R.S.A.No. 440 of 1989 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 440 of 1989 Date of decision: Beant Singh ......Appellants Versus State of Punjab through the Collector, Gurdaspur .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.S.Rahi, Advocate, for the appellant. Mr.Satish Bhanot, Addl.A.G.Punjab. **** SABINA, J. Plaintiff had filed suit for declaration that the order dated 30.3.1985 regarding his removal from service was illegal, null and void. The case of the plaintiff, in brief, was that he was appointed as a Conductor with Punjab Roadways, Batala in the year 1983. Plaintiff was removed from service on 30.3.1985. The enquiry officer did not conduct inquiry as per rules. Plaintiff was not given R.S.A.No. 440 of 1989 2 any assistance of legal practitioner despite his demand. The signatures of the plaintiff had been taken by the enquiry officer on misrepresentation. The inquiry proceedings were never read over to the plaintiff. Plaintiff was not afforded reasonable opportunity to lead his defence. The plaintiff had not been issued any show cause notice alongwith findings of the enquiry officer. The defendant, in its written statement, admitted the factum of employment of the plaintiff but denied the other contentions in the plaint. It was averred that chargesheet was issued to the plaintiff and on considering his reply, the enquiry officer was appointed. The enquiry officer had afforded full opportunity to the plaintiff and the enquiry was conducted in accordance with law. The findings of the enquiry officer were supplied to the plaintiff along with show cause notice. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the impugned order dated 30.3.1989 is illegal, null and void etc. as alleged? OPP. 2. Whether the Civil Court has no jurisdiction to try and hear the present suit? OPD 3. Whether the plaintiff is entitled to the declaration prayed for ? OPP 4. Relief.” The trial Court vide judgment and decree dated 12.11.1986 decreed the suit of the plaintiff. Aggrieved by the said R.S.A.No. 440 of 1989 3 judgment and decree, State preferred an appeal and the same was allowed by the Additional District Judge, Hoshiarpur vide judgment and decree dated 10.2.1989. Consequently, the suit field by the plaintiff was dismissed. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the termination order was liable to be set aside as the report of the enquiry officer had not been supplied to the plaintiff. In support of his arguments, learned counsel has placed reliance on Union of India and others vs. Mohd. Ramzan Khan AIR 1991 Supreme Court 471, wherein, it was held as under:- “Disciplinary inquiry is quasi-judicial in nature. There is a charge and a denial followed by an inquiry of which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi-judicial and attract the principles of natural justice. With the Forty Second Amendment, the deliquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the inquiry officer to come to his conclusion. In case his conclusions are kept away from the delinquent officer and the inquiry officer submits his conclusions with or without recommendation as to R.S.A.No. 440 of 1989 4 punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the inquiry officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.” Learned counsel has further placed reliance on Union of India and others v. E. Bashyan AIR 1988 SC 1000, wherein, it was held as under:- “Whether failure to supply a copy of the report of the enquiry officer to the delinquent before the Disciplinary Authority makes up his mind and records the finding of guilt as against him would constitute violation of Article 311 (2) of the Constitution of India and violation of principles of natural justice.” Learned State counsel, on the other hand, has submitted that copy of the enquiry report was duly supplied. R.S.A.No. 440 of 1989 5 After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. It has been held in State of U.P.vs. Harendra Arora and another AIR 2001 SC 2319, as under:- “10. In the present case, the competent authority passed the order of dismissal on 13.3.1973, as stated above, on which date, undisputedly. Rule 55-A of Civil Services (Classification, Control and Appeal) Rules, 1930 as amended and substituted by the U.P.amendment (hereinafter referred to as “the rules”) was as follows:- “Rule 55-A. After inquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed. The Government servant charged shall, if the penalty proposed is dismissal, removal or reduction be supplied with a copy of the proceedings prepared under Rule 55 excluding the recommendations, if any, in regard to punishment, made by the officer conducting the inquiry and asked to show R.S.A.No. 440 of 1989 6 cause by a particular date, which affords him reasonable time, why the proposed penalty should not be