Regular Second Appeal No.2974 of 1985 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 11, 2010 Sat Pal ...Appellant VERSUS Punjab State through Collector Gurdaspur & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers 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? Present: Mr.Des Raj Mahajan, Advocate, for the appellant. Ms.Ambika Luthra, AAG, Punjab, for the State. ***** RANJIT SINGH, J. This order will dispose of four Regular Second Appeal Nos.2974 of 1985 (Sat Pal Vs. Punjab State & another), 2976 of 1985 (Harjit Singh Vs. The Punjab State & another), 2895 of 1985 (Punjab State & another Vs. Harjit Singh) and 3078 of 1985 (The Regular Second Appeal No.2974 of 1985 (O&M) : 2 : Punjab State & another Vs. Harjit Singh). Sat Pal, who was working as a Conductor in Punjab Roadways, Pathankot, has filed this RSA No.2974 of 1985 to impugn the orders passed by the Trial Court as well as by the first Appellate Court. Sat Pal appellant-plaintiff had filed a suit for declaration to the effect that the orders passed by General Manager Punjab Roadways, Pathankot dated 19.2.1982 17.3.1979, 21.2.1979 and 13.2.1980 directing stoppage of increments etc. were illegal, null & void, ultra- vires, un-constitutional besides being in violation of the service rules. He also prayed for grant of consequential relief and increments including the arrears of salary. Sat Pal appellant impugned the orders, referred to above, on the ground that before passing these orders, no proper charge sheet was served to him and where it was so served, the charges were vague, baseless and fictitious. His further grievance is that no fair and proper enquiry was conducted and the necessary documents were also not supplied to him. As per the appellant, he was not afforded opportunity to defend his case. Plea further was that Enquiry Officer returned the finding without examining the evidence led by the parties carefully and the evidence that stood in his favour was not considered at all. The appellant would also contend that the show cause notice issued to him on the basis of finding given by the Enquiry Officer was illegal and that no opportunity of personal hearing was afforded to him. As per the averments made in the plaint, the appellant never came to know about the punishment of stoppage of increments and learnt about it only when he noticed that his salary was less in comparison to his juniors. He accordingly Regular Second Appeal No.2974 of 1985 (O&M) : 3 : approached the authorities to allow him annual increments, stopped illegally, which was declined. He thereafter served the defendants with a notice under Section 80 CPC and ultimately filed this suit seeking relief of declaration that the orders, referred to above, were illegal and so should be set-aside. On being put to notice, respondent-defendants came present and filed a joint written statement on 20.12.1984. It was conceded that appellant was working as a Conductor, but all other allegations made in the plaint were denied. It was also pleaded that the orders passed were perfectly legal and valid. The suit was tried on following issues:- “1. Whether the impugned order is illegal, null and void, against service rules etc. as alleged? OPP 2. Whether the suit is bad for want of notice u/s 80 C.P.C.? OPD 3. Relief. While dealing with order No.3012 dated 21.2.1979 whereby three increments of the appellant were ordered to be stopped with cumulative effect, it was noticed by the Trial Court that no departmental enquiry was held before imposing this punishment. Even no charge-sheet was statedly served on the appellant. After relying upon the case of 1982(2) S.L.J. 626 and 1983 Lab.I.C. NOC 31 (P&H), it was held that stoppage of increments with cumulative effect being a major punishment could only be imposed after holding an enquiry as contemplated under Rule 8 of the Punjab Civil Services (Punishment & Appeal) Rules, 1970 (for short “1970 Rules”). Since the order was passed without any enquiry, the same Regular Second Appeal No.2974 of 1985 (O&M) : 4 : was found to be bad in the eyes of law. The order was also found to be non-speaking. Taking up the issue of order No.6318 dated 13.2.1980 whereby one increment of the appellant was stopped temporarily without cumulative effect, the Trial Court noticed that it was a minor punishment and the same could be imposed after issuance of show cause notice. This order accordingly was held legally valid. Third order No.4542/44 dated 19.2.1982 was for reducing the two stages of the appellant from Rs.420/- to Rs.400/- for two years with postponment of his future increment as well. In this case also, it was pleaded