CWP No.7431 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7431 of 2008 (O&M) Date of Decision: 27.04.2011 Gurdial Singh ..... Petitioner Versus State of Punjab and another ..... Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. R.N. Raina, Advocate, for the petitioner. Ms. Rita Kohli, Addl. AG, Punjab. PERMOD KOHLI, J.(Oral) CM No.1392 of 2010 With the consent of learned counsel for the parties, the main case is taken up on Board for final disposal. CWP No.7431 of 2008 Petitioner claims to be a Backward Class candidate belonging to Jhinwar caste by birth. He was selected by the Punjab Subordinate Services Selection Board as a Backward Class candidate vide order dated 18.11.1963 for the post of Clerk. It is alleged that the petitioner had produced a Backward Class certificate issued by local MLA as there was no other income criteria and this certificate was accepted. It is also the case of the petitioner that he also produced another certificate issued by the Haryana Backward Class Federation. The petitioner joined the service on selection in CWP No.7431 of 2008 (O&M) -2- the year 1963. In the year 1992, petitioner was asked to produced a fresh certificate issued by a Class I Gazetted Officer or by the Sub Divisional Magistrate concerned. The petitioner accordingly produced a certificate issued by Deputy Director Employment Amritsar along with letter dated 13.11.1992 (Annexure P-3). He was again asked vide letter dated 21.12.1992 to produce a certificate by Class I Officer from different Department. Petitioner accordingly produced another certificate dated 6.01.1993 from the Deputy Director Sainik Welfare Jalandhar. The petitioner was apprehending denial of promotion and thus filed a civil suit No.21 dated 21.01.1991 before the Civil Judge (Junior Division) Ludhiana claiming accelerated promotion on the basis of his backward caste. This suit was contested by the respondents. The trial Court decreed the suit vide judgment and decree dated 10.06.1999 and the appeal preferred by the State before the District Judge, Ludhiana also failed and dismissed vide judgment and decree dated 12.02.2002. State preferred RSA No.2520 of 2002 before this Court. This RSA was decided vide judgment and decree dated 13.08.2004 with the following observations:- "Learned counsel for the respondent contends that the respondent should be promoted to the post of Assistant Employment Officer (General) and in case the Backward Class Certificate furnished by the plaintiff-respondent is found to be bogus then the benefits given to the respondent can be taken back. After hearing the learned counsel for the parties, I am of the considered opinion that the appellants shall fill up the post of Assistant Employment Officer (General) by maintaining two separate rosters as per the Govt. Instructions. It is directed that in case the plaintiff-respondent is due for promotion then he shall be considered to the post of Assistant Employment Officer (General) CWP No.7431 of 2008 (O&M) -3- irrespective of the inquiry pending with regard to the Certificate furnished by the respondent. The consideration of the respondent shall take place within a period of three months from today. However, in case if ultimately it is found that the Certificate furnished by the respondent was invalid or bogus then the benefits given to the respondent can be taken back by the appellants. This appeal stands disposed off in the manner indicated above." While this RSA was pending, the petitioner retired from service on 31.05.2003 on attaining the age of superannuation. More than four years after his retirement, petitioner received a notice dated 07.01.2008 to show cause in respect to alleged forged backward class certificate said to be produced by the petitioner while obtaining the employment and promotion fradulently. The petitioner was even asked to appear in person on 17.01.2008 before the Director, Employment Generation & Training, Department of Technical Education. The petitioner appeared before the said officer and also filed a written reply (Annexure P- 11). Respondents passed the impugned order dated 02.04.2008 whereby initial appointment of the petitioner on 28.11.1963 has been cancelled with a further direction to recover all service benefits from the gratuity and leave encashment and his future pension has also been stopped. It is this order which is under challenge in the present writ petition. The State has filed counter affidavit through its Joint Director, Employment Generation & Industrial Training. The stand of the State is that the Backward Class certificate produced by the petitioner at the time of his initial appointment allegedly issued by Haryana Backward Class Federation, Jhajjar Road, Rohtak on 22.07.1962, when the State of Haryana had not been carved out is fake. It is accordingly stated that most unlikely there can CWP No.7431 of 2008 (O&M) -4- be any federation of backward classes of Haryana at the relevant time as the State of Haryana came into existence on 01.11.1966. It is further alleged that backward class certificate was found invalid by Welfare Department when it was sent for verification through the concerned Department. It is further stated that petitioner submitted a second certificate issued in 1993 by the Deputy Director Sainik Welfare Jalandhar and after verification by the Welfare Department it was also found invalid as per instructions of the