RSA No.3919 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3919 of 2004 Date of Decision:2503.2009 Sudharshan Yadav ....appellant Versus Union of India & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.J.S.Yadav,Advocate for the appellant Mr.Naveender P.K.Singh, Advocate Standing counsel for Union of India **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff for declaration to the effect that impugned orders passed by the respondent-authorities dismissing him from service and the charge sheet, enquiry report and the orders dismissing his statutory appeal etc.were illegal, null and void and ineffective against him and he was entitled to be reinstated with consequential benefits as if no such impugned order exists, was dismissed. Appellant preferred the aforesaid suit with the averments that he was recruited in the CRPF and served there for 17 years with unblemished record and that he was removed from service by respondent No.5 vide order dated 15.02.1997. Appeal filed by him against the aforesaid order was rejected by respondent No.4 vide order dated 19.12.1997 and thereafter his revision filed before respondent No.3 was also dismissed on 10.06.1998. It was further alleged that he was not paid RSA No.3919 of 2004 2 the full salary and arrears of pay etc. It was further the case of the appellant that he also served a notice under Section 80 CPC which was not replied by the respondents. The enquiry conducted by the respondents was illegal and against the principles of natural justice and before passing the order of removal from service, no show cause notice was given. The punishment which was given to the plaintiff-appellant was too harsh as compared to the fault on his part. Thus, the aforesaid orders were null and void and were liable to be set aside with a direction to the respondents to allow the plaintiff to join his service. Upon notice, the respondents appeared and filed written statement controverting the averments made in the plaint stating therein that the removal order of the appellant was passed by the disciplinary authority after taking into consideration the nature and gravity of the offence which was committed by him after duly charge sheeting him. The procedure of the enquiry was adopted and full opportunity was given to the appellant to defend his case. After completing the enquiry, the enquiry report was supplied to him and thereafter a show cause notice was issued to plaintiff to prefer his representation regarding the punishment. Since there was no merit in the appeal and revision of the plaintiff-appellant therefore the same were rejected by the competent authority. Thus, dismissal of the suit was prayed for. Both the parties led their respective evidence and trial Court after perusing the record and after hearing the learned counsel for the parties, held that appellant was given due opportunity and the impugned orders were passed in accordance with the law and dismissed the suit. While dismissing his appeal, the Lower Appellate Court on appreciation of evidence recorded a finding of fact that the charges against the appellant appear to be of very serious nature because he under the impact of excessive liquor put his loaded carbine on the chest of his RSA No.3919 of 2004 3 colleague while posted at sensitive outpost on 12.10.1998 for no fault on the part of his colleague who was sleeping at that time. The Lower Appellate Court also noted that it was further a charge against the appellant that he repeated the aforesaid gesture after some time when he followed the said Constable with the weapon with mala fide intention out of lines with his weapon and when he was challenged and his weapon was taken away and deposited with the Platoon Commander, he absented without intimation and thus conduct of the appellant was found to be of unbecoming of a member of the Armed Forces. Still not satisfied, the appellant has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant vehemently argued that no show cause notice was given to him before removing him from service, as the show cause notice issued to him was in fact nonest in the eye of law as according to the settled law the show cause notice must contain the proposed punishment whereas in the show cause notice issued to him no specific punishment was proposed to be imposed and thus the impugned orders are liable to be rejected. Learned counsel for the appellant has further argued that the appellant had 17 years of service on the date when he was removed from service and the allegations against him do not justify the order of removal as a result of which his entire earlier service stood forfeited and his claim for pension was also extinguished. In support of his case learned counsel for the appellant has relied upon judgments in the case of Ram Kishan versus Union of India & Ors.1996(1) RSJ 66 and S.P.Gupta versus State of Haryana 1990(2) SLR 320. On the other hand, learned counsel for the respondents has supported the judgments and decrees of the Courts below and has argued that on appreciation of evidence both the Courts below have recorded a concurrent finding of fact that the appellant was removed from service in RSA No.3919 of 2004 4 accordance with law and thus the appeal has no merit and is liable to be dismissed. I have heard learned counsel for the parties and perused the record of the appeal. Undisputedly, Ex.D-7 is a letter received by the appellant vide which enquiry officer forwarded his report to him for making any representation and vide Ex.D-8 appellant filed reply to the same. The letter Ex.D-7 was proved by Sh.Manjeet Singh DW3, who stated that the copy of the report of the enquiry officer was given to the appellant and he was granted 15 days time for filing the representation against the same. The argument raised by the learned counsel for the plaintiff-appellant before the trial Court was that vide Ex.D-7 some other documents were given and the report of the enquiry officer was not supplied and thus he was never confronted with the proposed punishment for removal from service. However, the Courts below on appreciation of evidence have recorded a finding of fact that the enquiry report was supplied to the appellant. This fact also finds corroboration from the fact that the appellant submitted his reply vide Ex.D-8. It may also be noticed here that argument raised before this Court by the learned counsel for the appellant is not to the effect that appellant was not supplied a copy of the enquiry report but the argument raised is that the show cause notice did not contain the proposed punishment for removal from service which was necessary according to the law. The argument of the learned counsel for the appellant is without any merit as there was no such provision under the rules that a show cause notice must contain the proposed punishment. The judgments relied upon by the learned counsel for the appellant do not help him as in S.P.Gupta's case(supra), this Court held that supply of copy of the enquiry report to the delinquent officer is mandatory before the same is relied upon for the purpose of imposing penalty. In Ram Kishan's case RSA No.3919 of 2004 5 (supra) the show cause notice did not indicate the reasons on the basis of which disciplinary authority proposed to disagree with the conclusions of Enquiry Officer and in that situation it was held that in the absence of any ground or reasons in the show cause notice amounts to emply formality which would cause prejudice to the delinquent officer. Thus this judgment is also not applicable in the present case. It may also be noticed that judgment of this Court in the case of Bhag Singh versus State of Punjab 1992(2) RSJ 622 cannot be applied in the present case as a finding of fact has been recorded by the Courts below that along with the show cause notice the appellant was supplied a copy of the enquiry report. The second contention of the appellant that the punishment awarded to him does not commensurate with the alleged offence chargesheeted by him and therefore the same is liable to be set aside is also without any merit. It is well settled that it is the prerogative of the employer to impose a suitable punishment and this Court would not sit over the same as a court of appeal. Moreover the appellant acted in a very irresponsible and indisciplined manner and being a member of the disciplined force his misconduct cannot be taken leniently. Thus, for the aforesaid reasons, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 25.03.2009 neenu