that the appellant was not supplied with the copies of the documents and the charge sheet and was not afforded opportunity to cross-examine the witnesses. These submissions were found without substance. Copy of the charge-sheet was found available and so too the list of witnesses having been enclosed therewith. The enquiry proceedings revealed that Lakhwinder Singh was cross-examined on behalf of the appellant at length. Accordingly, this order was also held justified in law. The plea of appellant Sat Pal further was that he was not supplied with the copy of conclusion returned by the Enquiry Officer, i.e., enquiry report. The court, however, after perusing the enquiry file found that the enquiry report was statedly enclosed with the show cause notice and that documents had been received by the appellant. Signatures were also available on the documents. Taking up the last order No.3197 dated 17.3.1979 whereby five increments were ordered to be stopped with cumulative effect, it was noticed that after service of the charge sheet, the Regular Second Appeal No.2974 of 1985 (O&M) : 5 : appellant had submitted his reply. No allegation about the non-supply of the documents was ever made in the reply. His reply was also available on record and it was accordingly found to be an afterthought. The ground of attack regarding non-communication of this order was also not accepted and it was found that the appellant himself had admitted during cross-examination that the increments were granted every year and that he was not allowed increment after 1970. He had also enquired about the reasons and came to know that the same stood stopped. It was accordingly found that it would not lie in his mouth to say that this fact was not in his knowledge. The issue No.1 in this regard was accordingly decided. Issue No.2 regarding service of notice under Section 80 CPC was decided against the respondent-defendants and accordingly the suit filed by the appellant was partly decreed. Against this order passed by the Trial Court, State as well as Sat Pal filed appeals before the first Appellate Court. The said appeals were disposed of by common order on 16.5.1985. The appeal filed by appellant Sat Pal was numbered as Civil Appeal No.25 of 1985, whereas that of the State was numbered as 45 of 1985. The appeal filed by the State was allowed and that filed by Sat Pal was dismissed. As a result thereof, the suit filed by the appellant was dismissed in its entirety. Accordingly, appellant Sat Pal has filed this Regular Second Appeal before this court. R.S.A NOS.2976, 2895 AND 3078 OF 1985 Three Regular Second Appeal Nos.2976 of 1985, 2895 of 1985 and 3078 of 1985 arise out of the suit filed by Harjit Singh. Harjit Singh, also working as a Conductor with Punjab Roadways, Regular Second Appeal No.2974 of 1985 (O&M) : 6 : Batala, had filed a suit to challenge the eight orders directing stoppage of his increments with cumulative effect as per the following details:- “i)Order No.772/TA dt. 30/8/74 two increments. ii) Order No.551/TA dt.12.5.75 one increment. iii) Order No.1401/ST/GM dt.19.9.75 three increments. iv) Order No.1287/ST/GM dt.3.10.75 one increment. v) Order No.9505/TA dt.29.9.77 two increments. vi) Order No.210/TA dt.21.1.78 one increment. vii) Order No.2863/ECC dt.1.2.77 one increment. viii) Order No.9154/GM/Steno dt.1.9.77 Reduction to minimum of time scale for a period of 5 years. Appellant Harjit Singh would plead that all these orders were illegal, null & void and were passed in violation of principle of natural justice. Services of Harjit Singh were terminated on 30.9.1979. He challenged this order by filing a civil suit at Gurdaspur, which was decreed on 8.9.1982 and accordingly he was taken back in service on 5.11.1982. The appellant had also filed an application under Section 15 of the Payment of Wages Act for recovery of the wages for the period he had remained out of service on account of his termination. He had also not been given increments. He then learnt about the orders mentioned above on 26.8.1983 from Shri Parveen Kumar Clerk of Punjab Roadways and also from his service book. He then learnt that his increments were withheld because of these orders. He accordingly filed this suit to challenge all the nine orders. The appellant would contend that stoppage of increments with cumulative effect is a major punishment and, thus, the same Regular Second Appeal No.2974 of 1985 (O&M) : 7 : could have been awarded only after following the proper procedure as prescribed under the Rules. The appellant also pleads that out of re-collection, he also remembers that enquiry was held in two or three cases and