LPA No. 2251 of 2011(O&M) 1 **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 2251 of 2011(O&M) Date of Decision: 9.12.2011 State of Punjab ........Appellant vs. J.N.Sood and another .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G. S. SANDHAWALIA Present: Shri A.P.S.Mann, Addl. Advocate General, Punjab for the appellant G. S. SANDHAWALIA , J. C.M. No. 6072 of 2011 1. For the reasons mentioned in the application, delay of 104 days in re-filing the appeal is condoned subject to all just exceptions. 2. The Civil Misc. Application is allowed. C.M. No. 6071 of 2011 3. For the reasons mentioned in the application, delay of 115 days in filing the appeal is condoned subject to all just exceptions. 4. The Civil Misc. Application is allowed. LPA No. 2251 of 2011 5. Challenge in the present Letters Patent Appeal is to the order dated 20.5.2011 passed by the learned Single Judge wherein LPA No. 2251 of 2011(O&M) 2 **** he has allowed the writ petition filed by the respondent-petitioner and quashed the order dated 19.3.2011 passed by the appellant herein; wherein a major penalty of 5% cut in the pension had been inflicted upon the petitioner for his absence from 28.2.1977 to 27.2.1978. 6. The fact of the case are that the petitioner was serving as Sub Divisional Officer with the Department of Irrigation and proceeded on leave on 7.2.1977 but his leave was sanctioned on 22.2.1977. The case of the petitioner is that he was supposed to join his duties on 28.2.1977 but because of acute family circumstances, he was unable to join his duties as the death of his father took place and there was a dispute with regard to ancestral property and he being youngest and only son available in Punjab had to be present in the parental village to sort out the dispute. As per the case of the petitioner he applied for extension of leave from 28.2.1977 to 29.4.1977 vide application dated 24.2.1977 and also subsequently. The said applications were rejected on 21.10.1977 and he was served with a charge sheet vide letter dated 31.3.1981 for his willful absence from 28.2.1977 to 27.2.1978. It was the further case of the petitioner that one Sh.P.D.Goel, Director/Design, SYL Canal Project, Chandigarh had been appointed as Enquiry Officer on 8.11.1982 and he had appeared before the Enquiry Officer and no final result was communicated to the petitioner and the petitioner had assumed that the said issue had been put to rest and he retired on 31.10.1995. However, there were further litigations during his period of service and due to which he had approached this Court and even instituted a LPA No. 2251 of 2011(O&M) 3 **** Contempt Petition No.792 of 1998; wherein he had impleaded respondent no.2 as contemner as he was holding the post of Principal Secretary to Government of Punjab, Irrigation Department. Due to filing of the contempt petition, petitioner was released the benefits which were due, namely, selection grade but due to the contempt notice issued to respondent no.2 in the contempt petition, respondent No.2 had started digging out his old record and vide letter dated 26.2.1999 appointed Sh. S.P.Singhal, Director, Canal Project, Punjab, Chandigarh as Enquiry Officer. The said enquiry being more than four years prior to the date of retirement and related to the incident pertaining to the year 1977-78 could not have been initiated. Even in the enquiry report dated 30.4.1999, the Enquiry Officer came to the conclusion that the charges against the petitioner were not proved but respondent no.2 issued a disagreement note vide order dated 14.7.1999 and asked the petitioner to submit his detailed reply and after taking into consideration his reply, the impugned order was passed; wherein it was held that the petitioner was guilty of willful absence from Government duties and 5% cut in his pension was imposed. This order was initially stayed when the writ petition was admitted for hearing in the year 2001. 7. The learned Single Judge set aside this order and held that it is obligatory for the disciplinary authority to record reasons for disagreement and also record his own findings which have to established, and the charge against the delinquent official has to be based on discussion and appreciation of material before the Enquiry LPA No. 2251 of 2011(O&M) 4 **** Officer. 8. We are in agreement with the reasoning of the learned Single Judge that the disciplinary authority has failed to record any valid reason for disagreement with the report of the Enquiry Officer and has failed to take into consideration the findings which were recorded by the Enquiry Officer in his detailed report. The Enquiry Officer came to the conclusion that the writ petitioner could not be considered as willfully absent from 28.2.1977 to 28.10.1977, and for the period from 29.10.1977 to 27.2.1978 as he was not given any posting orders upto the date of suspension. It was further noticed that the writ petitioner was given increments with effect from 1.9.1977 and selection grade with effect from 1.1.1978 vide letter dated 20.8.1998 and this could have only be done if his leave period had been regularised. The respondent no.2 had issued a disagreement note dated 30.8.1999 on the ground that the findings in the case by the Enquiry Officer are not based on any concrete evidence and it appears that the Enquiry Officer had not conducted a complete enquiry as per rules and the benefits could not have been given during leave and, therefore, did not agree with the findings of the Enquiry Officer without factually controverting the fact as to whether the writ petitioner had been granted the said benefits or not. Eventually the impugned order had been passed imposing 5% cut in