R.S.A. No. 3019 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3019 of 2010 Date of Decision: 18.08.2011 Uttar Haryana Bijli Vitran Nigam Ltd. and others .... Appellants Versus Sohan Singh ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Mohnish Sharma, Advocate for the appellants Mr. Raman Sharma, Advocate for the respondent 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? KANWALJIT SINGH AHLUWALIA, J. (ORAL) Uttar Haryana Bijli Vitran Nigam Ltd.- appellant has preferred the present regular second appeal against the judgment rendered by Addl. District Judge, Ambala who had reversed the findings given by the trial Court and had decreed the suit preferred by plaintiff-respondent. Briefly stated plaintiff-respondent had instituted a suit for declaration to the effect that he is entitled to receive full pension, death-cum-retirement gratuity (DCRG) and other retiral benefits which were due to him on the date of superannuation from the service. He has, however, prayed that mandatory R.S.A. No. 3019 of 2010 2 injunction be issued to the respondents to refund the amount recovered from the death-cum-retirement gratuity (DCRG) along with interest @ 18%. As per the averments made in the suit plaintiff-respondent had joined the service as a Lineman on 14.11.1966. During the course of service, he was promoted as Junior Engineer in February, 1982. He attained the age of superannuation on 31.3.2005. According to plaintiff-respondent he was entitled to retiral benefits from the date of retirement. He has further pleaded in the suit that if due to any fault/defect some loss has been caused to transformers which are property of the Nigam or their part or shortages of oil etc. defendants are not entitled to hold plaintiff responsible and make the recovery. This Court need not to give detailed facts which were pleaded in the suit as specific stand was taken by the defendants that the plaintiff-respondent being Junior Engineer (Fields) has not maintained the transformers in accordance with duties assigned and he was responsible for the damage caused to the transformers and due to his negligence employer suffered losses and is entitled to recover the amount of Rs. 2,06,419/-. The trial Court had dismissed the suit holding that plaintiff-respondent was employee of the appellants-defendants and defendants have rightly effected the recovery of the amount due from the gratuity amount payable to the plaintiff. Aggrieved against the same, plaintiff-respondent has filed an appeal. The Lower Appellate Court in para 18 of the judgment has held that in the present case principles of natural justice were not R.S.A. No. 3019 of 2010 3 adhered to and neither proceedings were initiated nor any notice was issued to the plaintiff-respondent to hold that recovery of the amount is due from him. Mr. Mohnish Sharma, Advocate appearing for the appellants-plaintiffs has referred to notices Exs. D-12 to D-15. This Court had requisitioned the record. I have perused notices Exs. D-12 to D-15. By way of these notices the plaintiff- employee was called upon to deposit the amount. The employer no where had determined whether any amount was due from the plaintiff if so, to what extent and as to why recovery was to be effected. During the course of arguments, Mr. Mohnish Sharma has not been able to satisfy this Court as to on what basis the amount sought to be recovered was determined and as to when opportunity of hearing was given to the respondent that he is responsible for the loss caused to the transformers. Thus, only if an enquiry is held then only it can be ascertained that plaintiff-respondent employee was entrusted with the transformers and it was his sole duty to upkeep them. At this stage, Mr. Mohnish Sharma, counsel for the appellants has stated that liberty be granted to the employer - Nigam to issue show cause notice and to hold an enquiry so that after following a due procedure liability of the employee is determined. This submission made by counsel for the appellant – Nigam has been vehemently opposed by Mr. Raman Sharma, Advocate appearing for the employee. It has been stated that Rule 2.2 (b) of the Punjab Civil Services Rules debars the employer to hold enquiry after period of four years of retirement. It is further R.S.A. No. 3019 of 2010 4 stated that the appellant had retired in the year 2005 and there is no justification for the employer to withhold the retiral benefits till the responsibility is determined. Mr. Mohnish Sharma, counsel for the appellants has stated that they will hold the enquiry and would complete the proceedings/enquiry within a period of three months from the date of issuance of notice. He has further stated that notice shall be issued within a period of 15 days. I have given my thoughtful consideration to the contentions raised by counsel for the appellants. It is true that no show cause notice has been issued to the employee that he is responsible for the loss or destruction caused to the property of the employer. Whether employee was liable or not is a question of fact which can be determined only if enquiry is held. Exs. D-12 to D-14 are the notices which were issued to the employee calling him to straightway deposit the amount without determining the liability, therefore, in these facts and circumstances, this Court uphold the judgment that principle of natural justice has not been followed and no opportunity of hearing was afforded to the employee and at the same time the conclusion of the Lower Appellate Court is modified and it is directed that notice, be now issued to the employee and he be allowed to join and participate in the enquiry . Accordingly, counsel for the appellant undertakes that notice will be issued to the employee within 15 days from the date of receipt of a certified copy of this order and enquiry proposed shall be concluded within a period of three months. In case in the enquiry, it is found that the employe is not liable to pay any amount, he will be R.S.A. No. 3019 of 2010 5 entitled to recover outstanding amount alongwith interest @ 6% from the date, the amount was withheld. To clarity if the enquiry repot suggests that less amount was to be recovered, on the remaining amount, the employee shall be entitled for the interest in above terms. The appeal is disposed of accordingly. (KANWALJIT SINGH AHLUWALIA) 18.08.2011 JUDGE reena