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2014 DIGILAW 724 (PNJ)

Hari Singh v. State of Punjab

2014-04-22

RAJESH BINDAL

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Judgment Rajesh Bindal, J. The present writ petition has been filed by the petitioner impugning the order dated 12.2.2008 (Annexure P7/T), vide which he was dismissed from service, order dated 3.11.2008 endorsed on 6.11.2008 (Annexure P9/T) passed by the Appellate Authority vide which his appeal against the aforesaid order was dismissed and order dated 14.5.2009 endorsed on 26.6.2009 (Annexure P11/T), vide which revision against the appellate order was dismissed. At the time of issuance of notice of motion, the only grievance raised by the petitioner was that while issuing show cause notice before imposition of punishment, copy of the enquiry report was not appended. It was the conceded position that no issue with regard to that was raised either in appeal or in revision. To buttress the arguments raised, reference was made to judgment of this Court in Dr. Harbhajan Singh Greasy vs The State of Punjab 1992 (1) SCT 681. It was further stated by the petitioner that the original order of punishment may not be interfered with, however, the revisional order be set aside with liberty to the petitioner to raise the issues again before the Revisional Authority. Learned counsel for the petitioner submitted that once the copy of the enquiry report was not supplied to the petitioner along with the show cause notice, the same amounts to denial of fair opportunity to the petitioner to defend the case against him and the same will vitiate all further proceedings. However, he submitted that at the time of issuance of notice of motion, he had limited his prayer to the extent that only revisional order be set aside so as to enable the petitioner to present his case before the revisional authority after copy of the enquiry report supplied to him. Learned counsel was candid in stating that no objection pertaining to the alleged nonsupply of copy of the enquiry report was raised by him either before the Punishing Authority or before the Appellate Authority or the Revisional Authority. The same is being raised for the first time before this Court. Learned counsel for the petitioner further submitted that even if this Court finds that the aforesaid contention is not meritorious, still the case is required to be examined from another angle namely that the punishment imposed on the petitioner is disproportionate to the proved allegations. The same is being raised for the first time before this Court. Learned counsel for the petitioner further submitted that even if this Court finds that the aforesaid contention is not meritorious, still the case is required to be examined from another angle namely that the punishment imposed on the petitioner is disproportionate to the proved allegations. A lighter punishment could be imposed as a result of which the petitioner could get his service benefits. On the other hand, learned counsel for the State submitted that it is the admitted case of the petitioner that he never raised the issue regarding non-receipt of the enquiry report at any stage during the proceedings either before the Punishing Authority or during appeal or revision. He cannot be permitted to raise the same for the first time before this Court as the petitioner had to establish that he had suffered prejudice on account of non-supply of enquiry report. He further submitted that show cause notice alongwith copy of the enquiry report was sent to the petitioner but he refused to receive the same, hence, even the contention raised by learned counsel for the petitioner that copy of the enquiry report was not supplied to him, is totally false. He further submitted that no replication has been filed controverting the aforesaid averments made by the State in response to para 19 (v) of the written statement. Learned counsel for the State further submitted that considering the proved allegations of corruption against the petitioner, he does not deserve to be awarded any lesser punishment. Even the conduct of the petitioner is that he had no respect for law. During the course of enquiry, despite affording him numerous opportunities, he never appeared. He prayed for dismissal of the writ petition. Heard learned counsel for the parties and perused the paper book. As far as the issue regarding setting aside of the order of punishment or of even the revisional authority on the ground that the petitioner had allegedly not been supplied copy of the enquiry report is concerned, though the petitioner stated that he was not supplied the copy of the enquiry report, whereas the stand of the State is that copy of the enquiry report was accompanying the show cause notice, which the petitioner refused to receive. There is report of process server Bhura Singh to that effect. There is report of process server Bhura Singh to that effect. Stand to that effect in the written statement has not been controverted by the petitioner. The fact that the petitioner was in possession of the enquiry report is also evident from the fact that the aforesaid issue was not raised by the petitioner either before the Punishing Authority or in appeal or in revision. The same was raised for the first time before this Court. Though the aforesaid facts are sufficient to non-suit the petitioner as the issue regarding non-receipt of copy of enquiry report cannot be permitted to be raised for the first time at the stage of filing of the writ petition, once the same was not raised at any earlier stage and it is not shown that any prejudice had been caused to the employee on account of alleged non-supply of copy of the enquiry report. This issue was considered by Hon'ble the Supreme Court in Haryana Financial Corporation and another v. Kailash Chandra Ahuja, (2008) 9 SCC 31 , and it was opined that failure to