IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1357 of 1980 Date of decision : 05.04.2011 State of Punjab … Petitioner Versus Tarsem Lal …Respondent CORAM : HON’BLE MR.JUSTICE PERMOD KOHLI Present: Ms.Charu Tuli, Sr.DAG, Punjab for the appellant. Mr.Sanjeev Kaushik, Advocate for the respondent. Permod Kohli, J. This Regular Second Appeal has been preferred by the State of Punjab through Secretary Transport Department, Punjab against the judgment dated 29.2.1980 passed by Additional District Judge, Ferozepur. Though at the time of filing of this appeal, no substantial question of law was framed as it was not considered mandatory under the prevailing rules at the relevant time, however, in the latest judgment of Hon’ble the Supreme Court, it has become mandatory to frame the substantial question of law for Regular Second Appeal under Section 100 of the Code of Civil Procedure. From the perusal of the impugned judgment, it appears that the following substantial question of law arises in the present appeal:- (i) Whether sub rule 18 rule 8 of the Punjab Civil Services requires that the statement of the delinquent official, is mandatory where the delinquent official has not appeared as a witness? Brief facts are noticed hereunder:- Respondent Tarsem Lal was employee with the Punjab Roadways, Ferozepur. He was dismissed from service vide order dated 30.6.1975 on the basis of charge of remaining absent from duty. Admittedly, inquiry into this aspect was conducted after issuing the charge-sheet. The RSA No.1357 of 1980 Inquiry Officer found the charge leveled against him, proved. The disciplinary authority on consideration of the inquiry report, dismissed the respondent Tarsem Lal from service vide order dated 30.6.1975. Respondent filed a civil suit in the Court of Senior Sub Judge, Ferozepur challenging the order of his termination. The trial Court vide its judgment dated 30.8.1977, dismissed the suit of the respondent. Respondent preferred an appeal No.133/1995 of 1977/1979 before the Additional District Judge, Ferozepur. The appellate Court vide its judgment dated 29.2.1980 allowed the appeal and set aside the judgment of the trial Court dated. 30.8.1977. While considering issue No.1 it was held that sub rule 18 of rule 8 of the Punjab Civil Services rules contains a mandatory provision and its violation has rendered the order of imposition of penalty as null and void. It is against the aforesaid judgment, the State of Punjab through Secretary Transport Department Punjab has preferred the present Regular Second Appeal. The only issue which needs consideration, is the interpretation of sub rule 18 rule of 8 which reads as under:- “The inquiring authority may, after the government employee closes his case, and shall, if the Government employee has not examined himself, generally question him on the circumstances, appearing against him in the evidence for the purpose of enabling the government employee to explain any circumstances appearing in the evidence against him.” From the perusal of the aforesaid provision, it appears that this rule is in two parts; first part gives discretion to the Inquiring authority to examine the employee whereas in the second part of sub rule, it becomes obligatory upon the Inquiring authority to examine the employee to enable him to explain circumstances appearing in the evidence against him if the employee had not appeared and examined himself during the course of the inquiry earlier. It is an admitted position on record in the present case that the respondent- Tarsem Lal was not examined during the course of the inquiry. Thus, at the close of the inquiry, it was obligatory upon the Inquiring authority to have examined the respondent –delinquent officer to provide him an opportunity to explain the circumstances appearing in the evidence against him. This mandate of the rule has not been carried out. This 2 RSA No.1357 of 1980 controversy has been otherwise also settled by this Court in RSA No.1043 of 1983 titled as ‘State of Punjab Vs. Sampuran Singh’ decided on 4.8.2004 and RSA No.2342 of 1986 titled as ‘Avtar Singh, Ex-Conductor Vs. State of Punjab’ decided on 9.3.1992 wherein it has been held that sub rule 18 rule of 8 is mandatory in nature where the employee was not earlier examined during the inquiry. It is incumbent upon the Inquiring authority to examine the employee facing enquiry to enable him to explain circumstances appearing in the evidence against him. In view of the settled legal position, the findings recorded by the lower appellate court regarding the mandatory nature of sub rule 18 of rule 8 cannot be faulted with. There is no merit in this appeal. Dismissed. ( Permod Kohli ) Judge 05.04.2011 sd Whether this judgment is to be referred to the Reporter or not. Yes. 3