Punjab-Haryana High Court
Balbir Singh vs Uttar Haryana Bijli Vitran Nigam Ltd. ... on 19 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:053896
CWP-15974-2021 (O&M) 1 2024:PHHC:053896
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-15974-2021 (O&M)
Date of Decision:19.04.2024
Balbir Singh
......Petitioner
Versus
Uttar Haryana Bijli Vitran Nigam Limited and others
......Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Sushil Jain, Advocate for the petitioner.
Mr. Kapil Bansal, DAG, Haryana.
Mr. Rajesh Gaur, Advocate for respondents-UHBVNL.
*****
JASGURPREET SINGH PURI J.(Oral)
CM-4308-CWP-2024
Present application has been filed for placing on record
certain documents.
Application is allowed as prayed for subject to all just
exceptions.
The accompanying documents are taken on record as
Annexures R-1 and R-2.
Main case
1. The present petition has been filed under Article 226 of the
Constitution of India seeking issuance of a writ in the nature of certiorari
for quashing the impugned show cause notice dated 15.10.2019
(Annexure P-3) issued by the respondent No.2.
2. Learned counsel for the petitioner submitted that the
petitioner was initially appointed as a daily wager in the year 1988 in the
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office of respondents-UHBVNL (hereinafter to be referred to as 'Nigam').
Thereafter he was regularised on the post of Regular T-mate in the year
1995. Learned counsel for the petitioner further submitted that the
petitioner was promoted as Assistant Lineman in the year 1999, Lineman
in the year 2008, Assistant Foreman in the year 2015 and Junior Engineer
in the year 2016. He further submitted that the petitioner retired from the
office of respondents-Nigam on 31.03.2019 after attaining the age of
superannuation.
3. Learned counsel for the petitioner has made three prayers in
the present petition; (i) The petitioner has not been granted his ACP; (ii)
the period during which services were rendered by the petitioner in the
office of respondents-Nigam as daily wager has not been counted for
pensionary benefits despite the fact that although, he was appointed on
daily wage basis but later on he was regularized by the respondents-
Nigam itself and therefore his case is covered by a Full Bench judgment
of this Court in Kesar Chand vs. State of Punjab, 1988 AIR (Punjab and
Haryana) 265; (iii) while the petitioner was in service, he was issued a
show cause notice dated 03.07.2018 but no action was taken on the
aforesaid show cause notice till the time the petitioner retired and after his
retirement another show cause notice was issued to him dated 15.10.2019
vide Annexure P-3 by just making a reference to the aforesaid show cause
notice and thereafter an order of punishment has been passed vide
Annexure R-1 whereby an amount of Rs.5,75,564/-was ordered to be
recovered from the pensionary benefits of the petitioner and also a cut of
10% in pension for two years has been imposed on him.
4. It is submitted by learned counsel for the petitioner that it is a
case when the petitioner was in service although a notice was issued to
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him but neither any disciplinary proceedings were initiated, nor any
charge-sheet was issued or any order was passed against him for recovery
of any amount from his pensionary benefits. After the retirement of the
petitioner from service on 31.03.2019 the master and servant relationship
ceased to operate and thereafter the respondents-Nigam could not have
issued show cause notice to the petitioner and could not have passed any
order of punishment because the same was without the authority of law.
Therefore the aforesaid amount is liable to be refunded to the petitioner
alongwith the interest.
5. On the other hand, learned counsel for the respondents-
Nigam submitted that so far as the first two prayers of the petitioner are
concerned, the same can be dealt with separately. He submitted that so far
as the first prayer made by learned counsel for the petitioner is concerned,
the petitioner has already been released the aforesaid amount of ACP i.e.
Rs.71811/- by way of a cheque dated 16.11.2021 vide Annexure R-2 and
therefore nothing would survive with regard to the first prayer made by
learned counsel for the petitioner. So far as the second prayer with regard
to counting of his service which has been rendered by the petitioner on
daily wages is concerned, the same cannot be denied to the petitioner in
view of the Full Bench judgment of this Court in Kesar Chand's case
(supra) and therefore the pension and pensionary benefits of the petitioner
will now be refixed after counting the aforesaid daily wages service and
the arrears will thereafter be released to the petitioner within a period of
three months from today and therefore nothing would survive qua the
second prayer also.
6. He further submitted that so far as the third prayer with
regard to the recovery of the aforesaid amount and 10% cut of in pension
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for next two years is concerned, the same was decided on 07.06.2021
vide Annexure R-1 by the Chief Engineer, UHBVN, Panchkula, before
filing of the present petition and the same has not been challenged by the
petitioner and as such he cannot claim the refund of the aforesaid amount.
He further contended that the aforesaid order pertains to recovery of an
amount for which the petitioner had caused loss to the respondents-Nigam
while he was in service pertaining to drawing of some materials forcefully
from the store and some other allegations pertaining to some material in
the store for which a show cause notice was issued to him and the same
has been decided now. Therefore, no case is made out in assailing the
aforesaid action of the respondents because the petitioner had caused loss
to the respondents-Nigam.
