IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 17106 of 2006 Date of Decision: 9.5.2011. Mohinder Singh --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.K. Gupta, Advocate for the petitioner. Ms. Reeta Kohli, Addl. A.G., Punjab. *** PERMOD KOHLI.J (ORAL) The petitioner is aggrieved of order dated 9.8.2004 (Annexure P-9), whereby an amount of Rs.39,677/- has been deducted from his gratuity on account of consumption of excess oil while serving as a driver with the respondents during the period October, 1996 to 31.10.2003. Petitioner was served with a letter dated 19.12.1997 asking him to explain as to why he has consumed excess oil. The total value of excess oil allegedly consumed was estimated at Rs.4721.25/-. Petitioner submitted his reply to the aforesaid letter vide Annexure P-2 explaining that he has shown the consumption as was being show when he took over the truck. It seems that the respondents did not take any action after his reply. It was only after about 6 years that another letter dated 19.9.2003 was issued to the petitioner again asking to explain about excess consumption of oil specified in the said letter. There is an endorsement by the petitioner at the bottom of the aforesaid letter, wherein he has denied consumption of excess oil. Petitioner yet filed another detailed reply dated 14.10.2003 (Annexure P-5). After further correspondence the respondents passed the impugned order making CWP. No. 17106 of 2006 -2- recovery of Rs.39,677/- being 50% of the amount of the excess consumption of the oil. The total excess consumption of the oil has been estimated at Rs.79,393/-. Before passing of the aforesaid order the petitioner had applied for voluntary retirement in October, 2003 which was approved by the authorities on 31.10.2003. Despite voluntary retirement petitioner was not granted pensionary benefits which constrained him to file CWP No.11571 of 2004. During the pendency of this petition the impugned order came to be passed. The validity of order (Annexure P-9) is in question in the present petition. It is settled law that recovery from the Govt. employee for alleged loss to the Govt. is a minor penalty provided under Rule 5 sub rule (iii) of the Punjab Civil Services (Punishment & Appeal) Rules, 1970. For imposing the minor penalty prescribed procedure under the rules is required to be followed. Whenever a misconduct or misbehaviour of any Govt. servant is reported the competent authority is required to institute proceedings against the employees in terms of Rule 7 and if, the penalty imposed is minor, the procedure under Rule 10 is required to be followed. Rules 7 and 10 are reproduced hereunder:- “ Rule 7 Authority to institute proceeding (1) The Governor or any other authority empowered by him by general or special order may- (a) institute disciplinary proceedings against any Govt. employee; (b) direct a punishing authority to institute disciplinary proceedings against any Govt. employee on whom that punishing authority is competent to impose under these rules any of the penalties specified in Rule 5. CWP. No. 17106 of 2006 -3- (2) A punishing authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 5 may institute disciplinary proceedings against any Govt. employee for the imposition of any of the penalties specified in clauses (v) to (ix) of Rule 5 notwithstanding that such punishing authority is not competent under these rules to impose any of the latter penalties. 10. Procedure for imposing minor penalties–(1) Subject to the provisions of sub-rule 3 of rule 9, no order imposing on a Government employee any of the penalties specified in clauses ( i ) to ( iv ) of rule 5 shall be made except after- ( a ) informing the Government employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken , and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal ; ( b ) holding an inquiry in the manner laid down in sub – rules ( 3 ) to ( 23 ) of rule 8, in every case in which the punishing authority is of the opinion that such inquiry is necessary; ( c ) taking the representation , if any submitted by the Government employee under clause ( a ) and the record of inquiry , if any , held under clause ( b ) into consideration : ( d ) recording a finding on each imputation of misconduct or misbehaviour; and ( e ) consulting the Commission where such consultation is necessary . ( 2 ) The record of the proceeding in such cases shall include – (i) a copy of the intimation to the Government employee of the proposal to take action against him ; (ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him ; (iii) his representation , if any; (iv) the evidence produced during the inquiry; CWP. No. 17106 of 2006 -4- (v) the advice of the commission, if any ; (vi) the findings of the punishing authority and also the report of the inquiring authority in case an inquiry has been held under clause ( b ) of sub – rule ( 1 ) and (vii) the orders on the case together with the reason therefor.” Rule 7 directs that the Governor or any other authority empowered by him by a general or special order may institute disciplinary proceedings against any Govt. employee. Sub rule (ii) further empowers the punishing authority competent under the rules to impose any of the penalties specified in clauses (i) to (v) of the rule to institute disciplinary proceedings against any Govt. employee. As noticed above procedure for imposing minor penalty is prescribed under Rule 10, whereunder the Govt. employee is required to be informed in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, is to be communicated to him and he is to be provided reasonable opportunity to make representation as he may wish to make against the proposal. Sub rule (d) requires the punishing authority to record the findings on each imputation of misconduct or misbehaviour. Sub rule (e) further requires consultation with the Commission, wherever necessary. In the present case this procedure has not been followed. In the reply filed by the respondents in para 2 thereof, it is stated that the petitioner has been called upon to explain by the S.D.E Central Works, Sub Division No.1 vide letter dated 25.3.1996 the excess consumption of oil after covering the mileage of 58-59 KM, instead of fixed norms of 6000-8000 KM. Petitioner was again asked to explain about the excess consumption vide another letter dated 19.12.1997 by the S.D.E which was followed by another letter dated 12.7.2000 by the same authority. CWP. No. 17106 of 2006 -5- Another communication dated 19.9.2003 seeking explanation was sent to the petitioner. It is also the case of the respondents that on consideration of the reply of the petitioner, he was informed vide letters dated 13.10.2003 and 20.10.2003 that reply is not satisfactory. Petitioner rendered further explanation vide letter dated 12.11.2003 and finally vide the impugned order penalty of recovery was imposed upon him by the Executive Engineer. It is stated that the Executive Engineer is the punishing authority of the petitioner. From the reply it appears that all explanations were sought by the S.D.E who is neither the punishing authority nor his appointing authority. It is only the final order of imposition of penalty which has been allegedly passed by the punishing authority. The entire exercise carried out by the respondents is contrary to the mandate of Rule 10 of the aforesaid rules. Firstly, no disciplinary proceedings were initiated by any competent authority in terms of Rule 7, referred to above. Secondly, the petitioner has not been served with the imputation of misconduct and misbehaviour as required by Rule 10. The mandatory procedure under Rule 10 has not been followed. Thus, there is gross violation of law in passing the impugned order. For the above reasons the impugned order (Annexure P-9) is set aside. The amount recovered from the petitioner be refunded to him with interest @ 6% till the amount is actually paid. Petition disposed of. (PERMOD KOHLI) JUDGE 9.5.2011. lucky