supply the report of the enquiry officer to the delinquent would not ipso facto result in the proceedings being declared null and void and the order of punishment nonest and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on this point, the punishment cannot automatically be set aside. The relevant paragraph thereof is extracted below: “21. From the ratio laid down in B. Karunkar, it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.” The same view was expressed in Sarv U. P. Gramin Bank v. Manoj Kumar Sinha, (2010) 3 SCC 556 . As far as imposition of punishment is concerned, it is a case of forging of the record of the Gram Panchayats, misappropriation of panchayat funds, passing of resolution without getting the signatures of the Sarpanch and Members of the Panchayats. Once the admitted case of the petitioner is that he never raised the issue regarding non-receipt of enquiry report at any stage till filing of the revision and also the prejudice caused on account of non-supply of enquiry report, in my opinion, the same cannot be permitted to be raised at this stage. Hence, neither the order of punishment or the revisional order can be set aside on that ground. It is not the case of the petitioner that he did not know the charges against him. As far as the issue regarding proportionality of the punishment imposed on the petitioner is concerned, it is a case in which two enquiries were instituted against the petitioner. One was pertaining to Village Nasira Khilchi, Block Ferozepur and second pertaining to Village Basti Ram Lal, Block Ferozepur. A Government employee is expected to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. Hon'ble the Supreme Court in Government of India and another v. George Philip, (2006) 13 SCC 1, while referring to Article 51A(j) of the Constitution of India, observed that excellence cannot be achieved unless the employees maintain discipline and devotion to duty. The Court should refrain from passing orders which instead of achieving the object have the tendency to negate or destroy the same. The relevant paragraph thereof is extracted below: “18...... Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IVA of the Constitution have the tendency to negate or destroy the same.” The proved allegations against the petitioner are regarding forging of the record of the Gram Panchayats, misappropriation of panchayat funds, passing of resolution without getting the signatures of the Sarpanch and Members of the Panchayats. Show cause notice along with copy of the enquiry report was sought to be served upon the petitioner which he refused to receive. Not only this, during the course of enquiry the petitioner was afforded numerous opportunities to defend the case against him but he failed to avail of opportunities afforded to him. It is evident of the conduct of the petitioner. As is evident from the order of punishment dated 12.2.2008 when a copy of the show cause notice along with the enquiry report was sent to the petitioner through Block Development and Panchayat Officer, Jhuneer, District Mansa, for effecting service on the petitioner but he vide his communication dated 1.2.2008 reported that the petitioner refused to receive the same. Again a notice dated 10.1.2008 was sent which was duly received by the petitioner on 23.1.2008 but despite this, the petitioner did not avail the opportunity of personal hearing before imposition of punishment as he did not put in appearance. This fact is admitted by the petitioner in the grounds of appeal before the Appellate Authority. Under these circumstances on account of proved charges regarding forging of the record of the Gram Panchayats, misappropriation of panchayat funds, passing of resolution without getting the signatures of the Sarpanch and Members of the Panchayats, the petitioner was dismissed from service. No where in his grounds of appeal, the petitioner raised the issue that the punishment awarded to the petitioner was disproportionate to the guilt proved. The issue regarding proportionality of the punishment has been considered by Hon'ble the Supreme Court on a number of occasions. No where in his grounds of appeal, the petitioner raised the issue that the punishment awarded to the petitioner was disproportionate to the guilt proved. The issue regarding proportionality of the punishment has been considered by Hon'ble the Supreme Court on a number of occasions. It has been opined that the doctrine of proportionality is an aspect in imposition of punishment on an employee after conclusion of disciplinary proceedings. Where the punishment imposed by the disciplinary authority shocks the conscience of the Court only then the aforesaid doctrine is attracted. Reference can be made to judgment of Hon'ble the Supreme Court in Indian Oil Corporation Limited and another vs Ashok Kumar Arora 1997 (3) SCC 72 . In the process of judicial review with the punishment imposed, the Court can interfere with only if the punishment is grossly in excess to the proved allegations. One of the test to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment while considering the proved misconduct. In the case in hand, considering the proved allegations against the petitioner regarding forging of record and misappropriation of Panchayat funds, no reasonable employer would have drawn conclusion other than what has been drawn in the case in hand. Considering enunciation of law pertaining to judicial review of the punishment imposed with reference to proportionality thereof, I do not find that the punishment imposed on the petitioner is disproportionate to the proved guilt. An employee with such a conduct deserves to be shunted out without any delay. They act like termites in the system. It is good for the system if they are removed at the earliest. For the reasons mentioned above, I do not find any merit in the present writ petition. The same is accordingly dismissed.