IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.265 of 2011 (O&M) Date of decision: 8th August, 2011 Balbir Singh … Appellant Versus State of Punjab and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jasbir Rattan, Advocate with Mr. Vivek Rattan, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. Civil Misc. No.730-C of 2011 Application is allowed and the document (Annexure A-1) is taken on record. Civil Misc. No.731-C of 2011 For the reasons stated in this application, the same is allowed subject to all just exceptions and the delay of 50 days in refiling the appeal is condoned. Regular Second Appeal No.265 of 2011 Plaintiff, having failed in two rounds of litigation, has approached this Court by preferring present regular second appeal. Appellant-plaintiff had filed a suit for declaration praying that the order dated 13th October, 1999 (Annexure P-1) passed by defendant No.3 and order dated 19th June, 2000 (Annexure P-2) passed by the Principal Secretary to Government of Punjab be set aside being ultra vires, based on an illegal inquiry and against the principles of natural justice. A further Regular Second Appeal No.265 of 2011 (O&M) prayer was made that a mandatory direction be issued to the respondents to pay the consequential benefits of illegal stoppage of one annual increment by treating the appellant-plaintiff to be promoted on the date the persons junior to him were promoted. A further direction was sought that the appellant-plaintiff be paid the arrears of increments and compensation of Rs.5.00 lacs as a consequential relief for not promoting him on the date juniors to him were promoted. It was pleaded in the suit that the appellant-plaintiff retired as an Executive Officer from Municipal Council, Dhuri on 31st July, 2000 under the Local Self Government, Punjab. At the relevant point of time, the appellant-plaintiff was posted as Executive Officer at Goraya, District Jalandhar, where an application was moved by Inderjit Singh and Kuljit Singh sons of Balwant Singh for entering their names in the house-tax register on the basis of mutations No.6657 and 7243 as reflected in the jamabandi. The appellant-plaintiff made an entry in the house-tax register in the names of above said persons as per the policy of the State Government contained in communication dated 8th November, 1990 to effect the speedy recovery of house-tax. To assail this action, one Gurdev Singh, another son of Balwant Singh, filed a complaint against the appellant-plaintiff objecting to the entry made in the house- tax register. Upon the complaint so filed, the Deputy Director, Local Self Government, Jalandhar was appointed as an Inquiry Officer, who discharged the appellant-plaintiff of the main charge framed against him but held him responsible for the charges which according to the appellant-plaintiff were inconsequential and frivolous. Defendant No.3 agreed with the report submitted by the Inquiry Officer and ordered stoppage of one annual increment without cumulative effect vide order 2 Regular Second Appeal No.265 of 2011 (O&M) dated 13th October, 1999. The appellant-plaintiff preferred an appeal against the order dated 13th October, 1999 but the same was dismissed on 19th June, 2000 by the Secretary, Local Self Government, Punjab. Due to the effect of inquiry and stoppage of one annual increment, the officials junior to the appellant-plaintiff, i.e. defendants No.5 to 8 to the suit, were promoted as Class-I Executive Officers on 28th May, 1999. The appellant-plaintiff was denied promotion and therefore, in the suit it was prayed by him that the orders passed by the punishing authority and the appellate authority be set aside and the consequential relief of arrears along with promotion from the date juniors to him were promoted be granted to him. Upon issuance of notice of the suit, defendants No.1 to 4 filed a joint written statement raising preliminary objections questioning the territorial jurisdiction of the Civil Court and the fact that the appellant- plaintiff has not approached the Court with clean hands. It was stated that the appellant-plaintiff, who was posted as an Executive Officer in the Municipal Council, Goraya, on the basis of photostat copy of the Will and other documents, which were not attested, had changed the ownership of the property in the names of Inderjit Singh and Kuljit Singh. A chargesheet was served upon the appellant-plaintiff on four counts for changing the ownership of property in the names of both the above said persons. To the said charges, a reply was filed by the appellant-plaintiff but the same was found unsatisfactory and the Deputy Director, Local Self Government, Jalandhar was appointed as an