IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civl Writ Petition No.6025 of 2010 Date of Decision : September 12, 2011. Dr.Kashmir Singh .....Petitioner versus State of Punjab and another .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.R.K.Malik, Senior Advocate with Mr.Vishal Malik, Advocate, for the petitioner. Ms,Sudeepti Sharma, DAG, Punjab. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner seeks quashing of the orders dated 31.3.2009/21.4.2009 (Annexure P-15) dismissing him from service. He also seeks quashing of the order dated 20.6.2005 (Annexure P-3) whereby the payment of 'non-practicing allowance', was stopped. 2] Shorn of the details, suffice it to mention that the petitioner joined the Health and Family Welfare Department as Medical Officer initially on adhoc basis on 21.1.1984 followed by his regular appointment on 2.2.1985. CWP No.6025 of 2010 [2] 3] The petitioner was issued a charge-sheet dated 20.6.2005 (Annexure P-1) containing the following allegations: “1. Doing private practice being in the Government Service and getting N.P.A. from the Government. 2. Committed fraud with the government.....” 4] The Enquiry Officer held the petitioner guilty on both charges. The report of the Enquiry Officer was accepted by the Disciplinary Authority, namely, the State Government who decided to impose the punishment of stoppage of two annual increments with cumulative effect on the petitioner and sent the case vide memo dated 18.8.2008 (Annexure P-12) to the State Public Service Commission (in short 'the Commission) for its approval. The Public Service Commission vide its memo dated 26.9.2008 (Annexure P-13) opined as follows:- “The Commission has discussed the case and has advised as under:- a) The charges of private practice have been proved by the Inquiry Officer. So, the penalty of dismissal be suggested to Government. b) The Government be asked about the action taken against the Civil Surgeon who also defied Government orders by not shopping the N.P.A. Of the Doctor till as late as January, 2006 which was due to be stopped in June, 2005.....” 5] The State Government again referred the matter to the Commission vide memo dated 30.12.2008 explaining that in the facts and circumstances, the punishment of stoppage of two annual increments with cumulative effect was sufficient. It appears that instances were also cited CWP No.6025 of 2010 [3] where the Doctors found guilty of indulging in private practice were awarded the punishment of stoppage of one annual increment without cumulative effect. The Commission however, vide memo dated 12.2.2009 (Annexure P-14) declined to change its opinion. 6] The stage was now set where there was difference of opinion between the State Government and the Commission on the question of quantum of punishment to be imposed upon the petitioner. The information received by the petitioner under the Right to Information Act reveals that the Principal Secretary, Department of Health and Family Welfare, Government of Punjab, recommended on 30.3.2009 that the case may be sent to the Chief Minister, Punjab through the Department of Personnel for the approval of the Department's proposal to impose the punishment of stoppage of two annual increments with cumulative effect “ignoring the suggestion of the Punjab Public Service Commission”. The file was to be routed through the Minister-in-Charge who on 30.3.2009, however, disagreed with the Principal Secretary of the Department and 'approved' the opinion of the Commission. The case was thereafter never submitted to the Chief Minister, Punjab and the impugned order dated 21.4.2009 (Annexure P-15) dismissing the petitioner from service was passed. 7] The day to day business of the State Government is transacted in accordance with its Rules of Business framed by the Governor of Punjab in exercise of his power under Article 166 (3) of the Constitution. These Rules in no uncertain terms provide the list of the matters “to be disposed of at the level of the Chief Minister, Punjab” which includes at Sr.No.14, CWP No.6025 of 2010 [4] the “Cases in which there is a difference of opinion between the Secretary and the Minister-in-Charge....” 8] Unfortunately, no such recourse has been followed in the case of the petitioner. Two settled principles have been over-looked while imposing the punishment of dismissal against the petitioner. Firstly, the opinion expressed by the Public Service Commission in purported exercise of its powers under Article 320 (c) of the Constitution, was only advisory in nature and not binding on the State Government. The Principal Secretary, Health Department, was right to the extent of recommending that the punishment decided to be imposed by the Disciplinary Authority could be awarded ignoring the opinion of the Commission. If the Minister-in- Charge had a different opinion in this regard which is not unusual in a democratic set-up like ours, it was imperative upon him/her to send the records of the case to the Chief Minister, Punjab who alone is the Competent Authority under the Rules of Business to take the final decision in a case of difference of opinion in the departmental hierarchy. The procedure so prescribed was admittedly not followed before passing the impugned dismissal order. 9] For the reasons afore-stated and without expressing any opinion on the fairness of the quantum of punishment to be awarded to the petitioner, the writ petition is allowed; the impugned dismissal order is set- aside and the respondents are directed to place the matter before the Chief Minister, Punjab, who shall take an appropriate decision in accordance with law and in accordance with the procedure prescribed under the CWP No.6025 of 2010 [5] Rules/Instructions. 10] The appropriate decision shall be taken within a period of two months from the date of receiving a certified copy of this order. In case the Competent Authority decides to impose a lesser penalty other than the dismissal, in that event, liberty is granted to the Competent Authority to pass such a modified order from the date the dismissal order was passed. In other words, the petitioner is being denied the arrears of pay from the date of his dismissal till afresh order of penalty is passed against him, for the reason that the petitioner has succeeded on a legal technicalities and it already stands proved against him that he is doing private practice and thus cannot be allowed double benefit(s). The fate of the order dated 20.6.2005 whereby the non-practicing allowance was stopped, shall depend upon the outcome of the disciplinary proceedings. 11] Dasti. September 12, 2011 (SURYA KANT) Mohinder JUDGE