RSA No.1812 of 1996 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1812 of 1996 Date of Decision. 13.01.2011 State of Punjab through its Secretary, Department of Transport, Punjab Chandigarh and another ......Appellants Versus Ajaib Singh (deceased) through LRs ......Respondent Present: Mr. H.S. Gill, DAG, Punjab for the appellants. Ms. Anjali Khosla, Advocate for Mr. Viaks Singh, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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? -.- K. KANNAN J.(ORAL) 1. The regular second appeal is against a decree quashing the order of removal from service of a person, who was a Conductor in the Punjab Roadways. The suit challenging the order of dismissal was dismissed and in appeal, an objection taken by the employee that the enquiry had not been conducted in accordance with the Rules namely Punjab Roadways (Operational) State Service Class III, Rules 1977 and Punjab Civil Services (Punishment and Appeal) Rules, 1970 had been accepted. In particular in respect of the latter rules, the violation complained of was that if an employee failed to appear or omitted to plead, the Enquiry Officer should require the Presenting Officer to produce the evidence by which he proposed to prove the articles of charges and should adjourn the case to a date not exceeding 30 days RSA No.1812 of 1996 -2- after recording an order that the Government employee may for the purpose of preparing his defence inspect within five days of the order or within such further time not exceeding five days and to also submit a list of witnesses to be examined on his behalf. The Rule also provides for an oral application to be made. The complaint was that when he had given his reply, no notice had been given fixing a date calling upon him to produce his evidence or list of witnesses. This according to him constituted the fundamental requisite of the rules and therefore, the order that was passed was vitiated. This objection was upheld in the appeal. 2. The second appeal has been brought before this Court and I find that there are no substantial questions of law framed. I would frame the substantial question of law as: (i) Whether the appellate Court was justified in finding that the violation of Rule 8(11) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 has been made and that violation thereof would vitiate the order of dismissal itself.” 3. Learned counsel for the State would contend that the employee had sufficient opportunity to defend himself and the so called absence of an order passed under Rule 8(11) ought not to be material. I find that the Rule communicates principle of natural justice that an opportunity shall be given even in a situation where an employee does not appear or enter his defence that he has such a right to inspect document and also given list of witnesses. If the same is not followed, it would definitely vitiate the proceedings. There is still further objection which has not been taken at the time of trial or in appeal that RSA No.1812 of 1996 -3- is now urged before me by the counsel appearing for the respondent to contend that the Punjab Roadways (Operational) State Service Class III Rules, 1977 provides for Appendix C that a major penalty of dismissal or removal from service against a Conductor could be passed only by the Director, State Transport Punjab and could not have been passed by the General Manager. This the learned counsel states that as vitiating the jurisdiction of the General Manager to pass the order. It is also contended on behalf of the employee that since the objection is on the issue of jurisdiction even the absence of specific plea in the plaint will not be material. 4. The decree of the Appellate Court has to be upheld for the only reason that there is an express violation of Rule 8(11) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 and there is no particular situation or a provision that can dispense with such an essential procedure for an enquiry. I would, therefore, confirm the decree passed by the Appellate Court and hold on the substantial question that a violation of Rule 8(11) will vitiate the enquiry itself and the dismissal order made pursuant to an enquiry which transgressed the procedure established by the Rules will vitiate the order that is ultimately passed. I will also hold that even apart from the contention raised in the pleading, the order ought to be quashed also for the reason that the person that passed the order did not have the competence to pass such an order. 5. The appeal by the State is, therefore, dismissed. (K. KANNAN) JUDGE January 13, 2011 Pankaj*