R.S.A. No. 1925 of 2008 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1925 of 2008 (O&M) Date of Decision : 5.2.2009 Uttri Haryana Bijli Vitran Nigam (UHBVN) & another. .......... Appellants Versus Pala Ram ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. B.S. Rana, Advocate for the appellants. Mr. Naveen Daryal, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5761-C of 2008 This is an application under Section 5 of the Limitation Act for condoning the delay of 22 days in filing the appeal. For the reasons stated in the application, C.M. is allowed. The delay of 22 days in filing the appeal is condoned. R.S.A. No. 1925 of 2008 This regular second appeal is directed against the judgments and decree dated 4.5.2007 and 23.10.2007 passed by the learned Courts below vide which suit for declaration filed by the plaintiff-respondent stands decreed. R.S.A. No. 1925 of 2008 -2- The plaintiff in a suit for declaration pleaded that he was working as ALM under the Control of Executive Engineer, City Division, UHBVN and was issued charge sheet under Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules 1952. The allegation against the plaintiff-respondent was that he was not found sitting at G.O. Switch at village Budha Khera, Main T-off which had to be isolated before rectification of the fault, which resulted in non fatal accident on 2.8.1997 which stood converted into fatal accident on 6.8.1997. Thereafter, A.K. Raheja, Assistant Executive Engineer (S), Sub Division,Karnal was appointed as Enquiry Officer and G.C.Gandhi Presiding Officer. The case set up by the plaintiff was that without considering the reply filed by him and without examining any witnesses in support of the prosecution case and also by not affording any opportunity to the plaintiff to produce his witnesses or permit him to cross-examine the departmental witnesses, the Enquiry Officer submitted his report. The Executive Enginner, Karnal issued show cause notice of proposed punishment on 10.8.2001, without considering the reply filed by the plaintiff to the proposed punishment, one annual increment with cumulative effect was ordered to be stopped vide order dated 22.11.2001. The plaintiff challenged the order of punishment on the following grounds :- “(i) That the plaintiff was not afforded reasonable opportunity before passing the punishment order as required under Regulation 7 Sub Section 3 and R.S.A. No. 1925 of 2008 -3- 4 o erstwhile HSEB Employees ( P & A) Rules, Regulation 1990. (ii) That the enquiry officer has not conducted the enquiry in accordance with the rules of natural justice. The enquiry officer did not afford opportunity of cross-examination of witnesses produced by the prosecution in support of the allegations though no witness in support of the allegations was examined by the enquiry officer in the presence of the plaintiff. (iii) That the deponent was not afforded opportunity of producing his defence. (iv) That the finding of the enquiry officer is a just conclusion which amounts to denial of reasonable opportunity, as held by the Hon'ble Punjab & Haryana High Court in the case titled ' M.L. Duggal Versus The Netaji Subhash National Institute of Sports, Patiala and others' cited in RSJ 1991(1), 69. (v) That the punishing authority has not passed self speaking orders. The punishing authority has not considered the pleas and contentions raised by the plaintiff, his reply to the show cause notice of proposed punishment which amounts to non- application of mind or non-consideration of the reply of the plaintiff. (vi) That the punishing authority pre-judged the guilt of the plaintiff and the enquiry was an empty formality, which amounts to denial of reasonable opportunity” The suit was contested wherein preliminary objections of R.S.A. No. 1925 of 2008 -4- maintainability, suppression of material facts, cause of action and proper valuation were taken. However, the fact of issuance of charge-sheet, appointment of the Enquiry Officer, Presiding Officer, holding the plaintiff guilty by the Enquiry Officer as well as issuance of show cause notice was admitted. It was claimed that enquiry was conducted as per rules and procedure and the plaintiff was given full opportunity to defend his case. The grounds of challenge were also denied. On the basis of pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the order dated 22.11.2001 passed by the defendants stopping one annual increment of the plaintiff with future effect is illegal, null and void and not binding on the rights of the plaintiff on the grounds pleaded in the plaint ? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to the relief as prayed for ? OPD 3. Whether the present suit is not maintainable in its present form ?OPD 4. Whether the plaintiff has not come to the court with clean hands and has suppressed the true and material facts from the Court ? OPD 5. Whether the plaintiff has no cause of action to file and maintain the present suit ? OPD 6. Whether the Civil Court has got no jurisdiction to entertain and try the present suit ? OPD 7. Whether the present suit is not properly valued for the purpose of court fee and jurisdiction ? OPD 8. Relief.” R.S.A. No. 1925 of 2008 -5- On appreciation of evidence brought on record the learned trial Court decided issue No.1 in favour of the plaintiff-respondent and held that order dated 22.11.2001 was illegal, null and void and not binding on the rights of the plaintiff. In view of finding on issue No.1, issue No.2 was also decided in favour of the plaintiff-respondent. Issues No. 3 to 7 were also decided against the defendants having not been pressed. Consequently, the suit was decreed. The learned lower appellate Court upheld the findings of the learned trial Court by recording the following finding :- “1) Shri Pal Ram ALM who was accompanied with late Sh. Kundan Singh ALM did not remained to sit at G.O. Switch of village Budha Khera and he was not confirmed that he G.O. Switch of Village Budha Khera Main T-off had been isolated before the rectification of the fault and he instigated to Sh. Kundan Singh ALM for working in the line (live) which caused Sh. Kundal Lal ALM met with non fatal accident on 2.8.97 and converted into fatal accident on 6.8.97. 