7. I have heard learned counsel for the parties.
8. So far as the first prayer of the petitioner is concerned, he has
already been released the amount of ACP i.e. Rs.71811/- by way of a
cheque dated 16.11.2021 vide Annexure R-2. So far as the second prayer
is concerned, learned counsel for the respondents-Nigam has very
candidly submitted that the service rendered by the petitioner on daily
wage basis and subsequently regularized will be counted for the purpose
of pensionary benefits and re-fixation of pension and retiral benefits will
be done within a period of three months from today. In view of the
statement made by learned counsel for the respondents-Nigam, the
respondent-Nigam/competent authority is directed to do the needful
within a period of three months from today.
9. The only issue which requires adjudication in the present
petition is pertaining to the third prayer with regard to the recovery of
Rs.5,75,564/- and 10% cut in the pension for two years as per the
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punishment order dated 07.06.2021 vide Annexure R-1. It is an admitted
position that when the petitioner was in service neither any chargesheet
was issued nor any order has been passed against him for recovery of any
amount from the petitioner. However vide Annexure P-3 a reference has
been made to a show cause notice dated 03.07.2018 which was prior to
the retirement of the petitioner. However, after the retirement of the
petitioner another show cause notice dated 15.10.2019 vide Annexure P-3
was issued to him by giving the details of amount which are required to be
recovered from the petitioner and some assessment of Rs.5,75,564/- has
been made. The aforesaid show cause notice was decided on 07.06.2021
vide Annexure R-1 whereby the Chief Engineer, UHBVN, Panchkula has
passed an order for recovery of the aforesaid amount alongwith penalty of
10% cut of in pension for 02 years. During the course of arguments, this
Court raised a specific query to learned counsel for the respondents as to
under what authority of law the aforesaid punishment order has been
passed to which he submitted that there is nothing so stated in the reply
nor he has any instructions with regard to the same since the petitioner
already stood retired on 31.03.2019.
10. To test the action of respondents-Nigam in passing of the
aforesaid punishment order, the same can be considered from two
different angles. The first angle would be a bare perusal of the show
cause notice vide Annexure P-3. A perusal of the same would show that
when a show cause notice has been issued to the petitioner vide Annexure
P-3 after his retirement, the Chief Engineer, UHBVN, Panchkula, has
stated in so many words that earlier the petitioner was issued a show
cause notice on 03.07.2018 and he has not submitted his reply and
therefore it has been decided to recover an amount of Rs.5,75,564/- from
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his pensionary benefits and a cut of 10% in his pension for two years be
imposed on him and before inflicting the tentative punishment for the
above lapses, he was given an opportunity to explain his position to show
cause in writing within 30 days in this regard. The relevant portion of the
aforesaid show cause notice is reproduced as under :
"You did not bother to submit defence reply
despite elapse of stipulated period, therefore, it has been
decided to recover Rs.5,75,564/- from your pensionary
benefits and a cut of 10% in pension for 2 years be imposed
on you.
But before inflicting the tentative punishment for
the above lapse on your part, you are afforded an
opportunity to explain your position to show cause in writing
within 30-days from the reject of this communication as to
why the proposed punishment should not be imposed upon
you."
(emphasis supplied)
11. A perusal of the aforesaid Annexure P-3 would show that it is
in the nature of show cause notice issued by the Chief Engineer, UHBVN,
Panchkula, to the petitioner. In the show cause notice the Chief Engineer
has stated that it has been "decided" a recovery of an amount of
Rs.5,75,564/- is to be made from the pensionary benefits and cut of 10%
pension for two years be imposed upon the petitioner. It is not
understandable as to what was the use of issuance of a show cause notice
with a pre-determined mind, once Chief Engineer himself while issuing
show cause notice, has come to the conclusion then it has been decided
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"to recover an amount of Rs.5,75,564/- from the pensionary benefits of
the petitioner". The issuance of a show cause notice was a futile exercise
and was of no use at all. It cannot be said to be compliance of principles
of natural justice namely audi alteram partem. Thereafter, when the order
dated 07.06.2021 at Annexure R1 was passed, the same punishment has
been inflicted and the same as so stated to have been decided in the show
cause notice vide Annexure P-3. Such kind of approach by the Chief
Engineer, is deprecated by this Court and it is unfair on the part of the
Chief Engineer concerned, to have issued show cause notice and that too
after the retirement of the petitioner with a pre-determined mind. The
show cause notice (Annexure P-3) as well as the order of punishment
(Annexure R-1) gets vitiated on the ground of violation of principles of
natural justice viz. audi alteram partem and also on the ground of having
passed with pre-determined mind.
