C.W.P. No. 21462 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 21462 of 2010 Date of Decision:- 20.12.2010 Harish Kumar ...Petitioner Versus Punjab and Haryana High Court, Chandigarh and another ..Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. N.C. Kinra, Advocate and Mr. Harsh Kinra, Advocate for the petitioner. *** PERMOD KOHLI, J. The petitioner, a judicial employee is aggrieved of orders dated 23.06.2005 imposing penalty of forfeitures of Six Annual Increments with cumulative effect, the order of the appellate authority dated 13.08.2010 and also the enquiry report and has sought quashment of the same It may be useful to briefly notice the facts leading to filing of this petition. Petitioner was recruited as a Clerk-cum-typist in the year 2000 in Sessions Division, Kapurthala. In a criminal case titled as State vs. Gurmail Singh and another under Section 61(1) of the Punjab Excise Act, 1914, the accused was acquitted by Sub Divisional Judicial Magistrate, Phagwara on two counts, (i) 5 bottles produced in the Court were filled with liquor along with other empty bottles which were not recovered from the accused; (ii) that the case property i.e bottles of liquor were empty except 5 bottles. This case property was produced from the Malkhana of Additional Civil Judge (Sr. Divn.), Phagwara. Admittedly, petitioner was posted as Malkhana Nazir in the Court of Additional Civil Judge (Sr. Divn.), Phagwara from the period 17.8.2001 to 12.11.2001. District Attorney, Kapurthala forwarded his comments to the District Magistrate, Kapurthala who inturn brought the same to the notice of District and Sessions Judge, Kapurthala. On receipt of the C.W.P. No. 21462 of 2010 -2- aforesaid information, learned District & Sessions Judge, Kapurthala asked Mrs. Ramesh Kumari, the then Sub Division Judicial Magistrate to hold a preliminary enquiry vide his letter dated 29.10.2002. It appears that the preliminary enquiry was held by another Judicial Magistrate Mrs. Navjot Sohal, Judicial Magistrate Ist Class, Phagwara, may be on account of transfer or inability of Mrs. Ramesh Kumari, the then Sub Division Judicial Magistrate. The preliminary enquiry report was submitted vide letter dated 19.03.2004. Explanation of the petitioner was sought in respect of the preliminary enquiry wherein he was indicted. Explanation tendered by the petitioner, did not find favour with the learned District & Sessions Judge, Kapurthala. Resultantly, charge-sheet alongwith documents and articles of charges etc were served upon the petitioner on 07.02.2005 (Annexure P-1). Petitioner responded to the charge sheet by his reply. It seems that the Disciplinary Authority decided to hold a regular enquiry into the conduct of the petitioner and entrusted the departmental enquiry to Sh. Rajiv Kumar, Judicial Magistrate Ist Class, Phagwara. The Enquiry Officer conducted the enquiry and hold charges No. 1 to 8 to be proved against the delinquent official. On receipt of the enquiry report, a show cause notice was served upon the petitioner on 26.05.2005 (Annexure P-5) seeking his response. The petitioner submitted his reply to the show cause notice on 02.06.2005. (Annexure P-6). Learned District and Sessions Judge/ Disciplinary Authority on consideration of the enquiry report and the reply of the petitioner inflicted penalty of stoppage of 6 Annual Increments with cumulative effect on the petitioner, vide his order dated 23.6.2005 (Annexure P-7). Petitioner filed a statutory appeal against the order of imposition of punishment, which was heard by learned Administrative Judge of District Kapurthala and decided vide his order dated 13.08.2010 (Annexure P-8). Learned Administrative Judge while upholding the order of disciplinary authority made further directions. It is pertinent to notice the final order of the learned Administrative Judge which is noticed thereunder:- C.W.P. No. 21462 of 2010 -3- “13. In the circumstances, an inquiry be initiated against the appellant in this regard. The appellant has caused huge loss of case property on account of non- production of case property. The appellant has tarnished the image of the institution where he is serving. In the circumstances, the prevailing costs of the seized liquor be effected from the appellant. Further, the appellant be not given any duty like entrustment of Government property in future and a strict watch be kept upon his work and conduct. 14. In view of the above, the appellant deserved no leniency and the appeal preferred by him is accordingly dismissed. The learned District & Sessions Judge, Kapurthala, is directed to conduct an enquiry with regard to the facts to how the case property i.e bottles of seized liquor, which was lying in the Malkhana, was replaced with different brands,which was not in fact the case property. This has also not been explained that as to how the defence witnesses have corroborated the defence of the appellant without any access to the Malkhana. There appears to be no basis, relying on which the said witnesses could have corroborated the defence put forth by the appellant. The same appears to have been done with an oblique motive to help the appellant The District Judge would also inquire into this aspect as to what was the material with these two witnesses on the basis of which such statements were given by them. In case, the learned District Judge comes to the conclusion that both these witnesses deposed falsely in favour of the appellant, he is further directed to take appropriate action against them. He is directed to submit his enquiry report within three months from the date of receipt of a copy of this order. The cost of the perished case property be also recovered at the prevalent market rate from the appellant, which shall be deposited by him with the State Government within three months from the date of receipt of a copy of this order.” While issuing notice of motion, Mr. Karminder Singh, Advocate C.W.P. No. 21462 of 2010 -4- was asked to seek instructions. I have heard learned counsel for the parties at length, As regards the validity of the enquiry and order of disciplinary authority are concerned, learned counsel for the petitioner has not been able to convince this Court that the same suffers from any illegality, factual infirmity or violation of principles of natural justice warranting any interference by this Court. He has tried to emphasise that the petitioner was novice when he was made Incharge of Malkhana and perhaps not well versed with the procedure. It is however stressed that the petitioner has put in more than 8 years of service and has a long way to go. He is an