The State of Punjab & Anr. v. Amrik Singh

the trial Court as well as by the first Appellate Court whereby the punishment awarded to the respondent-plaintiff was set-aside. The respondent-plaintiff was employed as a Bus Conductor in Muktsar Depot of Punjab Roadways. Through an order dated 11.2.1982, his three annual increments with cumulative effect were stopped by the General Manager, Punjab Roadways, Muktsar. Through another Regular Second Appeal No.2334 of 1990 : 2 : order dated 21.2.1985, three more annual increments of the respondent-plaintiff were stopped and these too were with cumulative effect. Aggrieved against these punishments, respondent-plaintiff had filed a suit pleading that these orders were illegal and void as having been passed without following the due procedure prescribed under the rules. The appellant-State appeared and filed a written statement raising an objection that the suit was barred by limitation. On merits, it was pleaded that the order was perfectly legal and there was no defect therein. On the basis of pleadings, following issues were framed:- “1. Whether the impugned orders dated 21.2.1985 and

12.2.1981 are liable to be set aside being illegal, non- speaking, ultra vires etc., on the grounds mentioned in the plaint of the suit? OPP.

2. Whether the suit is within limitation? OPP

3. Relief. Both the issues were decided in favour of the respondent-plaintiff and the suit was decreed. State filed an appeal against the same, which was also dismissed. The State has accordingly filed this Regular Second Appeal. State counsel has made two-fold submission before me. The counsel would first challenge the view taken by the courts below that the enquiry held was illegal on the ground that provisions of Rule 8(11) of the Punjab Civil Services (Punishment & Appeal) Rules, 1970 (for short “the Rules”) were not followed. As per the State counsel, this finding is not justified. The courts have held that the Regular Second Appeal No.2334 of 1990 : 3 : procedure as adopted by the Enquiry Officer was in flagrant violation of Rule 8(11) of the Rules. This rule reads as under:- “The inquiring authority shall if the Government employee fails to appear within the specified time or refuses or omits to plead, require the presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government employee may for the purpose of preparing his defence:- (i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents, specified in the list referred to in Sub-rule (3); (ii) submit a list of witnesses to be examined on his behalf; (iii) apply orally or in writing for the supply of copies of the statements, if any recorded, of witness mentioned in the list referred to in Sub-rule (3), in which case the inquiring authority shall furnish to him such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the punishing authority; and (iv) give a notice within ten days of the order or within such further time not exceeding ten days, as the inquiring authority may allow for the discovery or production of any document which is in the possession Regular Second Appeal No.2334 of 1990 : 4 : of government, but not mentioned in the list referred to in Sub-rule (3) and the Government employee shall also indicate the relevance of the document required by him to be discovered or produced by the Government.” Plea is that the Enquiry Officer after recording the plea of not guilty, was required to postpone the enquiry to a date not more than 30 days for recording the evidence. It is viewed that this adjournment is primary to enable the delinquent employee to inspect the relevant record and to prepare his defence. This provision was considered and held to be mandatory in nature in S.D.Bhardwaj Vs. Union of India and others, 1983(1) S.L.R.32. Similar view was also taken by Division Bench of the Assam & Nagaland High Court in the case reported as Anil Kumar Dass Vs. Senior Superintendent of Post Offices and others, AIR 1969 Assam & Nagaland 99. The perusal of S.D.Bhardwaj's case (supra) would show that the provisions of Rule 14 (11) of the Central Civil Services (Control and Appeal) Rules, 1965 were under consideration in this case. This rule of the Central Civil Services Rules is para-materia to Rule 8(11) of the Rules. Rule 14 (11) of the Central Civil Services Rules reads as under:- “(11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date nor exceeding thirty days; after recording an order Regular Second Appeal No.2334 of 1990 : 5 : that the Government servant may, for the purpose preparing his defence; (i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3); (ii) submit a list of witnesses to be examined on his