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V.S.JOON versus STATE OF HARYANA & ORS

High Court of Punjab and Haryana, Chandigarh

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V.S.Joon v. State of Haryana & Ors - CWP-13759-2003 [2006] RD-P&H 3999 (12 July 2006)

CWP No.13759 of 2003 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P.No.13759 of 2003

Date of Decision: MAY 31, 2006

V.S.Joon ........Petitioner

v.

State of Haryana and others .......Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Prem Singh Kadian, Advocate

for the petitioner.

Mr.Suresh Monga, Sr.DAG, Haryana

for the respondents.

***

P.S.PATWALIA, J.

In this writ petition the petitioner is aggrieved against the action of the respondent-State in not promoting him to the post of Joint State Transport Controller with effect from 1.1.2000 and in not releasing his retiral benefits as a consequence of his superannuation on 30.11.2002. The necessary facts are as hereunder:-

Petitioner joined service in the Transport Department, Haryana as Station Service Incharge on 18.6.1971. He earned promotions in due course and ultimately on 15.11.1998 was promoted as a General Manager with effect from the year 1983. He was due for promotion as Joint State Transport Controller with effect from 1.1.2000 but the petitioner alleges that he was denied the same on account of mala fide intention of Shri R.N.Parasher the then Secretary and Commissioner to Government Haryana, Transport Department who has been CWP No.13759 of 2003 [2]

impleaded as respondent No.2 in this writ petition.

A charge sheet was served on the petitioner on 1.12.1994 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter to be referred as, `1987 Rules'). The petitioner submitted his reply to the same and after an enquiry, the Enquiry Officer concluded in 1999 that allegations against the petitioner were not proved. Rather than dropping the enquiry proceedings, respondent No.2, according to the petitioner, intentionally did not pass any order.

This is for the reason that he was annoyed with the petitioner as the petitioner had failed to accommodate some of his nominees in service and had therefore decided to teach the petitioner a lesson. Since the petitioner's promotion was due on 1.1.2000, the matter was kept pending. It was only after the petitioner's retirement that a de novo enquiry was got conducted on the same charges by respondent No.2.

However, even then the charge could not be proved. Inspite of this by an order dated 9.12.2002 after noticing that the charge was not proved against the petitioner a punishment of censure was imposed while dropping the matter.

The petitioner further contends that another charge sheet dated 15.6.1990 was pending against him. Here also the Enquiry Officer had given a finding holding him not guilty in the year 1999-2000. Yet respondent No.2 did not pass any orders dropping these proceedings and by keeping them pending, petitioner's promotion was stalled by him. The proceedings were ultimately dropped by him only on 12.12.2002 after the petitioner had retired.

To harass the petitioner another charge sheet was served upon him on 5.4.2002 which related to auction of aluminium scrap in 1997. Inspite of the fact that a preliminary enquiry had been conducted which was favourable to the petitioner, yet a charge sheet was served. However, since there was nothing in the matter this charge sheet was also dropped after the petitioner's retirement on 5.12.2002.

Not satisfied with the above, the petitioner contends, respondent CWP No.13759 of 2003 [3]

No.2 served yet another charge sheet on him on 15.2.2002. This charge sheet was under Rule 7 of 1987 Rules for imposing major penalty. The allegations in the charge sheet were relating to an accident of Haryana Roadways bus on 16.3.1991.

It was stated that while the petitioner was posted as General Manager, Haryana Roadways, Sirsa from August, 1990 to February, 1991, due to his inaction the buses of that depot had remained without insurance from 19.2.1991 to 19.3.1991 and it was during this period that the accident had taken place. The Motor Accident Claims Tribunal ultimately awarded a sum of Rs.11,15,565/- which the State Government had to pay as there was no insurance cover of the bus.

Therefore the petitioner was charged with negligence. The petitioner contends that even though the charge sheet was for major penalty, yet after his reply was received respondent No.2 converted the proceedings into one for minor penalty under Rule 8 of 1987 Rules and imposed recovery of 2/3rd amount of

compensation amounting to Rs.7,43,710/- from the petitioner. The petitioner submits that this was again done by respondent No.2 without any material and without trying to ascertain who was liable for the same. Petitioner states that since respondent No.2 knew that if the enquiry was conducted in all probability the charge would not have been proved against him, respondent No.2 deliberately converted the proceedings into one for minor penalty and imposed the recovery.

