IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 229 of 2011 (O&M) Date of Decision: February 9, 2011 Raj Kumar Nanda …Appellant Versus State of Punjab and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Arjun Partap Atma Ram, Advocate, for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against an interlocutory order dated 1.12.2010 passed by the learned Single Judge permitting the respondents to conclude the inquiry as per the directions issued by this Court on 16.4.2004 while disposing of C.W.P. No. 13147 of 1991 (Hashni Kumar v. State of Punjab and others). 2. We do not wish to give the detailed facts which have been set out in the impugned order passed by the learned Single Judge on 01.12.2010. However, it is suffice to mention that writ petition was disposed of on 16.04.2004 holding that fraud appears to have been committed by four candidates, which included the name of appellant in getting the record LPA No. 229 of 2011 (O&M) tampered with and to have the marks increased in the written examination for appointment to the post of Naib Tehsildar (Class-A). The basis of the direction was an affidavit dated 09.02.1999 filed by Shri B.K. Srivastava, the then Commissioner, Jalandhar Division, Jalandhar (P-16) It has also come on record that the appellant was not a party in the original petition but subsequently, he became party by filing CM No.10261 of 2005 in CM No.16746 of 2004 in CWP No.13147 of 1991. The application was allowed on 20.03.2007 (P-8). It is also appropriate to mention that the plea, which has now been raised with regard to filing of the suit and passing of decree on 18.01.1994 (P-1), or dismissal of First Appeal on 06.02.1997 as well as of RSA on 27.01.1998 were the facts, which have been incorporated in the affidavit filed by Shri B.K. Srivastava on 09.02.1999 (P-16). The learned Single Judge is conscious of the aforesaid facts and has also noticed the earlier inquiry in the impugned interlocutory order. One of the inquiry reports has exonerated the appellant along with his three colleagues, namely, Bhupinder Singh, Gurmeet Singh and Amarjeet Singh. However, that inquiry report was found to be inconsistent with the direction issued by this Court and the Financial Commissioner, Revenue came to a conclusion that the charges framed by the Commissioner were not in accordance with the direction issued by this Court and there was ample evidence which have been ignored. Accordingly, the Financial Commissioner, Revenue in his report dated 23.07.2007 (P-9) ordered holding of inquiry in accordance with the direction issued by this Court. She observed that the charges should be formulated afresh and a new Inquiry Officer be appointed. 3. The learned Single Judge examined the answer-sheet of the appellant-Raj Kumar Nanda and proceeded to hold that no observation would 2 LPA No. 229 of 2011 (O&M) be warranted at that stage. It has further been held that the ends of justice would be met if the respondents are permitted to conclude the inquiry as per the observation and direction issued by the Financial Commissioner, Revenue in her orders dated 13.02.2008 and 13.08.2008. The learned Single Judge has intentionally kept all the issues open by asking the respondents to conclude inquiry within a period of four months wherein, the appellant and others were to be given opportunity of hearing as per the rules and instructions. Mr. Atma Ram, learned counsel for the appellant has argued that no second inquiry could be held and the learned Single Judge should have considered the effect of Civil Court decree before granting permission to hold second inquiry. We are not impressed with either of the two submissions because we find that it is not a type of inquiry which may necessarily be considered to have been held under the provisions of Punjab Civil Service (Punishment and Appeal) Rules, 1970. The inquiry proceedings were initiated and are being actively monitored by the High Court and, therefore, at this stage, the order passed by the learned Single Judge is not required to be interfered with. Likewise, the other argument as to the effect of judgment and decree would also not be of much help because firstly, the issue has been kept open and secondly, the judgment and decree was within the knowledge of the learned Single Judge when directions were issued by this Court on 16.04.2004 in CWP No.13147 of 1991 titled as “Hashni Kumar vs. State of Punjab and Others”. The affidavit dated 09.02.1999 filed by Shri B.K. Srivastava, the then Commissioner, Jalandhar Division, Jalandhar also takes into consideration the factum of judgment and decree and the decision of first and second appellate Courts. 4. Thus, there is no merit in the appeal. The order of the learned 3 LPA No. 229 of 2011 (O&M) Single Judge is upheld and the appeal is accordingly, dismissed leaving the appellant free to raise all the issues before the learned Single Judge. However, it is made clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the controversy as the matter is still pending before the learned Single Judge. (M.M. KUMAR) JUDGE (T.P.S. MANN) February 9, 2011 JUDGE Rajan 4 LPA No. 229 of 2011 (O&M) In pursuance to the aforesaid direction, an inquiry was held by the Financial Commissioner, Revenue, Punjab. After affording an opportunity of hearing to the petitioner-appellant and other officers on 1.7.2004 and considering the report of Shri B.K. Srivastava, the then Commissioner, Jalandhar Division, Jalandhar, the Financial Commissioner, Revenue, Punjab passed an order dated 28.7.2004 exonerating the petitioner-appellant and others from the charges of committing mal-practices in the Departmental Examination for appointment to the post of Tehsildar (P-5). However, the said order was set aside by this Court and the matter was remanded back for reinvestigation. On 8.2.2008, the Financial Commissioner, Revenue, Punjab, passed another order concluding that the inquiry report and charges which were formulated by the Commissioner, Jalandhar Division, Jalandhar were not in consonance with the directions of this Court. Accordingly, the Financial Commissioner ordered for formulation of the charges afresh and to conduct the disciplinary inquiry by appointing new Enquiry Officer (P-14). 