Regular Second Appeal No. 2482 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2482 of 1985 Date of decision: 09.02.2010 Shri Romesh Chander ...appellant Versus The State of Punjab ...respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. H.P.S. Rahi, Advocate for the appellant. Mr. Amit Chaudhary, A.A.G., Punjab for the State. ***** RANJIT SINGH J. On 5 different occasions appellant Romesh Chander, working as a Conductor with Punjab Roadways, Pathankot was inflicted punishment of stoppage of one increment with cumulative effect. The orders passed in this case were as follows: (i) No. 18/ECC Dated 8.4.68 (ii) No. 49/ECC dated 22.4.69 (iii) No. 2089/TA dated 13.10.78 (iv) No. 1162/RCC dated 24.11.69 (v) No. 2370/TA dated 29.11.78 The appellant-plaintiff filed a civil suit to challenge these above noted orders on the ground that these were illegal, void, ineffective and unconstitutional and that these passed in violation of Regular Second Appeal No. 2482 of 1985 2 principle of natural justice. In addition, it was also stated that these orders were communicated to the appellant-plaintiff. The case set up is that there is a revision of pay scale in the year 1978, when the pay of the appellant-plaintiff was also revised. Subsequently, the pay scale of employees were revised in the year 1980 w.e.f. 1.1.1978. His pay was fixed in the scale of Rs. 480/-. He pleaded that some of his previous service had not taken into consideration. On inquiry he learned that he was not awarded due grade till March, 1982. He accordingly served a notice under Section 80 CPC and challenge these orders thereafter by filing the civil suit. It was pleaded that all these impugned orders were communicated to the appellant-plaintiff. Some of the orders were challenged on the ground that these were passed only after issuing show cause notice to which the appellant had submitted his reply and thereafter was not communicated any decision. It was also pleaded that the appellant- plaintiff was under impression that the cases are still under consideration, as no departmental inquiry was ever conducted against the appellant-plaintiff. In the written statement filed by the defendant, plea of suit being barred by limitation was raised. It was also pleaded that the suit was not maintainable on the ground that it was not valid with the purpose of court fee. The appellant-plaintiff controverted the pleas by filing a replication. The Court framed the following issues: 1. Whether the impugned orders are arbitrary, illegal, null and void and in violation of the service rules and the principles of natural justice?OPP. Regular Second Appeal No. 2482 of 1985 3 2. Whether the plaintiff is entitled to the declaration sought? OPP. 3. Whether the suit is within time? OPP. 4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 5. Relief? The suit filed by the appellant-plaintiff was decreed with the declaration that the order dated 8.4.68, 22.4.69, 13.10.78, 24.11.69 and 29.11.78 were illegal null, void and ineffective. Direction to refix the pay in the revised scale w.e.f. 1.1.78, accordingly was issued. The State filed an appeal against this judgment, which was allowed only on the ground that issue of limitation was wrongly decided in favour of the appellant-plaintiff. The First Appellate Court did not go into the merits of the controversy as raised in the suit on the ground that the orders passed infact were otherwise void on the ground of violation of rule and principle of natural justice. The appellant-plaintiff has, therefore, now filed this RSA before this Court. No doubt the impugned orders passed were challenged after expiry of much more than a period of 3 years, which is provided as limitation but the plea raised in this regard was required to be properly dealt with. The facts as alleged in the plaint would show that the increment was granted to the appellant-plaintiff in the year 1968 and thereafter there was a revision of pay in 1980. It is only then he learned that he has not been granted the benefit of revised pay. The plea that the orders of punishment were not communicated, Regular Second Appeal No. 2482 of 1985 4 thus was raised. This plea was found not acceptable by the First Appellate Court, by considering that every year the increment is allowed to government servant and if such increment was not allowed to the appellant-plaintiff, he must have come to know immediately. This has been taken into consideration to infer that if the orders were not communicated, the appellant-plaintiff must have come to know of the same when the increment was not actually granted. This finding by the First Appellate Court apparently is too inferential and presumptive. It was for the State to show that the order of punishment was indeed communicated to the appellant- plaintiff. The First appellate Court in my view was not justified in drawing presumption, on the ground that the appellant-plaintiff was aware of the denial of increment and hence it would attribute to him the knowledge of punishment. This view to me appears a little far fetched. The action of the First Appellate Court in allowing the appeal only on this ground would sound unjustified, when viewed in the background that major penalties were awarded to the appellant- plaintiff without following the procedure as prescribed under the law. Concededly, stoppage of one increment with cumulative effective is the major penalty and as such the procedure as prescribed under Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as an 'Act') was required to be followed. For awarding penalty, it is legally essential to hold an inquiry . The record would show that while imposing the punishment on 8.4.1968, no charge sheet was framed, no show cause notice was issued and no Regular Second Appeal No. 2482 of 1985 5 opportunity was given to the appellant to defend himself. Allegation was that the appellant had not issued ticket to passengers amounting to Rs. 3/-. The order passed on 26.4.1969 though not a major penalty but was set aside by the Court on the ground that it was a non speaking order, which did not disclose any reason as to why the explanation given by the appellant was not satisfactory. The third order passed on 13.10.1978 was of a major penalty. The finding is that the procedure as given in Rule 8 of the Act was not followed. This order was also not ever communicated to the appellant-plaintiff. This order was also found to be of non speaking nature. It is not clear whether any inquiry was held in this case or not. The next order under challenge is dated 24.11.69 which was again a major penalty. In this case, inquiry apparently was held. The inquiry officer, however, found that the witnesses who appeared tried to give wrong statement and accordingly, the prosecution was found to have failed to prove the charges. The punishing authority did not agree with the finding of the inquiry officer and after going through the reply to the show cause notice, without any reason disagreeing with the finding given by the inquiry officer. It is noticed that the punishing authority had found the explanation of the appellant-plaintiff to be satisfactory but still the order of punishment was passed. This order accordingly was held not sustainable. Similarly, while passing order dated 29.11.1978 the procedure as prescribed under Rule 8 of the Act was not followed. This order was also found non speaking one and accordingly it was held that these orders were illegal, void and hence not sustainable. Regular Second Appeal No. 2482 of 1985 6 It would have been appropriate for the First Appellate Court to go into the merits of the controversy also. The approach adopted by the First Appellate Court dismissing the suit of the appellant only on the ground that the case suffered on account of delay cannot be held justified. The trial Court in my view had rightly considered this aspect and came to the finding of fact that the appellant-plaintiff was never communicated these orders and hence he did not come to know of these. This view could not have been set aside or interfered with only on the basis of presumption that he must have come to learn of the same on account of non grant of annual increment. While deciding this appeal, an attempt was made to ascertain if the appellant is still in service. The more appropriate course would have been to remand this case to the First Appellate Court for deciding the issue of awarding this punishment without following the procedure. At this belated stage it is likely that the appellant has retired and thus I am not adopting the said course. The finding returned by the First Appellate Court that there was delay by the appellant-plaintiff to file the suit, is not sustainable and hence is set aside. Though normally this aspect would not give rise to a substantial question of law but I have still interfered in this case as the First Appellate Court did not consider the pleas on merit. There is a substantial question of law and case is made out for interference on merit. As per the settled proposition of law, no major penalty can be awarded without following the procedure. This aspect could not have been ignored in the manner it Regular Second Appeal No. 2482 of 1985 7 was done. This has infact prompted me to interfere in the impugned order as that in my view would lead to substantial question of law. Accordingly, this appeal is allowed. The judgment of the First Appellate Court is set aside and that of the trial Court is restored. Necessary consequences would follow. February 09, 2010 ( RANJIT SINGH ) rts JUDGE