in one or two cases he was exonerated by the Enquiry Officer. The appellant, thus, would plead that no reasonable opportunity was afforded to him to defend himself as no valid show cause notice was served and these orders were also not conveyed to him. He filed the suit after serving a notice under Section 80 CPC. Respondent-defendants appeared and contested the suit. By way of preliminary objection, the jurisdiction of the civil court was challenged to go into these issues. Pleas of suit being barred by limitation and not maintainable were also raised. Otherwise, it was admitted that the impugned orders were passed, but allegations regarding violation of principle of natural justice etc. were denied. This suit was tried on the following issues:- “1) Whether the civil court has got no jurisdiction to try the suit? OPD 2)Whether the suit is barred by limitation? OPD 3) Whether the suit is not maintainable in the present form? OPD 4) Whether the eight orders as mentioned in the head note of the plaint are illegal, null and void etc. and the plaintiff is entitled to the benefits of service? OPP 5) Relief. The Trial Court found that the order dated 30.8.1974, referred to above, was for the allegation that the appellant had mis- appropriated a sum of Rs.10-05P. Charge sheet was served upon Regular Second Appeal No.2974 of 1985 (O&M) : 8 : him to which he had replied. The appellant had admitted his guilt, which was found available on the enquiry file. Thereafter, he was served a show cause notice, wherein he prayed for minimum punishment. Accordingly, order for stopping of two increments with cumulative effect was passed by the punishing authority. The Trial Court rightly concluded that there was no need to record evidence in this case once the appellant had confessed his guilt. Accordingly, it was held that there was no need to hold an enquiry. This order was held to be valid. Thereafter, the Trial Court took up for consideration the orders dated 12.5.1975, 19.9.1975, 3.10.1975, 29.9.1977 and 21.1.1978. The Trial Court found that before passing these orders, the procedure as mentioned in Rule 8 of the 1970 Rules was not followed. These orders were also found to be bereft of reasons. These orders were accordingly declared null & void. As regard, order dated 1.2.1977, the appellant was exonerated of the charge of mis-appropriation but was held guilty of negligence by the Enquiry Officer. The appellant had admitted this allegation in reply to the show cause notice. Accordingly, the impugned order was passed stopping the increments by the punishing authority. This order was held to be valid by the Trial Court as the appellant had confessed his guilt. Order dated 1.9.1977 again related to misconduct and embezzlement. This order was also held to be valid as proper charge sheet was served to the appellant and enquiry was held. After finding of the Enquiry Officer, show cause notice was served and then the order of punishment was made. The suit filed by the appellant Regular Second Appeal No.2974 of 1985 (O&M) : 9 : accordingly was partly decreed holding orders mentioned at Sr.Nos. (ii), (iii), (iv), (v) and (vi) to be illegal, null & void which were set-aside, whereas orders mentioned at Sr.Nos.(i), (vii) and (viii) were declared legal and valid. The State as well as appellant Harjit Singh filed appeals before the first Appellate Court. The Appellate Court while deciding both the appeals through common order and accepted these appeals partly. Suit of the appellant was decreed qua orders dated 12.5.1975 (Sr.ii), 21.1.1978 (Sr.vi) and 1.2.1977 (Sr.vii) were held to be illegal, void and unsustainable and so set-aside (Sr.viii) was modified to read to reduction to minimum of time scale for a period of five years without cumulative effect”. Orders dated 30.8.1974 (Sr.i), 19.9.1975 (Sr.iii), 3.10.1975 (Sr.iv) and 29.9.1977 (Sr.v) were held legal and valid and were directed to remain in operation. The State as well as Harjit Singh are, therefore, in Regular Second Appeals before this court. The State has filed two appeals. One appeal is against the order passed in appeal filed by appellant Harjit Singh before the first Appellate Court and another to impugn the order, which was made on the State appeal. Since the common questions of law have been raised in all these appeals, these have been heard together and are being disposed of through this common order. DISCUSSION & DECISION ON ALL APPEALS: No substantial questions of law were formulated in these cases. However, counsel appearing for appellants Sat Pal and Harjit Singh has placed before me the questions of law that would arise in Regular Second Appeal No.2974 of 1985 (O&M) : 10 : these cases. As per the counsel, following substantial questions of law would arise in the case of Sat Pal appellant:- “1. Whether Civil Appeal No.45 of 1985 filed by the respondent/defendant was incompetent as the memorandum of Appeal has been signed and presented by the Govt. Pleader, who had not been duly authorized to act on behalf of defendant/respondent? 