Regular Second Appeal No.3185 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: MAY 18, 2010 State of Haryana & others ...Appellants VERSUS Harish Chander ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr.Sumeet Sheokand, Advocate, for the respondent. ***** RANJIT SINGH, J. The respondent-plaintiff had served as Inspector, Food & Supplies under the appellants. While he was posted at Tohana w.e.f. 15.9.1986 to 23.5.1989, the wheat stock got deteriorated. As per the respondent-plaintiff, he was not responsible for the damage, but still he was issued charge sheet on 4.1.1993 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 that Regular Second Appeal No.3185 of 2009 (O&M) : 2 : out of 1,40,500 bags, wheat weighing 1.33.475 quintals was found unfit for human consumption and in some bags wheat was found damaged. As per the appellants, the damage was due to the negligence on the part of the respondent-plaintiff. After receiving the reply of the respondent-plaintiff, the enquiry was got conducted. The grievance is that this enquiry was not conducted properly and the proper procedure was also not followed. Ultimately, the punishment for recovery of Rs.1,82,484-79P was directed against respondent- plaintiff being 5% of the total loss of Rs.36,49,695-73P. The respondent-plaintiff filed an appeal against this order, which was rejected on 9.10.2001. He accordingly filed this suit raising various pleas including the one that he was serving as Fumigation Inspector in the Hissar Circle during the relevant time. He was neither responsible for purchase nor for storage of the same. Being a Fumigation Inspector, he was responsible for 11 centres and he used to inspect the same in rotation. The plea was that the wheat got damaged due to rain and accordingly the direction to recover loss from him was not justified. The appellants opposed the pleas of the respondent- plaintiff. It was maintained that the negligence on the part of the respondent-plaintiff was the cause of a huge loss to the State exchequer and as such he was rightly held responsible for the recovery as directed against him. The trial Court found that the Enquiry Officer followed the prescribed procedure giving full opportunity to the respondent-plaintiff and, thus, declined to interfere in the suit. Respondent-plaintiff accordingly filed an appeal against the same and the Appellate Court has reversed the findings mainly Regular Second Appeal No.3185 of 2009 (O&M) : 3 : on the ground that the copy of the enquiry report was not supplied to the respondent-plaintiff before directing recovery of the loss. State counsel, thus, has made a limited prayer in the present Regular Second Appeal. The counsel would submit that even if the copy of the enquiry report was not supplied, the position would be regulated by the law laid down in the case titled as Managing Director, ECIL, Hyderabad and others v. B.Karunakara and others, 1993(4) SCC 727. This judgment was cited before the first Appellate Court, but still the punishment was set-aside and the procedure as ruled by the Hon'ble Supreme Court in this case was not adopted. The Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad's case (supra) has held as under:- “Hence, in all cases where the Enquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the Regular Second Appeal No.3185 of 2009 (O&M) : 4 : ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the Regular Second Appeal No.3185 of 2009 (O&M) : 5 : period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.” Accordingly, instead of setting-aside the punishment as such, the case would call for interference to this limited extent. The Regular Second Appeal is allowed. The judgment under appeal passed by the first Appellate Court is set-aside. The appellants would be at liberty to proceed with the enquiry from the stage where the show cause notice was served to the respondent- plaintiff. They shall furnish copy of the enquiry report afresh. The respondent-plaintiff would be at liberty to file his reply raising all the pleas available to him to challenge the order of recovery made against him and thereafter the appellants would be at liberty to pass order in accordance with law. May 18, 2010 ( RANJIT SINGH ) ramesh JUDGE