Civil Writ Petition No.20465 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20465 of 2010(O&M) Date of Decision:08.08.2011 Sukhdev Singh ....Petitioner Versus State of Punjab and others ....Respondents CORAM : HON'BLE MR. JUSTICE SURYA KANT 1. Whether reporters of local news papers may be allowed to see judgment ? 2. To be referred to reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** Present: Petitioner in person. Ms. Sudeepti Sharma, DAG Punjab. * * * SURYA KANT, J (ORAL) The petitioner seeks quashing of order dated 20.10.2009 (Annexure P1) passed by the Director Health and Family Welfare,Punjab, Chandigarh ordering recovery of Rs.1,21,445/- from him on the allegations that the petitioner was guilty of committing fraud in preparation of the vouchers and he received over-payment towards 'family planning' and 'handicapped allowance' etc. 2. The conclusion drawn by the competent authority while passing the impugned order to be precise is that the petitioner was not a physically disabled person at the time he was discharged from military service or at the time of his appointment in civil service against the post reserved for physically challenged persons. Civil Writ Petition No.20465 of 2010(O&M) 2 3. The case has a chequered history. The petitioner served the Indian Army during National Emergency and joined the respondent- department as a Clerk on 19.09.1979 after his discharge from the Army. The petitioner retired from service on attaining the age of superannuation with effect from 31.5.1998. Since the respondents did not grant the service benefits to the petitioner in accordance with Rule 4 of the Punjab Government National Emergency Concessions Rules 1965, or the De- mobilized Armed Forces Personnel (Reservation of Vacancies in the Punjab State Non-Technical Services) Rules, 1968, the petitioner approached this Court in CWP No.1257 of 1986 which was allowed vide order dated 4.2.1988. The State of Punjab challenged the said decision by way of LPA No.319 of 1988 which was partly allowed on 8.12.1989 to the extent that the benefit of military service other than rendered during the National Emergency as was granted to the petitioner by the learned Single Judge, was set aside. 4. The petitioner thereafter appears to have been granted the benefit of 'military service' assigning him the deemed date of appointment in the year 1974. It is stated at the bar that the pay and pension of the petitioner were fixed by giving him the benefit of military service towards the total length of service. 5. The petitioner also filed CWP No.5090 of 1988 seeking direction for payment of the arrears of pay, selection grade etc. and a restraint order not to mark him 'absent'. The respondents in that case took the plea that a sum of Rs.68082.25 paisa was recoverable from the petitioner for various reasons. The writ petition was accordingly disposed of on 9th August, 2006 with a direction to respondent No.2 to decide of the Civil Writ Petition No.20465 of 2010(O&M) 3 petitioner's pending claim by passing a comprehensive speaking order and if any recovery was to be effected from him, a show-cause notice be issued to him before such action. While the petitioner was fighting one or the other legal battle, the respondents served him with a charge-sheet dated 23rd August, 1988 alleging wrong fixation of pay and unauthorized withdrawal of the 'handicap allowance' by him. It was alleged that a sum of `1,21,445 /- was recoverable from the petitioner. 6. Though it is not known as to whether the said charge-sheet culminated into a punishment order of recovery or not, it does appear that the recoverable amount disclosed by the respondents to this Court at the time of hearing of CWP No.5090 of 1998 decided on August 9, 2006, included the amount which was subject matter of the charge sheet dated 26th August, 1988. 7. The petitioner meanwhile filed two more writ petitions i.e. CWP Nos.2102 of 2001 and 10622 of 2008 before this Court. The first writ petition was to issue a direction for the release of pensionary benefits and various other monitory service benefits whereas in the Later case (CWP 10622 of 2008) he assailed the orders dated 13.5.2008 and 17.4.2007 passed by the Principal Secretary, Department of Health & Family Welfare, Punjab and the Director, Health and Family Welfare, Punjab, respectively in purported compliance to the order dated 9th August, 2006 passed by this Court in CWP No.5090 of 1988. The second writ petition i.e. CWP No.10622 of 2008 was allowed by a Co-ordinate Bench of this Court vide judgment dated 05.05.2009 (Annexure P40) to the extent that the so-called speaking order dated 13.5.2008 was quashed and the Director, Health Services, Punjab was directed to pass another speaking order in accordance Civil Writ Petition No.20465 of 2010(O&M) 4 with law. 8. The petitioner as well as the respondents both are relentless in their fight and little realizing that a period of more than 12 years has lapsed, meanwhile, respondent No.2 has again passed the impugned order dated 23rd March, 2009 imposing recovery of `1,21,445/- against the petitioner. 