Punjab-Haryana High Court
Gs Sidhu vs State Of Punjab And Others on 4 July, 2023
Neutral Citation No:=2023:PHHC:085862
C.W.P.No.24046 of 2018(O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P.No.24046 of 2018(O&M)
Reserved on: 10.04.2023
Date of decision:04th July, 2023
G.S.Sidhu ..Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr.Prateek Gupta, Advocate
for the petitioner.
Mr. Navdeep Chhabra, Sr. DAG, Punjab.
ANIL KSHETARPAL, J
1. The petitioner assails the correctness of order of dismissal from
service passed by the government (Additional Chief Secretary, Taxation) on
21.08.2018. The petitioner was served the summary of allegations which
read as under:-
"1. Remaining absent from office since 12.10.2015 till
now without sanction of leave.
2. For not responding to the letters issued by the office
with regard to remaining absent and for rejection of
leave."
2. It is significant to note here that the petitioner was previously
charged with misconduct, which resulted in his dismissal from service. It
was alleged that the petitioner committed negligence, omission and
carelessness in the performance of his duties. A letter of the Food
Corporation of India was found to have been fabricated by the petitioner
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while making assessment of M/s Shri Gobind Rice Mills. However, in the
Civil Writ Petition No.21052 of 2017, decided on 1.09.2018, the order of
dismissal from service was set aside as the said order was suffering from
various procedural irregularities. The judgment passed by the learned Single
Judge was upheld by the Division Bench.
3. To understand the controversy involved in the present case, the
relevant facts are being noticed here.
4. The repeated efforts to serve the charge sheet on the petitioner
failed. Due to that a constable was deputed to serve the petitioner
personally. He vide report dated 20.7.2016 found that the house is locked
and he affixed the photocopy of the letter containing charges on the gate of
the petitioner's house.
5. In absence of any reply from the petitioner, an Inquiry Officer
was appointed. During pendency of the said inquiry, the presenting officer
requested for the publication notice in the newspaper to summon the
petitioner. Thereafter, the petitioner entered appearance before the Inquiry
Officer on 23.9.2016. On his appearance, he was directed to appear again on
29.09.2016. On 29.09.2016, the petitioner suffered voluntary statement
admitting the charges levelled against him. In the inquiry report, the
following observations have been made by the Inquiry Officer while
submitting the report:-
"On 29.9.2016 Shri Gurtej Singh C.O made a voluntary
statement of admitting the charges labelled against him.
Being seriously ill, he was medically advised to take rest.
He produced photocopies of medical advice in this
regard. The same was also submitted by him to the
Controlling Officer. The leave was rejected on the plea
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that it had not been submitted on a proper Performa.
This rejection letter sent to him by the department at his
address was not received by him, being admitted in
hospital. He assured that he would not commit such a
mistake in future. He further stated that he was ready to
accept any punishment given by the department but
requested that while deciding the punishment his medical
condition during the period of his absence may kindly be
kept in mind. His statement was cross-examined by P.0.
He stated that he had no malafide intention or vested
interest in not attending the office Thereafter, P.O gave
in writing that in view of the statement of charged officer,
admitting the charges, she did not want to produce any
more documents or any witness to prove the charges. She
then closed evidence."
6. The petitioner was then issued a second show cause notice
along with the copy of the report on 22.11.2016. However, no reply was
filed within a period of three weeks. Ultimately, in consultation with the
Punjab Public Service Commission, the impugned order that imposed the
punishment of dismissal of service was passed subject to the previous order
of punishment of dismissal. Challenging the aforesaid order, the present
writ petition has been filed.
7. This Bench has heard the learned counsels representing the
parties at length and with their able assistance perused the paper book.
8. The learned counsel representing the petitioner has filed the
following written submissions:-
"1. The impugned order dated 21.02.2018 (Annexure P-
11) has been passed by the Respondent without applying
its mind and no reasons were recorded for imposing the
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harsh and grave punishment of dismissal. The said
dismissal order was passed without making any reference
to the contentions of the petitioner which were raised
during the departmental inquiry. The petitioner admitted
the charges levelled against him but he also gave
explanation regarding his absence from duty due to
serious illness as he was advised to take rest and
photocopies of medical advice was also produced before
the Inquiry Officer. The leave of the petitioner was
rejected on the ground that it is not submitted on a
proper proforma and the petitioner also submitted that
he had no mala fide intention to be absent without
reason. The Inquiry Officer on the admission of the
petitioner held that the charges stood proved against
him. Thereafter, the competent authority gave its decision
on the enquiry report and the petitioner was ordered to
be dismissed. The punishment of dismissal imposed upon
the petitioner is disproportionate and did not take into
consideration the long service of the petitioner The
authorities proceeded with pre-determined mind and the
medical record provided by the Petitioner was not
considered. It is pertinent to mention herein that the
medical record of the Petitioner was never disputed by
the respondents.
2. That as per the impugned order dated 21.02.2018,
the Department sent the inquiry report to Punjab Public
Service Commission (PPSC) on 05.07.2017 and
thereafter on 06.02.2018 sanction was granted by PPSC.
