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DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD. versus TEK CHAND

High Court of Punjab and Haryana, Chandigarh

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Dakshin Haryana Bijli Vitran Nigam Ltd. v. Tek Chand - RSA-2506-2006 [2006] RD-P&H 3886 (10 July 2006)

C.M.No.5982-C of 2006 and [1]

R.S.A.No.2506 of 2006

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.M.No.5982-C of 2006 and

R.S.A.No.2506 of 2006

Date of Decision: 6-7- 2006

Dakshin Haryana Bijli Vitran Nigam Ltd. ........Appellants and others

v.

Tek Chand .........Respondent

CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.K.S.Malik, Advocate

for the appellants.

***

P.S.PATWALIA, J.

The present regular second appeal has been filed by Dakshin Haryana Bijli Vitran Nigam Limited against the judgments of learned Additional Civil Judge (Sr.Division), Gurgaon and Additional District Judge, Gurgaon by which the Courts below have decreed the suit filed by the plaintiff-respondent and thereafter the first appeal filed by the appellants has been dismissed.

The appeal is accompanied by an application under Section 5 of the Limitation Act seeking condonation of 17 days delay in filing the same. For the reasons mentioned in the application, the delay of 17 days in filing the appeal is condoned.

In the suit the plaintiff-respondent had challenged the order dated 28.2.2001 vide which he was compulsorily retired from service after considering his case for retention in service beyond the age of 55 years. The order of retirement has been extracted in the judgment of lower Appellate Court and reads as under:-

C.M.No.5982-C of 2006 and [2]

R.S.A.No.2506 of 2006

"DAKSHNI HARYANA BIJLI VITRAN NIGAM LTD.

OFFICE ORDER NO.26 DATED 28.2.2001

Sh.Tek Chand, AFM (DOB 15.1.44) has attained the age of 55 years on 14.1.99 and his case for retention in service beyond the age of 55 years is considered in terms of rule 3.26 (D) of CSR Vol.I, Part-I read with rule 5.32(A)(c) of CSR Vol.II which provides as under:

a) Efficiency in Performance during the last 10 years official with 70% good record of service be retained.

b) Integrity for the last 10 years of service should be good.

In the meantime, Board of Director, HVPNL in their meeting held on 10.9.1998 and circulated vide memo no.Ch.8/ NGE/ G-1501 dt.

25.9.98 decided as under:

The following items of misconduct/indiscipline on the part of an officer/officials involves/constitute the doubtful integrity of the officer/official concerned but, it has been observed that suitable remarks regarding doubtful integrity are not being given in the ACRs by the concerned reporting officers/next higher authority.

i) Delaying a case deliberately to give undue benefit to the consumer(s).

ii) Delaying a case deliberately to harass the consumer with an aim to get personal/illegal gratification from the consumer concerned.

iii)Deliberately mis-interpretation of codal instructions/rules to give undue financial benefit to the consumer.

iv)Acting in a manner prejudicial to the commercial/financial interest of the HVPNL/HPGCL and to the benefit of the consumer (s).

C.M.No.5982-C of 2006 and [3]

R.S.A.No.2506 of 2006

It has therefore decided that punishment on account of (i) to (iv) above may be taken care of while deciding the cases regarding retention in service beyond the age of 55 years.

It has also been decided that in future, the cases for retention in service beyond the age of 55 years, be put up to the committee consisting of the following in respect of officials.

A. C.E.''OP" Z-II, Delhi.

B. L.O. at Faridabad.

The committee so constituted perused the case record, charge sheet/show cause notices and punishment(s) to Sh.Tek Chand, AFM.

The detail of which is as under:

1. Charge Sheet No.25 dated 2.3.95. It was alleged that it was not in his knowledge that M/s Rajchani Ice Factory, Taoru was stealing energy. This fact was brought to his notice but failed to watch the interest of the Nigam.

After considering the reply of the charge sheet it was decided to stop one increment and to recover Rs.32,000/- on account of 50% loss suffered by the Nigam vide this office order no.64 dated 15.3.99.

2. Charge sheet No.56 dated 18.9.98. It was alleged that on 13.6.98 400 KVA transformers was damaged due to poor maintenance. This charge sheet was decided vide this office order no.3 dated 4.1.2000 by awarding punishment of stoppage of one increment.

3. Charge sheet no.69 dated 25.1.99. It was alleged that he failed to perform his duties with due care and sincerely and he did not ensure that the connection of M/s Blue Ice Factory are made correctly while effecting MCOs. On checking it was found that meter was dead stop as the connection of C.M.No.5982-C of 2006 and [4]

R.S.A.No.2506 of 2006

CTs at the TTB were found in service position. The reply submitted by Sh.Tek Chand, AFM alongwith comments were considered and he was awarded punishment of stoppage of two increments vide office order no.94 dt.31.7.2001.

