Punjab-Haryana High Court
Inder Singh vs State Of Hy.Etc on 15 December, 2023
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2023:PHHC:161870
Neutral Citation No.2023:PHHC:161870
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
527
CWP-18160-2003 (O&M)
Decided on :15.12.2023
Inder Singh . .Petitioner
Versus
State of Haryana and others . . . Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
PRESENT: Mr. Amit Jain, Sr. Advocate with
Mr. Varun Parkash, Advocate and
Mr. Anupam Mathur, Advocate for the petitioner.
Mr. Tapan Kumar Yadav, DAG, Haryana.
****
HARSIMRAN SINGH SETHI , J. (Oral)
In the present petition, the grievance of petitioner is that the
petitioner was compulsorily retired by the respondents by passing an order
dated 20.08.1996 and at the time when the petitioner was compulsorily
retired his basic pay was fixed at Rs. 3400/-
After the imposition of the punishment of compulsory
retirement, the respondents vide order dated 18.08.1997 (Anneuxre P-5)
reduced the basic pay of the petitioner from Rs.3400/- to Rs. 2800/- which
action was challenged by the petitioner by filing CWP No. 17023 of 1998
which was decided by this Court while passing the order dated 02.11.2000
(Annexure P-6) and the impugned order dated 18.08.1997 was set aside on
the ground that the same was passed by violating the rules of principle of
natural justice as no show cause notice was served or opportunity to defend
was given to the petitioner before reducing his basic pay. However, the
respondents were given the liberty to pass a fresh order in accordance with
law.
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Keeping in view the order passed by this Court dated 02.11.2000
after giving a show cause notice to the petitioner, an order was passed again
reducing the salary of the petitioner from Rs 3400/- to Rs. 2800/-.
The said action was challenged by the petitioner in COCP No.
1421 of 2021 wherein the grievance was raised that a fresh order dated
27.07.2001 was to be passed after giving an opportunity personal hearing to
the petitioner which was not given and hence, the fresh order was passed on
27.07.2001 which is contrary to the direction given by the division Bench of
this Court vide order dated 02.11.2000. The order dated 27.07.2001 was
withdrawn by the State with liberty to pass another fresh order by giving
personal hearing to the petitioner. The relevant order was passed on
10.01.2003 is as under:
"Present : Mr. Arun Jain, Advocate
for the petitioner.
Mr. Rajesh Bhardwaj, AAG, Haryana.
It is made clear that Mr. Budh Ram Fansal,
Retired Director General of Police need not appear.
Grievance of the petitioner is that inspite of
the orders dated 02.11.2000, the petitioner has not been
heard in person, though order dated 27.07.2001 has been
passed pursuant to directions of this Court. Let the
petitioner appear in persons before the Home Secretary,
Haryana on 10.03.2003 when the Home Secretary will
hear the petitioner has passed a fresh order. If the
petitioner is aggrieved of the said order, he will be free
to take his remedies in accordance with law.
Petition is disposed of.
January 10, 2003 Sd/- Adarsh Kumar Goel,
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Judge."
In pursuance to the undertaking given by the State to pass a
fresh order, the petitioner was given personal hearing by Sh. B. D. Dhalia,
the then Secretary to Government of Haryana, Jails Department, Civil
Secretariat, Chandigarh. The petitioner appeared before Sh. B. D. Dhalia and
explained his position in the personal hearing but before any order could be
passed, the said officer was transferred and another officer namely Ms.
Promila Issar joined on the post of Secretary to Government of Haryana, Jails
Department, Civil Secretariat, Chandigarh.
Without giving any fresh personal hearing to the petitioner, Ms.
Promila Issar passed the impugned order reducing the basic pay of the
petitioner from Rs. 3400/- to Rs. 2800/-. Prior to the said impugned order,
some other orders were passed by Ms. Promila Issar copies of which has
been appended as Annexures P-11 to P-17 by which, petitioner was declined
the benefit of crossing of the efficiency bar so that the pay of the petitioner
could be fixed at Rs. 2800/- instead of Rs. 3400/- which was to be adjudged
by the respondents after giving personal hearing to the petitioner.
Learned counsel for the petitioner argues that keeping in view
the order passed by the Contempt Court, the petitioner was to be given
personal hearing and then only a fresh order was to be passed whereas in the
present case, the opportunity of personal hearing was given by the particular
officer and impugned order has been passed by another officer which is not
permissible keeping in view the settled principle of law. Hence, impugned
order Annexure P-10 as well as the others orders passed by the same officer
which have a bearing upon the issue concerned are liable to be set aside.