Inquiry Officer to find out the truth. The Inquiry Officer submitted his report on 12th August, 1999 and held that charge No.1 was not proved, whereas charges No.2 and 3 were duly proved and charge No.4 was partly proved against the 3 Regular Second Appeal No.265 of 2011 (O&M) appellant-plaintiff. Thereafter, the punishing authority stopped one annual increment of the appellant-plaintiff without cumulative effect, against which an appeal was filed but the same was also dismissed vide order dated 19th June, 2000. The appellant-plaintiff was not promoted, as on the date when juniors to him were promoted an inquiry was pending against him. The trial Court, after conclusion of the pleadings, had formulated following issues: “1. Whether the plaintiff is entitled for declaration declaring the order dated 13.10.1999 passed by defendant No.3 as illegal, null and void? OPP 2. Whether the plaintiff is entitled for declaration declaring the order dated 19.6.2000 passed by Principal Secretary to Govt. of Punjab illegal, null and void? OPP 3. Whether the plaintiff is entitled for mandatory direction directing the defendants to pay the consequential benefits of illegal stoppage of annual increments by treating the plaintiff to be promoted on the date the persons junior to him have been promoted? OPP 4. Whether plaintiff is entitled for mandatory direction to the defendants to pay arrears of increments and compensation of Rs.5 Lacs as consequential relief for not promoting the plaintiff from the date on which junior persons from the plaintiff have been promoted and due to this reason the plaintiff has been deprived of the relishment and fulfillment of his promotion desire? OPP 5. Whether this Court has no territorial jurisdiction? OPD 6. Whether the plaintiff has not come to the Court with clean hands? OPD 7. Relief.” 4 Regular Second Appeal No.265 of 2011 (O&M) The appellant-plaintiff himself appeared in the witness box as PW-1 and deposed in accordance with the averments made in the plaint. Yadvinder Singh was examined as PW-2 to support the version set out by the appellant-plaintiff. The respondents-defendants examined Bhupinder Singh as DW-1, who proved documents Ex.D1 to Ex.D3. The trial Court held that no irregularity was committed either by the Inquiry Officer or by the appellate authority while passing the orders Ex.P5 and Ex.P6 respectively. Therefore, the Court held that it cannot sit over the legal and valid judgments Ex.P5 and Ex.P6 passed by respondents No.3 and 4 respectively. Thus, issues No.1 to 4 were decided against the appellant-plaintiff and in favour of the respondents-defendants. The trial Court further held that the due procedure was followed and opportunity of hearing as required under law was also afforded to the appellant- plaintiff. Issue No.5 regarding territorial jurisdiction was decided in favour of the appellant-plaintiff and against the respondents-defendants, whereas issue No.6 was not pressed by the respondents-defendants and the same was decided as not pressed. The suit filed by the appellant-plaintiff was dismissed. The findings given by the trial Court were affirmed by the lower appellate Court. Mr.Jasbir Rattan, Advocate assisted by Mr.Vivek Rattan, Advocate appearing on behalf of the appellant-plaintiff, has extensively read the report Ex.D3 submitted by the Inquiry Officer. He has also produced a photostat copy of the same. Qua charge No.1 the Inquiry Officer held that the appellant-plaintiff had made an entry in the Council’s record in the light of revenue record. Qua charge No.2, he held that the appellant-plaintiff had dealt with the case in a very simple 5 Regular Second Appeal No.265 of 2011 (O&M) manner by writing a one-line order. The Inquiry Officer held that it was desirable that Balbir Singh appellant-plaintiff should have passed a detailed order on the application of the applicant. Qua charge No.3, the Inquiry Officer held that it was incumbent upon the appellant-plaintiff to issue a notice to the other legal heirs of Gurdev Singh, whose names were mentioned in the Will and thereafter, he should have passed the order. For not issuing a notice to the other legal heirs of Gurdev Singh it was said that charge No.3 is proved. A concurrent finding of fact has been returned by both the courts below that due opportunity of hearing was afforded to the appellant-plaintiff and the appropriate procedure was followed by the Inquiry Officer-cum-Punishing Authority and the appellate authority. No irregularity committed by the officers has been pointed out during the course of arguments. Mr. Rattan has relied upon ‘Sham Singh v. Kanwar Singh’ 1997(3) RCR (Civil) 698 to contend that where the documents have not