Punjab-Haryana High Court
Managing Director Uttar Haryana ... vs Gordhan on 11 April, 2023
Neutral Citation No:=2023:PHHC:048917
CM No.8765-C of 2022 in/and
RSA No.1375 of 2015 (O&M) Neutral Citation No. 2023:PHHC:048917
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IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH
(102+219) CM No.8765-C of 2022 in/and
RSA No.1375 of 2015 (O&M)
Date of Decision : 11.04.2023
Managing Director Uttar Haryana Bijli Vitran Nigam Ltd. and others
...Appellants
Versus
Gordhan
...Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Shvetanshu Goel, Advocate
for the applicant-respondent.
Mr. Shiva Prashar, Advocate for
Mr. Amar Vivek Aggarwal, Advocate
for the non-applicant/appellants.
***
Harsimran Singh Sethi J. (Oral)
CM No.8765-C of 2022
Application is allowed.
Documents are taken on record.
RSA No.1375 of 2015
In the present case, the challenge is to the judgment and decree of
the trial Court dated 20.12.2013 by which, the suit filed by the respondent-
plaintiff for declaration that the order dated 21.06.2013 passed by appellants-
defendants is illegal, was decreed as well as against the judgment and decree of
the lower Appellate Court dated 19.11.2014 by which appeal filed by the
appellants was dismissed.
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Neutral Citation No:=2023:PHHC:048917
CM No.8765-C of 2022 in/and
RSA No.1375 of 2015 (O&M) Neutral Citation No. 2023:PHHC:048917
By the order dated 21.06.2013, the period of suspension of the
respondent-plaintiff from 28.06.1998 to 30.09.1997 and thereafter once again
from 15.03.2001 to 25.01.2010 was treated to be the leave of kind due keeping in
view the fact that the respondent-plaintiff was facing FIR No.199 dated
14.09.1996.
Learned counsel for the appellants submits that departmental
proceedings were initiated against the respondent-plaintiff after acquittal which
was permissible under law and in the said disciplinary proceedings, he was
exonerated by the Enquiry Officer only on the ground that the amount embezzled
stand deposited. As the respondent-plaintiff had retired from service on
31.10.2012 and keeping in view the fact that the embezzled amount was
deposited by the respondent-plaintiff, no further action was taken and the
suspension period was treated to be as leave of kind due, which was perfectly
valid and legal and both the Courts below ignored the fact that the amount
embezzled was deposited by the respondent-plaintiff, which amounts to
admission of guilt hence, the appellants were well within their right to treat the
period of suspension as leave of kind due.
Learned counsel for the respondents argues that as the respondent-
plaintiff was acquitted by the competent Court of Law vide judgment and decree
dated 18.08.2009 (Annexure P-1) in the FIR No.199 dated 14.09.1996, he was
entitled for all the benefits for the suspension period whereas the same were
denied to the respondent-plaintiff by the order dated 21.06.2013 as the said
suspension period was not treated as duty period but was treated as leave of kind
due.
Learned counsel for the respondent-plaintiff further argues that
whenever the issue with regard to the suspension period is to be decided, a show
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Neutral Citation No:=2023:PHHC:048917
CM No.8765-C of 2022 in/and
RSA No.1375 of 2015 (O&M) Neutral Citation No. 2023:PHHC:048917
cause notice needs to be issued to the employee concerned so as to consider his
objections to the proposal of the department and in the present case concededly,
no show cause notice was issued prior to the issuance of the impugned order,
which itself renders the order dated 21.06.2013 illegal and arbitrary.
Learned counsel for the respondent-plaintiff further submits that
though certain amount was deposited but once the respondent-plaintiff was
exonerated by the Criminal Court as well as by the Enquiry Officer, the show
cause notice should have been issued to the respondent-plaintiff before passing
the impugned order so as to allow the employee to raise objection to the said
notice for the consideration of the department while forming the opinion as to
whether respondent-plaintiff is entitled for the benefit of suspension period or
not.
I have heard the learned counsel for the parties and have gone
through the record of the case with their able assistance.
In the present case, it is a conceded position that before passing the
impugned order dated 21.06.2013 no show cause notice was issued, though under
the Rules governing the service, any order in respect of deciding the suspension
period can be passed only after giving due opportunity to the delinquent
concerned. Hence, the order dated 21.06.2013 cannot be sustained in the eyes of
law having been passed without following the process mentioned in the Rules
governing the service.
Once the impugned order is being set aside on the basis of
technicality of not observing the Rules governing service, due opportunity needs
to be given to the department to pass fresh order in accordance with law by
complying with the requirement of Rules in question. The said question of law
has already been decided by the Hon'ble Supreme Court of India in Civil Appeal
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Neutral Citation No:=2023:PHHC:048917
CM No.8765-C of 2022 in/and
RSA No.1375 of 2015 (O&M) Neutral Citation No. 2023:PHHC:048917
No.6776 of 2022, titled as The Inspector of Panchayats and District Collector,
Salem Vs. S. Arichandran and others, dated 23.09.2022. The relevant para is
reproduced as under:
6.2. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and as the order of
dismissal has been set aside on the ground that the same was in
breach of principles of Natural Justice, the High Court ought to have
remitted the case concerned to the Disciplinary Authority to conduct
the inquiry from the point that it stood vitiated and to conclude the
same after furnishing a copy of the Inquiry Report to the delinquent
and to give opportunity to the delinquent to submit his comments on
the Inquiry Officer's Report."
Hence, setting aside of the order dated 21.06.2013 is upheld but with
the liberty to the department to pass fresh order in accordance with law after
giving due opportunity to the respondent-plaintiff about the objection, if any, to
be raised qua the proposal as to how the suspension period is to be treated.
As the respondent-plaintiff has already retired about a decade ago, it
will be in the fitness of things that fresh order will be passed within a period of
one month from the date of receipt of copy of this order. It is made clear that
benefits, if any, for which the respondent-plaintiff became entitled will depend
upon the fresh order to be passed. The authorities are directed to keep in mind the
fact that in the criminal proceedings as well as departmental proceedings, the
respondent-plaintiff was exonerated.
The present appeal is disposed of in the above terms.
CM No.3886-C of 2015
Application is also disposed of.
April 11, 2023 (HARSIMRAN SINGH SETHI)
jt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No Neutral Citation No:=2023:PHHC:048917
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