RSA No. 161 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 161 of 2009 Date of decision: May 5,2011 Bhushan Chander son of Bansi Lal ..Appellant. Versus Punjab State Warehousing Corporation,Chandiga`rh through its Managing Director ..Respondent Coram: Hon'ble Mr. Justice Ranjit Singh Present: Mr. G.S. Bal, Advocate for the appellant Mr. Harsh Aggarwal, Advocate for the respondent ... Ranjit Singh,J The appellant-plaintiff had filed this Regular Second Appeal impugning the judgment and decree passed by the first Appellate Court as well as the trial Court. The suit filed by plaintiff-appellant seeking declaration that the order passed by the Managing Director of the defendant-Corporation dated 30.9.1991 dismissing him from service and directing the recovery of forfeiture of balance salary, has been dismissed. Vide order dated 22.10.1991, the appellant was dismissed from service. In addition, forfeiture of ` 58,262/-,which was balance of salary for the period he remained under suspension, was ordered. Appellant pleaded that these orders are illegal, null and void. The facts noticed in brief are that the appellant was working with the respondent-Corporation since 1972. During the month of February, 1989, the appellant was transferred from Jalalabad to Makhu as a Godown Assistant. As per the appellant, a theft had taken place at Godown in RSA No. 161 of 2009 2 Makhu for which he had lodged an FIR with the police. During the pendency of investigation, department however, filed a complaint on 11.2.1991 against the appellant accusing him of committing criminal breach of trust and some other offences. The appellant had moved the Court for grant of anticipatory bail. The allegation against the appellant were the same for which he was terminated . Besides the complaint, the appellant was served a charge sheet also. He filed reply to the charge sheet. The respondent-Corporation detailed an Inquiry Officer to conduct the inquiry. Appellant has pleaded that the inquiry was conducted in an illegal and irregular manner. After completion of inquiry, report was submitted by the Inquiry Officer and thereafter the Managing Director imposed the punishment of dismissal on the appellant besides directing forfeiture of the amount as already noticed. The appellant then filed a departmental appeal against the order, which was rejected on 26.4.1983. The appellant was only given intimation regarding this order but no detailed reasons were supplied to him for which his appeal had been rejected. The appellant, thereafter, had filed the present suit on the ground that the dismissal as well as the appellate order passed were illegal, null and void. On being put to notice, respondent-Corporation appeared before the Court and filed written statement. The allegations made in the suit were seriously disputed. On merits, it was stated that the appellant was given complete charge at Makhu but in the charge report, he had written 79+7 against the entry in the book balance of gunnies bales. He further mentioned in the remarks column that 7 bales were short, whereas telegram was issued by the appellant for theft of 11 gunny bales. The charges levelled against the appellant were duly proved during the inquiry. Thereafter, he was afforded an opportunity of personal hearing and after RSA No. 161 of 2009 3 going through the relevant record, the impugned punishment of dismissal was inflicted on the appellant. The respondents would plead that Inquiry Officer had conducted the inquiry in a proper manner, giving all opportunities to the appellant. His appeal was duly considered by the Appellate Authority, before whom, the appellant never appeared on the date fixed. As per the reply, the appeal was fixed on 9.12.1992 to 21.1.1993 and 11.3.1993. Thereafter, the appeal was dismissed. The order passed by the Managing Director is thus justified. Mr. G.S. Bal, learned counsel appearing for the appellant would submit that the plea raised by and on behalf of the appellant had not been properly considered. The counsel submits that the inquiry held against the appellant was in violation of rules and so also in violation of principle of natural justice. In this regard the counsel has referred to the record of the inquiry proceedings to point out that appellant was not provided with the service of defence assistance despite request during inquiry. The appellant has made specific request for the same but it was not accepted. The counsel has drawn my attention to the evidence led before the trial Court where Inquiry Officer has initially stated that the assistance of co-worker was offered to the appellant but he refused. However, this evidence is contradicted by the witness in his cross- examination. While under cross-examination, this witness admitted that he had not recorded the fact in the proceedings that the appellant was offered the assistance of defence assistant but he refused. The witness rather stated that “I do not remember whether I gave the opportunity of taking help of co-worker to the appellant or not”. The effect of evidence given by the witness in his examination-in-chief was nullified by his version given during cross- RSA No. 161 of 2009 4 examination. It would be sufficient to conclude that the appellant was not afforded the help of defence assistance. The rules titled Punjab State Warehousing Corporation(Condition of Service) (Group 'C' and Group 'D') and service regulation applicable to the appellant stipulates that the provisions of Punjab Civil Services Rules would apply to the employees of the Corporation as well. The service rules contains a provision for providing the assistance of a co-worker as defence assistant to a delinquent employee who is facing a disciplinary proceeding. Mr. Bal seeks support from a judgment of this Court in State of Punjab Versus Palwinder Singh 2004(2) RSJ 328 in this regard. Relying upon the case of Bhagat Ram Versus State of Himachal Pradesh and others, 1983(1) SLR 626, this Court has taken a view that it is required on the part of the Inquiry Officer to inform the delinquent employee, if he so liked that he could be represented by his colleague or co-employee. No such information was conveyed to the delinquent employee. Accordingly, it is held that such an employee had been prejudiced in conducting his case. The principle of natural justice would also demand that a proper opportunity must be afforded to a delinquent employee to defend himself. The service of an employee are required