Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1541 (PNJ)

Jang Singh v. Punjab State Electricity Board

2003-11-12

S.S.NIJJAR

body2003
Judgment S.S.Nijjar, J. 1. The appellant has filed a civil, suit for declaration that memo No. 53901 dated 23.5.1990 is illegal, ultra vires, unconstitutional null and void, mala fide against the principles of natural justice and against service rules and regulations and for permanent injunction restraining the defendants from acting upon the aforesaid order of termination. 2. He has averred in the plaint that he was working as a driver with the defendant-Board on 13.5.1969. He had met with an accident and FIR No. 71 dated 13.5.1969 was registered against him under Section 304-A of the Indian Penal Code at Police Station Sangrur. After investigation, he was found innocent and discharged by the Judicial Magistrate vide judgment dated 28.2.1983. In the claim application filed by one Surjit Kaur for compensation before Motor Accident Claims Tribunal, compensation was awarded against the Board in the sum of Rs. 20,000/- as the vehicle which belonged to the Board did not have the route permit and was not insured. On the basis of the aforesaid judgment, services of the plaintiff were terminated in September, 1973. Thereafter, he was reinstated on 17.11.1975. Since then, he had been discharging his duties to the best of his ability. He was given a notice on 22.6.1979 and thereafter dismissed by passing an order of termination dated 23.5.1980. The plaintiff claimed that order of termination is violative of Articles 14, 16 and 311(2) of the Constitution of India as well as the rules of natural justice. The plaintiff claimed that he had served more than 240 days and his services could not have been terminated without following the procedure of punishment or without paying him retrenchment compensation. The order had been passed by way of punishment on the basis of adverse report having been given by the Executive Engineer. Therefore, it was necessary to comply with the rules of natural justice. 3. The defendants controverted the claim put forward by the plaintiff and stated that the plaintiff was working only as a casual labourer. As a result of his careless driving the defendant-Board was burdened with a compensation of Rs. 20,000/-. He was discharged from service because of his negligent driving. He had filed a wrong affidavit on the basis of which he was appointed as a work-charge driver. As a result of his careless driving the defendant-Board was burdened with a compensation of Rs. 20,000/-. He was discharged from service because of his negligent driving. He had filed a wrong affidavit on the basis of which he was appointed as a work-charge driver. He has been duly served with notice for one month as required under PSEB and Hydel Industrial Establishment (Other than Factory) Standing Orders, 1965. Reliance is placed on standing orders. Plaintiff filed the replication. The trial Court, on the basis of the pleadings of the parties framed the following issues:- "1. Whether the order dated 25.5.1980 is illegal and void for the reasons given in para No. 8 of the plaintiff? OPP 2. Whether the Court at Patiala have no jurisdiction to try this suit? OPP 3. Whether the plaint has not been properly valued for the purpose of Court fee? OPD 4. Relief." 4. The trial Court after noticing the submissions made by the counsel for the plaintiff has held that the arguments are not applicable as the plaintiff himself admitted in cross-examination that he was work-charged employee of the defendant-Board and was not a regular employee. The trial Court further held that the plaintiff is a workman within the meaning of the Standing Order framed by the defendant-Board under the Industrial Employment (Standing Orders) Act, 1946 with respect to work charge workman. He falls in the category of temporary workman defined in para 3 of the Standing Order. The trial Court relies on Standing Orders 15 to hold that the services of the workman can be terminated by giving him one month notice without assigning any reasons. The trial Court also came to the conclusion that the mere termination of services does not amount to punishment. According to the trial Court, the test for determining whether the termination of services of an employee by way of punishment is to ascertain whether the employees, what for such termination had the right to hold the post. The trial Court holds that the workman would be entitled to protection under Article 311 of the Constitution of India, if he had a right to hold the post even if his services are simply terminated. Since the plaintiff had no right to hold the post, the order of punishment cannot be termed as punishment. The trial Court holds that the workman would be entitled to protection under Article 311 of the Constitution of India, if he had a right to hold the post even if his services are simply terminated. Since the plaintiff had no right to hold the post, the order of punishment cannot be termed as punishment. The trial Court further comes to the conclusion that simply because some reasons has been assigned for the termination of the service will not entitle the plaintiff to protection under Article 311 of the Constitution of India. 