2. Whether there was no presenting officer and the cross- examination of the departmental witnesses and defense witnesses and consequently departmental enquiry was vitiated? 3. Whether there were no statements of the passengers and when even the cash has not been checked, it was a case of, “No evidence”? 4. Whether the enquiry was vitiated when no reason was given as to why the reply given by Appellant was rejected? 5. Whether the non application of mind to hold to decide that whether enquiry was essential or not vitiated the enquiry? 6. Whether the non communication of the orders was a violation of rules 11 & 22 of Punjab Civil Services (Punishment and Appeal) Rules, 1970? 7. Whether the orders were not speaking orders? 8. Whether the orders were passed in violation of Rules 8,10,11 & 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970?” Regular Second Appeal No.2974 of 1985 (O&M) : 11 : Similarly, following questions of law are framed in the case of Harjit Singh:- “1. Whether Civil Appeal No.13 of June 9, 1985 filed by the respondent/defendant was incompetent as the memorandum of Appeal has been signed and presented by the Govt. Pleader, who had not been duly authorized to act on behalf of defendant/respondent? 2. Whether there were no statements of the passengers and when even the cash has not been checked, it was a case of, “No Evidence”? 3. Whether the enquiry was vitiated when no reason was given as to why the reply given by Appellant was rejected? 4. Whether the non application of mind to hold to decide that whether enquiry was essential or not vitiated the enquiry? 5. Whether the non communication of the orders was a violation of rules 11 & 22 of Punjab Civil Services (Punishment and Appeal) Rules, 1970? 6. Whether the orders were not speaking orders? 7. Whether the orders were passed in violation of Rules 8,10,11 & 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970?' In view of the above position, the first plea pressed on behalf of the counsel for the appellant is that appeal filed before the first Appellate Court was not competently constituted as memorandum of appeal was signed and presented by the Regular Second Appeal No.2974 of 1985 (O&M) : 12 : Government Pleader. This fact may not be in dispute but, in my view, this will not have any much impact in the cases. State counsel is also justified in pointing out that in the case of Harjit Singh, no such objection was raised and in fact the appellant had acquiesced with this position and cannot now be heard to make a grievance about the same. Even if there was some defect in the appeal filed on behalf of the State in the case of Harjit Singh, the said appeal alongwith other appeals were disposed of by a common order. The appeal filed by Sat Pal was in any case properly constituted and accordingly both the appeals were decided together and dealt with. The order being common, can be taken to be a valid order passed in appeal filed by Sat Pal, appellant. Counsel for the appellants at this stage would refer to Punjab State and another Vs. Smt.Pushpa Kumari, 1981 P.L.J. 148, Kashmir Singh Vs. Harnam Singh and Anr. 2008(2) R.C.R. (Civil) 688 and Garib Chand Vs. Municipal Committee, Budhlada, 1979 Revenue Law Reporter 341. In Smt.Pushpa Kumari's case (supra), the view which would emerge from the judgment is that if a Government servant is to be defended by the State, then a specific authority to that effect has to be given to the Government Pleader and the Government Pleader has to intimate the Court to that effect through an application. That is not the position, which is available in the present case. Here the Government Pleader had the authority to appear on behalf of the Government. To over come the difficulty of having not raised objection in this regard before the first Appellate Court, the counsel would Regular Second Appeal No.2974 of 1985 (O&M) : 13 : seek support from the case of Kashmir Singh (supra), where it is observed that an entirely new point raised for the first time before the High Court may not be a substantial question of law unless it goes to the root of the matter. It is also observed that where it is found that the first appellate court has assumed jurisdiction which did not vest in it, then the same can