CWP No. 11927 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 03, 2009 1. CWP No. 11927 of 2007 2. CWP No. 11933 of 2007 Ashwani Kumar ...... Petitioner Versus Punjab and Haryana High Court through its Registrar and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Puneet Gupta, Advocate for the petitioner. Mr.R.N.Raina, Advocate for the respondents. **** 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? Ajay Tewari, J. This order shall dispose of two writ petitions bearing CWP No.11927 of 2007 and CWP No.11933 of 2007 as they have arisen out of the same order. In CWP No. 11927 of 2007 the case of the petitioner is that he was working as Summary Ahlmad in the Court of Chief Judicial Magistrate, Sonepat. After a raid conducted by the District & Sessions CWP No. 11927 of 2007 2 Judge (Vigilance) Haryana, a regular inquiry was ordered. On the conclusion of the inquiry the inquiry report dated 2.9.2002 was submitted holding as follows:- “ In view of the findings on the aforesaid charges, it is clear that delinquent Ashwani Kumar used to indulge in corrupt practices. He never made entries in the disposal register in time regularly. He has made some entries subsequently just to cover up his own mistake. It shows that he must have extorted huge amount from the general public and has embezzled the public fund by exploiting his official position as summary Ahlmad. In this way he is guilty of the charges referred to as above. Report is submitted.” Thereafter by order dated 18.9.2002 he was inflicted with the punishment of dismissal from service while keeping alive his right for pensionary benefits in view of the fact that he had three daughters and a family to support, holding as follows:- “Having heard the delinquent employee and after going through the case file, I am of the view that the delinquent employee has not only committed the violation of the Govt. Employees Conduct Rules but his conduct is also unbecoming of Govt. Servant . As per his confessional statement the delinquent employee while posted as Summary Ahlmad in the Court of Chief Judicial Magistrate, Sonepat, had disposed of challans at his own level by not issuing receipts of fine and had also returned the documents so impounded. The delinquent employee had extorted huge amount from the general public and has thus embezzled public funds by exploiting his official position as summary clerk in the Court of Chief Judicial Magistrate, Sonepat. He did not make entries in the Institution Register regarding the Court of Chief Judicial Magistrate, Sonepat. He did not make entries in the Institution Register regarding receipt of traffic challans and other summary challans CWP No. 11927 of 2007 3 for the period after 27.1.1999. His confession statement before Sh. S. D.Anand, District and Sessions Judge (Vig.), Haryana of Punjab and Haryana High Court, Chandigarh, that he did not enter all the challans and disposed of the challans at his own level and returned the impounded documents to the parties speaks for itself. Sh.Ashwani Kumar being public servant while holding a public post as trustee of public confidence has not only breached this trust of faith but has also put the State Exchequer in loss. He has,thus, lost the right to continue in service. The misappropriation and embezzlement of public money with malafide intention would not only constitute irregularities but a grave misconduct on his part. I am, therefore, not inclined to take a lenient view because the delinquent employee has failed to maintain the absolute integrity, devotion to duty and has also proved that his conduct has been unbecoming of a Govt. Servant, therefore, order of dismissal from service henceforth.” In CWP No.11933 of 2007 the case of the petitioner is that he was working as Summary Ahlmad in the Court of Chief Judicial Magistrate, Sonepat. A complaint was made to this Court by one Bhim Singh, Vinod Kumar and Manmohan whereupon an inquiry was marked to Sh. S.C.Malik, Private Secretary to Hon'ble Mr.Justice G. S. Singhvi who submitted his report on 10.02.2000. In pursuance thereto the petitioner was chargesheeted by the then District & Sessions Judge, Sonepat on 05.04.2000 and a departmental inquiry was initiated against him. On the conclusion of inquiry, the inquiry report dated 18.12.2001 was submitted holding as follows:- “ As a sequel to my above discussion, it is clear that charges no.1 to 6 are duly proved against the delinquent. The CWP No. 11927 of 2007 4 first portion of charge no.9 to the effect that receiving challans from the police department and keeping in his custody without the knowledge of the controlling officer and entering them in the proper register and their disposal are duly proved. But,there is no evidence regarding embezzlement or earning an huge amount and property as mentioned in charges no. 7 and 8. My findings are submitted accordingly.” Thereafter by order dated 18.9.2002 he was inflicted with the punishment of dismissal from service while keeping alive his right for pensionary benefits in view of the fact that he had three daughters and a family to support holding as follows:- “Sh. Ashwani Kumar being public servant while holding a public post as trustee of public confidence has not only breached this trust of faith but has also put the State Exchequer in loss. He thus lost the right to continue in service. The mis- appropriation and embezzlement of public money with malafide