Cross Objection No. 14-C of 1986 v. Balbir Singh

and in this background he represented his case by approaching the B.D.P.O., Deputy Commissioner, Development Commissioner and Secretary, and also the Development minister and the Chief Minister. He claimed himself to be still in service as no order was passed against him. He also pleaded that in case the department had terminated his services, he was entitled to all the benefits of services as the order so passed would be illegal, null and void besides being ineffective, unconstitutional and in violation of the principle of natural justice. Perusal of the record would show that the respondent- plaintiff would claim that no charge sheet was served to him, no inquiry officer was appointed and he was not informed any date by the inquiry officer to enable him to attend the inquiry, if any held. Thus the respondent-plaintiff claimed that he was condemned unheard. The suit was contested by the appellant-State. Plea of bar and in regard to maintainability of the suit were also raised. The objection that the Deputy Commissioner was not competent to take action was disputed and it was stated that powers had been delegated to the Deputy Commissioner to punish and take disciplinary action against the Gram Sewak through communication dated 05.12.1698. It is accordingly pleaded that all Deputy Commissioners were competent to initiate the disciplinary proceedings. It is also pointed out that the reply filed by the respondent-plaintiff was duly considered and he was thus given punishment of removal from service under the Punjab Civil Service Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 3 (Punishment and Appeal) Rules and he accordingly was removed from service during May, 1972. It is further stated that the respondent-plaintiff had filed a representation on 8.12.1980 after lapse of more than 8 years and in response thereto he was duly informed that his services had been terminated and no action could be taken on his representation. The suit was accordingly tried on the following issues:

1. Whether order of terminating the services of the plaintiff dated 1.6.72 is illegal, null and void as alleged in para 5 of the plaint?OPP.

2. Whether the suit is maintainable in the present form?OPP.

3. Whether the suit is within time?OPP

4. Whether the notice u/s 80 C.P.C. Served on the defendant was legal and valid?OPP.

5. Relief. The trial Court held the removal of the respondent- plaintiff to be legal, valid and also that the suit was barred by time. Aggrieved against this, the respondent-plaintiff filed an appeal and the First Appellate Court reversed the finding of the trial Court. Record would show that the respondent-plaintiff had absented from duty w.e.f. 1.1.1969 and remained absent till