imposed on him. Provided that, if for sufficient reasons the punishing authority disagrees with any part or whole of the proceedings, prepared under Rule 55, the point or points of such disagreement, together with a brief statement of the grounds thereof, shall also be communicated to the Government servant charged along with the copy of the proceedings under Rule 55. Perusal of the aforesaid rule would show that in a case of dismissal, like the present one, a Government servant is entitled to be supplied with a copy of the proceeding prepared under Rule 55, meaning thereby the enquiry report as well. 14. Even under general law, i.e. the Code of Civil Procedure, there are various provisions viz. Sections 99-A and 115 besides Order 21, Rule 90 where merely R.S.A.No. 440 of 1989 7 because there is defect, error or irregularity in the order the same would not be liable to be set aside unless it has prejudicially affected the decision. Likewise, in the Code of Criminal Procedure also Section 465 lays down that no finding, sentence or order passed by a competent Court shall be upset merely on account of any error, omission or irregularity unless in the opinion of the Court a failure of justice, has, in fact, been occasioned thereby. We do not find any reason why the principle underlying the aforesaid provisions would not apply in cases of the statutory provisions like Rule 55-A of the Rules in relation to disciplinary proceeding Rule 55-A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice.” It has also been held in State of U.P. vs. Abhi Kishor Masta 1995 (1) SCT 730, as under:- “6. We shall first take up the quashing of the order of punishment made in the disciplinary enquiry. R.S.A.No. 440 of 1989 8 The decision in Mohd. Ramzan Khan has been explained by a Constitution Bench of this Court in Managing Director, ECIL, Hyderabad vs. B.Karunakar (1993 (6) Judgment Today SC 1): 1994 (1) SCT 319 (SC). It has been held that where the order of punishment is made earlier to the date of the decision in Ramzan Khan, non supply of enquiry report does not vitiate the enquiry. Following the said decision, the order of the High Court quashing the punishment on the said ground is set aside.” The plaintiff admittedly joined as a Conductor in the year 1983 and his services were terminated vide order dated 30.3.1985. The allegation against the plaintiff was that while on duty, he had charged fare from the passengers but had not issued tickets to them for the complete value and had, thus, misappropriated the funds of the State. The enquiry officer, after conducting an inquiry, ordered that the charges levelled against the plaintiff were duly proved. The case of the defendant is that a show cause notice was issued to the plaintiff alongwith a copy of the inquiry report, whereas, the case of the plaintiff was that the inquiry report had not been supplied to him. It has come during the course of recording of the statement of the plaintiff, that show cause notice was sent to him but the same was received back un-served. When the said envelop was opened in the R.S.A.No. 440 of 1989 9 Court, it was found that it only contained a copy of the show cause notice but did not contain a copy of the inquiry report. This shows that although show cause notice was sent to the plaintiff but the same was received back un-served as the addressee had gone out and it was not known as to when he would return back. Had the plaintiff accepted the envelop, he could have appeared before the concerned authority and could have asked for the copy of the inquiry report. However, the envelop was received back un-served with the report that the plaintiff had gone out. Hence, the plaintiff has failed to establish as to what prejudice he has suffered or that any failure of justice has been occassioned due to non supply of enquiry report. Show cause notice sent to the plaintiff through registered cover had not been received by him. It has not been stated during the course of arguments that the address mentioned on the envelop was not correct. Thereafter, notices were published in the newspapers but despite that the plaintiff failed to appear before the competent authority and submit his reply to the show cause notice within the stipulated period. Since the charge of commission of embezzlement to the tune of ` 78.75 paise had been duly established against the plaintiff, he was ordered to be removed from the service. Hence, the suit of the plaintiff was liable to be dismissed in view of the decision given by the Apex Court in Harendra Arora and Abhi Kishor Masta 's cases (Supra). The judgments relied upon by learned counsel for the appellant, thus, fail to advance the R.S.A.No. 440 of 1989 10 case of the appellant as these are based on different facts. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January , 2011 anita