2) Shri Pala Ram ALM is found negligent to perform his duty as per instructions of the board as he had not confirmed the G.O. Switch of main T-off had been isolated before working on the line.” 13. Ex. P2 was the reply filed by the respondent to the R.S.A. No. 1925 of 2008 -6- aforesaid charge sheet and on finding the reply to be unsatisfactory, Shri A.K. Raheja, assistant Executive Engineer (S), Sub Division, Karnal was appointed as Enquiry Officer and Shri G.C. Gandhi, the Presiding Officer. The charges were proved as per the report Ex.P3 submitted by the Enquiry Officer and vide show cause notice Ex.P5, the respondent was given opportunity to explain his position regarding proposed punishment. Respondent filed a reply Ex.P5 and it resulted into the passing of the impugned order Ex.P6 whereby the punishing authority decided to stop one annual increment with future effect. 14. In order to appreciate the fact as to whether the report given by the Enquiry Officer was simply the conclusion without even discussing the evidence and material for arriving on such conclusions. In this contest, the learned lower Court has placed reliance upon M.L. Duggal Vs. The Netaji Subhash National Institute of Sports, Patiala and others 1992(1) Recent Services Judgments, 69. The Enquiry Officer in his report Ex.P3 has held as follows :- (I) On the basis of documents and hearing it has become clear that Pala Ram ALM accompanied Sh. Kundan Singh ALM (now late). He decided to sit on G.O. Switch of Village Budha Khera. He committed with other complaint other staff for isolation of G.O. Switch of Village Budha Khera. Due to misunderstanding Kundan Singh ALM climbed the line of Kulwehri which was live and met with accident. Thus the charge against the official in decision making is proved but the R.S.A. No. 1925 of 2008 -7- person who had to work on line was supposed to ensure the isolation of G.O. Switch on issue of PYW. (II) Further Pal Ram ALM is found negligent as he did not confirm the isolation of G.O. Switch before working on line. Since, it were pre- agreement amongst all officials, it was wrong decision to work on line. Hence charge is proved against the official.” 15. If the findings recorded by the Enquiry Officer are evaluated in the light of the observation made in M.L. Duggal (Supra), it can be conclusively said that the conclusions arrived at by the Enquiry Officer was without even discussing the material and the evidence on the record. Even the statement of any of the witness or any document produced on behalf of either of the party was not discussed. In this case law, the Hon'ble High Court has observed as follows :- “The Enquiry Officer should have carefully examined and appraised the evidence, documentary as well as oral, adduced by the parties in support of each charge. He was not required to writ judgment, still he has to indicate as to what was the evidence to which he was relying upon. When there is no reference to the evidence of any witness or document, one does not come to know if any witness was examined at all. This cannot be held the purpose of Enquiry. It is well settled that the High Court will not in the Writ Proceedings go into the question whether the evidence before the Enquiry Officer in disciplinary R.S.A. No. 1925 of 2008 -8- proceedings was insufficient or inadequate to sustain the findings. The court, however, has jurisdiction to go into the question whether there is no evidence at all to support the findings.” It may be noticed here that the defendant-appellant did not lead evidence in support of its stand and their evidence was closed by Court order. The substantial question of law raised in the appeal is :- Whether the learned Courts below were bound to allow the appellant to hold fresh enquiry ? When the matter came up for hearing before this Court on 9.2.2008, this court passed the following order :- “Counsel for the appellants submits that he gives up challenge to the judgments and decrees passed by the Courts below on merits, but asserts that the learned courts below while setting aside the enquiry proceedings, should have granted liberty to the departmental authorities, to initiate fresh enquiry in accordance with law.” The learned counsel for the appellants contends that the permission to initiate enquiry afresh should be granted to the appellants in view of the law laid down by the Hon'ble Supreme Court in the cases of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and others AIR 1962 Supreme Court 1334, State of Punjab and Others Vs. Chander Mohan ( 2005 ) 13 Supreme Court Cases 81, Mathura Prasad Vs. Union of India and others (2007) 1 Supreme Court Cases 437 and R.S.A. No. 1925 of 2008 -9- Union of India and others Vs. Mohd. Ibrahim (2004) 10 Supreme Court Cases 87. The contention raised by the learned counsel for the appellants cannot be accepted as in all the judgments, referred to above, the Hon'ble Supreme Court has been pleased to lay down that if a person is exonerated on a technical ground it does not bar the department to enquire fresh into the matter. However, in the present case, the Enquiry Officer found the plaintiff-respondent guilty of the charges in absence of any evidence on record. Thus, on merit the findings recorded by the Enquiry Officer holding the appellant guilty could not be substantiated or sustained in law. The punishment order was also outcome of non-application of mind. The Courts below, therefore, have not non-suited the defendant-State on technical ground, nor the enquiry was not held to be vitiated on technical grounds but on merits. Thus, no permission to hold any de novo enquiry can be granted as contended as it would amount to double jeopardy. No merit. Dismissed. 5.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE