R.S.A. No.588 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.588 of 1984 Date of Decision : 9.12.2008 Punjab State through the Secretary Transport Department,Punjab,Chandigarh .....Appellant Vs. Jasbir Singh .....Respondent ... CORUM : HON'BLE MR.JUSTICE RAJIVE BHALLA. **** Present : Mr.H.S. Gill, DAG, Punjab for the appellant. Mr.Anurag Chopra, Advocate for the respondent. .. RAJIVE BHALLA, J The State of Punjab challenges judgements and decrees dated 10.11.1982 and 9.11.1983, passed by the Senior Sub-Judge, Ferozepur and the Additional District Judge, Ferozepur, decreeing the suit filed by the respondent and dismissing the appeal filed by the State of Punjab. The plaintiff-respondent filed a suit for declaration praying that departmental proceedings and the order terminating his services are null and void, as he was not granted adequate opportunity to defend himself, produce evidence in defence and to cross-examine the departmental witnesses. The appellant filed a written statement controverting the averments in the plaint and asserted that complete and adequate opportunity was granted to the plaintiff-respondent to defend himself. It was also averred that departmental proceedings and the impugned order did not suffer from any error of fact or of law. R.S.A. No.588 of 1984 2 After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court decreed the suit by accepting the plea, put forth by the respondent, that the Enquiry Officer had committed a grave error of procedure, by violating Rule 8(11) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as the `Rules') i.e. after recording the respondent's initial plea, the Enquiry Officer did not adjourn the enquiry for 30 days, to enable the respondent to prepare his defence. The trial Court held that instead of granting an opportunity to prepare his defence, the Enquiry Officer proceeded to record statements of departmental witnesses. Dissatisfied with the aforementioned judgement and decree, the State of Punjab filed an appeal. The first appellate Court, dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the State of Punjab, submits that the Courts below are wrong in their interpretation of Rule 8(11) of the Rules. An Enquiry Officer is required to adjourn the enquiry for a period of 30 days only, if the delinquent employee fails to appear within the specified time or refuses or omits to plead before the Enquiry Officer. The respondent appeared before the Enquiry Officer on 7.4.1977, but as departmental witnesses were absent, the enquiry was adjourned to 19.4.1977. On the said date, departmental witnesses appeared before the Enquiry Officer and their statements were recorded. The respondent cross-examined departmental witnesses and thereafter was granted an opportunity to produce his evidence. At his request, the enquiry was adjourned to 28.4.1977. On the said date, as respondent could not produce his evidence, the enquiry was adjourned to 11.5.1977 and thereafter to 14.6.1977 and 20.7.1977. On R.S.A. No.588 of 1984 3 20.7.1977, the respondent appeared before the Enquiry Officer and apart from his detailed statement, the enquiry officer recorded the statement of one defence witness Kartar Singh S/o Niranjan Singh. The respondent thereafter, addressed a letter to the Enquiry Officer that he does not wish to adduce any other evidence or seek the assistance of a Presenting Officer. In view of the aforementioned facts, it is submitted that as adequate opportunity was granted to the respondent to defend the allegations levelled against him and as the Courts below have erred while interpreting the provisions of Rule 8(11) of the Rules, the appeal be allowed and the judgements and decrees passed by the Courts below be set aside. Counsel for the respondent, on the other hand, submits that concurrent findings of fact returned by the Courts below cannot be set aside in second appeal. The Courts below have held, as a matter of fact, that the respondent was denied adequate opportunity to defend the allegations levelled against him as the Enquiry Officer failed to comply with the provisions of Rule 8(11) of the Rules, which mandatorily required the Enquiry Officer to adjourn proceedings for 30 days, after the respondent pleaded not guilty. As the enquiry was not adjourned for a period of 30 days, the enquiry and the order of punishment passed as a consequence thereof were rightly held to be void. I have heard learned counsel for the parties, perused the record and the impugned judgements. The questions of law that arise for consideration are :- (i) “Whether during the course of departmental proceedings there was any violation of Rule 8 of the PCS (Punishment & Appeal) Rules 1970 ?” R.S.A. No.588 of 1984 4 (ii) Whether departmental proceedings and orders of punishment can be set aside without the delinquent official alleging and establishing any prejudice to his cause ?” The plaintiff-respondent was employed as a Conductor with the Punjab Roadways, Ferozepur. On 1.3.1977 while he was on duty on Bus No.5762, running between Amritsar and Bada Johar, the inspecting staff detected 23 ticketless passengers. The respondent was placed under suspension and thereafter, served with a charge sheet. As his reply was