R.S.A. No. 3805 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3805 of 1987 Date of decision: 21-7-2010 State of Punjab ......... Appellant Vs Balwinder Singh .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General Punjab, for the appellant Mr. Gaurav Chopra, Advocate, for the respondent. HARBANS LAL, J. This appeal is directed against the judgment/decree dated 5.8.1987 passed by the court of learned District Judge, Ferozepur whereby he dismissed the appeal filed by the State of Punjab against the judgment/decree dated 17.9.1986 rendered by the court of learned Senior Sub Judge, Ferozepur vide which he decreed the suit of the plaintiff for declaration to the effect that the order dated 5.3.1986 handed down by the General Manager, Punjab Roadways, Ferozepur imposing upon the plaintiff the penalty of removal from service is wrong, illegal, unconstitutional, null and void and that the plaintiff still continues to be in service of the State of Punjab as conductor on the same terms and conditions, emoluments and benefits of service as admissible from time to time. The minimal facts are that the plaintiff was employed as conductor No. 103 in Punjab Roadways Ferozepur Depot. He was served with charge-sheet on 23.8.1985 containing the allegations that on 10.8.1985 R.S.A. No. 3805 of 1987 2 when he was on duty with bus No. 8732 from Chandigarh to Ludhiana, his bus was checked by the Flying Squad near village Ghabua and seven passengers who were travelling from Mohali to Morinda, were found ticketless, whereas an amount of Rs.13.30 was charged from them by the plaintiff, but no tickets were issued to them. In this way, he had committed embezzlement with respect to the stated amount. After holding a regular enquiry, the impugned order was passed. As alleged, the said order is against the principle of natural justice, departmental instructions, procedure of checking and enquiry. The charge-sheet was not definite and specific as it did not have sufficient material on which the charges were based. It also did not have the list of witnesses and description of documents, upon which reliance has been placed. The plaintiff was not supplied with copies of the necessary documents nor shown the record, with the result, he was rendered unable to file reply to the charge-sheet. On these allegations, the suit has been filed for declaration to the effect that the order dated 5.3.1986 passed by the General Manager, Punjab Roadways, Ferozepur imposing upon the plaintiff, the penalty of removal from service is wrong, illegal, unconstitutional and is therefore, null, void and inoperative and he still continues to be in service. In the written statement, it has been admitted that the plaintiff was working as a conductor in the Punjab Roadways Ferozepur Depot and his services were terminated vide the impugned order. As alleged, the said order is legal, proper and in accordance with the rules and procedure. The plaintiff was afforded opportunity to defend his case. However, it has been admitted that the enquiry officer has exonerated the plaintiff from charge, but the punishing authority did not agree with the findings of the enquiry R.S.A. No. 3805 of 1987 3 officer and recorded a detailed discordant note. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the order dated 5.3.1986 passed by the General Manager Punjab Roadways, Ferozepur is illegal, null and void?OPP 2. Whether a valid notice under section 80 C.P.C. was served on the defendant?OPD 3. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court partly decreed the suit as noticed at the outset. Feeling aggrieved therewith, the State of Punjab went up in appeal, which was dismissed by the learned District Judge, Ferozepur. Being dissatisfied therewith, the defendant has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal, learned Additional Advocate General, Punjab on behalf of the appellant urged with great eloquence that the services of the plaintiff-respondent were terminated after conducting regular departmental enquiry in accordance with rules. The courts below have gravely erred in holding that in the absence of statements of passengers, it becomes a case of no evidence against the plaintiff-respondent. In fact, the statements of two Inspectors, who had checked the bus, were recorded by the Enquiry Officer and they both have established the charge of criminal misappropriation against the plaintiff-respondent. In response to these submissions, Mr. Gaurav Chopra, Advocate appearing for the respondent canvassed at the bar that in the absence of the statements of passengers, from whom, the fare was R.S.A. No. 3805 of 1987 4 charged, but the tickets were not issued to them, it is very difficult to say that they were traveling without ticket albeit the fare was charged from them. On a careful consideration, I do not find any substance in the submissions made on behalf of the appellant for the reasons to be recorded hereinafter. Admittedly, the plaintiff-respondent was exonerated from the charges by the enquiry officer who had reached the conclusion that the tickets produced by the defence witness Joginder Singh DW-1 have been issued by the Conductor and the case against the plaintiff was therefore, rendered doubtful. To cap it all, as would be apparent on the face of the waybill, the tickets which were produced by the aforesaid defence witness had been sold to them by the plaintiff-respondent. Rule 9.4(1) of the Punjab Civil Services(Punishment and Appeal) Rules 1970 (for short the Civil Services Rules) contemplates that whenever the punishing authority disagrees with the findings of the enquiry officer, he is obligated to record dissenting note by giving reasons for disagreeing with the findings returned by the enquiry officer. The punishing authority in such a situation is to supply a copy of such note to the plaintiff to enable him to file the reply to the show cause notice. As revealed by the enquiry file, the copy of such a note was not supplied to the plaintiff-respondent in adherence to the provisions of the afore quoted rules, with the result, he had been adequately prejudiced in his right. Amrik Singh PW in his statement at page 77 of the enquiry file, has admitted under the stress of cross-examination that he never recorded the statement of any passenger, nor he checked the cash with the plaintiff. In identical terms is the statement of Ram Dass the second R.S.A. No. 3805 of 1987 5 prosecution witness. In the absence of the statements of the passengers from whom the amount of Rs.13.30 was charged as fare, but no tickets were issued by the plaintiff-respondent, it would be going too far to say that the said amount has been embezzled by him. A fortiori, it was also obligatory upon the checking staff to check the cash with the plaintiff-respondent to find out as to whether the said amount was really in excess or unaccounted for. In State of Haryana Vs. Mohan Singh 1985(2) Service Law Reporter 116, the services of the conductor were terminated on the ground that he had misappropriated a sum of Rs. 2.40 paise, which he had collected from six passengers, but he had not issued tickets to them. The Chief Inspector in the inquiry proceedings had stated that he neither recorded the statements of the passengers who statedly gave a sum of Rs.2.40 paise to the conductor, nor the cash in hand of the conductor was checked. It was held by this Court that the termination of the service of the conductor cannot be upheld. To my mind, the case of the plaintiff-respondent is squarely covered by Mohan Singh's case (supra). Sequelly, the contentions raised on behalf of the State appellant being devoid of any merit are jettisoned. As a sequel of the above discussion, this appeal fails and is dismissed. Of course, having regard to the facts and circumstances of the case, the parties are left to bear their own costs. (HARBANS LAL) JUDGE July 21, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No