Punjab-Haryana High Court
Hukam Singh vs Dakshin Haryana Bijli Vitran Nigam And ... on 19 March, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:041185
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
221 CWP-9976-2019 (O&M)
Date of Decision:19.03.2024
Hukam Singh
.......Petitioner
Versus
Dakshin Haryana Bijli Vitran Nigam Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Dr. S.K. Bhar, Advocate for the petitioner.
Mr. Jagbir Malik, Advocate for the respondents.
*****
JASGURPREET SINGH PURI J.(Oral)
1. The present petition has been filed under Articles 226/227 of the
Constitution of India seeking issuance of a writ in the nature of Certiorari
for quashing the impugned orders dated 29.05.2015 and 12.05.2016 at
Annexure P-3 and P-5.
2. The learned counsel for the petitioner submitted that it is a case
where the petitioner was charge-sheeted vide Annexure P-1 dated
04.04.2011 on the ground that he had made short assessment of bill and to
this charge-sheet, the petitioner had filed a detailed and elaborate reply vide
Annexure P-2 in which all the facts and figures of record have been so
incorporated to show that he was not responsible for the aforesaid short
assessment of bill and even otherwise also it was a team work and only he
was charge-sheeted and no other employee was charge-sheeted. He further
submitted thereafter impugned order vide Annexure P-3 dated 29.05.2015
was passed by which and order of stoppage of two annual increments
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without cumulative effect which is a minor penalty has been passed as well
as recovery of Rs.97642/- has been ordered to be effected from the
petitioner. Thereafter he filed an appeal before the Appellate Authority
vide Annexure P-4 and in which he again reiterated that his reply was not
considered by the punishing authority and without considering the same the
punishment order (Annexure P-3) has been passed. The relevant portion of
the aforesaid appeal is reproduced as under:-
"The punishment awarded vide office order
No.411/SE/HR dated 29.05.2015 without considering my reply.
In the reply, I have mentioned that the assessment of theft was
calculated on slab basis but the audit party assessed the
assessment against theft on highest tariff rate and amount so
pointed out has been debited and recovered from the respective
consumer. No loss sustained to the Nigam but I have been
punished double one side my two increment has been stopped
and on the other side recovery of Rs.97,642/-.
As per "principle of natural justice" double
punishment of a case cannot be awarded. Moreover Sh. Rajbir
Singh LDC can not be absolved from the responsibility on
account of non checking of master file in token of the advice sent
has been taken in to account by the computer or not, if not advice
has to be sent again. Exactly same in case of SDO 'OP' S/Divn.
Dharuhera can not be escaped from the responsibility as per
duties assigned of the SDO by the Nigam. How & why I have
been held responsible, when the higher authority asked for the
name of co-sharer.
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3. Learned counsel for the petitioner while referring to the aforesaid
grounds of appeal specifically stated that his reply to the charge-sheet has
not been considered because it has been mentioned that assessment of theft
was calculated on slab basis but the audit party assessed the assessment
against the theft on highest tariff rate and amount so pointed out has been
debited and recovered from the respective consumer and no loss has been
sustained to the Nigam and he has rather been awarded double punishment
because his two increments have been stopped and recovery of
Rs.97,642/- has been effected from him. It was also stated by the petitioner
in his reply that the other employees were absolved of the aforesaid
responsibility rather all of them were to be proceeded against but only the
petitioner was targeted in this regard. He further submitted that thereafter
in the aforesaid appeal an order dated 12.05.2016 vide Annexure P-5 was
passed by the appellate authority by which his appeal has been dismissed
without any reason at all. The order has been passed on the basis of ipse
dixit of the appellate authority and totally unreasoned and cryptic order has
been passed. He further submitted even otherwise also the petitioner was
charge-sheeted under Regulation 7 of the Dakshin Haryana Bijli Vitran
Nigam Limited Employees (Punishment & Appeal) Regulation 2006
(hereinafter to be referred to 'Regulation') for inflicting of major
punishment but no enquiry was conducted. He further submitted that after
issuance of charge-sheet, only on the basis of reply which has been filed by
the petitioner, instead of conducting a regular enquiry, the minor
punishment has been imposed upon the petitioner. He also submitted such
course of action was conducted by the respondents-Nigam was illegal in
view of the fact that once charge-sheet is served in which a proposal is to
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inflict a major punishment then minor punishment can not be imposed
unless an enquiry is conducted. Learned counsel for the petitioner referred
to a Full Bench judgment of this Court in Dr. K.J. Tiwari Vs. State of
Haryana, 2002(2) SCT 915 wherein this proposition of law has been laid
down and therefore the orders at Annexures P-3 and P-5 are liable to be set
aside.
