Regular Second Appeal No. 803 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 803 of 1989 Date of decision: May 13, 2010 Amrit Singh ...Appellant Versus Government of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Monika Jalota, Advocate for the appellant. Ms. Ambika Luthra, AAG, Punjab for the State. RANJIT SINGH J. The appellant is a Conductor and was working with Punjab Roadways Depot at Jalandhar. He was conducting the bus No. PBJ-4586 on 4.9.1982, while it was enroute from Jalandhar to Bathinda. The bus was checked by 3 Inspectors of the Roadways namely Harpal Singh, Jagish Singh and Bhagwan Dass. They made a report to the effect that 8 passengers were found travelling without tickets from Moga to Baga Purana. Report further was that they had paid the fare at the rate of Rs. 1.75 per passenger. Thus, the appellant was alleged to have embezzeled an amount of Rs. 14/-. On the basis of this complaint, the charge sheet was served to the appellant and his explanation was sought. Inquiry was also ordered and ultimately the services of the appellant were terminated on 17.2.1983. The appellant accordingly filed the present suit seeking declaration that the impugned order of termination was null, void and Regular Second Appeal No. 803 of 1989 2 ineffective. The suit was contested by the respondent-plaintiff/State. It was pleaded that there was no valid notice served under Section 80 CPC. It was admitted that the appellant was employee of the roadways, but it was stated that full opportunities were afforded to him by the punishing authority before passing the final order of his termination. The suit proceeded on the following issues: 1. Whether the impugned order dated 17.2.83, passed by the General Manager terminating the services of the plaintiff is null and void and is ineffective against the rights of the plaintiff? OPP. 2. Whether a valid notice U/S 80 CPC has been served upon the defendant? OPP 3. Whether the suit is not maintainable in the present for? OPP 4. Relief. The suit filed by the appellant was dismissed. His appeal was also dismissed. Learned counsel appearing for the appellant has made three fold submissions before me to challenge the judgment under appeal. The counsel submits that none of the passengers were examined as a witness, which was essential to resolve the conflict. Plea is that there were 40 passengers travelling in the bus out of which 8 were found to be without ticket. These passengers had disclosed that they had paid sum of Rs. 1.75p each so it was essential to examine them. The counsel would then submit that there were violation Regular Second Appeal No. 803 of 1989 3 of Rule 8 (18) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as 'Rules'). As per this rule, on close of his case, the Government employee is required to be examined by the inquiry officer in regard to the circumstances appearing against him, where he has not examined himself regarding those circumstances. The counsel would then submit that the punishment awarded to the appellate was harsh and striking disproportionate to the nature and gravity of the allegation made and hence would call for interference. The State counsel has opposed the pleas raised. Taking up the submissions in seriatim, let us see, in case, non-examination of passengers would lead to any consequences as urged by the counsel for the appellant. The civil Courts have limited jurisdiction to interfere in the departmental proceedings and this position has been reiterated time and again. The courts cannot go into the sufficiency of evidence but may interfere in those cases where finding is based on no evidence. Present one can not be said to be a case of no evidence. The record would show that out of 3 Inspectors, who had checked the bus, 2 were examined as witnesses and they gave a clear and categoric evidence to the effect that 8 passengers were found travelling without tickets and they had also claimed to have paid the fares which indicated embezzlement/ misappropriation on the part of the appellant. The appellant got an ample opportunity to cross examine the said witnesses. In the light of this, it is to be seen whether it can be said to be a case of no evidence. In this regard, reference can be made to State of Haryana and another versus Rattan Singh AIR 1977 Regular Second Appeal No. 803 of 1989 4 Supreme Court 1512, where the Hon'ble Supreme Court has viewed that merely non-examination of passenger would not mean that it is a case of no evidence. Once the Inspectors, who had checked the bus, were examined it can be said that this is a case of some evidence and not a case of no evidence. Accordingly, this submission advanced by the learned counsel for the appellant cannot be accepted and is, therefore, rejected. Coming to the second submission made in regard to the violation of Rule 8(18) of the rules, it is noticed that this duty or responsibility is cast upon the enquiry officer to question the delinquent employee in regard to the circumstances, which may seem to be appearing on record against him. Rule 8(18) of the rules reads as under:- “ (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, appearing against him in the evidence for the purpose of enabling the Government employee to explain any circumstances appearing in the evidence against him.” The inquiry officer may generally question government employee on the circumstances appearing in evidence against him but if he has not examined himself then has to be questioned as may be indicated from the word 'shall' used in the later part of the rule. Thus, an employee is required to be questioned in those cases where he has not examined himself. In