behalf; (iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3)”. Having considered the rule, the Division Bench has held that this rule is mandatory and it not a mere formality. The reasoning in this regard is as under:- “This procedure of issuing a letter, copy of which is Annexure G-1, is against Rules of 1965, and the principles of natural justice. Under rule 14(11), the prosecution witnesses are to be examined and cross- examined first. The Inquiry Officer cannot ask the appellant to keep his witnesses ready on these days i.e. 14-3-67 and 15-3-67 as the prosecution evidence was still to be recorded and was actually recorded on 14-3-67. After the close of the prosecution evidence the appellant was required to state his defence orally or in writing and Regular Second Appeal No.2334 of 1990 : 6 : thereafter his evidence was to be recorded. The enquiry report (Annexure F) reveals that the prosecution evidence was recorded on 14-3-67 and thereafter on 3-4-67 the statement of the appellant was recorded. The whole procedure followed by the Inquiry Officer thus is not in accordance with rule 14(11) and rule 14(16). The compliance with the procedure as laid down in rule 14(11) of Rules of 1965 is not a mere formality. This rule gives an opportunity to a Government servant to scrutinize all the prosecution evidence which is likely to be produced against him and it further gives him an opportunity to prepare his defence after looking into the other records which are in possession of the Government. Non- compliance with the provisions of this rule is likely to cause prejudice to the case of the Government servant and it will amount to denial of proper opportunity to him to defend his case.” Though some submissions are made by the counsel for the appellants that Rule 8(11) operates in different context and the adjournment is required to be granted where no plea is offered or where an employee omits to plead, then there would be need to adjourn the case. However, it can equally be viewed that a delinquent employee would need time to prepare his defence once he has pleaded to the charge. Fairness may require that he be given time to marshal his defence and so the requirement of adjournment. Time may be needed to enable him to prepare his case and to understand what are the allegations being made and how they are going to be Regular Second Appeal No.2334 of 1990 : 7 : supported. In this case, the enquiry was held on the same very day when the delinquent employee appeared and in a way it cannot be said that he suffered a prejudice in the manner in which the enquiry was held and completed on the same very day. Subsequently, another prejudice appears to have been caused to the case of the respondent-plaintiff when one witness, namely, Baldev Singh was recorded without associating the respondent-plaintiff. Though it may not be a de-novo enquiry but still need to associate the respondent-plaintiff could not be wished away. That having not been done, the respondent-plaintiff suffered prejudice on this count as well. The view taken by the first Appellate Court that the enquiry was held in violation of the procedure cannot be faulted. There is, however, substance in the submission made by the State counsel that the view taken by the courts in regard to the plea of suit being time barred has not been properly dealt with. This plea was ignored on the ground that void orders are no orders in the eyes of law and, thus, no limitation would apply to challenge such void orders. In support, reference was made to the cases of State of Punjab Vs. Ajit Singh, 1988(1) S.L.R. 96 and State of Punjab Vs. Malkiat Chand, 1988(4) S.L.R. 243. The view expressed in these cases is no more a good law as per the law laid down by the Hon'ble Supreme Court in the case of State of Punjab Vs. Gurdev Singh, 1991(3) S.C.T. 488. The judgments in the cases of Ajit Singh and Malkiat Chand (supra) were subsequently, however, were over-ruled Regular Second Appeal No.2334 of 1990 : 8 : in Gurdev Singh's case (supra). It has positively been held that to challenge the void orders, limitation prescribed under the law would be attracted. This finding of the first Appellate Court that the void orders could be challenged without the plea of limitation, thus, cannot be sustained. The finding to this an extent is set-aside. In view of the fact that the punishment was awarded to the respondent-plaintiff in violation of the procedure, I am not inclined to interfere in the case as relief was granted to the respondent-plaintiff long ago and to set it aside at this stage on the ground that suit was barred may not sound fair. The Regular Second Appeal, therefore, is dismissed. May 25, 2010 ramesh ( RANJIT SINGH ) JUDGE