Against this order of recovery, petitioner filed an appeal. The appeal was ultimately decided by an order dated 12.5.2003 again by respondent No.2.

Now respondent No.2 took the view that only 10 per cent of the amount of Rs.7,43,710/- earlier ordered against the petitioner should be recovered and whimsically reduced the recovery to Rs.74,371/-. Petitioner submits that this shows that all actions taken against him were purely due to his malice and mala fide.

Not being satisfied that all the enquiries mentioned hereinabove, the petitioner states that respondent No.2 to create more allegations against him CWP No.13759 of 2003 [4]

searched out an old award of the year 1994 where the Labour Court, Hisar had reinstated an employee whose service had been terminated by the petitioner as General Manager, Haryana Roadways, Bhiwani on the basis of an enquiry held against him. He served another charge sheet on the petitioner on 3.1.2002 alleging that the petitioner had passed the order of termination of the workman by taking into consideration the matter which was not subject matter of the charge sheet leading to the passing of an award dated 6.10.1994. It was alleged that due to negligence of the petitioner, the workman had to be paid Rs.56,478.55 paise as back wages. This according to the charge sheet was due to the negligence and arbitrary action of the petitioner and hence the amount should be recovered from the petitioner. Ultimately on the basis of the record, respondent No.2 passed an order on 24.5.2002 ordering recovery of the aforesaid amount from the petitioner.

Petitioner contends that as a result of these five charge sheets neither the petitioner was promoted as Joint State Transport Controller in January, 2000 nor were his retiral dues paid to him on retirement on 30.11.2002.

A combined written statement has been filed on behalf of the State of Haryana, the Transport Commissioner, Haryana and Shri R.N.Parasher impleaded by name as respondent No.2 by one Shri M.S.Malik, Under Secretary to Government Haryana, Transport Department. Inspite of the fact that Shri R.N.Parasher was impleaded as respondent in this petition by name and serious allegations of mala fide have been levelled by the petitioner against him, he has not filed any reply or affidavit contradicting or denying the same.

In the written statement it has been stated that since all disciplinary proceedings were concluded against the petitioner by June, 2003 he has since been paid all the pensionary benefits. So far as the grant of promotion is concerned, it is stated that on 1.1.2000 petitioner was facing two charge sheets under Rules 7 and 8 of 1987 Rules. He was therefore not considered for promotion due to pendency of those charge sheets. Thereafter two more charge sheets under Rule 7 and one CWP No.13759 of 2003 [5]

under Rule 8 of 1987 Rules were served upon the petitioner for various acts of omission and commission. The position has been summarised by the respondents as hereunder:-

i) Charge sheet dated 05.06.1990 in view of retirement of the petitioner taking a lenient view, proceedings were dropped vide orders dated 12.12.2002.

ii) Charge sheet dated 01.12.1994 taking a lenient view punishment of censure was inflicted upon the petitioner and thereafter matter was dropped vide orders dated 09.12.2002.

iii)Charge sheet dated 15.02.2002 recovery of Rs.7,43,710/- was imposed but after reconsidering the matter and taking a lenient view on compassionate grounds, the punishment of recovery was reduced to Rs.74,371/- vide orders dated 05.06.2003.

iv)Charge sheet dated 03.01.2002 punishment of recovery of Rs.56,478.55 paise was imposed vide orders dated 24.05.2002.

v) Charge sheet dated 05.04.2002 taking a lenient view the matter was dropped vide orders dated 18.11.2002.

It is stated that since the petitioner was awarded punishment in two cases, he was not entitled for promotion as Joint State Transport Controller.

Petitioner has filed a replication in which while reiterating the averments made in the petition has also stated that an amount of Rs.1,30,000/- has been withheld from his death-cum-gratuity. This is due to the recoveries ordered against the petitioner on conclusion of two disciplinary proceedings as mentioned hereinabove.

I have heard Mr.Prem Singh Kadian, learned counsel appearing for the petitioner and Mr.Suresh Monga, Senior Deputy Advocate General, Haryana for the respondents.