Learned counsel for the respondents concedes the factum that
as per the order passed by the contempt Court, the petitioner was to be
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given personal hearing and then a fresh order was to be passed as to
whether the basic pay of the petitioner needs to be reduced from Rs. 3400/-
to Rs. 2800/- or not. Further, learned counsel for the respondents submits
that the basic pay of the petitioner from Rs. 3400/- to Rs. 2800/- can only be
reduced in case there is an order declining the crossing of the efficiency bar.
Learned counsel for the respondents concedes the factum that
all these orders have been passed by Ms. Promila Issar and she never gave
personal hearing to the petitioner as the same was given by her predecessor
namely Sh. B. D. Dhalia. Learned counsel for the respondents submits that
the said fact stands conceded in the reply filed.
Learned counsel for the respondents further submits that though
Ms. Promila Issar had not given the personal hearing to the petitioner, but the
impugned orders were passed by her on the basis of record available with
her.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
From the facts which have been stated herein before it is clear
that the order dated 27.07.2001 passed by the respondents was set aside by
the Contempt Court that the same has been passed without giving
opportunity of personal hearing to the petitioner and the respondents were
directed to pass a fresh order after giving due opportunity of personal
hearing to the petitioner, hence, it was incumbent upon the respondents to
give personal hearing to the petitioner before passing the impugned order.
From the facts it is conceded that though the personal hearing
was given to the petitioner after the contempt petition was disposed of and
the order dated 27.07.2001 was withdrawn but the same was given by Mr. B
.D. Dhalia, whereas, the actual order mentioned in the petition which is
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causing prejudice to the petitioner by which his basic pay has been reduced
from Rs. 3400/- to Rs. 2800/- has been passed by another officer namely,
Promila Issar.
It is a settled principle of law that once the petitioner appeared
for personal hearing before a particular officer, the said officer was required
to pass an order and in case, the said officer was transferred the successor in
the office concerned was required to give a fresh personal hearing to the
petitioner before passing an order so that, the said office should know as to
what the petitioner says in his defence in the personal hearing.
The said principle of law has been settled by this Court while
passing order in CWP No. 10626 of 1992 titled as Jagdish Kumar,
Assistance Food & Supplies Officer v. State of Punjab, decided on
05.07.1994.
The relevant paragraph of the judgment is as under:-
"4. First and the fore most argument advanced by
learned counsel for the petitioner is that the order of
punishment is vitiated on account of patent violation
of the rule of natural justice namely audi altrem
partem. The submission is that the disciplinary
authority/punishing authority had not afforded the
real opportunity of hearing to him because the person
who ultimately passed the order of punishment had
not heard him. Shn C.M Chopra argued that Shri
Rajesh Chhabra who had heard the petitioner in
response to the notice issued by him did not pass the
order of punishment because he stood transferred and
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the his successor-in-office Smt. Romila Dubey did not
give any opportunity of personal hearing to the
petitioner. Learned Asstt. Advocate-General
appearing for the respondents submitted that under
the rules there is no provision for giving two personal
hearings to a delinquent before the disciplinary
authority passed an order of punishment and,
therefore, even if Smt. Romila Dubey did not hear the
petitioner personally, the impugned order cannot be
negatived on account of violation of rules of natural
justice. In my opinion, the contention of the learned
counsel for the petitioner merits acceptance. A
perusal of the report submitted by the Inquiry Officer
shows that after considering the evidence produced by
the department, the Inquiry Officer recorded a
categorical finding that the charges levelled against
the petitioner have not been proved. If the disciplinary
authority had accepted the report of the Inquiry
Officer, that would have naturally resulted in
exoneration of the petitioner. In that eventuality the
petitioner could have made no grievance with the
finding recorded by the Inquiry Officer or the action
taken by the disciplinary authority. However, that did
not happen. Apparently the disciplinary authority
disagreed with the Inquiry Report. For this reason it
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called upon the petitioner to appear for personal
hearing. The petitioner was heard by Shri Rajesh
Chhabra. If Shri Chhabra had passed the order of
punishment, perhaps no exception could have been
taken by the petitioner on the ground of violation of
rules of natural justice. However in stead of Mr.
Chhabra his successor-in-office made the order of
punishment and that officer namely Smt. Romila
Dubey did not hear the petitioner. Once the
disciplinary authority decided to comply with the rule
of natural justice, it was not open to it to go back from
it, and it was not open to the successor-in-office of
Shri Chhabra to have ignored the rules of natural
justice and to pass the order of punishment without
giving a personal hearing to the petitioner. Even in
the absence of rules, it is an obligation on the quasi-
judicial authority to comply with the minimum
requirement of priciples of natural justice. Therefore,
before the disciplinary authority could rely on its
disagreement with the report of Inquiry Officer and
pass an order adverse to the petitioner, it was
necessary for it to hear the petitioner. Only an
effective and real opportunity of hearing could have
enabled the petitioner to convince the disciplinary
authority, who made the order of punishment, that the
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finding recorded by the Inquiry Officer was correct.
