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2009 DIGILAW 233 (HP)

Kewal Singh v. H. R. T. C.

2009-03-30

RAJIV SHARMA

body2009
JUDGMENT (Rajiv Sharma, J.) (Oral) - The petitioner was appointed as driver on 30th April, 1991. He was put under probation for a period of two years. The period of probation was extended by another one year and this period of probation was to expire on 2nd May, 1994. Disciplinary proceedings were also initiated against the petitioner on 28th September, 1993. 2. A memorandum dated 1st October, 1993 was also issued to the petitioner. The operative portion of this memorandum reads thus :- “Therefore, keeping in view the above mentioned position, the undersigned has tentatively reached the conclusion that Sh. Kewal Singh, driver under probation, is removed from service. Sh. Kewal Singh, Driver is granted one opportunity of representing against the above proposed penalty. But, the representation should be based on facts that the above representation would be considered by the undersigned if he wants to make such representation, the same should be received by undersigned within 15 days of the receipt of this Memo and the same will not be accepted after the said period. The above mentioned Memorandum may be duly acknowledged.” 3. He submitted reply to the same on 14th October, 1993. He was removed from service on 20th December, 1993. A bare perusal of office order dated 20th December, 1993 reveals that the same is penal/punitive in nature. It casts stigma on the petitioner. It is not a case of simpliciter discharge. In fact, the penalty of removal as proposed vide memorandum dated 1st October, 1993 has been imposed upon the petitioner. 4. It is settled law by now that in case of probationers also, if the order even on the face of it is innocuous, the Courts can lift the veil to find out whether any misconduct was the foundation or basis for the order. However, in this case the impugned order dated 20th December, 193 on the face of it is penal/punitive in nature. The expression “removal” has been used in this order. In memorandum dated 1st October, 1993 as many as 8 instances of misconduct have been attributed to the petitioner. In these circumstances, the Court can safely assume that the order dated 20th December, 1993 is founded/based on misconduct as mentioned in memorandum dated 1st October, 1993. 5. The expression “removal” has been used in this order. In memorandum dated 1st October, 1993 as many as 8 instances of misconduct have been attributed to the petitioner. In these circumstances, the Court can safely assume that the order dated 20th December, 1993 is founded/based on misconduct as mentioned in memorandum dated 1st October, 1993. 5. Their Lordships of the Hon’ble Supreme Court in Jagdish Mitter v. The Union of India, AIR 1964 SC 449, Major Singh v. State of Punjab and others, 2000(9) SCC 473 and Jaspal Singh v. State of Punjab and others, 2004(13) SCC 593 have reiterated that in the case of probationers also, if the order is stigmatic, punitive, penal in nature, inquiry is required to be held. Mr. Adarsh Sharma does not dispute this definitive law laid down by their Lordships of the Hon’ble Supreme Court. 6. The petitioner had also preferred an appeal against this order dated 20th October, 1993 on 7th January, 1994. The same stood rejected vide office order dated 5th March, 1994. The Appellate Authority has also rejected the appeal by using the expression “removal”: in his order dated 5th March, 1994. A bare perusal of order dated 5th March, 1994 reveals that the same is not self-contained, speaking/reasoned one. It is settled law by now that the appellate order must be self-contained/speaking order. 7. Their Lordships of the Hon’ble Supreme Court in Roop Singh Negi and another v. Punjab National Bank and others, 2009(2) SCC 570 have held as under : “Furthermore, the order of the disciplinary authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 8. Accordingly, the petition is allowed. Impugned office orders dated 20.12.1993 (Annexure A-7) and dated 5.3.1994 (Annexure A-9) are quashed and set aside. The petitioner is held entitled to all the consequential benefits. There shall, however, be no order as to costs. M.R.B. ———————