unsatisfactory, a regular departmental enquiry was ordered. After completion of the enquiry, a show cause notice was served upon the respondent and thereafter, vide order dated 5.12.1977, his services were terminated. The statutory appeal filed by the respondent was rejected on 16.1.1981. As noticed herein above, the suit filed by the respondent was decreed and the appeal filed by the State of Punjab was dismissed on the ground that the Enquiry Officer did not comply with Rule 8(11) of the Rules i.e. he failed to adjourn the case to a date not exceeding 30 days after recording the statement of the delinquent official. Rule 8 (11) of the Rules, reads as follows :- 8. Procedure for imposing major penalities : (1)to (10) XXX XXX XXX (11)The inquiring authority shall if the government employee fails to appear within the specified time or refuses or omits to plead, require the Presenting R.S.A. No.588 of 1984 5 Officer to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days after recording an order that the Government employee may, for the purpose of preparing his defence - (i)inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents, specified in the list referred to in sub-rule (3); and (ii)submit a list of witnesses to be examined on his behalf : Note : If the Government employee applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3) the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the punishing authority. (iii)give a notice within within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3). Note – The Government employee shall indicate the relevance of the documents required by him to be R.S.A. No.588 of 1984 6 discovered or produced by the Government.” Rule 8(11) is unambiguous in its intent and clear in its import that the enquiry officer shall adjourn proceedings to a later date not exceeding thirty days only where the employee fails to appear within the specified time or refuses or omits to plead before the Enquiry Officer. The Courts below apparently disregarded this part of the sub-rule and proceeded to assign a literal interpretation to the language used in the sub-rule. Accepting for a moment, the interpretation assigned by the Courts below to sub-rule 11of Rule (8), it would have to be held on facts that the present case does not disclose any violation of the provisions of Rule 8(11) of the Rules. As detailed in the arguments advanced by counsel for the appellant, the respondent was present before the Enquiry Officer on 7.4.1977, but as prosecution witnesses were not present, the hearing was adjourned to 19.4.1977, on which date departmental witnesses were examined by the prosecution and cross-examined by the respondent, without any objection or protest thereto. The respondent was granted an opportunity to adduce evidence in defence and at his request, the hearing was adjourned to 28.4.1977 and thereafter to 11.5.1977, 14.6.1977 and then to 20.7.1977. On 20.7.1977 the respondent appeared before the Enquiry Officer, alongwith his defence witness Kartar Singh S/o Niranjan Singh. The Enquiry Officer recorded the respondent's and his witnesses statement and they were duly cross-examined. Thereafter, the respondent addressed a communication to the Enquiry Officer that this evidence apart, he did not propose to examine any other witness and did not require the assistance of a co-worker. These facts clearly disclose that procedure prescribed by the Rules was followed and adequate opportunity was granted to the R.S.A. No.588 of 1984 7 respondent to put forth his defence. Thus, even if the interpretation assigned by the Courts below to Rule 8(11) is accepted, there appears to be no error in the procedure adopted by the Enquiry Officer or violation of sub-rule 11 of Rule 8 of the Rules, as would render departmental proceedings null and void. The first question of law is answered by holding that Rule 8(11) applies only where an employee fails to appear or refuses or omits to plead before the Enquiry Officer and, therefore, was wrongly applied by the Courts below to the present case and even if it were to apply, departmental proceedings do not disclose any such error as would render them void. As regards the second question of law, it is settled by a long line of binding precedents that mere infractions or errors of procedure do not vitiate an enquiry or an order of punishment till such time, as the delinquent official pleads and demonstrably establishes prejudice to his defence. In the instant case, the respondent has failed to plead or establish any prejudice to his defence. In absence of any prejudice to the respondent, the Courts below, therefore, could not have proceeded to set aside the enquiry and as a consequence, the order of punishment merely on perceived violations of procedural rules. The second question of law is, therefore, answered accordingly. In view of what has been stated herein above, the appeal is allowed and the judgements and decrees passed by the Senior Sub-Judge, Ferozepur and the Additional District Judge, Ferozepur dated 10.11.1982 and 9.11.1983 are set aside and the suit filed by the plaintiff-respondent is dismissed, with no order as to costs. 9.12.2008 ( RAJIVE BHALLA ) GS JUDGE R.S.A. No.588 of 1984 8