2. A perusal of the order dated 8.2.2008 (P-14), would show that in his affidavit 9.2.1999, filed by Shri B.K. Srivastava, it was mentioned that there was manipulations in the marks sheet, answer sheets and the marks register and the High Court may declare the candidates like the appellant has failed. Consequently their appointment was to be cancelled. However, on 28.7.2004 the appellant was exonerated. The order dated 28.7.2004 was set aside by this Court and the matter was referred back for re-investigation. The Financial Commissioner has discussed in detail the lapses committed by the Commissioner, Jalandhar Division, Jalandhar when he exonerated the appellant. It has been observed by her that it was not possible to prove 5 LPA No. 229 of 2011 (O&M) charges by producing witnesses like the officials who dealt with the examination. Those witnesses could not have made the changes in the marks/cuttings in the answer sheets/marks register, which were definitely to the advantage of the candidates. The Financial Commissioner also pointed out that what needed to be established as per the report/affidavit of the Commissioner, Jalandhar Division, was that the cuttings/tampering had been carried out in the answer sheets/award list/result register irrespective of the fact whether it has been done in the physical presence/accessibility of the candidates to the relevant record. The upward revision of the marks of the candidates is obviously to benefit them who would have otherwise failed. The mere fact that the defaulting employees have escaped action was not to be the basis of exonerating the officers like the appellant and holding their appointment as valid. The charges were required to be formulated in a manner to point out the cuttings/tampering in the answer sheets/result register etc., which were required to be shown to the charged officer. The Financial Commissioner further pointed out that the Presenting Officer failed in producing the examiners as witnesses and has hammered on the failure of the prosecution to determine the quantum of cuttings and tampering. The report points out various other pieces of evidence and the important witnesses which could have been examined and accordingly she differed with the findings of the Enquiry Officer. In order to comply with the directions issued by this Court while disposed of CWP No. 13147 of 1991, the Financial Commissioner, thus, decided that the charges shall be formulated afresh and disciplinary inquiry was to be conducted by appointing a new Enquiry Officer. In this manner, the earlier Enquiry Officer was considered to have acted with a 6 LPA No. 229 of 2011 (O&M) bias. 3. We have heard Mr. Rajiv Atma Ram at a considerable length. At the outset it is apt to observe that in the present time lapses in public affairs are on the increase. Everyone wants to achieve heights without bothering about fair means. Corruption and mal-practices have seeped into out polity, which have to be rectified. Sometimes influential people by involving the technicalities of law may attempt to get away with their mis-deeds. Therefore, technicalities of law cannot be construed to help such suspects because it would result into defeating the ends of justice and allowing the evils to succeed. The technicalities of law must be construed to advance justice. 4. The first issue raised by him is that no fresh inquiry could be conducted against the appellant once he has been exonerated. In support of his submission, learned counsel has placed reliance on paras 13 and 14 of the judgment of Hon’ble the Supreme Court rendered in the case of K.R. Deb v. Collector, Central Excise, Shillong, AIR 1971 SC 1447. However, we are unable to accept the aforesaid submission because para 13 of the judgment in K.R. Deb’s case (supra) clearly postulate that it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason. The Financial Commissioner has held that even the Enquiry Officer has acted with bias. Moreover, the inquiry in the present case is not held in the sense that an employee has committed an act of misconduct. It is an inquiry into the mal- practice adopted by a candidate during examination in order to seek promotion on the post of Naib-Tehsildar. The scope of the inquiry in such a case is not 7 LPA No. 229 of 2011 (O&M) confined to the limitations prescribed by the Punjab Civil Service (Punishment and Appeal) Rules, 1952. Therefore, it may be true that no de novo inquiry is permitted under the Rules in a case of that nature but in the facts and circumstances of the present case no such limitation, as sought to be urged by the learned counsel, could be read into the conducting of inquiry de novo, particularly when in the earlier inquiry evidence has been left out, the Enquiry Officer has acted in a bised manner and the inquiry is not routed in the manner provided under the Rules. 5. The other submission made by Mr. Atma Ram, learned counsel for the appellant is that the learned Single Judge should have considered the impact of the Civil Court decree which has been upheld till this Court before passing the impugned order because according to him, the judgment and decree of the Civil Court has vital impact on the decision to accept the order of the Financial Commissioner for de novo inquiry. However, we again find ourselves unable to agree with the aforesaid submission because firstly no such objection was taken by the appellant when in pursuance to the direction issued by this Court an inquiry was conducted and the findings given by the Enquiry Officer were not accepted by the Financial Commissioner. Moreover, the learned Single Judge has not foreclosed the issue and has kept it open to await the findings of the Enquiry Officer. The matter is wide-open before the learned Single Judge. It is not possible for us to interfere with the interlocutory order passed by the learned Single Judge, especially when the matter has been kept pending for 25.5.2011. All these issues could be raised before the learned Single Judge in case such a necessity is felt after the inquiry is held and if the appellant is indicted therein. We feel that the learned Single Judge has adopted the right course and the impugned order passed by the learned Single Judge does not warrant interference. Therefore, we are unable to accept the submissions made by Mr. Atma Ram. The appeal is wholly without merit. Dismissed. 8