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2009 DIGILAW 1276 (PNJ)

State Of Haryana v. Satnam Singh

2009-07-31

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This Regular Second Appeal is directed against the judgments and decree dated 14.09.2006, rendered by the Court of Additional Civil Judge (Senior Division), Sirsa, vide which it partly decreed the suit of the plaintiff (now respondent) and the judgment and decree dated 28.11.2008, rendered by the Court of District Judge, Sirsa, vide which it dismissed the appeal. 2. The facts, in brief, are that the plaintiff (now respondent) was posted as Conductor No. 253 in Haryana Roadways Sirsa. On account of the acts of omission and commission, charge sheet was served upon the plaintiff (now respondent), to which he filed reply, which was not found to be satisfactory. Ultimately, an enquiry was conducted. The Enquiry Officer found the plaintiff (now respondent) guilty of the charges, levelled against him. Thereafter, a show cause notice was served upon him, alongwith the enquiry report, and he filed representation thereto. The competent authority vide order dated 13.11.2002 imposed penalty of stoppage of one annual increment, with cumulative effect upon the plaintiff, and it was also directed that he will not be paid the pay and allowances for the period of suspension, except the subsistence allowance, already paid to him. The order, aforesaid, was challenged, as illegal null and void, and inoperative against the rights of the plaintiff, on various grounds. It was stated that the defendants were asked many a time, to withdraw the illegal order but to no avail. On their final refusal to accede to the request of the plaintiff, left with no alternative, a suit for declaration and consequential relief was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing written statement, wherein, it was averred, that the suit was not maintainable; and that the plaintiff had concealed the true material facts from the Court and, as such, he was not entitled to any relief. It was stated that when checking of the bus of the plaintiff was conducted on 04.02.2002, which was going from Gurgaon to Rohtak, four persons were found travelling without tickets, from Gurgaon to Rohtak. The plaintiff had collected a sum of Rs. 140/- from them, without issuing tickets. A report was submitted, by the checking staff. The plaintiff was placed under suspension and charge sheet was served upon him. The reply, which was filed by the plaintiff, was not found to be satisfactory. The plaintiff had collected a sum of Rs. 140/- from them, without issuing tickets. A report was submitted, by the checking staff. The plaintiff was placed under suspension and charge sheet was served upon him. The reply, which was filed by the plaintiff, was not found to be satisfactory. The enquiry was held. During the course of the enquiry, the plaintiff made a statement, that he may be given any punishment except termination of his services. He was reinstated pending enquiry. It was further stated that the order impugned is legal and valid. The remaining averments, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were struck by the trial Court :- "1. Whether the order dated 13.11.2002 passed by the General Manager, Haryana Roadways, Sirsa, is illegal, null against the provisions of Haryana Civil Services Rules and is liable to be set aside on the various grounds taken in the plaint ? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 3. Whether the plaintiff is guilty of suppression of true and material facts from the Court ? OPD 4. Relief." 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court partly decreed the suit. 6. Feeling aggrieved, against the judgment and decree dated 14.09.2006, passed by the trial Court, the appeals filed by the plaintiff (now respondent) and the defendants (now appellants), in the first Appellate Court, at Sirsa, were dismissed, vide judgment and decree dated 28.11.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellants/Haryana State etc. 8. The following substantial question of law, arise, in this appeal, for the determination of this Court :- "1. Whether any show cause notice, was required to be issued, to the plaintiff, (now respondent) before passing the order impugned that he would not be paid anything, except subsistence allowance, for the period of suspension, in view of his undertaking that he would accept any punishment, whatsoever, less than termination of his services?" 9. I have heard the Counsel for the appellants, and have gone through and perused the evidence and record of the case, carefully. 10. I have heard the Counsel for the appellants, and have gone through and perused the evidence and record of the case, carefully. 10. The Counsel for the appellants, submitted that no show cause notice was required to be given to the plaintiff (now respondent), before passing the order impugned, that he would not be paid anything except the subsistence allowance, already paid to him, for the period of suspension, especially in view of the fact that he (plaintiff) made a statement during the course of enquiry, that he would accept any punishment, less than termination of his services. She further submitted that the findings of the Courts below, setting aside the order to the extent, which amounted to denying the pay and allowances to the plaintiff (now respondent) for the period of suspension, except subsistence allowance, already paid to him, during the said period, being perverse, are liable to be set aside. 11. The only point that requires consideration, in this appeal is, as to whether, without issuing any show cause notice, the order impugned, could be passed that the plaintiff would not be paid anything, for the period of suspension, except the subsistence allowance, already paid to him, for the said period. The statement made by the plaintiff (now respondent), during the course of enquiry, that he would accept any punishment, except termination, does not mean that the competent authority was not required to adhere to the relevant provisions of the Rules, before imposing penalty. It was not that, on the basis of this statement, made by the plaintiff (now respondent) that he was imposed penalty of stoppage of one annual increment, with cumulative effect, and denied the pay and allowances for the period of suspension. Even after such statement was made by the plaintiff, a full fledged enquiry was held, and the Enquiry Officer found him guilty, for the charge levelled against him then a show cause notice was given to him, and thereafter, his reply to the same was considered and the order impugned, was passed. Neither any separate show cause notice, was given to the plaintiff (now respondent) to explain, as to why he be not paid the pay and allowances for the period of suspension, except the subsistence allowance, already paid to him, nor in Ex. Neither any separate show cause notice, was given to the plaintiff (now respondent) to explain, as to why he be not paid the pay and allowances for the period of suspension, except the subsistence allowance, already paid to him, nor in Ex. D-15, the show cause notice, he was asked to explain, as to why the pay and allowances for the period of suspension, be not paid to him. As such, the order, denying the pay and allowances to the plaintiff (now respondent) for the period of suspension, was rightly, held to be illegal by the Courts below. In Shri B.D. Gupta v. State of Haryana, AIR 1972 Supreme Court 2472, it was held that if an order affects the employee financially, it must be passed after an objective consideration and assessment of relevant facts and circumstances, and after giving the person concerned, full opportunity to make out his own case, about that order. Similar principle of law, was laid down in Shri Nand Kishore v. The state of Punjab and others, 1983(1) SLR 207 (Punjab and Haryana High Court). Notwithstanding, the statement, copy whereof, Ex. D- 8, made by the plaintiff (now respondent), during the course of enquiry, that he would accept any punishment, except termination, of services, show cause notice, referred to above, was required to be given to him. Since admittedly, no show cause notice, was given to the plaintiff (now respondent), the order to the extent of withholding the pay and allowances for the period of suspension, could be said to be illegal. The Courts below were, thus, right in setting aside the order to this extent. Their findings, in this regard, cannot be said to be perverse However, the Competent Authority, would be at liberty, to issue fresh show cause notice, in the terms, referred to above and thereafter pass an order withholding the pay and allowances for the period of suspension of the plaintiff (now respondent) or otherwise. The substantial question of law, depicted above, thus, answered against the appellant, in the terms, referred to above. 12. For the reasons recorded above, the appeal, is dismissed with no order as to costs. The substantial question of law, depicted above, thus, answered against the appellant, in the terms, referred to above. 12. For the reasons recorded above, the appeal, is dismissed with no order as to costs. However, the competent authority shall be at liberty, to issue a fresh show cause notice, in terms of the relevant rules, to the plaintiff (now respondent) as to why the pay and allowances for the period of suspension be not withheld, and after obtaining his reply to the same, may pass any order, in accordance with the provisions of law. Appeal dismissed.