5. Aggrieved against the aforesaid judgment, the plaintiff filed the appeal in the Court of Additional district Judge, Patiala which has also been dismissed vide judgment dated 2.9.1983. 6. Before the Appellate Court, it was argued that the plaintiff could not have been punished twice for the same wrong. Counsel for the appellant, further argued that the workman could not have been retrenched without complying with the provisions of Industrial Disputes Act. The appellate Court affirmed the finding of the trial Court for identical reasons. Counsel for the appellant has relied upon the judgment of the Supreme Court in case of Swami Saran Sexena v. State of U.P., 1969 S.L.R. 787. In support of his submission that the plaintiff could not been punished twice for the same wrong, this finding has been negatived by the lower appellate Court. Learned counsel for the appellant submits that the trial Court as well as the appellate Court have committed a fundamental error of law in holding that the plaintiff was entitled to be heard before the order of termination was passed. 7. The lower Appellate Court has rejected the submission made by the learned counsel for the appellant. The judgment of the Honble Supreme Court in the case of Swami Saran Sexana v. State of Uttar Pradesh, 1969 S.L.R. 787 has been held to be inapplicable in the facts and circumstances of the cases. It has also been held by the lower Appellate Court that the plaintiff had no right to the post and the order Annexure P5 is not penal in nature as it has been passed in terms of the Industrial Employment (Standing Order) Act, 1946, which deals with respect to work charged employees. 8. I have heard the learned counsel for the parties, 9. 8. I have heard the learned counsel for the parties, 9. I am of the considered opinion that there is merit in the submission made by the learned counsel for the appellant to the effect that the appellant cannot be punished twice for the same lapse. It is a matter of record that the appellant met with an accident on the basis of which, F.I.R. No. 71 dated May 15, 1969 was registered under Section 304-A of the I.P.C. However, after investigation, the appellant was found innocent and discharged by the Judicial Magistrate vide judgment dated February 28, 1983. During the pendency of the criminal case in a separate proceedings, the Motor accident Claims Tribunal had awarded compensation to one Smt. Surjit Kaur against the Board. This compensation had been granted on the ground that the vehicle of the Board did not have a valid route permit and it was also not insured. On the basis of the aforesaid judgment, services of the appellant were terminated in September, 1973. Subsequently, he was permitted to join duty again on November 17, 1975. By order dated May 23; 1980, services of the appellant had again been terminated for negligent driving. I am of the considered opinion that both the Courts below have erred in law in holding that the im pugned order of termination could be protected under the Standing Order. Services of the appellant had been terminated on the ground of misconduct. The impugned order Annexure P5 reads as under:- "Memo No. 5309 dated 23.5.1980 Sub: Notice of Termination of Services. As per report received from XEN T.L.S.C. Division, Patiala vide his Memo No. 8902 dated 1/9/1979, it has been noticed that you were found negligent in driving the vehicle No. PNF-7902 and causing a fatal accident to a private person namely Shri Balwant Singh on Sangrur on a/c of which the Board had to pay Rs. 20,0007- as compensation. You are, therefore, served with one months notice of termination of your services w.e.f. the date of issue of this notice in view of instructions already issued to XEN, TCC No. 1, Division, Patiala by Secy. P.S.E.B. Patiala vide his probable No. 38831 dated 12.4.1973. Sd/- XEN, RE Division, Bhatinda Endst. No. 5310/ Dated 23/5/80" 10. A perusal of the aforesaid order leaves no manner of doubt that rash and negligent driving is the foundation of the order of termination. P.S.E.B. Patiala vide his probable No. 38831 dated 12.4.1973. Sd/- XEN, RE Division, Bhatinda Endst. No. 5310/ Dated 23/5/80" 10. A perusal of the aforesaid order leaves no manner of doubt that rash and negligent driving is the foundation of the order of termination. It cannot, by any stretch of imagination, be said to have been passed under Standing Order 15. The aforesaid order of punishment could only be passed after complying with the rules of natural justice. 11. In view of the above, the suit of the plaintiff deserves to be decreed. The judgments of the Courts below are clearly unsustainable. Consequently, the appeal is al lowed. The judgments of the Courts below are set aside. The suit of the plaintiff is de creed as prayed. No costs.