the present case, the appellant had examined himself in support of his case and this fact Regular Second Appeal No. 803 of 1989 5 clearly emerges from the record. The requirement of Rule 8(18) of the rules would be that he may have been addressed question by the inquiry officer, in case, he felt that there was some circumstance appearing in evidence against the employee to enable him to explain the same. The Hon'ble Supreme Court has considered the operation of the rule in the case of Sunil Kumar Vs. State of West Bengal AIR 1980 Supreme Court 1170. The clear view is taken by the Supreme Court that the failure to comply with the identical rule as applicable in the case of Central Government employee i.e. Rule 8(19) would not vitiate the inquiry unless the delinquent officer is able to establish prejudice. The relevant observations made by the Hon'ble Supreme Court in this regard are as under: “It may be noticed straightway that this provision is akin to Section 342 of the Criminal Procedure Code of 1898 and Section 313 of the Criminal procedure Code of 1974. It is now well established that mere non-examination or defective examination under Section 342 of the 1898 Code is not a ground for interference unless prejudice is established, vide, K.C. Mathew v. the State of Traveancore-Cochin, (1955) 2 SCR 1057 : (AIR 1956 SC 241), Bibhuti Bhusan Das Gupta v. State of West Bengal, (1969) 2 SCR 104 : (AIR 1969 SC 381). We are similarly of the view that failure to comply with the requirement of rule 8(19) of 1969 rules does not vitiate the inquiry unless the delinquent official is able to establish prejudice. In this case, the learned Single Judge of the High Court as well Regular Second Appeal No. 803 of 1989 6 as Learned Judges of the Division Bench found that the appellant was in no way prejudiced by the failure to observe the requirement of rule 8(19). The appellant cross-examined the witnesses himself, submitted his defence in writing in great detail and argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt with all aspects of the allegation in his written defence. We do not think that he was in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with rule 8(19).” The plea made before me is simple that the provision of the rules were violated. No submissions were made as to how this has resulted in causing any prejudice to the appellant. The appellant in this case has cross examined the witnesses and has defended himself well. He has not pleaded any prejudice that he suffered. In view of the law laid down as noted above, this submission also deserved to be rejected and it is so held. Lastly, the counsel has made a grievance in regard to the the punishment being harsh. The submission by the counsel is that the court had not taken into consideration the relevant material, which was required to be so considered while considering the quantum of punishment. The counsel would submit that the appellant was employed in service in the year 1968 and the punishment was awarded to him in the year 1982. Thus, he had a sufficient service to his credit when this punishment was imposed. The plea is that the disciplinary authority or the punishing authority had not kept in view the length of service while awarding the punishment of removal from Regular Second Appeal No. 803 of 1989 7 the service to the appellant and so it is harsh. The counsel would draw my attention to the case of Harbhajan Singh versus Secretary, Govt. of Punjab, Transport Department, Chandigarh 1994 (3) P.L.R. 615, to urge that this court would always have a jurisdiction to interfere even in the question of punishment, when the punishing authority had completely ignored some important aspect of the matter and whatever be the nature and gravity of allegations. In this case, the Court has also observed that High Court normally would not interfere in the quantum of punishment. The State counsel refers to Divisional Manager, Rajasthan State Road Transport Corporation Versus Kamruddin (2009) 7 Supreme Court Cases 552, where the Hon'ble Supreme Court did not approve the interference in the quantum of punishment even by the labour Court though such court would have such power and jurisdiction under Section 11 (A) of the Industrial Disputes Act, 1947. The counsel would also highlight that it was also a case of Conductor who was awarded the punishment of dismissal from service. The Hon'ble Supreme Court went into the power of judicial review/validity of the extent of punishment with the quantum of punishment imposed by the employer on the delinquent employee. Finding that the Conductor was alleged to have misconducted on 5 occasions during the probation period for not issuing tickets regarding which warning was also issued to him, it is noticed that when inquiry is found to have been conducted in a fair manner without any infirmity, the order terminating the services, would not normally call for interference. The charge of misappropriation/embezzlement by a Regular Second Appeal No. 803 of 1989 8 Conductor cannot be viewed lightly. Length of service of the employee is a valid consideration, while considering quantum of punishment but there is no indication that it was not kept in view while imposing punishment. It is also to be seen that the appellant was dismissed/removed from service on 17.02.1983. Much time has elapsed since then. Interference in the quantum of punishment, at this stage, may not be fair and thus is not called for. The submission that the punishment is harsh when the allegation is of embezzlement may not sound very appropriate. The Regular Second Appeal is accordingly dismissed. May 13, 2010 ( RANJIT SINGH ) rts JUDGE