Government. It is thus concluded that the backward class certificate was procured fraudulently. Respondents have further taken shelter under the orders of the High Court passed in RSA No.2520 of 2002 decided on 13.08.2004. It is pertinent to mention here that even in the impugned order primarily reliance is placed on the judgment in above referred RSA. It may be necessary to reproduce the averment made in the impugned order regarding the Court directions. "After this, the employee produced another certificate of backward class which was issued by the Deputy Director, Sainik Welfare Jalandhar and submitted to the department which was held as invalid by the Hon'ble Punjab and Haryana High Court vide its order 13.08.2004 after getting the same verified from the Welfare Department Punjab. The Hon'ble High Court of Punjab and Haryana while deciding this R.S.A., vide judgment dated 13.08.2004, ordered to the effect that incase the Backward Class certificate produced by the employee is not proved to be a valid, then all the benefits given to him be withdrawn by the appellant." At the first place it is apparent that the authority passing the impugned order has totally misquoted the High Court order dated 13.08.2004 passed in RSA referred to above. As is apparent from the order, the High Court directed the respondent-State to consider the petitioner for CWP No.7431 of 2008 (O&M) -5- promotion to the post of Assistant Employment Officer (General) irrespective of any enquiry pending with regard to certificate furnished by him. The only observation of the High Court in the order passed in RSA was that if ultimately it is found that the certificate issued by the respondent was invalid or bogus then the benefits given to him can be taken back by the appellant. The only inference that can be drawn from the High Court order is that the respondents were at liberty to hold a proper enquiry against the petitioner in accordance with law. It is admitted case of the respondents that during the period, the petitioner was in service. He was asked to produce the second Backward Class certificate and no any departmental/disciplinay enquiry was ever initiated or held against the petitioner. Petitioner was a permanent employee of the State. He completed his tenure of service and thereafter superannuated. It was only four years after the retirement that a notice was issued to him allegeding procurement of bogus certificate. Any enquiry or verification made by the Department was at the back of the petitioner and without his association with any such enquiry. Such an action simplicitor is not in consonance with the principles of natural justice. This short method is contrary to the principles of natural justice and also the service rules. Dismissal from service is a major penalty under the service rules. No disciplinary enquiry was ever held or initiated while the petitioner was in service. It is equally settled proposition that after retirement no disciplinay proceedings can be initiated or continued unless the rule specifically describe so. Reference can be made to the judgment of Hon'ble the Apex Court in Bhagirathi Jena versus Board of Directors, O.S.F.C., 1999(3) CWP No.7431 of 2008 (O&M) -6- SCC 666. The relevant Para 5 of the judgment is reproduced as under:- "5. In view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.06.95, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." Reliance can also be made to the judgment of Hon'ble the Apex Court in the case of Chandra Singh versus State of Rajasthan and another, 2003(6) SCC 545. The relevant observation of the judgment is reproduced as under:- ".....A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In the absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue." Apart from the legal question whether the respondents could have CWP No.7431 of 2008 (O&M) -7- initiated disciplinay proceedings four years after the retirement of the petitioner, the impugned order is factually and legally also not sustainable in law. At the first place, the impugned order contains incorrect statement of both judgments which may not be deliberate but at least demonstrate the either non-applicatiion of mind or bias on the part of the authority passing the impugned order. Otherwise, also the order suffers from breach of law as the same has not been passed in accordance with the statutory rules governing the disciplinay proceedings against Government employee. For all these reasons, this petition is allowed. Impugned order dated 02.04.2008 is hereby quashed. Keeping in view the manner and method the State has initiated action against the petitioner, the petitioner is awarded cost of Rs.10,000/- to be recovered from the authority/officer namely Sh. G. Ramesh Kumar, Director, Employment Generation and Training Department, Technical Education, Punjab. I am informed by Sh. Harbant Sharma Employment Generation and Training Officer that Sh. G. Ramesh Kumar is present Special Secretary, Deparment of Home Affairs in the State of Punjab. This amount shall be recovered within a period of one month failing which this order shall be executed as a decree of the Court. Any amount recovered from the retiral benefits of the petitioner shall also be refunded within a period of two months with interest @6% to the petitioner from the date of receipt of certified copy of this order. Disposed of. (PERMOD KOHLI) 27.04.2011 JUDGE manju