C.W.P. No.15591 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15591 of 2005 DATE OF DECISION: MAY 21, 2009 Amarjit Singh Saini .....PETITIONER Versus Haryana Vidyut Prasaran Nigam, Panchkula and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Kapil Kakkar, Advocate, for the petitioner. Mr. K.D.S. Hooda, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who was working as Junior Engineer in the office of Haryana Vidyut Prasaran Nigam, has filed the instant petition seeking quashing of the order dated 29.6.2005 passed by respondent No.2 intimating the petitioner that the second appeal filed by him against the order dated 12.9.2002 was rejected being not maintainable under the Regulations of the respondent-Nigam. In this case, in the year 1987 when the petitioner was working as T/L Const. Sub Division, Narwana, he was charge-sheeted by the respondents on 26.6.1987 alleging disobedience of orders of superiors and remaining absent from duty from 1.7.1983 to 19.11.1984. The reply C.W.P. No.15591 of 2005 -2- submitted by the petitioner to the said charge-sheet was considered and found to be unsatisfactory, and thereafter, an Enquiry Officer was appointed, who conducted the departmental enquiry and submitted his final report dated 20.6.1988 in which the charges levelled against the petitioner were proved beyond doubt. After considering the enquiry report, the Punishing Authority, without supplying the copy of the enquiry report to the petitioner and providing an opportunity of hearing to him, awarded the punishment of stoppage of two annual increments with future effect, and ordered that the period of absence from duty w.e.f. 1.7.1983 to 19.11.1984 be treated as leave of the kind due. The petitioner challenged the said order of punishment by filing CWP No.16019 of 1997. This Court vide order dated 5.2.1998 set aside the order of the Punishing Authority as well as the Appellate Authority with liberty to the respondents to proceed against the petitioner in accordance with law, after giving him the copy of the enquiry report. Thereafter the petitioner was supplied the copy of the enquiry report and after providing an opportunity of hearing to him, respondent No.3 vide order dated 3.5.2002 awarded punishment of 30% cut in basic pension of the petitioner for a period three years and his absence period was ordered to be regularized by treating the same as non-duty period. Against the above-said order of punishment, the petitioner filed an appeal. The Appellate Authority vide order dated 12.9.2002 set aside the order of the Punishing Authority qua cut in pension. However, qua the absence period, which was regularized as non-duty period, the same was upheld. Against the said order, the petitioner filed the second appeal on C.W.P. No.15591 of 2005 -3- 12.3.2003 which has been dismissed by respondent No.2 vide impugned order dated 29.6.2005 on the ground that since there was no enhancement of punishment by the Appellate Authority, therefore, the second appeal/representation was not permissible under Regulation 24 of the Haryana State Electricity Board Employees (Punishment and Appeal) Regulations, 1980 (hereinafter referred to as `the Regulations'). The petitioner has challenged the said order in this petition. I have heard the counsel for the parties. Concededly, under Regulation 24 of the Regulation, second appeal against the order of penalty is maintainable only in a case where the Appellate Authority has increased the penalty inflicted by an authority subordinate to it. Therefore, the second appeal filed by the petitioner was rightly rejected. It is true that against the order of the Appellate Authority, the petitioner was having the remedy of revision which he could have filed within six months from the date of the Appellate order before the competent authority. But no such revision was filed by the petitioner. On merits, counsel for the petitioner submits that the order of treating the absence period as non-duty period is contrary to the provisions of Rule 2.2 (b) of the Punjab Civil Service Rules, Vol. II and without jurisdiction, as the said order of punishment was passed on 3.5.2002, almost after five years of his retirement (the petitioner had retired on 31.10.1997), whereas according to the said Rule, no action could have been taken against the petitioner after four years of the retirement of the petitioner. In this regard, the petitioner has relied upon 2nd Proviso to Rule 2.2(b) which provides that no departmental proceedings, if not instituted while the officer was in service whether before retirement or during his re-employment, shall C.W.P. No.15591 of 2005 -4- be instituted in respect of an event which took place not more than four years of the institution of such proceedings. This contention of the learned counsel is not tenable. In my opinion, in the instant case the said Proviso is not applicable because in this case the enquiry was already instituted against the petitioner while he was in service. This Court vide order dated 5.2.1998 passed in CWPNo.16019 of 1997 only set aside the order of penalty on technical grounds and a liberty was given to the respondent-Nigam to proceed against the petitioner after supplying the copy of the enquiry report and providing an opportunity of hearing to him. Meanwhile, the petitioner retired from service. Subsequently, by the impugned order, the order of penalty was passed, which was modified by the Appellate Authority and only the absence period of the petitioner, which was regularized as non-duty period, was upheld. Therefore, the instant case falls under 1st Proviso to Rule 2.2(b). Even otherwise, I do not find any ground to interfere in the impugned order, whereby the absence period from 1.7.1983 to 19.11.1984 has been ordered to be treated as non-duty period by the Punishing and Appellate Authorities. Undisputedly, the petitioner did not work for the said period and, therefore, there was no justification for treating the said period as duty period. The petitioner after defying the transfer order remained absent without any justification. Though the said transfer order was cancelled subsequently, but even then there was no justification for remaining absent from duty. Thus, I do not find any illegality in the discretion exercised by the two authorities by ordering the said absence period as non-duty period in writ jurisdiction of this Court under Article 226 of the Constitution of India. C.W.P. No.15591 of 2005 -5- In view of the aforesaid, there is no merit in the petition and the same is hereby dismissed. May 21, 2009 (SATISH KUMAR MITTAL) vkg JUDGE