be adjudicated in the second appeal, treating it as a substantial question of law. There can not be any quarrel with the proposition of law as such, but this judgment in Kashmir Singh's case (supra) was not dealing with a situation where the memorandum of appeal was signed by the Government Pleader and in that event, it would go to the root of matter effecting jurisdiction of the Court. The first Appellate Court, in my view, would have the jurisdiction to deal with the appeal once a properly constituted appeal filed by the appellant was also being considered alongwith the appeal, which was filed by and on behalf of the State. In Garib Chand's case (supra), the appeal was filed by an Advocate on authorisation of the Executive Officer without resolution of Municipal Committee. In this background, it was held not competent. No factual basis has been pointed out before me to say under what circumstances, the Government counsel in this case had himself signed the memorandum of appeal or whether he had valid authority in this regard. In the absence of proper pleadings, it would not be appropriate to go into this issue, when this position was acquiesced before the first Appellate Court. The ratio of law laid down in the case would not apply because in that case there was only one appeal, whereas in the present case, there is another validly constituted appeal before the Court. Regular Second Appeal No.2974 of 1985 (O&M) : 14 : The next submission made by the counsel for the appellants is that no Presenting Officer was detailed in the enquiries, which were held and, thus, the Enquiry Officer himself had cross- examined the defence witnesses. In this background, the counsel contends that the enquiries held in the cases would not be fair and proper. In support, the counsel has drawn my attention to the case of Abdul Wajeed Vs. State of Karnataka and others, 1981(1) SLR 454. The procedure, which is prescribed for holding an enquiry when major penalty is to be imposed is provided under Rule 8 of 1970 Rules. As per Rule 8, Sub-rule (5), on receipt of a written statement of defence, the punishing authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint an Enquiry Officer for the purpose. Where Enquiry Officer is so appointed to hold an enquiry, then as per Rule 8(5)(c), the punishing authority may appoint a Government employee or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge. The analysis of various sub-rules of Rule 8 would show that an Enquiry Officer is empowered to address certain questions. Reference may be made to Rule 8(9) where the Enquiry Officer shall ask the delinquent employee whether he is guilty or has any defence to make. Enquiry Officer is to return a finding of guilty in respect of those articles of charge where plea of guilty is raised. As per Rule 8 (18), the inquiring authority may, after the Government employee closes his case, and shall, if the Government employee has not examined himself, generally question him on the circumstances, Regular Second Appeal No.2974 of 1985 (O&M) : 15 : appearing against him in the evidence for the purpose of enabling the Government employee to explain any circumstances appearing in the evidence against him. Thus, the right of the Enquiry Officer to question even the delinquent employee or the witnesses would be inherent if Rule 8 of 1970 Rules is analysed properly. Mere fact that the Enquiry Officer had addressed certain questions either to the witnesses or even to the delinquent employee would in itself be not enough to show that the enquiry, which was held, was in violation of principle of natural justice. What all in such circumstances is to be seen is whether the conduct of the Enquiry Officer was such which had depicted any bias leading to any prejudice to the employee facing the enquiry. The ratio of law that would emerge from Abdul Wajeed (supra) indeed would support this view. Detailed reference is made to the nature of questions addressed in this case by Enquiry Officer to the witnesses. Enquiry Officer had suggested to the witnesses supporting the delinquent employee that they had uttered falsehood and in this background, it was found that the Enquiry Officer was biased and had made up his mind to find the petitioner therein guilty of the charge. The report of the Enquiry Officer was reproduced in the order to bring home this point. This position would clearly emerge from the following observations made by the Court:- “In my view, the cross-examination of PW-11 who had supported the version of the petitioner, and more particularly the cross-examination of the two defence witnesses by the Enquiry Officer suggesting to