RSA No.606 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.606 of 2008 Date of Decision: 23.9.2008 Sarabjit Singh .....Appellant Vs. State of Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Dharam Pal, Advocate, Mr.Naresh Kaushal,Advocate and Mr.H.K. Brinda, Advocate for the appellant. Mr. H.S. Gill, D.A.G. Punjab for the respondents. .... RAJIVE BHALLA, J (Oral) The challenge in this Regular Second Appeal is to judgements and decrees dated 22.11.2005 and 12.1.2008 passed by the Civil Judge (Senior Division), Ropar and the Additional District Judge (Adhoc) Fast Track Court, Rupnagar, dismissing the suit and the appeal, respectively. A brief narrative of the facts would be appropriate, so as to decide the question of law that arises for adjudication. The appellant was posted as Field Kanungo, Nurpur Bedi, Distt. Rupnagar, when three registered sale deeds were presented, for sanction of mutations. The mutations were entered by the Patwari, inspected by the appellant and later on put up before the Naib Tehsildar, Nurpur Bedi, who sanctioned them. On 25.4.2001, about 9 years after the sanction of the mutations, the appellant was served with a charge sheet for RSA No.606 of 2008 2 dereliction of duty in not forwarding information that the mutations were sanctioned beyond the limit of landholding prescribed under the Punjab Land Reforms Act, 1972 (hereinafter referred to as `the Act'). The appellant filed a reply to the charge sheet. As his reply was found to be unsatisfactory, an Enquiry Officer was appointed. The Enquiry Officer submitted a report indicting the appellant by holding him liable for carelessness. The appellant filed a reply to the show cause notice, proposing to inflict punishment. By order dated 13.7.2002, he was dismissed from service. The appellant filed an appeal before the appellate authority, namely, the Divisional Commissioner, Patiala Division, Patiala. Vide order dated 10.9.2002, the order of punishment was set aside and the appellant was exonerated. The Punishing Authority,thereafter, filed an appeal before the Financial Commissioner (Revenue),Punjab, Chandigarh, challenging the correctness of the order passed by the Divisional Commissioner, Patiala Division, Patiala. The Financial Commissioner (Revenue) vide order dated 17.6.2003 accepted the appeal, set aside the order passed by the Divisional Commissioner, Patiala Division, Patiala and modified the order passed by the Punishing Authority and imposed a punishment of stoppage of five increments with cumulative effect. Aggrieved by this order, the appellant filed a petition for review/recalling of the order passed by the Financial Commissioner (Revenue) by asserting that the Financial Commissioner (Revenue) had no jurisdiction to pass the order dated 17.6.2003. The review petition was dismissed on 10.12.2003. The appellant thereafter, filed a suit praying for issuance of declaration that the orders dated 17.6.2003 and 10.12.2003 passed by the Financial Commissioner (Revenue) were without jurisdiction as the Punjab RSA No.606 of 2008 3 Civil Services (Punishment & Appeal) Rules, 1970 (hereinafter referred to as `the Punishment and Appeal Rules') does not confer any jurisdiction on the Financial Commissioner (Revenue) to set aside an order passed by an Appellate Authority exercising jurisdiction under the Punishment and Appeal Rules. In response to notice of the suit, the respondents filed a reply, asserting that the Financial Commissioner (Revenue) was empowered, under the provisions of the Punishment and Appeal Rules, to pass the impugned order. On the basis of the pleadings, the trial Court framed the following issues :- “1. Whether the plaintiff is entitled for declaration as prayed for ? OPP. 2. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP. 3. Whether this Court has got no jurisdiction to try the present suit ? OPD. 4. Whether the suit is not maintainable ? OPD. 5. Relief.” The learned trial Court dismissed the suit by holding that the Financial Commissioner (Revenue) was empowered to set aside the order passed by the Appellate Authority and to impose a punishment. No reasons, however,were assigned in support of this conclusion. Aggrieved by this judgement, the appellant filed an appeal. The First Appellate Court dismissed the appeal without adjudicating the primary submission that the Financial Commissioner (Revenue) had no jurisdiction to pass the order setting aside the order passed by the Appellate RSA No.606 of 2008 4 Authority. The first appellate Court, proceeded to hold that though Rule 21 of the Punishment and Appeal Rules is titled as a “Review”, the power of review is in essence, a power of appeal and, therefore, the Financial Commissioner (Revenue) had jurisdiction to pass the impugned order. Counsel for the appellant submits that the Punishment and Appeal Rules do not provide for an appeal from an order passed by a designated Appellate Authority. Rule 21 of the Punishment and Appeal Rules confers the power of review upon the Governor or upon the Appellate Authority or any other authority specified in this behalf by the Governor by a general or special order. The Financial Commissioner (Revenue), who is neither the Governor nor the Appellate Authority nor an authority specified in this behalf by the Governor, had no jurisdiction to entertain an appeal against the order passed by the Appellate Authority. It is, therefore, submitted that as both the Courts below failed to correctly decide the inherent lack of jurisdiction in the Financial Commissioner (Revenue), the impugned judgements and decrees be set aside and the order passed by the Financial Commissioner (Revenue) dated 17.6.003 be quashed. Counsel for the State of Punjab, on the other hand, submits that Rule 21 of the Punishment and Appeal Rules, though titled as a review, in essence, confers a power akin to the power of appeal. The Financial Commissioner (Revenue),who heads the department of revenue, is, therefore, empowered to consider the legality of any order passed by an Appellate Authority an authority, subordinate to him. As the Appellate Authority was subordinate to the Financial Commissioner (Revenue), the Financial Commissioner (Revenue) had