Thus in passing the order of punishment wihout giving
a personal hearing to the petitioner, the disciplinary
authority will be deemed to have violated the
principles of natural justice, and on that ground its
order is liable to be declared as void. Another
submission advanced by learned counsel for the
petitioner, which too merits acceptance is that the
disciplinary authority has punished the petitioner de
hors the charge levelled against him. A look at the
charge-sheet Annexure P/1 shows that the petitioner
was charged with the allegations of carelessness,
irresponsibilies and not being trust worthy. These
allegations were levelled against the petitioner in the
context of the fact that the petitioner had
recommended the grant of licences to M/s. Sehgal
Sales, Phillaur Punjab Coal Traders, Phillaur, Mehra
Sales, Phillaur and Surinder Coal Traders, Phillaur
without making proper physical verification. In the
statement of allegations, it has been recorded that the
Deputy Director (Fields), Jalandhar had found that
Mehra Sales, Phillaur and Surinder Coal Traders,
Phillaur were benami parties. While the Inquiry
Officer recorded his specific finding that all the four
parties in whose favour recommendations were made
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by the petitioner were not benami, the disciplinary
authority recorded that it was not agreeing with the
report of the Inquiry Officer because the delinquent
had not produced any proof to show that after
obtaining licences the four parties had done right
work. The disciplinery authority has also recorded
that no proof of fortnightly or monthly coal
distribution returns were produced and, therefore,
these four parties have not done properly coal
business after receiving coal licences and it indicates
the involvement of the petitioner. A comprehensive
reading of order of punishment shows that the
disciplinary authority had nowhere found any
infirmity in the report of physical verification or
recommendation made by the petitioner. It has not
recorded a conclusion that the petitioner had
submitted fake report or that his action in making
recommendations in favour of the four parties
suffered from lack of bona fide. May be that after
grant of licences to these four parties, all of them or
any one of them, may have not done their business
properly, but for that, the petitioner could hardly be
blamed. Above all, failure of the parties to submit
fortnightly or monthly coal distribution returns could
not lead to an inference that the petitioner was
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involved with the parties in any manner. Clearly the
disciplinary authority has travelled beyond the scope
of charges in recording a conclusion that the
petitioner was involved with the parties. No such
allegation was levelled against the petitioner namely
that he was involved with the parties. In the absence
of such allegation having been levelled against the
petitioner, he had no opportunity to meet that
allegation. It is trite to say that no man can be
condemned unheard."
Further the judgment in Jagdish Kumar's case (Supra) has
been relied upon by this Court while deciding the same question of law while
passing order in CWP No. 10626 of 1992.
Relying upon the said judgment, another claim before this Court
raised in CWP No. 357 of 2018, titled as Prabh Dayal Gabha v. Principal
Secretary, State of Punjab, Food Civil Supplies and Consumer Affairs
Department and Another, decided on 28.01.2020 has also been decided in
same terms, hence, the order passed by a successor in office who had not
given the personal hearing, was found to be invalid.
Keeping in view the settled principle of law noticed herein
before once, an order is to be passed by the same authority which have
granted the personal hearing to the petitioner and the successor in office
cannot pass the order unitarily without giving opportunity of personal
hearing to the petitioner, the claim of the petitioner qua the impugned order is
covered by the said settled principle of law as concededly in the present case,
the personal hearing to the petitioner was given by Sh. B. D. Dhalia
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whereas the order has been passed by Promila Issar. The said order passed is
contrary to the undertaking given through the Contempt Court hence, the
orders Annexure P-10 to P-17 are set aside, the respondents are directed to
pass a fresh order after giving due opportunity of personal hearing to the
petitioner. The respondents will be at liberty to pass the order qua the
clearing of the efficiency bar by the petitioner also. Let an appropriate
order, if the respondents intend to pass, be passed withing within a period
of eight weeks of the receipt of certified copy of this order.
It is made clear that any benefit for which the petitioner will be
found entitled for will be based upon the fresh order passed by the
respondents.
The present petition is disposed of.
(HARSIMRAN SINGH SETHI)
JUDGE
15.12.2023
Riya
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
Neutral Citation No:=2023:PHHC:161870
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