9. The aggrieved petitioner has again approached this Court. 10. I have gone through the voluminous record containing several documents and many misc. applications besides the original pleadings. The petitioner appears in-person and has refused to take legal assistance offered on more than one occasions. The respondents are also present along with the records and have rendered full assistance. 11. The core issue to be resolved is as to whether or not the petitioner was guilty of drawing 'Handicapped Allowance' and/or 'over- payment' in respect of 'family planning' cases? Both these issues are questions of fact. In the disciplinary proceedings which are quasi-judicial in nature, the onus is on the prosecuting Department to bring on record or rely upon or refer to the relevant material by proofs to establish the allegations against the delinquent employee, irrespective of the fact as to whether its a regular enquiry or otherwise. The only way for the respondents to dislodge the 'physical disability' claim of the petitioner was to produce the medical evidence and give an opportunity to the petitioner to counter the same and then only to arrive at a just and fair conclusion. No such exercise has been undertaken by the respondents nor any inquiry report or medical evidence has been brought on record. 12. It may be true that for the purpose of imposition of a minor punishment like 'recovery' of the loss caused, under Rule 5(ii) of Punjab Civil Writ Petition No.20465 of 2010(O&M) 5 Civil Services (Punishment & Appeal) Rules, 1970, no regular enquiry is required to be held. However, the rules nowhere preclude the Disciplinary Authority from holding a domestic enquiry to arrive at a firm conclusion, even, if only, minor punishment is to be imposed. 13. There appears to be an inherent fallacy in drawing inference that 'Recovery' is always a 'minor penalty' even in the case of a retiree. The case of a retired Govt. employee is invariably distinct from a serving employee. The only punishment that can be imposed on a retired employee is enumerated in Rule 2.2(b) of CSR Vol.II, namely, recovery through cut on pension whereas in the case of a serving employee, any of the penalties under Rule 5 of the 1970 Rules can be imposed. The cut in pension for all times to come or for a specified duration shall have the same civil consequences as were noticed by the Hon'ble Supreme Court in Kulwant Singh Gill Vs. State of Punjab 1990(4)J.T.70 on stoppage of annual increment(s) with cumulative effect. 14. No regular departmental enquiry to enable the petitioner that the vouchers produced to claim incentives for 'family planning cases' or that the nature of alleged physical disability suffered by him justified his claim for 'handicapped allowance', was held in this case as per the procedure laid down under the 1970 rules. The impugned recovery order, therefore, cannot sustain and is accordingly quashed. 15. The petitioner as noticed earlier, stood retired from service more than 13 years back. The charge-sheet was issued 23 years ago in 1988. In my considered opinion, it would be too inequitous and unfair to allow the respondents to initial enquire proceedings against the petitioner at this stage. The petitioner deserves to spend the evening of his life Civil Writ Petition No.20465 of 2010(O&M) 6 peacefully. The respondents are directed to release the withheld amount to the petitioner along with interest @ Rs.6% per annum. The arrears shall be paid within a period of one month from the date of receipt of a certified copy of this order. 15. The petitioner has moved several civil miscellaneous applications seeking one or the other relief. In the absence of appropriate pleadings and supporting material, it is difficult to consider the issues raised in these applications and the same are disposed of with liberty to the petitioner to seek redressal of those grievances before an appropriate forum. 16. However, the prayer of the petitioner for issuance of a copy of PPO to him (alongwith photographs) as per the prescribed form is accepted subject to his submitting the requisite photographs, within one month. 17. Allowed in above terms. 18. Let a Dasti copy of this order be handed over to the petitioner (on payment) and learned State counsel free of cost for information and necessary compliance. 08.08.2011 (SURYA KANT) savita JUDGE