It is well-settled principle of law that the advice of the
PPSC had to be taken into consideration before imposing
the order of dismissal on the petitioner and such advise
should also be put to the employer before passing the
order of penalty. But in the present case the procedure as
prescribed under Rule 9(4) of the Punishment and Appeal
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Rules, 1970 was not followed. In other words, the PPSC
only did an empty formality as such and the petitioner
was denied an opportunity to defend his case and make
representation to the Commission, PPSC. A prior
approval of PPSC is required before dismissal order can
be passed and the authorities had passed the dismissal
order with a pre-determined mind and as the
approval/sanction was obtained subsequently, it will
vitiate the dismissal order. This issue has been dealt by
the Hon'ble Division Bench of this Hon'ble Court in
Urvashi Goel Vs. State of Punjab and Others (Doc. ID-
2020963). Further, reliance has been placed on Dr.
Vijay Khariwal Vs. State of Punjab, 2013 (4) SCT-302,
S.NNarula Vs. Union of India, 2011 (4) SCC-591 and
Union of India VsTulsiram Patel (1985) 3 SCC 398.
The impugned order has been passed with clear
violations of the principle of natural justice.
3. That the dismissal order dated 21.02.2018 was passed
when the petitioner was already dismissed from service
in another separate inquiry vide an order dated
29.08.2016 which was also passed by the Department
just two days before the date of superannuation of the
petitioner. The employee who is dismissed from service is
not on-roll of the employer and he cannot be dismissed
again. There cannot be two dismissal orders and
therefore, the impugned order is liable to be set aside on
this ground alone. This issue has been dealt by the
Hon'ble Supreme Court in Rajasthan Housing Board
VsRoshan Lal Saini and Ors. (2020) 17 SCC 438.
4. That the Rule 5 of the 1970, Rules provides for minor
and major penalties and Clause (ix) provides for
dismissal from service, which is a major penalty. Rule 8
provides procedure for imposing major penalties and
Rule 9 provides for the procedure to take action on the
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inquiry report. As per Rule 5 the minor and major
penalties can be imposed on a government's employee.
The petitioner attained superannuation on 31.08.2016
and the impugned order was passed on 21.02.2018, when
the petitioner was no more a government's employee. It is
further submitted that there is no enabling provision
providing power to the competent authorities to impose
the penalty of dismissal after his superannuation. The
only recourse available to the authorities is under Rule
2.2 (b), Punjab Civil Services Rules Volume II Part-I,
whereby proceedings to withhold pension or any part of it
can be initiated by the competent authority, even after the
retirement of the employee. The authorities have no power
to order dismissal under the rules applicable to the
present petitioner.
5. The Hon'ble Supreme Court in Chairman-cum-
Managing Director, Mahanadi Coalfields Limited V.
Rabindernath Choubey, (2020) 18 SCC 71 has held that it
is permissible for the disciplinary authority to impose
punishment of dismissal even after the employee has
retired. It was also held that all major or minor penalties
can be imposed even after retirement of the employee
depending upon the relevant rules and regulations. The
Hon'ble Supreme Court was dealing with Rule 34.2 of
conduct, discipline and Appeal Rules which were
applicable to the employee in that case and the said rule
created a legal friction that the employee shall deemed to
be in service for the purpose of disciplinary proceedings
even after retirement. But no such rule is applicable to the
present employee and the thus in the absence of any Rule
the order of dismissal cannot be passed. Reliance has
been placed upon Gaya Prasad Yadav Vs State of UP and
Ors(2022) 5 ALL WC 5078."
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9. This court has carefully read the submissions and analyzed the
arguments of the learned counsel representing the petitioner.
10. The first argument of the learned counsel representing the
petitioner is without substance because the petitioner did not put forth any
defence. Rather he has admitted the charges levelled against him. He has
assured the competent authority that he will not commit such a mistake in
future. In such circumstances, the Inquiry Officer was justified in
submitting report to the disciplinary authority. Moreover, as regards his
absence from duty due to illness, it may be noticed that on the application of
the petitioner, leave was sanctioned on 05.10.2015 till 08.10.2015.
Thereafter, on 13.10.2015 the petitioner is stated to have sent a medical
leave via e-mail on the ground that he is suffering from 'Dengue' which was
rejected being not on the prescribed format. He did not attend the office
during the remaining period of the entire month of October, November and
substantial part of December. Though the petitioner claims that he was
suffering from backache, however, he submitted the application for sanction
of the medical leave only on 16.02.2016, whereas he was issued show cause
notice on 28.12.2015. Various communications were sent to the petitioner
with respect to his absence. Despite the repeated efforts is made by the
competent authority to serve the charge-sheet, the petitioner never replied.
The house of the petitioner was also found locked. Thereafter, an Inquiry
Officer was appointed. The petitioner on 29.09.2016, admitted the charges
levelled by the department before the Inquiry Officer. In such
circumstances, the petitioner did not furnish any explanation to the
disciplinary authority with respect to the charges levelled against him,
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hence, this court does not find it appropriate to set aside the same.
