RSA No.2569 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2569 of 2010 (O & M) Date of Decision: 17.02.2011 State of Haryana and others ……Appellants Versus Kamlesh Kumar Sharma …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Amit Goel, AAG, Haryana for the appellants. Mr. R. S. Sangwan, Advocate for the respondent. L.N. MITTAL, J (ORAL) Defendants-State of Haryana and its officers, have filed the instant second appeal. Suit was filed by respondent-plaintiff-Kamlesh Kumar Sharma. The plaintiff was working as Lecturer in Secondary Education Department. Chargesheet for major penalty was served on him. Regular inquiry was held. The inquiry officer held the delinquent plaintiff to be guilty. After issuing final show cause notice, defendant No.3-Director of Secondary Education vide order dated 22.03.2005 dismissed the plaintiff from service. Appeal preferred by plaintiff against the said dismissal order has been dismissed by defendant No.2-Principal Secretary of Education Department vide order dated 31.08.2005. The plaintiff in the suit challenged the inquiry report, dismissal order and appellate order on various RSA No.2569 of 2010 (O & M) - 2 - grounds and claimed reinstatement in service with consequential benefits. Defendants contested the suit and controverted the grounds pleaded by the plaintiff to challenge the inquiry report, dismissal order and appellate order. Some other pleas were also raised. Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 18.12.2008 decreed the suit declaring the impugned inquiry report dated 03.08.2004, dismissal order dated 22.03.2005 and appellate order dated 31.08.2005 to be void and directed the defendants to reinstate the plaintiff with all consequential relief including continuity of service except pecuniary benefits. Judgment and decree of the trial Court were challenged by both sides by filing first appeals. Learned Additional District Judge, Narnaul vide common judgment dated 29.01.2010 dismissed the appeal preferred by the defendants and allowed the appeal preferred by the plaintiff and the suit was decreed by granting full back wages from the date of suspension of the plaintiff till his reinstatement, in addition to the relief granted by the trial Court. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that full back wages were not even claimed by the plaintiff, but even then, full back wages have been granted by the lower appellate Court. It was also contended that there was no fatal defect in the departmental RSA No.2569 of 2010 (O & M) - 3 - inquiry and opportunity of cross-examination of one witness of the department was not given to the plaintiff during inquiry on account of continuous misbehaviour by the plaintiff. It was also contended that even if the inquiry report and impugned orders were to be set aside on the ground of defective inquiry, liberty should have been given to the appellants to proceed afresh against the plaintiff in accordance with law. On the other hand, learned counsel for the plaintiff- respondent pointed out that the plaintiff in the suit prayed for his reinstatement along with all consequential benefits which would include back wages as well. It was also contended that no opportunity of cross-examination of any witness of the department was afforded to the plaintiff during inquiry and even statement of the plaintiff was recorded during inquiry prior to recording statements of departmental witnesses and, therefore, the departmental inquiry stood vitiated completely and the resultant dismissal order and appellate order are also, therefore, vitiated. It was further contended that at this belated stage, liberty to proceed afresh against the plaintiff should not be granted. It was also submitted that since there were two appeals before the lower appellate Court, the instant single second appeal would not suffice. It was further pointed out that vide order dated 03.12.2004 Ex.P-4/18, post of Lecturer working in Secondary Education Department, has been declared as Gazetted Group-B post and, therefore, Government became the appointing authority of the plaintiff and consequently dismissal order could not be passed by Director of Secondary Education i.e. by subordinate authority. RSA No.2569 of 2010 (O & M) - 4 - I have carefully considered the aforesaid contentions. The plaintiff in the plaint has prayed for reinstatement in service along with all consequential benefits and, therefore, it cannot be said that the plaintiff did not claim full back wages. Consequently, contention of counsel of the appellants in this regard cannot be accepted. Inquiry report submitted by the inquiry officer has been rightly held to be null and void because it stands vitiated on account of violation of the principles of natural justice. The plaintiff was not granted opportunity of cross-examining departmental witnesses, who were examined during the inquiry. Consequently, their statements cannot be used against the plaintiff to hold him guilty of the charge. Statement of the plaintiff should also have been recorded after statements of departmental witnesses had been recorded, but the inquiry officer put the cart before the horse and examined the plaintiff before examining the witnesses of the department and, therefore, for this reason also, the inquiry report is vitiated. If the inquiry report is set aside, consequential dismissal order and appellate order also have to be set aside. The contention that there was no fatal defect in the inquiry by merely not affording opportunity of cross-examination of one departmental witness to the plaintiff during inquiry cannot be accepted. The inquiry has not been conducted in accordance with principles of natural justice. Consequently, finding of the Courts below to the effect that the inquiry report and resultant dismissal order and appellate order are null and void does not require interference in second appeal. However, contention of counsel for the appellants that the appellants/defendants should have been RSA No.2569 of 2010 (O & M) - 5 - given liberty to proceed afresh against respondent-plaintiff in accordance with law merits acceptance. Plaintiff has been successful because there was defect in the inquiry. Consequently, defendants have right to proceed afresh against the plaintiff in accordance with law from the stage of holding fresh regular departmental inquiry. The said liberty cannot be denied to the defendants merely on the ground that long period has lapsed. However, it would be for the defendants to decide whether they would like to proceed afresh or not on account of lapse of long period. The Court would not like to deny the aforesaid liberty to the defendants on the ground of lapse of long period. Contention of learned counsel for the respondent that two appeals should have been preferred cannot be accepted because two first appeals were preferred by both the parties against same judgment and decree of the trial court and the said appeals were disposed of by the lower appellate Court by common judgment. Instant second appeal has arisen out of a single suit and, therefore, single second appeal is very much competent. I need not express any opinion regarding contention of counsel for respondent that defendant No.3-Director of Secondary Education was not competent to pass the dismissal order in view of the post of Lecturer held by the plaintiff having been declared as Gazetted Group B post because the dismissal order passed by defendant No.3 is being set aside on other ground and, therefore, the aforesaid question does not survive for determination in the instant second appeal. Following substantial question of law arises for determination in this second appeal:- RSA No.2569 of 2010 (O & M) - 6 - “Whether Courts below have erred in not granting liberty to the defendants to proceed afresh against the plaintiff in accordance with law and whether the defendants are entitled to such liberty in the facts and circumstances of the instant case?” For the reasons already recorded, the aforesaid substantial question of law is answered in the affirmative i.e in favour of the defendants/appellants. As a necessary upshot, the instant second appeal is allowed partly. Judgments and decrees of the Courts below are modified and suit filed by the plaintiff-respondent is decreed declaring that inquiry report dated 03.08.2004, dismissal order dated 22.03.2005 passed by defendant No.3 and appellate order dated 31.08.2005 passed by defendant No.2 are illegal, null and void and are, therefore, set aside. The plaintiff is ordered to be reinstated in service with liberty to the defendants to place the plaintiff-respondent under suspension i.e to restore status quo ante. Defendants shall be at liberty to proceed afresh against the plaintiff in accordance with law from the stage of holding regular departmental inquiry. Regarding back wages; defendants shall take decision in accordance with relevant rules. Since already long period has lapsed, defendants shall conclude the disciplinary proceedings, if decided to be taken, as expeditiously as possible and preferably within six months from the date of receipt of certified copy of this order. The plaintiff shall also cooperate in the inquiry. (L. N. MITTAL) JUDGE 17.02.2011. A.kaundal