R.S.A. No.3140 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3140 of 1987 Date of Decision:19.07.2010 Punjab State through its Secretary Transport Department, Chandigarh and another .....Appellants Vs. Swaran Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellants. None for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 8.5.1987 passed by the Court of learned Additional District Judge, Amritsar whereby he accepted the appeal filed by Swaran Singh – plaintiff and set aside the impugned order passed by the punishing authority and held that the plaintiff is entitled to his increment from the due date as also all the arrears and reversed the judgment/ decree dated 7.5.1986 rendered by the Court of learned Sub Judge II Class, Amritsar vide which he dismissed the suit. On 9.6.1982, Swaran Singh – plaintiff being driver was driving bus No.4685. Due to opening of the tie rod in simultane with failure of brakes, the accident occurred, whereas according to Gurdial Singh R.S.A. No.3140 of 1987 -2- Mechanic's report, this accident had taken place at the time of overtaking of some vehicle by the driver. Vide order dated 1.2.1983, the General Manager, Punjab Roadways Amritsar-I stopped one annual increment of the plaintiff with cumulative effect, which is illegal, without jurisdiction and against the principles of natural justice. That without calling any explanation, a show cause notice was served upon the plaintiff under Rule 5 read with Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter to be referred as `the Services Rules'). The notice being based on false and frivolous report is bad in law. The plaintiff was neither heard in person before issuing the show cause notice, nor the charge-sheet was served upon him, nor inquiry was held though withholding of annual increment is a major penalty. In joint written statement filed by the defendants, it has been inter-alia pleaded that withholding of increment is a minor punishment and that the impugned order is legal and valid. On the pleadings of the parties, the following issues were framed by the learned trial Court. 1. Whether the order dated 1.2.1983 of the defendant is illegal, ultra-vires and is not binding on the plaintiff?OPP 2. Whether the defendant has been duly served with the notice under Section 80 CPC? OPP 3. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit. Feeling aggrieved therewith, the plaintiff went up in appeal, which was accepted by the Court R.S.A. No.3140 of 1987 -3- of learned Additional District Judge, Amritsar in the terms noticed at the outset. Being dissatisfied therewith, the Punjab State and another have preferred this appeal. This case was adjourned from time to time for arguments, but none had been putting in appearance on behalf of the respondent despite the fact that this matter for hearing was also displayed on the net. However, I have heard the learned State Counsel appearing for the appellants, besides perusing the record with due care and circumspection. Mr. P.C. Goyal, learned Additional Advocate General, Punjab has urged with a good deal of force that the learned Lower Appellate Court has allowed the appeal of the plaintiff solely on the ground that the punishing authority did not apply its mind. This approach is incorrect for the reason that the said authority had issued another show cause notice after it was found that the earlier one was not proper. He further punctuated that the impugned order was passed after affording an opportunity of being heard to the plaintiff. The punishment inflicted upon the plaintiff being of a minor nature, the learned Lower Appellate Court was not supposed to interfere therewith. I have given a deep and thoughtful consideration to these submissions. In paragraph No.5 of the plaint, it has been averred “That the plaintiff was not heard in person before issuing the show-cause-notice with proposed punishment, nor his explanation to this effect was called by the General Manager. No charge-sheet to this effect was served upon the plaintiff. No reasonable opportunity was afforded to the plaintiff. No enquiry was held enabling the plaintiff to prove his innocence.” In the counter paragraph in the written statement, it has been said “That para No.5 R.S.A. No.3140 of 1987 -4- is admitted to be correct subject to denial that the plaintiff has not been given opportunity of personal hearing.” It is deducible from these pleadings that no charge-sheet was served upon the plaintiff, nor inquiry of any kind was held. There is no gainsaying the fact that stoppage of an annual increment with cumulative effect is a major penalty. Rule 8, Part IV of the Services Rules lays down the procedure for imposing major penalties as under:- “(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 5 shall be made except after an inquiry held, as far as may be in the manner provided in this rule and Rule 9 or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.” It has been manifested in plain words in the language of this rule that no order imposing major penalty shall be passed without holding inquiry. In the instant one, admittedly, no inquiry was held. Sub-Rule (4) of Part IV of the Services Rules runs as under: (4) The punishing authority shall deliver or cause to be delivered to the Government employee a copy of the articles of charges, the statement of the imputations of misconduct or misbehaviour and list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government employee to submit, within such times as may be specified, a written statement of his defence and to state whether he desires to be heard in person.” R.S.A. No.3140 of 1987 -5- A bare reading of the above language spells out that the punishing authority is obligated to deliver to the government employee a copy of the articles of charge, statement of the imputations of misconduct or misbehaviour, list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the government employee to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. Admittedly, the articles of charge alongwith statement of imputations etc. have not been supplied to the plaintiff. Thus palpably, the punishing authority has acted in utter violation of the afore-quoted rules, while passing the impugned order. The order which imposes any of the penalties enumerated in Clauses (v) to (ix) of Rule 5 can be passed only by following the procedure prescribed thereunder and Rule 9 of the Services Rules. The punishing authority is debarred from passing any order except after following the afore-referred procedure. As is borne out from the record, the infliction of punishment is based merely on the report of Gurdial Singh mechanic, who in his report has mentioned that “on checking the vehicle, in his opinion, the brakes had not failed, rather the accident has taken place, while overtaking something.” If the inquiry had been conducted in adherence to the provisions of the afore-mentioned rules, the same, by all probabilities, would have been tendered in evidence. If the enquiry had been conducted within the contemplation of these rules, Gurdial Singh Mechanic, being the sole witness, whose opinion, in fact, goaded the punishing authority to pass the impugned order would have certainly been tendered for cross-examination during which it could have been elicited as to what had weighed with his mind to form such opinion. In the absence of R.S.A. No.3140 of 1987 -6- evidence supportive of such opinion, how it can be deemed to be of conclusive nature. There being flagrant non-observance of the stated rules, the impugned order cannot be sustained. As a sequel of the above discussion, the findings returned by the learned lower Appellate Court reversing the judgment delivered by the learned trial Court warrant no interference. Consequently, this appeal fails and is dismissed with no order as to costs. July 19, 2009 ( HARBANS LAL ) renu JUDGE Note: Whether to be referred to the Reporter? Yes/No