C.W.P. No. 17535 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 17535 of 2008 DATE OF DECISION: OCTOBER 09, 2009 Subhash Chander Aggarwal .....PETITIONER Versus United India Insurance Co. Ltd., Chennai and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Naresh Prabhakar, Advocate, for the petitioner. Mr. D.R. Bansal, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner has filed this petition under Article 226 of the Constitution of India for quashing the order dated 6.1.2004 (Annexure P5) whereby the competent authority imposed the major penalty of removal from service on the petitioner under Rule 23(3) read with Rule 23(g) of General Insurance (Conduct, Discipline and Appeal) Rules, 1975 (hereinafter referred to as `the Rules'); order dated 18.11.2004 (Annexure P8) whereby the appeal filed by the petitioner against the aforesaid order was dismissed by the Appellate Authority; and the order dated 28.7.2008 (Annexure P11) whereby the Memorial filed by the petitioner under Rule 40 of the Rules has also been rejected by the Chairman-cum-Managing Director of the respondent-Company. C.W.P. No. 17535 of 2008 -2- In this case, earlier the petitioner had filed CWP No.2601 of 2005 in this Court challenging the order of his penalty as well as the order of the Appellate Authority, but on the preliminary objection raised by the counsel for the respondents that against those orders, the remedy of Memorial was not availed by the petitioner, the petitioner withdrew that petition with liberty to file a Memorial within a period of one month. The Chairman-cum-Managing Director of the Company was further directed to decide the said Memorial within six months. The said Memorial has been dismissed by the Chairman-cum-Managing Director of the Company. Hence, the petitioner filed the instant petition. At the time of motion hearing, notice was issued to the respondents on the contention raised by the counsel for the petitioner that before the Appellate Authority the petitioner had made a specific prayer for granting him the personal hearing, but the Appellate Authority without providing personal hearing to the petitioner has passed the order confirming the order of penalty which has seriously prejudiced the rights of the petitioner and caused manifest injustice. In support of his contention, learned counsel for the petitioner relied upon the Full Bench judgment of this Court in Ram Niwas Bansal v. State Bank of Patiala and another, 1998 (4) SLR 711. I have heard the counsel for the parties. During the course of arguments, learned counsel for the petitioner confined his prayer only to the extent that the matter be remanded back to the Appellate Authority with direction to decide the appeal afresh after providing personal hearing to the petitioner. It is conceded position that before the Appellate Authority a specific request was made by the C.W.P. No. 17535 of 2008 -3- petitioner for providing him personal hearing before taking any decision on his appeal, but the Appellate Authority without providing any personal hearing to the petitioner, has dismissed the appeal filed by him. It is also conceded position that again the petitioner made a request before the Chairman-cum-Managing Director to provide him an opportunity of personal hearing before deciding his Memorial, but at that time also no personal hearing was provided to him and his Memorial was rejected. In the impugned order dated 28.7.2008 (Annexure P11), whereby the Memorial was rejected, the aforesaid contention of the petitioner has been noticed and it has been observed that the Appellate Authority was right in not providing personal hearing to the petitioner as there was no provision in the Rules to grant personal hearing to the delinquent employee. In view of these admitted facts, the following observations of the Full Bench of this Court in Ram Niwas Bansal's case (supra) are to be noticed:- “30.The denial of adherence to the rule of Audi Alteram Partem at the appellate stage before a departmental authorities by itself would show element of prejudice. The denial of hearing would per se cause prejudice to the delinquent officer. The principles of fairness would demand such a hearing because the records before the appellate authority could be voluminous, number of witnesses have been examined by either side in the departmental proceedings and the delinquent officer may be able to explain his version of the case and his stand to the appellate authority in a much better and effective manner if he was granted the hearing. To imagine that the appellate authority by itself would be able to critically examine the entire evidence and the record would be a view which could be more than imaginative than practical or pragmatic. To expect the appellate authority to minutely and critically examine the entire record without any proper assistance would be apparently a view C.W.P. No. 17535 of 2008 -4- which is more imaginative than practical or pragmatic. 31. The various pronouncements of the Hon'ble Supreme Court of India as well as the High Courts have time and again lamented the need for compliance of such obligations arising out of principles of natural justice even in the absence of specific stipulation in the statutory provisions. It is the bounden duty of the appellate authority to give complete and effective decision in a judicious manner and upon proper application of mind. We are of the considered view that such hearing is bound to render assistance to the authority concerned without causing any prejudice to the other side. 32. To provide an opportunity to the delinquent officer to ventilate his views before the appellate authority and to satisfy the conscience of the authority in relation to the findings arrived at and the punishment imposed by the disciplinary authority, would be in consonance with the basic rule of law and principles of natural justice. To hold that the above stated Regulation excluded such hearing by necessary implication would be a view contrary to these essential ingredients of administration of justice. The authority vested with the power to adjudicate upon matters involving civil consequences to individuals and more so an appellate authority would, in the interest of fairness, which is the soul of administrative actions, must hear the parties concerned, where the party so demands. Lord Denning, M.R. in the case of R. v. Secretary of State for the Environment Ex.p. Norwhich City Council, 1982(2) W.L.R. 580 at P. 590 observed that whenever the wording of the statute permits the Court and read into it a provision without default, power should not be exercised except in accordance with rules of natural justice.” (emphasis supplied) Learned counsel for the respondents could not controvert the aforesaid factual as well as legal position. However, he placed reliance upon a decision of the learned Single Judge of this Court in State Bank of Patiala C.W.P. No. 17535 of 2008 -5- v. Central Govt. Industrial Tribunal-cim-Labour Court, 2009(3) RSJ 336, wherein it has been observed as under:- “As regards the submission of the counsel for the petitioner that the workman was not required to be given a personal hearing at the appellate stage, counsel for the respondent has admitted that the said request was not made in the appeal preferred by the workman nor there is any rule which requires or mandates a personal hearing to be given to the workman as per the statutory rules or the terms governing his service conditions. That being the position, the findings recorded by the Labour Court cannot, thus, be accepted as no grouse as such has been made by the employee nor a request for personal hearing has been made by the workman to the appellate Authority in his appeal.” In my opinion, the aforesaid judgment does not support the contention of the learned counsel for the respondents that the Appellate Authority was not bound to give personal hearing in absence of specific rules, particularly when a request for personal hearing was made by the delinquent employee. In my view, the denial of the personal hearing to the petitioner by the Appellate Authority before deciding his appeal, particularly when a specific request was made, has caused serious prejudice to the petitioner as he has been deprived to pursue the authorities by his oral submissions to the effect that the penalty of removal from service was wrongly imposed, the departmental proceedings were not properly initiated, and the Enquiry Officer wrongly recorded a finding against the petitioner. Thus, in my view the ratio of the law laid down by the Full Bench of this Court in Ram Niwas Bansal's case (supra) is fully applicable in case of the C.W.P. No. 17535 of 2008 -6- petitioner. In view of the above, the writ petition is allowed and the order dated 18.11.2004 (Annexure P8) passed by the Appellate Authority as well as the order dated 28.7.2008 (Annexure P11) passed by respondent No.4 on the Memorial, are hereby set aside and the matter is remitted to the Appellate Authority to pass a fresh order on the appeal filed by the petitioner after providing personal hearing to him, in accordance with law, within a period of three months from the date of receipt of certified copy of the order. October 09, 2009 (SATISH KUMAR MITTAL) vkg JUDGE