his pension after giving him personal hearing and the said decision is also silent and has not recorded any reasons for differing with the report of the Enquiry Officer. In view of the above said background LPA No. 2251 of 2011(O&M) 5 **** no fault can be found with the impugned judgment allowing the writ petition, 9. In the present case admittedly, the proceedings had been firstly initiated in the year 1981 and Enquiry Officer, namely, Sh. P.D.Goel, Director/Design SYL Canal Project was appointed as Enquiry Officer on 8.11.1982. According to the petitioner, the said Enquiry Officer had ruled in his favour and the petitioner had never been intimated any adverse report. This contention has been denied by the State that the petitioner never cooperated with the Enquiry Officer but the State has not specifically denied the fact in the written statement that the enquiry had been completed in favour of the petitioner by Sh. P.D. Goel. Infact in the second enquiry proceedings, it is mentioned that Sh. P.D.Goel, was appointed as Enquiry Officer but there is no record whether petitioner attended the enquiry proceedings nor the fate of the enquiry is available in the case file. 10. Infact it is categorical case of the petitioner that respondent no.2 had acted with mala-fide reason because of the contempt notice issued against him due to which he had opened settled issues in 1999 after more than four years of retirement of the petitioner on 31.10.1995. These allegations of malafide have not been denied by respondent no.2 and neither any separate written statement was filed even though respondent no.2 was arrayed as respondent in person in the writ petition and the written statement was filed jointly on behalf of respondents No.1 and 2 through the LPA No. 2251 of 2011(O&M) 6 **** Under Secretary. Once there was specific allegations of malafide against respondent no.2 and no reply has been filed on his behalf in his personal capacity; then there is an admission as to why the stale dispute was opened up. 11. Another factor which was noticed by the admission Bench was that the proceedings have been re-opened after years of retirement of the petitioner and as per Rule 2.2(b) of the Punjab Civil Services Rules any enquiry against a retired employee cannot be initiated, if the charges are more than four years old to the date of incident. In the present case admittedly the stale charge of 1981 was reopened in 1999 and on this account also, the order imposing a cut of 5% in the pension of the petitioner was not sustainable. That a Division Bench of this Court in O.P.Kharab Vs. HVPN Ltd. and others 2007(1) ILR Punjab and Haryana 613 has held that an enquiry can only be instituted in respect of an event which had occurred four years before the date of institution as per explanation appended to Rule 2.2(b)(4). Relevant extract of the reasoning of the judgment is reproduced below:- “(7) A perusal of the afore-mentioned Rule shows that the respondents could order the recovery from pension of the whole or part of any pecuniary loss caused to the government if a pensioner is found in a department of judicial proceedings to be guilty of grave misconduct or he had caused pecuniary loss to the government by mis-conduct or negligence during his service provided that such an enquiry has been instituted LPA No. 2251 of 2011(O&M) 7 **** during the period when the officer was on duty. However, if such an enquiry has not been instituted while the officer was on duty and before his retirement then it cannot be instituted in respect of an event which took place more than four years preceding the institution of such proceedings. In other words, an enquiry can only be instituted in respect of an event which has occurred four years before the date of the institution. The explanation appended to Rule 2.2(b)(4) further clarifies that departmental proceedings would be deemed to have been instituted when the charges framed are issued to him. In other words, the date of institution of departmental proceedings would be the date when the charge sheet is issued to the petitioner. (8) On the basis of the afore-mentioned principle laid down in Rule 2.2(b) it has to be concluded that the charges are more than four years old from the date of charge sheet was issued. It is evident from the facts that the charge sheet was issued to the petitioner on 30th November, 2003 in respect of events commencing from May, 1994 to July, 1994 or at best of the year 1998. On the date of issuance of charge sheet all those allegations were in respect of event which has occurred more than four years ago. The principle adopted in explanation to Rule 2.2(b)(4) is a whole some principle which has backing of judicial precedents. In the case of Union of India versus K. V. Jankiraman 1 the afore-mentioned principle has been applied by Hon'ble the Supreme Court to a case of promotion by holding that promotion cannot be deferred to an employee on LPA No. 2251 of 2011(O&M) 8 **** the basis of mere pendency of departmental proceedings unless a charge sheet has been issued. It is only after the issuance of charge sheet that disciplinary proceedings could be deemed to be pending. Accordingly, the issuance of charge sheet dated 30th October, 2003 (Annexure P-1) and the appointment of Enquiry Officer on 9th November, 2004 (Annexure P-4) are liable to be quashed.” 12. Thus, in view of the facts and circumstances of the case, there is no reasonable ground to interfere with the well reasoned judgment of the learned Single Judge. 13. Consequently, the appeal is dismissed with no order as to costs. (G.S.SANDHAWALIA) Judge December 09, 2011 (HEMANT GUPTA) Pka Judge LPA No. 2251 of 2011(O&M) 9 ****