12. The aforesaid action of the respondents-Nigam can be
considered from second angle as well. While the petitioner was in
service, neither any charge-sheet was issued to him nor any order was
passed by any of the competent authority. As to whether any show cause
notice issued to him or not, the same has not been attached with the reply
filed by the respondents-Nigam. Although a reference has been made in
the show cause notice dated 15.10.2019 (Annexure P-3) which was
issued after the retirement of the petitioner pertaining to earlier show
cause notice dated 03.07.2018 but there is nothing on record to show that
such cause notice has been issued to the petitioner. Even assumingly for
the sake of arguments, the aforesaid show cause notice was issued to the
petitioner prior to his retirement but nothing prevented the respondents to
have taken an action against the petitioner during his service since the
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petitioner retired on 31.03.2019 which was after about 08 months but
after the retirement of the petitioner when the master and servant
relationship ceased to operate, another show cause notice (Annexure P-3)
was issued to him and that too with a pre-determined mind. When a
query was raised to learned counsel for the respondents as to under what
authority of law and under which provision of law such a punishment
order has been passed against a retired employee, he could not give any
justification to the query raised by this Court.
13. This issue as to whether on the basis of merely issuance of
show cause notice which does not amount to initiation of any disciplinary
proceedings, any punishment order can be passed after retirement or not is
no longer res-integra. A Division Bench of this Court while dealing with
the same respondents-UHBVNL, in the year 2004 had decided this issue
in the case of Hans Raj Sharma Vs. Uttar Haryana Bijli Vitran Nigam
Limited and others in CWP No.152 of 2004 decided on 29.07.2004. In
the aforesaid case also, the petitioner of that petition was issued show
cause notice prior to his retirement and no charge-sheet was issued against
him. It was held that there was no justification for with-holding the
pension of the petitioner. After the aforesaid judgment in Hans Raj
Sharma (supra) a number of cases have come before this Court which
have been decided. Reference in this regard can be made to the cases of
Ashok Kumar Dhamija Vs.Dakshin Haryana Bijli Vitran Nigam
Limited and others bearing CWP No.7949 of 2005, Ram Narain Dua
Versus Dakhin Haryana Bijli Vitran Nigam Ltd. and others bearing
CWP No.8095-2005 decided on 21.09.2006, Suraj Mal vs. Uttar
Haryana Bijli vitran Nigam Ltd.and others bearing CWP No.12036 of
2008 decided on 11.09.2008 and Ram Dass vs. Uttar Haryana Bijli
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Vitran Nigam Ltd.and another bearing CWP No.16997-2006 decided
on 25.02.2008.
14. In view of the aforesaid law laid down by Division Bench of
this Court, and particularly pertaining to the same respondent which is the
respondent in the present case, it was not only the duty of the Chief
Engineer but it was also obligatory upon the Chief Engineer to have
known the law of the land and particularly the law which is governing the
respondents-Nigam. The Chief Engineer, UHBVN, Panchkula, has not
only violated the settled proposition of law but has further gone to the
extent of issuance of show cause notice to the petitioner after his
retirement with a pre-determined mind.
15. The arguments raised by learned counsel for the respondents-
Nigam that order dated 07.06.2021 (Annexure R-1) has not been
challenged is not sustainable in view of the fact that it is a case where the
petitioner is seeking enforcement of his Constitutional Right under Article
300-A of the Constitution of India and the present petition has been filed
in the year 2021. Once it is a clear cut case of infraction of Constitutional
Rights of the petitioner by the respondents-Nigam, this Court will not
non-suit the petitioner only on the ground that the petitioner has not
challenged the aforesaid order. Rather this Court would deal with the
prayer of the petitioner seeking enforcement of his Constitutional Rights
by seeking a writ in the nature of mandamus.
16. Even otherwise also, learned counsel for the petitioner has
also stated that in para No.26 (vii) of the petition, he has prayed to this
Court to pass any other order, writ or direction, which this Court may
deem fit. This Court is of the view that it is a fit case to grant relief to the
petitioner in view of the aforesaid prayer mentioned in para 26 (vii) and
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his prayer for quashing of the order dated 07.06.2021 (Annexure R-1)
would fall within the ambit of the aforesaid prayer.
17. In view of the aforesaid facts and circumstances, the present
petition is allowed. Order dated 07.06.2021 (Annexure R-1) is hereby set
aside. The respondents-Nigam are directed to refund the entire amount of
Rs.5,75,564 to the petitioner alongwith the interest @ 6% per annum
(simple) from the date of his retirement till its actual disbursement within
a period of three months from today. In case the aforesaid amount is not
paid to the petitioner within the stipulated time frame then the petitioner
shall be entitled for future rate of interest @9% per annum (simple).
18. In the facts and circumstances of the present case whereby
the Chief Engineer, UHBVN, Panchkula, has illegally issued a show
cause notice to the petitioner and thereafter passed a punishment order
with a pre-determined mind as aforesaid, the petitioner shall also be
entitled for costs which are assessed as Rs.25,000/-(Rupees Twenty Five
Thousand only) and the same shall be paid by the respondents-Nigam
within a period of three months from today at the first instance and
thereafter the respondents-Nigam shall recover the aforesaid amount of
costs from the Chief Engineer, who issued the aforesaid show cause
notice with a pre-determined mind.
(JASGURPREET SINGH PURI)
JUDGE
19.04.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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