4. On the other hand, Mr. Jagbir Malik, learned counsel for the
respondents submitted that so far as the aforesaid proposition of law as laid
down by a Full Bench of this Court in Dr. K.J. Tiwari's case (supra) is
concerned, the same is not applicable to the facts and circumstances of the
present case and is distinguishable. He referred to another judgment of
Hon'ble Supreme Court in DHBVNL Vidyut Nagar, Hisar & ors. vs.
Yashvir Singh Gulia 2013(11) SCC 173, wherein it was observed that
there is a specific provision in the respondents-Nigam Regulations, wherein
if in case a charge-sheet is issued with a proposal to inflict major
punishment and in case the authority so is of the opinion that a minor
punishment is to be inflicted then for the reasons recorded, there is no need
to commence an enquiry and in this regard he referred to Regulation No.7
(27) which is so appended with the present petition as Annexure P-6. The
aforesaid Regulation 7(27) is reproduced as under:-
"27. Where an employee has been charge-sheeted
under this regulation and the competent Authority, on receipt of
his reply to the charge-sheet, is of the opinion that no major
punishment as laid down in Regulation-4(B) is called for, it may
dispense with the holding of enquiry and inflict straight-away
any of the minor penalties as laid down in Clause 4(A) of the ibid
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regulation by a speaking order."
5. While referring to the aforesaid Regulation, he submitted that it
is very clear that when an employee has been charge-sheeted under the
regulation and when the competent authority on the receipt of the reply to
the charge-sheet, is of the opinion that no major punishment as laid down in
regulation 4(B) is called for then it may dispense with the holding of
enquiry and inflict straight-away any of the minor penalties as laid down in
Clause 4(A) of the Regulation by passing a speaking order. He further
submitted that in the present case the aforesaid provision has been invoked
and therefore there was no need to hold an enquiry in terms of the aforesaid
regulation and therefore it cannot be said that the aforesaid impugned
orders were in violation of any law laid down by this Court. He further
submitted that in the order of punishment it has been so found by the
competent authority that the loss was attributed to the petitioner.
6. I have heard learned counsel for the parties.
7. The first submission which has been made by learned counsel for
the petitioner is with regard to the applicability of the Full Bench
judgement of this Court in Dr. K.J. Tiwari's case (supra). The learned
counsel for the respondents referred to a judgment of Hon'ble Supreme
Court in Yashvir Singh Gulia's case (supra) in this regard and a perusal of
the judgement would show that once there is a specific regulation and even
when the charge-sheet is with a proposal to inflict a major punishment then
the enquiry can be dispensed with and minor punishment can be passed by
passing a speaking order.
8. Even after applying the aforesaid Regulation 7 (27) as
reproduced above in the facts and circumstances of the present case, the
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action of the respondents and illegality of the impugned orders at Annexure
P-3 and P-5 are to be considered and analyzed by this Court. The
punishment order at Annexure P-3 and the appellate order at Annexure P-5
are reproduced as under:-
(Annexure P-3)
"Sh. Hukam Singh, CA was charge sheeted vide this
office memorandum No.122/UDC-52 dated 04.04.2011 on
account of allegations/charges as contained therein.
The defence reply submitted by the official to the ibid
charge sheet has been considered by the competent authority in
the light of comments offered by the field offices as well as
material available on record and it has been observed that the
loss worth Rs.97,642/- on account of short assessment of theft of
energy has been sustained by the Nigam due to the negligency of
Sh. Hukam Singh. As such, it has been decided to recover the
pecuniary loss worth Rs.97,642/- caused to the Nigam from the
official. Two annual increments without future effect are also
stopped of the official for his misconduct in discharging his
official duties.
Accordingly the charge sheet bearing this office memo
No.122/UDC-52 dated 04.04.2011 served upon Sh. Hukam
Singh, CA is hereby decided by inflicting the punishment of
recovery of pecuniary loss worth of Rs.97,642/- caused to the
Nigam alongwith stoppage of two annual increments without
future effect.
This carries the approval of SE/HR DHBVN, Hisar.