In this petition petitioner has made allegations against respondent CWP No.13759 of 2003 [6]

No.2 the then Commissioner and Secretary to the effect that he had deliberately kept the two charge sheets issued in 1990 and 1994 alive against the petitioner upto his retirement so that his claim for promotion could be frustrated. Petitioner has further contended that the charge sheet dated 15.2.2002 related to an incident of 11 years ago. It had deliberately been dug up to harass the petitioner. Similarly the charge sheet of 3.1.2002 also related to an award passed in the year 1994. It was also deliberately foisted on the petitioner to harm his claim for promotion and to deny him his pensionary benefits. Inspite of the fact that serious allegations have been levelled against respondent No.2, respondent No.2 has not denied the same. Even otherwise a reading of the facts stated in the petition do bring out that respondent No.2 was having a bias against the petitioner and was deliberately collecting material against the petitioner so as to ensure that his promotion was denied and retiral benefits are not released on retirement. I am of the opinion therefore that the orders passed by respondent No.2 imposing censure vide order dated 9.12.2002 and ordering recovery dated 5.6.2003 and 24.5.2003 are vitiated due to the bias of respondent No.2. Inspite of this finding, I am also of the opinion that if each of these charges is examined independently in law and on merits, they cannot be sustained.

First of all the charge sheet dated 6.2.2002 was issued under Rule 7 of 1987 Rules for imposition of major penalty. The same related to the charge against the petitioner for not getting the buses insured for a period of one month from 19.2.1991 to 19.3.1991 as a result of which the State of Haryana had to pay Rs.11,15,565/- as awarded by the Motor Accident Claims Tribunal. The petitioner filed a reply to the said charge sheet denying the charges. However, without holding an enquiry respondent No.2 converted the major penalty into minor penalty. A Full Bench of this Court in Dr.K.G.Tiwari v. State of Haryana, 2002 (3) RSJ 296 has taken the view that once a charge sheet is issued for major penalty, then the procedure prescribed under the 1987 Rules for major penalty has CWP No.13759 of 2003 [7]

to be adopted and completed even if minor penalty is to be imposed. The conclusion arrived at by the Full Bench is as hereunder:- "We hold that once the chargesheet is issued under Rule 7 of the Rules 1987 for the imposition of a major penalty, which envisages holding of a regular departmental enquiry, the disciplinary authority cannot by merely examining the reply to the chargesheet, inflict even a minor punishment without holding a complete departmental enquiry."

In the present case also while the charge sheet was issued for imposition of a major penalty, ultimately only a minor penalty was imposed. This is clearly against the judgment rendered by the Full Bench quoted hereinabove. The order imposing the recovery dated 10.7.2002 and the order passed in appeal dated 12.5.2003 are therefore liable to be set aside on this ground alone.

Even apart from this a reading of order of recovery dated 10.7.2002 shows that initially 2/3rd

amount of Rs.11.15 lacs being Rs.7.43 lacs was ordered to be recovered. Thereafter, on 12.5.2003 respondent No.2 reduced it to 10 per cent.

Under what circumstances and on what basis it was concluded that only the petitioner and one Shri S.C.Rana were responsible for the loss caused to the State Government is not discernible from the order. Moreover if at all they were actually responsible, then how and under what circumstances the loss was reduced by 90 per cent in appeal by respondent No.2 himself is not discernible. It is quite obvious that orders were made by respondent No.2 whimsically. The assertion of the petitioner that respondent No.2 did not hold an enquiry as he was apprehensive that in the enquiry the charge would have in all probability not been proved also cannot be disbelieved. Thus, examined independently also the orders dated 10.7.2002 and 12.5.2003 ultimately ordering the recovery of Rs.74,371/- from the petitioner are totally arbitrary, against law and cannot be sustained. The orders Annexures P-7 and P-11 are therefore held to be illegal and quashed.