31.08.1970 without any leave. He was accordingly charge sheeted by the Deputy Commissioner for this absence. The allegation is that the appointing authority of the respondent being the Secretary, he could not have been placed under suspension by the Department and also Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 4 could not have been charge sheeted by the Deputy Commissioner. Plea is that it would be in exclusive province of the appointing authority to charge sheet a person, to appoint inquiry officer and to take action. However, in this case, Sub Divisional Magistrate was appointed as inquiry officer by the Deputy Commissioner, which is thus said to be without jurisdiction. It is accordingly stated that the report submitted by such inquiry officer was non est and void. Since the action had been taken against him on the basis of this inquiry, the challenge to the order is thus made on the ground that the entire proceeding got vitiated from the very ab initio. It is seen that the show cause notice in this case had been issued to him by the Development Commissioner and Secretary to Government and Punjab and Development and Panchayat Department and was based on the report submitted by the inquiry officer. The First Appellate Court found that there was no evidence placed on file to show that the Development Commissioner and Secretary had delegated the power to the Deputy Commissioner authorizing him to take disciplinary action against Gram Sewak. Still further, it was pleaded that even if there was such delegation it was beyond the scope of law as appointing authority could not delegate such major function to his subordinate. So far as period of limitation was concerned, it was found that to challenge the void order, the plea of limitation would not get attracted and accordingly the appeal filed the respondent-plaintiff was allowed. He, however, was not held entitled to any pay for the period he had remained out of service by applying the principle of No Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 5 Work No Pay. This part of the order passed by the First Appellate Court is under challenge in the cross objection filed by the respondent-plaintiff. Learned State counsel at the outset would draw my attention to Bajinder Kumar Chopra versus The Food Corporation of India 1998 (3) SLR 268, to urge that unless the rule provide anything to the contrary, any controlling authority, even though subordinate to appointing authority can issue charge sheet to an employee and can initiate disciplinary proceeding subject only to the condition that the order of punishment shall be passed by an authority not below in the rank than the appointing authority. Accordingly, the counsel would contend that Deputy Commissioner though subordinate to the appointing authority could legally initiate the disciplinary proceedings and could issue a charge sheet to the respondent plaintiff as per the law laid down in the case of Bajinder Kumar Chopra (supra). While taking this view, the Division Bench of this Court has relied upon the case of Director General, ESI and another v. T. Abdul Razak, (1996) 4 SCC 78 to observe that the delegation of powers by the Director General to an authority subordinate to it has been upheld by the Supreme Court. The relevant observations of the Hon'ble Supreme Court in this case are as under: “ With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 6 disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority (See: State of M.P. v. Shardul Singh:P.V. Police v. Thavasiappan). The Regional Director being the officer-in-charge of the region, was the controlling authority in respect of the respondents. He could institute the disciplinary proceedings against the respondents even in the absence of specific conferment of a power in that regard.” Reference is also made to the case of Steel Authority of India and another v. Dr. R.K. Diwakar and others, 1975 (5) SLR 234 in regard to the power of controlling authority to issue charge- sheet. The principles as have been culled out from these decisions have also been noticed in this judgment, which are as under:- (i) The power to initiate disciplinary proceedings/action is quite distinct from the power to impose punishment. (ii) The authority competent to impose punishment can delegate its power to initiate disciplinary proceedings unless the rules prohibit such delegation. (iii)Even in the absence of any specific provision, an authority other than the authority competent to impose punishment/appointing authority can initiate disciplinary action against the delinquent employee. (iv)The initiation of proceedings can be invalidated only if Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 7 the rules specifically empower a particular authority to initiate the action and some other authority not empowered to do so institutes the disciplinary action” Accordingly, the view taken by the First Appellate Court to say that the Deputy Commissioner did not have the jurisdiction to issue charge sheet or to initiate the proceedings cannot be sustained. The action taken by the Deputy Commissioner thus cannot be said to be without jurisdiction or suffering from any legal error. The question of law arising in this case in regard to the power of delegation of authority to initiate the disciplinary proceedings or disciplinary action or to issue charge sheet would have to be decided accordingly. The second ground on which the lower Appellate Court has held in favour of the respondent-plaintiff can also not be sustained. The plea of bar of limitation raised was negatived on the ground that there is no limitation within which the void order can be got set aside as the void order remains void and lapse of time does not add to its validity. This view taken by the First Appellate Court again cannot now be sustained, in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab and others versus Gurdev Singh, Ashok Kumar AIR 1991 Supreme Court 2219. The Hon'ble Supreme Court in this case has clearly held that the suit for declaration of an order of dismissal or termination from service passed against the dismissed employee being wrongful, illegal or ultra vires is governed by Article 113 of the limitation Act and thus it Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 8 cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative. Accordingly, this view can also not be sustained. Though the law point is being decided in favour of the appellant-State which would mean that appeal is liable to be allowed and decree showing in favour of the respondent-plaintiff need to be set aside. The view taken by the Lower Appellate Court is thus liable to be set aside and that of the trial Court is liable to be restored. The question in this case would now arise as to what relief can be granted to the respondent-plaintiff. As per the record, the respondent-plaintiff was reinstated in service pursuant to the order passed by the trial Court on 23.04.1985. Both the counsel are not aware whether the arrears of back-wages were paid to the respondent-plaintiff or not. However, it is conceded that he continued to remain in service and ultimately has retired w.e.f. 30.04.1997. Obviously his case for pension must have also been finalized. The respondent-plaintiff is apparently in receipt of pension since the date of his retirement. Therefore, it may not be fair and just to set aside the decree, which stand executed as it would lead to termination of service of respondent-plaintiff. The respondent-plaintiff thereafter has now continued to remain in service for nearly 12 years after the passing of order and in receipt of pension from the last 13 years. To balance the equity, the question of law in this case is answered in favour of the appellant-State but the appeal is dismissed as the decree passed by the Lower Court has been executed. Cross Objection No. 14-C of 1986 and Regular Second Appeal No. 777 of 1986 9 In view what has been observed above, the cross objection filed by the respondent-plaintiff shall stand dismissed. March 08, 2010 ( RANJIT SINGH ) JUDGE