to be made available to a delinquent employee during the course of inquiry. The appellant was not given fair opportunity to defend himself during the inquiry. The penalty imposed on the basis of such inquiry cannot be sustained. Additional ground urged is that even the Appellate Authority had also remanded the case back to the Inquiry Officer for recording the defence evidence on the ground that the appellant was denied the opportunity to raise his defence. This opportunity indeed was provided to the appellant but he was not served the copy of the inquiry report, prepared after recording their additional proceedings. Reasons given by the RSA No. 161 of 2009 5 respondent in this regard is that there was no change in the final outcome of the view expressed by the Inquiry Officer and hence the earlier inquiry report provided to the appellant would serve and suffice the purpose and requirement of supplying the inquiry report. The counsel for the appellant is justified in pleadings that appellant was entitled to know as to how his evidence which he was able to lead has been dealt with and ignored. Earlier finding and reasons given on the basis of evidence was required to be reconsidered in the light of the new evidence that may have been lead during inquiry on remand. That would require a consideration, though may not necessarily lead to change of outcome. Thus evidence was required to be dealt with. Obviously, a fresh inquiry report would have been prepared. It would be a requirement of law to provide a copy of the inquiry report, in case the same had been so prepared . On both these grounds, the appellant has suffered an apparent prejudice. The punishment and the findings of the Inquiry Officer cannot be sustained. In my view, a substantial question of law in regard to violation of principle of natural justice and right of a delinquent employee to have the service of a defence assistant during inquiry would arise in the present case. The question now to be considered is the relief that is to be granted to the appellant. There are some serious allegations against the appellant for which he has been convicted and sentenced. Revision filed by the appellant against his conviction and sentence has been allowed by separate order. Though on technical ground for not obtaining sentence for his prosecution under Section 197 Cr. P. C. Should the appellant be let off the hook on technical ground here as well. In this regard the case of Managing Director, ECIL, Hyderabad and others Versus Karunakara and others, 1994(1) SCT 319 may provide some guidelines. The effect of RSA No. 161 of 2009 6 non-supply of inquiry report at earlier stage or before proposing punishment was considered in this case. Dealing with somewhat similar situation, the Supreme Court had gone into the question of the type of relief that should be granted to a person in such like cases. As per the Supreme Court, the answer to the same has to be relative to the punishment awarded. When an employee is dismissed or removed from the service and the enquiry is set-aside, then it is to be seen if the reasons of setting aside of enquiry has prejudiced an employee gravely. In some cases violation may not make any difference to the ultimate punishment, which is to be awarded. Accordingly, it is observed that to direct reinstatement of an employee with back wages in all cases would amount to reducing the rules of justice to a mechanical ritual. As is observed, the theory of reasonable opportunity and principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rights to be performed on all and sundry occasions. Whether, in fact prejudice has been caused to an employee or not, has to be considered on the facts and circumstances of each case. Where it is noticed that the violation would not lead to any different consequences, it would be perversion of justice to permit an employee to resume duty and to get all consequential benefits. The Court has also observed that it amounts to rewarding the dishonest and the guilty and, thus, to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice, which in itself is unethical to justice. Considering the nature of allegations standing against the petitioner, directing his reinstatement would amount to rewarding dishonesty, which may lead to stretching the concept of justice to illogical and unfair limits. It is, therefore, not considered essential to direct RSA No. 161 of 2009 7 reinstatement even when the order of punishment is required to be set- aside. As observed by the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad (supra), proper relief to be granted in such like cases should always be with a liberty to authority/management to proceed with the enquiry by placing the employee under suspension and continuing with the same from the stage where the infirmity is noticed. The question whether employee would be entitled to back wages and other benefits from the date of dismissal to the date of his reinstatement, if ultimately ordered, would invariably is to be left to be decided by the authorities concerned according to law after culmination of the proceedings and depending upon the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law, how it will treat the period from the date of dismissal till the reinstatement and to what all benefits, if any,and the extent of benefits, he will be entitled. The reinstatement made as a result of setting-aside of the enquiry should be treated as a reinstatement for the purpose of holding fresh enquiry and no more where such fresh enquiry is to be held. This is noted to be the correct position in law by the Hon'ble Supreme Court in Managing Director,ECIL, Hyderabad (Supra). Following the same procedure, the impugned order,punishing the petitioner, is set-aside. The respondents are granted liberty to proceed with the enquiry proceedings from the stage, when the witnesses were summoned to be examined. For this purpose, the petitioner need not be reinstated into service and he would be treated as reinstated for the purpose of holding a fresh enquiry from the stage it is now to be held. Any other course would add in allowing the premium to the petitioner over his serious misconduct of entering the service with dishonesty. The right of the petitioner to the benefits would depend upon the final outcome of the RSA No. 161 of 2009 8 enquiry now directed to be held afresh. The writ petition is accordingly disposed of in the above terms. May 5,2011 (RANJIT SINGH) nk JUDGE