Prem Nath Dhamija v. Punjab State Electricity Board
2005-05-31
ADARSH KUMAR GOEL
body2005
DigiLaw.ai
Judgment Adarsh Kumar Goel, J. 1. The appellant was working as Line Superintendent in the Punjab State Electricity Board since 8.2.1971. Later on, he was directly recruited as Sub Division Officer/Apprentice Engineer on 15.1.1976. He was placed under suspension on 7.7.1977 pending enquiry which was followed by charge sheet dated 29.11.1977. Later, charge sheet was withdrawn and on 4.11.1978, his services were terminated by way of order of termination simpliciter as per terms of appointment. 2. The appellant filed suit challenging order of termination on the ground that the same was stigmatic, misconduct being the foundation of the order of termination and order of termination having been passed to short-circuit pending enquiry. Further claim was that since persons junior to the appellant as Line Superintendent had been promoted w.e.f. 23.7.1978, the appellant was entitled to be granted promotion on the principle of parity. Further plea was that promotion of other Line Superintendents prior to passing of order of termination, was not relevant as the appellant having been directly recruited as Apprentice Engineer was in a different cadre at the relevant time, though after the order of termination, the appellant was continued as Line Superintendent on which he had been working prior to direct appointment. Further objection was that the appellant had not impleaded the affected parties who had been granted promotion in absence of which the suit could not proceed. 3. The trial Court dismissed the suit. It was held that termination of services of the appellant was in terms of his appointment letter for unsatisfactory conduct and could not be held to be stigmatic. As regards promotion, it was observed that the plaintiff having joined as an Apprentice Engineer, lost his lien on the post of Line Superintendent. 4. On appeal, the finding of the trial Court that the order of termination was not stigmatic, was affirmed. It was noticed that no other point was urged except for the plea that order of termination was stigmatic. Hence this appeal. 5. Learned counsel for the appellant submitted that since suspension of the appellant was never revoked, termination was illegal. He referred to evidence of PW-1 Prem Nath to the effect that order of revocation of suspension was not in the file. Reliance is placed on judgments in Mihir Kumar DasV/s.State of West Bengal and Ors., 1980(1) S.L.R. 678 and V.P. GidroniyaV/s.State of Madhya Pradesh and Ors., 1967(1) S.L.R. 243.
He referred to evidence of PW-1 Prem Nath to the effect that order of revocation of suspension was not in the file. Reliance is placed on judgments in Mihir Kumar DasV/s.State of West Bengal and Ors., 1980(1) S.L.R. 678 and V.P. GidroniyaV/s.State of Madhya Pradesh and Ors., 1967(1) S.L.R. 243. He further submitted that order of termination being stigmatic, was void in absence of enquiry. Reliance is placed on judgment of the Apex Court in Chandra Prakash ShahiV/s.State of U.P. and Ors., 2000(2) S.L.R. 772. It was next argued that the appellant was entitled to be promoted since persons junior to him has been promoted w.e.f. 23.7.1978. He submitted that the trial Court wrongly held that the appellant had no lien on the post, having accepted direct recruitment. 6. Learned counsel for the defendant-respondent submitted that termination being as per contract did not involve any stigma as rightly held by the lower appellate Court in paras 9 and 11 of its judgment. He also submitted that in absence of affected parties being impleaded and since persons given promotion, belong to different category, the appellant was not entitled to be granted promotion, as held by a Full Bench of this Court in PSEB, Patiala and Anr.V/s. Ashok Kumar Sehgal and Ors. 1989(4) S.L.R. 437, Para 57. 7. I have considered the rival submissions and perused the record. 8. The plea on behalf of the appellant that order of suspension was never revoked and, therefore, termination was illegal, cannot be accepted. Admittedly, vide Ex.R. 2, charge sheet was withdrawn. Both the Courts below, after referring to evidence to DW-1 Harbhajan Singh held that order of suspension was withdrawn. Merely because, the said order was not in the file, was not enough to hold that order of suspension had not been withdrawn. The said finding cannot be held to be perverse. Moreover, it cannot be assumed that order of suspension continued even after passing of order of termination, Ex.P.11. 9. As regards the contention that order of termination was stigmatic, the same can also not be accepted. The order of termination, Ex.P.11 is as under:- "The Punjab State Electricity Board hereby orders to terminate the services of Er. P.N. Dhamija, Apprentice Engineer attached with XEN R.E.C. Division, PSEB, Gurdaspur with immediate effect in terms of para 5 of his offer of appointment issued to him vide this office memo No. 3158/EBP-2183 dated 15.1.1976.
The order of termination, Ex.P.11 is as under:- "The Punjab State Electricity Board hereby orders to terminate the services of Er. P.N. Dhamija, Apprentice Engineer attached with XEN R.E.C. Division, PSEB, Gurdaspur with immediate effect in terms of para 5 of his offer of appointment issued to him vide this office memo No. 3158/EBP-2183 dated 15.1.1976. As he was holding the post of Line Supdt. prior to his appointment as Apprentice Engineer vide memo No. 3158/EBP-2183 dated 15.1.1976, he should obtain his posting order for the post of Line Supdt. From the Chief Engineer/DS (North), PSEB, Patiala." 10. Reference may be made to decision of this Court in Punjab State and Anr.V/s. Anil Kumar, 2002(5) S.C.R. 634 and decisions of the Apex Court in State of Punjab and Ors.V/s.Bhagwan Singh, J.T. 2001 (Suppl.) S.C. 7, Krishnadevaraya Education Trust and Anr.V/s.L.A. Balakrishna, , Pavanendra Narayana VermaV/s.Sanjah Gandhi, PGI of Medical Sciences and Anr., and H.F. SangatioV/s.R.G. High Court of Karnataka and Ors., A.I.R. 2001 S.C. 1148. In Pavanendra Narayana Verma (supra), after reviewing the earlier case-law, the Apex Court observed "courts continue to struggle with semantically indistinguishable concepts like motive and foundation and terminations founded on a probationers misconduct have been held to be illegal while terminations motivated by the probationers misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents." It was then concluded that to hold an order to be punitive, three factors should be present:(a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct and (c) which culminated in a finding of guilt. If all the three factors are present, the termination has to be held to be punitive. Conversely if any one of the three factors is missing, the termination has to be upheld. The said decision has been followed in a recent decision in Mathew P. ThomasV/s.Kerala State Civil Supply Corporation Ltd. and Ors., . Same is the view expressed in Anil Kumar, Krishnadevarya Education Trust and H.F. Sangati (supra). 11. Coming to the last submission, perusal of paras 8 to 12 of the judgment of the lower appellate Court shows that this point was not raised before the lower appellate Court.
Same is the view expressed in Anil Kumar, Krishnadevarya Education Trust and H.F. Sangati (supra). 11. Coming to the last submission, perusal of paras 8 to 12 of the judgment of the lower appellate Court shows that this point was not raised before the lower appellate Court. Moreover, affected parties have also not been impleaded in absence of which claim for promotion will be bad for non-joinder of necessary parties as held in Ashok Kumar Sehgal (supra). In view of the above, no substantial question of law arises.The appeal is dismissed.