been properly read by the courts below the High Court should remit the matter. After perusing the report Ex.D3 submitted by the Inquiry Officer, a photostat copy whereof has been provided by counsel for the appellant-plaintiff, I am of the view that the Inquiry Officer has rightly held that charges No.2 and 3 are proved against the appellant-plaintiff. Even otherwise, it has been held by a Division Bench of this Court in ‘Nachhatar Singh v. State of Punjab and another’ (LPA No.1020 of 2011 decided on 3rd June, 2011) as under: “7. Moreover, the Courts are not a Court of Appeal over and above the Enquiry Officer, Disciplinary Authority or the Appellate/Revisional Authority. As a concept of law 6 Regular Second Appeal No.265 of 2011 (O&M) the Courts cannot re-appreciate evidence to reach a conclusion different than the one recorded by the Inquiry Officer merely because another view is possible. In that regard reliance may be placed on the observations made by Hon'ble the Supreme Court in the case of State Bank of India v. Ramesh Dinkar Punde, (2006) 7 SCC 212. Learned counsel for the petitioner-appellant has not been able to point out either any violation of the principles of natural justice nor any statutory rules warranting a conclusion that he has not been treated fairly. Once the findings of fact are well based and the procedural requirements contemplated by the Rules have been complied with then the quantum of punishment cannot be interfered with. It is equally well settled that if the Enquiry Officer, Punishing Authority or the Appellate Authority has proceeded on the basis of wholly irrelevant material or wholly irrelevant consideration or in violation of principles of natural justice only then the Courts are empowered to interfere with the quantum of punishment. In that regard reliance may be placed on the Division Bench judgment of this Court rendered in the case of Gurdev Singh v. State of Haryana, 2007 (1) RSJ 45. In that case a Division Bench of this Court (of which one of us, M.M. Kumar, J. was a member) has considered the application of Wednesbury Principles by referring to para 242 of a Constitution Bench judgment of Hon’ble the Supreme Court in the case of Rameshwar Prasad (VI) v. Union of India, (2006) (2) SCC 1. The aforesaid para 242 reads as under:- “242. The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it 7 Regular Second Appeal No.265 of 2011 (O&M) is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it.” (Emphasis added) 8. Hon’ble the Supreme Court has also referred the “Wednesbury Principles” in the case of Om Kumar v. Union of India, (2001) 2 SCC 386. The views of Lord Greene in the case of Associated Provincial Picture Houses v. Wednesbury Corporation, (1947) 2 All England Reports 680, have been relied upon by Hon’ble the Supreme Court in para No. 26 and the conclusion has been recorded in para 71. The aforementioned paras read as under:- “ 26. Lord Greene said in 1948 in the Wednesbury case, (1947) 2 All ER 680 (CA), that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, (1983) 1 AC 768, (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, 8 Regular Second Appeal No.265 of 2011 (O&M) however, opined that “proportionality” was a “future possibility”. XXX XXX XXX XXX XXX XXX XXX XXX 71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.” 9. A Constitution Bench had another opportunity to succinctly state these principles in the case of Rameshwar Prasad (VI) (supra). In para 242, their Lordships’ have issued the guidelines for correct understanding of Wednesbury Principles, which have already been extracted above. 10. When the principles laid down in the aforementioned judgments are applied to the facts of the present case, we find that the Wednesbury principles, as per the guidelines given in Rameshwar Prasad’s case (supra) would not be attracted because principles of 9 Regular Second Appeal No.265 of 2011 (O&M) natural justice have been religiously complied with. Therefore, the impugned orders passed by the punishing and appellate authorities would not require any intervention.” In view of the position of law which has been authoritatively propounded in Nachhatar Singh’s case (supra), no interference is warranted in the present appeal; especially when counsel for the appellant-plaintiff during the course of arguments has failed to formulate any question of law, much less a substantial one, for consideration of this Court; and hence, the same is hereby dismissed. Civil Misc. No.732-C of 2011 As the appeal has been decided, no separate order is required to be passed in this application and hence, the same stands disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE August 8, 2011 rps 10