CWP No.13759 of 2003 [8]

In so far as the charge sheet dated 3.1.2002 is concerned, the same relates to the recovery of Rs.56,478.55 paise paid as back wages in pursuance to the award dated 6.10.1994 whereby termination of workman Randhir Singh was set aside. A reading of the award would show that the Labour Court concluded that domestic enquiry held against the workman was just and fair. The petitioner while passing of the order of dismissal had taken into account the fact that even another case of embezzlement was pending against the workman and hence the workman did not deserve leniency and ordered his dismissal. The Labour Court concluded that this was an extraneous factor taken into account and hence the dismissal should be set aside and converted the punishment into stoppage of five increments with cumulative effect. The petitioner has asserted in the petition that the award was implemented and no further appeal etc. was filed. I am of the opinion that the petitioner cannot be held to be remiss or negligent in this case. As a General Manager in the bona fide discharge of his duties he passed the orders.

The Labour Court ultimately concluded that the punishment of dismissal was not justified and replaced to stoppage of five increments with cumulative effect. 50% back wages were also awarded to the workman. This was not a case where the petitioner should have been burdened with the back wage as there was nothing special attributable to the petitioner. He had passed the order in bona fide discharge of his official duty. Still further it cannot also be lost sight of the fact that the charge sheet was issued in 2002 after about 8 years. It appears that the matter had been dug out to harm the petitioner. Thus the order dated 24.5.2002 ordering recovery of Rs.56,478.55 is also held to be illegal and is quashed.

In so far as the charge sheet of 1.12.1994 is concerned the petitioner has claimed that the matter was enquired into by the Enquiry Officer who submitted a report in the year 1999 holding that the allegations were not proved.

Inspite of that respondent No.2 kept the matter pending till the petitioner's retirement. After the petitioner retired respondent No.2 ordered de novo enquiry CWP No.13759 of 2003 [9]

for the same charges. Again the charge was not proved against the petitioner by the Enquiry Officer. Under these circumstances if at all respondent No.2 had to disagree with the findings of the Enquiry Officer, it was incumbent upon him to prepare a note of disagreement and served the same upon the petitioner. After getting the petitioner's reply only then an order could have been made on the aforesaid enquiry report. This is the settled procedure to be followed in such cases in consonance with the principles of natural justice. However, a reading of the order dated 9.12.2002 shows that no such procedure was followed. The same is therefore violative of the principles of natural justice. Even apart from this, a reading of the order shows that absolutely no reasons are given as to why respondent No.2 had disagreed with the Enquiry Officer and imposed punishment of censure. In fact the order is contradictory. On the one hand, it is stated that taking a lenient view the matter is being dropped and yet on the other hand punishment of censure was imposed. The aforesaid order therefore is self contradictory and totally arbitrary. Apart from this, it has also been passed in violation of the principles of natural justice. The same is therefore set aside.

As a result of my findings, all three orders vide which punishments have been imposed are illegal and are set aside. The other two charge sheets already stand dropped. Thus, there is no now no impediment for considering the petitioner's claim for promotion with effect from 1.1.2000.

In the facts and circumstances of this case, I am also of the opinion that the petitioner is entitled to interest on delayed payment of his pension. The petitioner had retired on 30.11.2002. Even though pension should have been paid to him shortly after his retirement but yet in any case his case for pension should have been finalised in six months. Therefore, the petitioner will be entitled to 9% interest on the delayed payment of pension from six months after his retirement.

The petitioner will be, therefore, entitled to 9% interest on the delayed payment from 1.6.2003 upto the dates the amounts were actually released to him.

CWP No.13759 of 2003 [10]

In view of the conclusions reached by me hereinabove, the orders Annexure P-1 dated 9.12.2002 imposing penalty of censure, Annexures P-7 and P-11, dated 10.7.2002 and 12.5.2003 (ultimately ordering recovery of Rs.74,371/-) and order Annexure P-10, dated 24.5.2002 (ordering recovery of Rs.56,478.55) are quashed. Resultantly, these amounts already recovered from the death-cum- gratuity of the petitioner are directed to be released to the petitioner along with interest at the rate of 9% per annum computed from 1.6.2003 onwards. The respondents are further directed to consider the petitioner for promotion as Joint State Transport Controller w.e.f. 1.1.2000 i.e. the due date. The petitioner is also entitled to interest on delayed payments computed at the rate of 9% per annum from 1.6.2003 onwards. Let these directions be complied with within a period of three months from the date of receipt of a copy of this judgment.

The writ petition is allowed in the aforementioned terms with costs assessed at Rs.5,000/-.

( P.S.PATWALIA )

May 31 , 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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