid by the petitioner. Sh.Tirath Ram Narang retired on 31.7.2003. His medical bill of about Rs.45,000/-, bill of revised D.A and claim of death-cum-retirement gratuity were placed before the petitioner for sanction. Petitioner did not sanction the bills. Sh.Tirath Ram Narang was issued a letter dated 14.5.2004 asking him to appear before the petitioner on 17.5.2004 regarding clearing his bills relating to death-cum-retirement gratuity. Sh.Tirath Ram appeared before the petitioner on the date specified in the notice. It is on the said date that the petitioner asked him to return his Rs.10,000/- as a condition for CWP. No. 13013 of 2010 -6- sanctioning his death-cum-retirement gratuity. On such demand being made Sh.Tirath Ram lodged a written complaint on 20.5.2004, whereupon an inquiry was initiated against the petitioner. Statement of Sh.Tirath Ram recorded during the inquiry fully establishes charge no.1 against the petitioner. Even in cross-examination the petitioner has not been able to demolish the testimony of the witness. In presence of the above facts on record, the contention of the petitioner that there is no evidence on record to substantiate the charge being totally without any substance, needs to be rejected. Disciplinary proceedings against the petitioner are governed and regulated by Rules 5 and 8 of the Punjab Civil Services (Punishment & Appeal) Rules, 1970. Rule 5 prescribes major penalty which could be imposed upon a delinquent official, whereas Rule 8 prescribes the procedure to be adopted. Relevant parts of both these rules are reproduced hereunder:- “Rule 5. Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Govt. employee, namely:- Minor Penalties (i) to (iv) Major Penalties (v) to (vi) (vii) Compulsory retirement; (viii) to (ix) Rule 8. Procedure for imposing major penalties. (1) -No order imposing any of the penalties specified in clauses (v) to (ix) of rule 5 shall be made except after an inquire held, as far as may be in the manner provided in this rule and Rule 9 or the manner provided by the Public Servants (Inquiries) Act 1850 (37 of 1850), where such inquiry is help under that Act. (2) to (5) CWP. No. 13013 of 2010 -7- (6) The punishing authority shall, where it is not the inquiring authority, forwards to the inquiry authority- (i) a copy of the article of charges and the statement of the imputation of misconduct or misbehaviour; (ii) a copy of written statements of de fence, if any submitted by the Government employee; (iii) a copy of the statement of witnesses, if any referred to in sub-rule (3); (iv) evidence proving the delivery of the documents required to be delivered to the Government employee under sub-rule (4); (v) a copy of the order appointed the “Presenting Officer. (7) The Government employee shall appear in person before the inquiring authority on such day and at such time within ten within ten working days form date of receipt by him of the articles of charge and the statement of the imputations of misconduct or misbehaviour as the inquiring authority may, be a notice in writing, specify in this behalf, or with in such further time not exceeding ten days, as the inquiry authority may allow. (8) The Government employee may take the assistance of any other Government employee [or a retired Government employee]* to present the case on his behalf, but may not engage a legal practitioner, or the punishing authority having regard to the circumstances of the case, so permits. (9) If the Government employee who has not admitted any of the articles any of the articles of charge in his written statements of de fence or has not submitted any written statement of the de fence, appears before the inquiring authority shall ask him whether he is guilty or has any de fence to make and if he pleads guilty to any of the articles of the charge*. The inquiring authority shall records the plan, sign the record and obtain the signature of the Government employee thereon. (10) The inquiring authority shall return a finding of guilt in respect of these articles of charges to which the Government employee pleads guilty.” CWP. No. 13013 of 2010 -8- Compulsory retirement is one of the major penalties prescribed under Rule 5. There is absolutely no allegation that the procedure prescribed under Rule 8 has not been adhered to or has been violated in any manner. The only contention raised is that the petitioner was not supplied with the copies of the statements of the witnesses recorded during the course of inquiry while admitting that he participated in the inquiry and the entire evidence was recorded in his presence. It is established on record and is otherwise an admitted fact that the petitioner cross-examined all the witnesses. Thus, the evidence recorded during the inquiry was well within the knowledge of the petitioner. Rule 8 only requires furnishing of copy of the inquiry report to the delinquent official. There is no statutory requirement of furnishing copies of statements of witnesses recorded during the course of inquiry to the delinquent official particularly when he participated in the inquiry. Thus, the first contention of Mr. Sharma deserves to be rejected. The Second contention is equally fallacious in view of the statement of Sh.Tirath Ram Narang whose testimony has been noticed herein above. It is settled principle of law that the High Court in exercise of the writ jurisdiction under Artilce 226 while considering the judicial review of an order or proceedings in domestic inquiries can only examine the manner of exercise of the power by the disciplinary authority and does not sit as a Court of Appeal in respect to the disciplinary proceedings. The Hon'ble Supreme Court while considering this aspect in case of State of U.P. Vs. Man Mohan Nath Sinha reported as (2009) 8 SCC 310 has held as under:- CWP. No. 13013 of 2010 -9- “15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The court does not sit in judgement on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as it it was a court of appeal.” There has been no violation of principles of natural justice nor the findings recorded by the Inquiry Officer are perverse in any manner as argued. To the contrary there is more than sufficient material on record to establish the charge against the petitioner. It is a proven case of misconduct warranting no judicial intervention. For the above reasons, this petition deserves dismissal. I order accordingly. (PERMOD KOHLI) JUDGE 16.8.2011. lucky Whether to be Reported? Yes.