intention would not only constitute irregularities but a grave misconduct on his part. I am, therefore, not inclined to take a lenient view because the delinquent employee has failed to maintain the absolute integrity,devotion to duty and has also proved that his conduct has been unbecoming of a Govt. servant. Since he has been dismissed from service for not maintaining absolute integrity, devotion to duty and grave misconduct in another case, no specific order of dismissal is required to be passed in this case. I,therefore, order his notional dismissal in this case also for his misconduct and failing to maintain the absolute integrity, devotion to duty and for showing conduct unbecoming of a public servant.” The statutory appeals filed by the petitioner were rejected by the impugned order/s dated 14.11.2005. Learned counsel for the petitioner has relied upon sub Rule (E) of Rule 14 of the Haryana Subordinate Courts Establishment (Recruitment CWP No. 11927 of 2007 5 and General Conditions of Service ) Rules, 1997 which is as follows:- “E. While disposing of an appeal against order under this rule or any penalty specified in rule 12 the High Court shall consider :- (i)whether the facts on which the order was based have been established; (ii)whether the facts established afford sufficient ground for taking action; and (iii)whether the penalty is excessive, adequate or inadequate and after consideration shall pass such order as it thinks proper: Provided that no penalty shall be increased unless opportunity is given to the person concerned to show cause why such penalty should not be increased.” Learned counsel for the petitioner has also relied upon a decision of the Hon'ble Supreme Court in the case of Narinder Mohan Arya v. United India Insurance Co. Ltd. And others reported as (2006) 4 Supreme Court Cases 713 wherein it was held as under:- “The order of the Appellate Authority demonstrates total non-application of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression “consider” is of some significance. In the context of the Rules, the Appellate Authority was required to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the enquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive.” CWP No. 11927 of 2007 6 Learned counsel for the petitioner has also made a reference to the case of Hari Singh v. State of Punjab and another reported as 2004 (2) RSJ 693 wherein a Division Bench of this Court held as follows:- “An analysis of the rules reproduced above shows that while deciding an appeal filed against the order of punishment, the appellate authority is required to consider not only procedural aspect of the enquiry and the merits of the findings recorded by the punishing authority but also the quantum of punishment and then pass appropriate order. In Ram Chander v. Union of India, AIR 1986 S.C.1173, the Supreme Court interpreted Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, which is pari materia to Rule 19(2) of the Rules, and held as under :- “In the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. But, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall “consider” as to the matters indicated therein. The word “consider” has different shades of meaning and must in Rule 22 (2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. However, in the case of Narinder Mohan Arya (supra) the Supreme Court also held in para 33 as follows:- “An appellate order if it is in agreement with that of the CWP No. 11927 of 2007 7 disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.” In Tara Chand Khatri v. Municipal Corporation of Delhi and others reported as (1977) 1 SCC 472 the Hon'ble Supreme Court held as follows:- “In Madhya Pradesh Industries Ltd. v. Union of India, this Court repelled the contention of counsel for the appellant that every order appealable under Article 136 of the Constitution must be a speaking order and the omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection. While distinguishing the case of Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala where the Central Government reversed the decision of the State Government without giving reasons for reversal, this Court pointed out that there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority and that if the revising authority rejects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revision application. Subba Rao, J. ( as he then was) speaking for himself in that case observed: Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons.” In S. N. Mukherjee v. Union of India reported as (1990) 4 CWP No. 11927 of 2007 8 SCC 594 the Apex Court held as follows:- “The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” A conspectus of the judgments relied upon by the learned counsel reveals that though the word 'consider' has a particular connotation and the judgments do lay down that to satisfy the said connotation reasons are required, yet the other set of judgments relied upon by learned counsel for the respondents clearly mandate that an order of affirmance is not necessarily required to be supported by reasons. A perusal of the impugned order reveals that the Appellate Authority has applied its mind to all the relevant considerations. In view of the decisions of the Hon'ble Supreme Court mentioned above it cannot be held that the order is illegal. Consequently the writ petitions are dismissed. No costs. (AJAY TEWARI) JUDGE February 03, 2009 sunita