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Sd/- Under Secretary/HR-IV,
DHBVN, Hisar
(Annexure P-5)
Sh. Hukam Singh, CA has preferred an appeal against
this office order No.411 dated 29.05.2015 vide which punishment
for recovery of pecuniary loss worth Rs.97,642/- caused to the
Nigam alongwith stoppage of two annual increments without
future effect respectively was inflicted upon him while deciding
the charge sheet bearing No.122/UDC-52 dated 04.04.2011.
The same has been considered in the light of material
available on record and hearing the official in person on dated
09.03.2016 & 04.04.2016. It has been observed that the
punishment inflicted upon the official is in order and no
relaxation can be given to him.
Accordingly, the appeal preferred by Sh. Hukam
Singh, CA against this office order dated 411 dated 29.05.2016 is
hereby rejected.
This carries the approval of Director/OP, DHBVN,
Hisar.
Sd/-
Under Secretary/HR-IV,
DHBVN, Hisar"
9. A perusal of the appellate order would show that the appeal has
been dismissed and not even a single reason has been mentioned and it has
been dismissed in a very arbitrary and cryptic manner, therefore so far as
the impugned appellate order (Annexure P-5) is concerned, it is ex-facie,
cryptic and non-speaking order and therefore on the face of it, it deserves to
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be set aside.
10. So far as the impugned order at Annexure P-3 is concerned, a
perusal of the same would show that the competent authority while passing
the punishment order for inflicting minor punishment has only stated that
the defence reply of the petitioner has been considered and the comments
of the field offices as also the material available on record has been
considered and it is observed that a loss of Rs.97,642/- on account of short
assessment of theft of energy has been sustained by the Nigam due to
negligence of the petitioner and therefore the penalty of Rs.97,642/- was
imposed upon the petitioner and also two increments without future effects
were directed to be stopped due to mis-conduct.
11. During the course of arguments learned counsel for the petitioner
has drawn the attention of this Court to the reply (Annexure P-2) which
was filed by the petitioner in response to the charge-sheet. A perusal of the
Annexure P-2 would show that the petitioner has given a very detailed and
elaborate reply as to how he was not responsible for the aforesaid
allegations and rather it was a team work and other officials were also
responsible for the same and even no loss had been caused to the
respondents-Nigam. While filing the appeal, same ground has also been
taken that the punishing authority has not considered the reply submitted by
him at all. A perusal of the aforesaid punishment order would show that
the punishing authority has only considered the chargesheet against the
petitioner and comments of the field offices had been seen. However, there
is not even a single reason mentioned that as to how the punishing authority
has come to the conclusion that petitioner was responsible.
12. A perusal of the Regulation 7(27) as reproduced above and so
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relied upon by learned counsel for the respondents-Nigam would show that
there are two conditions precedent sine qua non contained in the aforesaid
provision; (i)first is that in case the competent authority is of the opinion
that major punishment is not to be given and minor punishment is to be
granted then it may dispense with the holding of the enquiry; (ii) second
condition is that minor penalty can be imposed by passing of a speaking
order. Both the conditions which co-exist and they have to be adhered
with. However, a perusal of the punishment order would show that none of
the two conditions have been satisfied. There is no recording of satisfaction
by the punishing authority that it is a case where holding of the enquiry is
to be dispensed with. Apart from the above, a perusal of the aforesaid
order would show that it cannot be termed as a speaking order at all and not
even a single reason has been mentioned but it only states that after
perusing the documents i.e. chargesheet, reply and comments of the field
offices, the punishment order is inflicted and therefore both the aforesaid
two mandatory conditions have been violated by the respondents-Nigam.
Therefore, this Court is of the view that the aforesaid punishment order is
totally contrary to the Regulation 7(27).
13. In view of the aforesaid facts and circumstances, the present
petition is allowed. The impugned orders at Annexures P-3 and P-5 are
hereby set aside and quashed.
14. At this stage, learned counsel for the petitioner stated that the
amount in question of Rs.97,642/- has already been recovered from the
petitioner and the same may be refunded to the petitioner. It is, therefore,
directed that since the order itself has been quashed, the respondents-
Nigam shall refund the aforesaid amount to the petitioner alongwith interest
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@6% per annum. The respondents-Nigam are also directed to notionally
fix the last pay drawn of the petitioner and to refix the pension of the
petitioner as a consequence. Since the order pertaining to the stoppage of
increments is also quashed by this Court now, the petitioner shall also be
entitled for the arrears of the salary, which shall also be paid to the
petitioner to him alongwith interest@6% per annum. The entire exercise
shall be completed within a period of three months from today.
(JASGURPREET SINGH PURI)
JUDGE
19.03.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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