11. As regards the second argument of the learned counsel, it may
be noted that the competent authority while proposing the punishment had
only sent a proposal regarding the most appropriate punishment. The
ultimate decision was taken by the competent authority only on receipt of
the opinion of the Public Service Commission. The learned counsel
representing the petitioner relies upon the judgment passed in Urvashi Goel
vs. State of Punjab and others(LPA No.286 of 2021, decided on
08.07.2022). In that particular case, the order of punishment was set aside as
the personal hearing was given by the Deputy Chief Minister whereas the
order was passed by the Additional Chief Secretary. This concept of passing
an order by a different officer was found alien to the principles of natural
justice. The court also found that the Public Service Commission only went
through the motions did formality and did not apply its mind with
attentiveness and due diligence. Thus the aforesaid judgement does not
apply to the peculiar facts of the case. From reading of para 21 of the
judgment, it is evident that primarily the judgment of the Single Bench was
set aside on the ground that the petitioner was not even given an opportunity
of fair hearing by the Deputy Chief Minister.
12. The next judgment relied upon by the learned counsel is in
Vijay Khariwal vs. State of Punjab, 2013 (4) SCT 302.
13. Another judgment relied upon by the learned counsel is in
S.N.Narula vs. Union of India, 2011 (4) SCC 591. In fact, it is a short
order passed by the Hon'ble Supreme Court while remitting the matter back
to the Tribunal with liberty to the petitioner to submit representation.
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Hence, with the greatest respect, the order passed in S.N.Narula's
case(supra) is not applicable to the facts of the case.
14. The learned counsel further relies upon the judgment passed in
Union of India vs. Tulsi Ram Patel, 1985 (3) SCC 398. Though, the
learned counsel has relied upon this judgment, however, he has failed to
explain as to how the law laid down in the aforesaid judgment has been
violated in the facts of the present case. As far as reliance on the judgment of
the Supreme Court in Tulsi Ram Patel (supra) is concerned, it may be
noticed that the aforesaid judgment does not as a ratio decidendi lay down
the interpretation of Article 320(3)(c) of the Constitution of India. It may be
noted here that Article 320(3) of the Constitution of India only prescribes
that the Public Service Commission shall be consulted while forming an
opinion in such matters. Such consultation has been held to be not
mandatory. The view of Public Service Commission is only in the form of
recommendation and it is not binding on the disciplinary authority. Reliance
in this regard can be placed on the judgments passed in D'silva, A.N. vs.
Union of India, AIR 1962,SC 1130 and N.Rajarathinam vs. State of
Tamilnadu and others, 1996 (10) SCC 371. Hence, the argument of the
learned counsel based on Article 320 lacks substance.
15. The next argument is with reference to the fact that the
petitioner was already dismissed from service, hence subsequent order of
dismissal could not be passed. On careful reading of the order passed by the
Government it is evident that the disciplinary authority was conscious of the
fact and it is because of that precise reason the authority has ordered
dismissal of the petitioner subject to the decision of the previous order. The
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judgment relied upon by the learned counsel in Roshan Lal's Saini
case(supra) is not applicable because in the aforesaid case the High Court
directed the Labour Court to decide the matter. In that context, the court
held that the other set of proceedings should be kept in abeyance till
culmination of judicial proceeding in the first set of proceedings. In any
case, the previous order of petitioner's dismissal has been set aside in CWP
No.21052 of 2017. Hence, the judgment passed in Roshan Lal's Saini case
(supra) does not help the case of the petitioner.
16. The next argument of the learned counsel is with regard to the
fact that the petitioner stood retired on 31.08.2016 whereas the impugned
order was passed on 21.02.2018, when the petitioner was no more a
Government's employee. In this regard, by a majority opinion, a Larger
Bench of the Supreme Court in Chairman-cum-Managing Director,
Mahanadi Coalfields Ltd. vs. Rabindranath Choubey, 2020 (18) SCC 71
held that unless prohibited by the service rules, the order of punishment can
be passed even after the retirement of an employee.
17. The next judgment relied upon by the learned counsel is in
Gaya Parsad Yadav (supra). In this case, the Division Bench of Allahabad
High Court held that unless there exists a specific rule in this behalf the
penalty of removal cannot be imposed after the retirement of an employee.
The judgment passed in Mahanadi Coalfields Ltd. (supra) does not lay
down that the punishment order after superannuation can only be passed if
there is a specific provision in the Rules. By majority judgment, it was held
that the punishment to be imposed on an employee after attaining the age of
superannuation in such cases is dependent upon the applicable rules and
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unless the applicable rules do not bar it expressly, such kind of order can be
passed. In view of the binding precedent of the Supreme Court, the judgment
of the High Court cannot be relied upon.
18. It may be noted here that it is not the case of the petitioner that
the Inquiry Officer wrongly recorded his confession or it was under duress.
In absence thereof, it would not be appropriate for the writ court to interfere.
21. Finding no merit, the writ petition is dismissed.
22. All the pending miscellaneous applications, if any, are also
stand disposed of .
04th July, 2023 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned YES/NO
Whether reportable YES/NO
Neutral Citation No:=2023:PHHC:085862
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