honest official and the punishment imposed upon him is disproportionate to the alleged act of mis- conduct. Mr. Kinra, Advocate has also tried to go through the evidence to find the loop-holes in the findings recorded by the disciplinary authority. It is now a settled position in law High Court while exercising the power of judicial review under Article 226 does not act as a Court of appeal and can only examine the manner and method of enquiry. It is only where the Writ Court finds any violation of statutory provisions or violations of the principles of natural justice, the power of judicial review is to be exercised. I do not find any such infirmity in the inquiry report and/or the order of disciplinary authority. The last contention of counsel for the petitioner is that the appellate authority while disposing of the appeal, has enhanced the punishment awarded by the disciplinary authority without any show cause notice to the petitioner for such enhancement. It is further argued that the enhancement of punishment is otherwise not warranted under the facts and circumstances of the case. His further is contention that the Appellate Authority has also ordered a further enquiry though the Enquiry Officer has already returned the finding on the same question and exenorated the C.W.P. No. 21462 of 2010 -5- petitioner. There seems to be a substance in this contention of the learned counsel for the petitioner. Hon'ble Administrative Judge has made following observations:- “There is nothing on record as to whether any enquiry was initiated against the appellant with regard to the fact that the case property of Malkhana was taken away by him out of the Malkhana and was replaced by other bottles, which were not a part of the case property, kept in the Malkhana” After going through these observations, Hon'ble Judge ordered the enquiry against the appellant in this regard. I have carefully perused the enquiry report (Annexure P-4). The Enquiry Officer has returned specific findings into the questions of replacement of bottles. The relevant findings of the Enquiry Officer which are as under:- “21. Though department has failed to show on record and prove the delinquent official had suffered substitution/replacement of 105 bottles of Royal Scot whisky with some other brand of bottles” In view of the above findings, there was no occasion for ordering any further enquiry into this aspect. It seems that Hon'ble Administrative Judge while hearing the appeal, was not properly assisted by the parties. Hon'ble Administrative Judge has further directed that the prevailing cost of the seized liquor bottles will be effected from the appellant and the cost of the perished case property be also recovered at the market rate from the appellant, which shall be deposited by him with the State Government within three months. In this regard, it is necessary to observe that the case property was to be destroyed after conclusion of the trial and was not to be sold or auctioned in any manner. Thus, no loss has been caused to the State. Otherwise, also no charge of loss was made against the petitioner nor any such charge has been inquired into. It is, thus, not prudent C.W.P. No. 21462 of 2010 -6- to order recovery from the petitioner. In any case recovery from the government servant is one of the punishment. The disciplinary authority had only imposed penalty of forfeitures of 6 Annual Increments. The appellate authority by ordering recovery has, in fact enhanced quantum of punishment without putting the petitioner to notice for the enhancement. Thus, these directions are in gross violation of principles of natural justice and are not sustainable in law. Apart from that, the enquiry against the petitioner has been held under the provisions of statutory rules namely rule 14.E of Chapter 18, Part B of the High Court Rules and Orders Volume I. The relevant rules is as under:- “E. While disposing of an appeal against order under this rule or any penalty specified in rule 12 of the High Court shall consider:- (i)Whether the facts on which the order was based have been established (ii) Whether the facts established afford sufficient ground for taking action; and (iii) Whether the penalty is excessive, adequate or inadequate and after considerations hall pass such order as it thinks proper. Provided that no penalty shall be increased unless, opportunity is given to the person concerned to show cause why such penalty should not be increased.” Proviso to sub rule (iii) of Rule 14.E creates clear embargo on the Appellate Authority for enhancement of penalty without affording an opportunity to the person concerned to show cause why such penalty should not be increased. Indubitably, no such show cause notice or opportunity was provided to the petitioner during the pendency of the appeal and before the impugned order came to be passed by Hon'ble Administrative Judge (Appellate authority) for enhancement of penalty. The order is, thus, in contravention to the statutory provisions and is, thus, liable to be set aside C.W.P. No. 21462 of 2010 -7- and quashed for this very reason to the extent it has enhanced punishment by ordering further recovery from the petitioner. It has also been argued on behalf of the petitioner that the directions of the Hon'ble Administrative Judge that the appellant be not given any duty like entrustment of any Government property in future and kept a strict watch upon his work and conduct, is also too harsh for the appellant who has a long service. His further submission is that from the enquiry report, it is also not established that the appellant has willfully committed an act of commission or omission. There may be negligence on his part in discharging of his duty carefully but that does not provide a basis for such harsher direction. I have gone through the enquiry report. Primarily, the petitioner has been found guilty of negligence in discharging his duties. It is also relevant to note that the petitioner was Incharge of Malkhana only for a short period from 17.08.2001 to 12.11.2001 i.e less than three months and the probability of mischief during some other period cannot be ruled out. Thus, I am of the considered view that such a condition, not to post the petitioner or assign or entrustment of any government property for all times to come requires reframing. It is accordingly ordered that this condition shall apply for a period of three years that the petitioner has to be kept on watch. With these modifications, this petition is partly allowed. December 20, 2010 (PERMOD KOHLI) G.Arora JUDGE NOTE:- Whether to be referred to the Reporter or not? Yes