R.S.A. No. 137 of 2003 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 137 of 2003 (O&M) Date of Decision : 22.1.2009 Punjab State Civil Supplies Corporation,Chandigarh & another. .......... Appellants Versus Bhupinder Kumar ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. H.N.S. Gill, Advocate for the appellants. Mr. A.K. Walia, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This order of mine shall dispose of two regular second appeals i.e. RSA No. 137 of 2003 titled Punjab State Civil Supplies Corporation,Chandigarh & another Vs. Bhupinder Kumar and RSA No. 1077 of 2004 Bhupinder Kumar Vs. Punjab State Civil Supplies Corporation, Chandigarh & another, as they arise out of the same judgment and decree. For the sake of convenience, the facts are being taken from RSA No. 137 of 2003. The plaintiff-respondent filed a suit for declaration that office R.S.A. No. 137 of 2003 (O&M) 2 order dated 25.7.1988 ordering his removal from service and office order dated 19.7.1987 imposing the punishment of warning, which was ordered to be placed in confidential report file and forfeiture of pay and allowances other than the subsistence allowances, order treating the period as leave without pay, are illegal, ultra vires, unconstitutional, mala fide, null and void, against the principles of natural justice, and also against service rules and regulations. The plaintiff also sought declaration that he continues to be in service as if aforesaid orders had never been passed. Plaintiff also claimed consequential benefits. The plaintiff-respondent was suspended by the Managing Director on 1.9.1980 and reinstated on 19.5.1982, pending departmental enquiry. The plaintiff on allegations of serious nature was proceeded against under the Service Rules. The Enquiry Officer was appointed, who conducted the enquiry and found the plaintiff-respondent to be guilty of charges. The competent authority, however, agreed with the Enquiry Officer but while imposing the punishment of removal from service also took into consideration the previous misconduct of the plaintiff-respondent. The learned trial Court dismissed the suit. The plaintiff preferred an appeal against the judgment and decree passed by the learned trial Court. The learned lower appellate Court modified the judgment and decree passed by the learned trial Court. R.S.A. No. 137 of 2003 (O&M) 3 The learned lower appellate Court found that the enquiry was conduced in accordance with the service rules and the contention raised by the learned counsel for the plaintiff-respondent that there was violation of rules, was repelled. The learned lower appellate Court also held that it is not for the Civil Court to go into the merit of the controversy. However, the learned lower appellate Court came to the conclusion that while imposing the punishment of removal from service the competent authority took into consideration previous misconduct i.e. absence from duty on previous occasion. The material relied upon was not put to plaintiff/ respondent. The learned Court, therefore, held that the order of removal could not be sustained as it was not open to the competent authority to consider any material which was not put to the plaintiff- respondent. Keeping in view the judgment of the Hon'ble Supreme Court in the case of State Bank Vs. S.K. Sharma AIR 1996-SC 1169 the judgment and decree passed by the learned trial Court was modified by passing the following order :- “In case of State Bank Vs. S.K. Sharma AIR 1996- Supreme Court 1169, it has been held that when an order is found illegal due to violation of procedural law or being violative of principles of natural justice, then department should be given an opportunity to pass fresh order for curing illegality. So, keeping in view this legal position in mind, it is fit and appropriate to give liberty R.S.A. No. 137 of 2003 (O&M) 4 to respondents to proceed afresh against appellant on basis of enquiry report Ex. P23. Findings of the trial Court on Issue No.1 calls for interference in this respect alone, but not qua any other aspect. 23. In view of above discussion, appeal of appellant partly accepted. Impugned orders, copy of which is Ex. P26 and which is of date 25.7.88 are set aside. However, orders of dated 19/24.3.87, copy of which is available on records as Ex. P-1=Ex. P9 as illegal. Respondents given liberty to proceed afresh against appellant on the basis of enquiry report Ex. P23. Respondents can pass any fresh order on the basis of enquiry report Ex. P23 against appellant for imposing such penalty as it thinks appropriate, but by taking into consideration that period of absence of service of appellant, which is subject matter of enquiry report Ex. P23 and chargesheet and articles of charge Ex. P14 and Ex. P15 and not of any other period, which is not subject matter thereof. In view of peculiar circumstances of the case, there is no order as to costs. Decree sheet be drawn up accordingly. Trial Court file be sent back and appeal file be consigned.” Mr. H.N.S. Gill, learned counsel appearing on behalf of the appellants contends that the following substantial questions of law arise for consideration in this appeal :- 1. Whether the proper opportunity of hearing has been given to the respondent-plaintiff before passing the order of removal from service ? 2. Whether in view of the concurrent finding holding that the enquiry was conducted as per the Service Rules and R.S.A. No. 137 of 2003 (O&M) 5 the plaintiff-respondent was given full opportunity the learned lower appellate Court modified the judgment and decree of the learned trial Court ? 3. Whether the judgment and decree passed by the learned appellate Court is perverse on the facts and circumstances stood proved on record ? On consideration of the matter, I find that the substantial questions of law as framed do not arise for consideration by this Court and in any case, deserve to be answered against the appellants. The learned Courts below have recorded a concurrent finding of fact that the enquiry against the plaintiff-respondent was conducted as per the procedure prescribed under the Service Rules. The appellant can have no grievance to the finding of the learned lower appellate Court that the Civil Court can not sit in appeal over the departmental enquiry and consider the charges on merit. The finding of the learned lower appellate Court is in consonance with law. It is settled law that while imposing the punishments, the competent authority cannot take into consideration previous misconduct, which was neither put to him in the enquiry, nor was part of the charge- sheet. It is not in dispute that the competent authority gave no notice to the respondent seeking his explanation for the previous conduct while imposing punishment by taking that in consideration for imposing the punishment. R.S.A. No. 137 of 2003 (O&M) 6 The learned lower appellate Court in view of the judgment of the Hon'ble Supreme Court in the case of State Bank Vs. S.K. Sharma (supra) was right in modifying the judgment and decree, passed by the learned trial Court. No substantial question of law arises for consideration by this Court, as claimed. No merit. Dismissed. 22.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE