Regular Second Appeal No.1483 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1483 of 1986 Date of decision : 02.03.2010 State of Punjab .....Appellant VERSUS Mangat Ram ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. None for the respondent. RANJIT SINGH, J. The State has filed this Regular Second Appeal against the judgment of Additional District Judge, Amritsar whereby the finding given by the trial Court upholding the termination of respondent-Mangat Ram has been reversed in first appeal. Mangat Ram-respondent had filed a suit seeking declaration to the effect that order dated 02.02.1982 terminating his services and the order dated 20.05.1983 dismissing deparmental appeal were without jurisdiction, illegal and ultra vires. The respondent-plaintiff was employed as a Conductor in Punjab Roadways, Patti. As per him, he was falsely implicated in a case of defrauding the Government revenue to the extent of Rs. 3.65p by issuing less tickets to the passengers from Delhi to Regular Second Appeal No.1483 of 1986 2 Jalandhar on 21.08.1981. This loss was made good but even then, the respondent-plaintiff was charge sheeted on 16.09.1981. He made a grievance that the relevant material was not supplied to him. Inquiry was held in violation of various rules and the show cause notice was issued to him on 27.11.1981, which was stereo-type and defective. He would also plead that without considering his reply, his services were terminated on 02.02.1982, by taking into account the extraneous matters. The respondent contested the suit and also challenged the jurisdiction of the civil Court to entertain the same. On merits, it was pleaded that the orders passed by the General Manager and the Director Transport were legal and were passed in terms of rule position. The suit was tried on the following issues:- 1)Whether the impugned orders terminating the services of the plaintiff are illegal and ultravires?OPP. 2)Whether the civil court has no jurisdiction to try and hear this suit? OPD 3)Relief. The trial Court considering the evidence led before it and decided issue No. 1 against the plaintiff and issue No. 2 against the defendant. The suit was accordingly dismissed. The respondent- plaintiff being aggrieved against the same filed appeal before the First Appellate Court on number of grounds. The appeal was allowed only on the ground that previous bad record of the respondent- plaintiff was taken into consideration without putting the respondent- plaintiff to notice in this regard. The other points raised on behalf of Regular Second Appeal No.1483 of 1986 3 the respondent-plaintiff were negated. The inquiry file was perused by the First Appellate Court to record that show cause notice and the charge sheet was served upon the respondent-plaintiff and his reply was duly considered before starting the inquiry. The witnesses were examined during the inquiry and were cross examined at sufficient length. An opportunity was given to the respondent-plaintiff to lead his evidence but he did not produce any evidence. The First Appellate Court rightly observed that the civil Court cannot go into the sufficiency of evidence, which was to be considered by the inquiry officer and also observed that it was not a case of no evidence where it could interfere in the finding returned by the inquiry officer. It was also noticed that the inquiry officer had given a report, which was detailed and well-reasoned. The punishing authority had agreed with the conclusion of the inquiry officer and so tentatively of the opinion that the punishment of removal from service should be awarded to the respondent-plaintiff. No law could be shown that this opinion was required to be recorded explicitly and the submission made in this regard on behalf of the respondent-plaintiff was also negated. The submission made on the basis of law laid down in the case of State of Haryana versus Mohan Singh 1985 (2) SLR 116, to urge that statement of passengers were not recorded nor the cash was checked, was also found to be of no help to the respondent-plaintiff as it was a case of issuing less tickets than the actual fare for which he was charge sheeted. Reliance was rightly placed in the case of State of Haryana and another versus Rattan Singh AIR 1977 Supreme Court 1512 (1) to say that when the Regular Second Appeal No.1483 of 1986 4 Inspector was examined as a witness then it would be a case of some evidence and not the case where there is no evidence. It is also noticed in this case that the sufficiency of evidence cannot be gone into and since there was some evidence, it would not be appropriate to interfere in the impugned order on the ground that all the passengers having been not examined. Having held so, the First Appellate Court considered the submission made that the previous bad record of the respondent- plaintiff was taken into consideration, while awarding the punishment without giving him opportunity of hearing. The wording of the punishment was considered to say that previous record of the respondent-plaintiff weighed heavily in the mind of punishing authority, when originally his services were terminated. It was found that no notice was given to the respondent-plaintiff that his previous record was intended to be taken into consideration. Learned State counsel would point out that this is misconceived appreciation of factual position and infact the punishing authority had not taken the previous record of the respondent-plaintiff into consideration. I have perused the impugned order of punishment. What all has been stated in the impugned order is that the respondent- plaintiff had earlier been given opportunity to mend his conduct but he failed to do so. The mention made to this fact in my view would not amount to taking previous conduct of the respondent-plaintiff into consideration. It is simply mentioned that earlier also he was given chance to improve his conduct or mend his ways but he has failed to do so. Previous punishment have not been considered to pass the impugned order of punishment. Regular Second Appeal No.1483 of 1986 5 The State counsel has justifiably made reference to law laid down by the Hon'ble Supreme Court in the case of Union of India and others versus Bishamber Das Dogra JT 2009 (9) SC 175. The issue under consideration in this case was also whether while imposing the punishment, it is permissible to take into consideration, the past conduct of an employee, if it is not so mentioned in the show cause notice. This very question was earlier considered by the Hon'ble Supreme Court in the case of State of Assam Vs. Bimal Kumar, AIR 1963 Supreme Court 1612. It was observed that while issuing show cause notice, the Disciplinary Authority naturally has to come a tentative or provisional conclusion about the guilt of the charged employee as well as the punishment which would meet the requirement of justice in the case. Having reached this conclusion, the Disciplinary Authority is required to issue such a show cause notice. In State of Mysore Vs. Manche Gowda, AIR 1964 Supreme Court 506, it was viewed that the Disciplinary Authority should inform the delinquent employee that it was likely to take into consideration the past conduct while imposing the punishment, unless the proved charges are so grave that these may independently warrant the proposed punishment. The observations made in the case of India Marine Service (P) Ltd. Vs. Their Workmen, 1963 (3) SCR 575, would be relevant to note where it was held that where past records was taken into consideration, it would not follow therefrom that the same was the effective reason for dismissing him. While passing the termination order, if it is added as an additional reason to arrive at the decision in this regard, it would not mean that past record was taken into consideration. In Director Regular Second Appeal No.1483 of 1986 6 General, RPF v. Ch. Sai Babu , JT 2003 (1) SC 557, the Court viewed that the punishment imposed should not normally be disturbed by the High Court or the Tribunal except in appropriate cases that too only after reaching a conclusion that punishment imposed is grossly or shockingly disproportionate after examining all relevant factors including the nature of charges proved against the past conduct, the penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained. The contention that past record can not be taken into consideration unless it is part of the charge sheet was also considered by the Court in Govt. of A.P. & Ors. v. Mohd. Taher Alia, 2007 (8) SCC 656. This contention was rejected by saying that there can be no hard and fast rule that merely because the earlier misconduct was not mentioned in the charge sheet, it can not be taken into consideration by the Punishing Authority. The consideration of earlier misconduct is often necessary only to reinforce the opinion of the authority. It has also been emphasized that in all such cases the application of doctrine of prejudice is also required to be taken into consideration. The Courts would not normally interfere with the order of punishment, when such a course may not be in the interest of justice. As has been noticed that interest of justice would equally demands that the guilty should be punished and the technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. As is observed, principles of nature justice are but the means to achieve the ends of justice. As Regular Second Appeal No.1483 of 1986 7 held in M.C. Mehta versus Union of India & Ors. JT 1999 (5) SC 114, an order passed in violation of natural justice need not be set- aside in exercise of writ jurisdiction, unless it is shown that the same has caused prejudice to the person concerned for the reason that quashing of such an order may revive another order which in itself is illegal or unjustified. In view of the legal position as noted above, the finding of the first Appellate Court in allowing the appeal can not be sustained. Neither the past record of the respondent-plaintiff appears to have been taken into consideration nor this would alone be a sufficient ground to set-aside the order of punishment. It is to be seen whether any prejudice was caused to the respondent-plaintiff or not. The substantial question of law as to whether the past record was considered for awarding punishment or could it be taken into consideration and whether such consideration had led to any prejudice to the respondent-plaintiff, thus, would be a substantial question of law under consideration. This question of law has not been rightly decided by the First Appellate Court. The question now to be seen is as to what relief can be granted to the respondent-plaintiff. The allegation against the respondent-plaintiff is that he had defrauded the Government revenue to the tune of Rs.3.65P by issuing less tickets to passengers. This was done on 21.8.1981. The suit was dismissed on 5.3.1985 but the appeal was allowed on 12.2.1986. There was no stay granted by this Court and accordingly the respondent-plaintiff is bound to have been reinstated. He may have by now retired after Regular Second Appeal No.1483 of 1986 8 putting in 24 years of service. To dismiss him from service at this stage would not be fair. Thus, while answering the question of law as noted above, the appeal filed by the State is dismissed. March 02, 2010 ( RANJIT SINGH ) rts JUDGE