jurisdiction to examine the legality RSA No.606 of 2008 5 of the order passed by the Appellate Authority, de-hors the Rules. I have heard learned counsel for the parties and perused the impugned judgements. Counsel for the appellant has framed the following questions of law :- “(i) Whether Punjab Civil Services (Punishment & Appeal) Rules, 1970 provide for the filing of an appeal against an order passed by a designated Appellate Authority ? (ii) Whether the Financial Commissioner (Revenue) has jurisdiction to entertain an appeal against an order passed by an Appellate Authority; (iii) Whether the Courts below were right in holding that the Financial Commissioner (Revenue) is empowered to entertain the appeal and set aside the order passed by the Appellate Authority ? The questions that merit adjudication are, whether the Punishment and Appeal Rules prescribe an appeal against an order passed by a designated Appellate Authority and whether they confer any jurisdiction upon the Financial Commissioner (Revenue) to entertain a challenge to an order passed by a designated Appellate Authority. The respondents, as also the Courts below have relied upon Rule 21 of the Rules to uphold the order passed by the Financial Commissioner (Revenue). It would, therefore, be necessary to reproduce Rule 21 of the Punishment and Appeal Rules :- RSA No.606 of 2008 6 “21. Review – (1) Notwithstanding anything contained in these rules - (i) the Governor; or (ii) the appellate authority, within six months of the date of the order proposed to be reviewed; or (iii) any other authority, specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 25 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commissioner where such consultation is necessary and may - (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c ) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit; RSA No.606 of 2008 7 Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 5 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in rule 8 and except after consultation with the Commissioner, where such consultation is necessary.” Counsel for the State of Punjab, fairly concedes that the Punishment and Appeal Rules do not prescribe an appeal, whether to the Financial Commissioner (Revenue) or to any other authority, against an order passed by a designated Appellate Authority. In view of the conceded position in law, it would have to be held that the Punishment and Appeal Rules do not provide for filing of an appeal against an order passed by an Appellate Authority exercising jurisdiction under these rules. A bare perusal of Rule 21 of Punishment and Appeal Rules, clearly establishes that these rules do not confer any power upon the Financial Commissioner (Revenue) to entertain a challenge, whether by way of an application or an appeal or a petition for review against an order passed by the designated Appellate Authority, exercising jurisdiction under RSA No.606 of 2008 8 the Punishment and Appeal Rules. Rule 21 of the Punishment and Appeal Rules bears the title “review” and confers this power upon the Governor, the Appellate Authority or any other authority specified in this behalf by the Governor by a general or special order. The Financial Commissioner (Revenue) is admittedly neither the Appellate Authority nor does he exercise the powers of the Governor and nor is he an officer nominated in this behalf by the Governor by a general or special order. It is, therefore, beyond debate that the Financial Commissioner (Revenue) does not have any powers, whether under Rule 21 of the Punishment and Appeal Rules or under any other provision of these rules, to entertain a challenge to an order passed by a designated Appellate Authority, whether titled as an”appeal” or a “review”. The Punishment and Appeal Rules do not confer any plenary jurisdiction, upon the Financial Commissioner (Revenue), to call for the record of any proceedings or orders passed under these rules, so as to examine their legality. The Financial Commissioner (Revenue), therefore, has no jurisdiction under the Rules, to entertain a challenge against an order passed by the Appellate Authority. The orders dated 17.6.2003 and 10.12.2003 passed by the Financial Commissioner (Revenue) reversing the order passed by the Appellate Authority and dismissing an application for recalling of the said order, therefore suffer from an erroneous assumption of jurisdiction and an inherent lack thereof. In view of the above conclusions, I have no hesitation in holding that the findings recorded by the first appellate Court and the trial Court, upholding the orders dated 17.6.2003 and 10.12.2003 passed by the Financial Commissioner (Revenue) disclose an abject failure on their part, to comprehend the provisions of the Rules and to correctly decide the RSA No.606 of 2008 9 dispute brought before them by the appellant. The order passed by the Appellate Authority exonerating the appellant could not be challenged before the Financial Commissioner (Revenue). The learned Courts below disregarded the plain language used in Rule 21 of the Punishment and Appeal Rules, while dismissing the suit and the appeal and, therefore, failed to exercise jurisdiction in accordance with law. As a result of the above discussion, the questions of law framed by counsel for the appellant are answered by holding that the Punjab Civil Services (Punishment & Appeal) Rules do not provide for filing of an appeal against an order passed by an Appellate Authority. Rule 21 of the Punishment and Appeal Rules, does not confer any power upon the Financial Commissioner (Revenue) to hear an appeal/a review against an order passed by the Appellate Authority under the Punjab Civil Services (Punishment & Appeal) Rules. The appeal is, therefore, allowed, the judgements and decrees passed by the trial Court and the first appellate Court are set aside and the suit filed by the appellant is decreed by holding that the orders dated 17.6.2003 and 10.12.2003 passed by the Financial Commissioner (Revenue) are illegal, null and void. The appellant would be entitled to all consequential benefits, in accordance with law. No order as to costs. 23.9.2008 (RAJIVE BHALLA) GS JUDGE