4. Charge sheet No.21 dated 15.9.2000. It is alleged that the defective meters of Sh.Mahabir Bansal was replaced on 2.2.99 at a final reading of 16629 but he tempered record thereby showing the reading of 16629 with malafide intention. He is also alleged that he issued three no. single phase meters for the shop of Sh.Madan Lal with malafide intention. He also released 9 no. industrial connection un-metered. He has not submit the reply to the charge sheet within stipulated period.

5. Charge sheet No.3/ conf. NG/DU-14 dt. 31.8.2000 issue by the SE/Admn. DHBVNL, Hisar.

It is alleged that he shifted 25 KVA T/F and also shifted tubewell connection of Sh.Ram Pal without approval. It is also alleged that he accepted Rs.9000/- from Sh.Ram Pal. No reply of the charge sheet has been received.

6. S.C.N.No.165/T-39 dt. 23.5.95 issued by the SE ''OP'' Circle, Gurgaon.

He was also served a show cause notice by the SE, ''OP'' Circle, Gurgaon, on account of fatal accident to a cow which was decided vide his O/O No.45 dt. 16.1.98.

From the above it may be seen that the Performance of Sh.Tek Chand, AFM during the Proceeding 10 years is not upto the expectation and he has been awarded punishment for the various irregularities committed by him. Charges levelled in the charge sheet reflects integrity of the official. According to the instructions C.M.No.5982-C of 2006 and [5]

R.S.A.No.2506 of 2006

issued by the then Addl.Secy, HVPNL, Panchkula memo no.Ch.8/NGE/G-1050 dt. 25.9.98. The official is not qualifying for retention in service. Therefore, it has been decided to retire him with immediately effect by the committee in the interest of Nigam service.

Accordingly Sh.Tek Chand, AFM working in the office of Xen.OCC Dvn. Gurgaon is hereby retired from the services of the Nigam in the public interest with immediate effect.

A charge bearing No.24376 dated 28.2.2001 drawn in payable at Gurgaon for Rs.27495/- in lieu of 3 months notice period in favour of Sh.Tek Chand, AFM is sent herewith alongwith the order.

This issues with the approval of Chief Engineer, ''OP'' DHBVNL, Delhi.

Sd/-

Admn. Officer/Estt, For CE, ''OP'' Delhi." After considering this order, the learned Additional District Judge has found that the same is ex-facie stigmatic and punitive and therefore agreed with the findings of the trial Court holding that the same cannot be sustained.

A reading of the order would show that proceedings of various charge sheets have been recorded wherein allegation of stealing energy, not performing his duties properly, replacing electricity meters with mala fide intention and also shifting of tube-well connections without approval have been levelled. Apart from this, it has been mentioned that these charges reflect upon the integrity of the official and therefore he has been retired. I am in agreement with the findings recorded by the learned Additional District Judge, Gurgaon that the order of pre-mature retirement is stigmatic and therefore the same cannot be sustained.

C.M.No.5982-C of 2006 and [6]

R.S.A.No.2506 of 2006

The question as to when an order of compulsory retirement would be stigmatic was considered by the Supreme Court in Allahabad Bank Officers Association and another v. Allahabad Bank and others, JT 1996(5) SC 275.

The observations in this judgment were reiterated by the Hon'ble Supreme Court in a subsequent judgment of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Others, JT 1999(1) SC 396.

The relevant observations of the Court in the former judgment are as hereunder:- ".......Therefore, compulsory retirement is not considered prima facie and per se a punishment and does not attract the provisions of Article 311. This Court in a series of decisions starting with Shyamlal's case (supra) has held that compulsory retirement is neither a punishment nor a stigma; and, that can now well be regarded as settled legal position. But, if any stigma is attached to the order of compulsory retirement then it may be treated as an order of punishment in reality...."

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7. It will, therefore, be necessary to first consider what is meant by stigma and also the cases wherein the orders have been regarded as stigmatic. Stigma, according to the dictionary meaning, is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant stigma would mean a statement in the order indicating his misconduct or lack of integrity.

C.M.No.5982-C of 2006 and [7]

R.S.A.No.2506 of 2006

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xx xx xx xx xx

17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion of his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement....." A reading of the observations of the Hon'ble Supreme Court reproduced above would make it clear that where the order contains something detracting from the character or reputation of a person or imparts a blemish disrepute, imputation or containing a statement indicating misconduct or lack of integrity, it would amount to stigma. The said observations apply squarely to the facts of the present case and therefore the findings of the learned Additional District Judge, Gurgaon that the order is stigmatic are legal and justified.

For the reasons aforementioned, there is no merit in this appeal and the same is accordingly dismissed in limine.

( P.S.PATWALIA )

July 6, 2006. JUDGE

RC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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