Balwant Singh vs Municipal Corporation and Others

Tejinder Singh Dhindsa, J.—The petitioner, who was serving as a Driver with the Transport Corporation, Ludhiana, filed the instant writ petition in the year 1993 impugning the orders dated 10.09.1992 (Annexure-P3) and 22.03.1993 (Annexure-P4) respectively, whereby a recovery of Rs. 2,13,221/-, has been directed against him. It is not a matter of dispute that while issuing notice of motion in the present writ petition, the operation of the impugned orders had been stayed by a Division Bench of this Court vide order dated 04.06.1993 and resultantly, no recovery has been effected from the petitioner till date.

A perusal of the impugned order would make it apparent that such recovery has been directed, based upon an order dated 03.12.1992 passed by the Motor Accident Claims Tribunal as also on account of an opinion, having been given by the Senior Law Officer dated 27.03.1992.

The categoric averments made in para 10 of the writ petition are to the effect that the petitioner had not been provided any opportunity of hearing prior to passing of the impugned order and even the procedure for inflicting of a minor penalty as laid down under Rule 10 of the Punjab Civil Services (Punishment and Appeal Rules), 1970 has been violated.

In the written statement filed on behalf of respondent Nos. 2 and 3, the plea of the petitioner as regards having not been granted any opportunity prior to the passing of the impugned order has not been disputed, rather it has been submitted that it was for respondent No. 1 to have respond to such a contention. Respondent No. 1, however, has chosen not to file the written statement.

Learned counsel appearing for the State would strenuously argue and dispute the contention raised by the learned counsel as regards principles of natural justice having not been followed prior to the passing of the impugned order. In this regard, learned State counsel would advert to memo dated 05.02.1992 issued by the General Manager, Transport Corporation Ludhiana at Annexure-P1 in terms of which, a notice was served upon the petitioner and opportunity of three days had been granted for submitting a reply. Learned State counsel would also submit that even a reply dated 11.02.1992 at Annexure-P2 had been duly submitted by the petitioner prior to passing of the impugned order. Counsel would argue that due opportunity as such was granted to the petitioner prior to passing of the impugned order.

Under the Punjab Civil Services (Punishment and Appeal Rules), 1970, Rule 5 governs the imposition of major and minor penalties upon a Govt. employee. Minor penalties would include the recovery from the pay in whole or part of the concerned employee on account of any pecuniary loss having been caused by him to the Government on account of his negligence or breach or orders. Still further Rule 10 of Punjab Civil Services (Punishment and Appeal Rules), 1970 prescribes a procedure for imposition of minor penalties and reads as under:

Procedure for imposing minor penalties:-

(1) Subject to the provision of sub-rule (4-A) of rule 8 and (3) of rule 9, no order imposing on a Government employee any of the penalties in clause (i) to (iv) of rule 5 shall be made except after-

(a) informing the Government employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in sub-rules(3) to (23) of rule 8, in every case in which the punishing authority is of the opinion that such inquiry is necessary;

(C) taking the representation, if any, submitted by the Government employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour; and

(e) consulting the Commission where such consultation is necessary.

(2) The record of the proceeding in such cases shall include-

(i) a copy of the intimation to the Government employee of the proposal to take action against him;

(ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him;

(iii) his representation if any;

(iv) the evidence produced during the inquiry;

(v) the advice of the Commission, if any;

(vi) the findings of the punishing authority and also the report of the inquiring authority in case an inquiry has been held under clause (b) of sub-rule (1).

(vii) the orders on the case together with reasons therefore.

A bare reading of such provision makes it obligatory upon the employer to inform an employee in writing of the proposal of the action contemplated as also the imputation of misconduct or misbehaviour on the basis of which such proposed action is sought to be taken. Such provision in a nut shell envisages an opportunity being granted to an employee so as to represent against the proposed penalty and for such representation to be considered by the competitive authority prior to taking a final decision in the matter.

A perusal of the show cause notice dated 05.02.1992 at Annexure-P1 would make it clear that the issue as regards recovery from the petitioner had already been pre-judged and a decision had already been taken to impose recovery of such amount in the light of the order passed by the Motor Accident Claims Tribunal, Ludhiana. The issuance of the show cause notice, accordingly, was just a formality. The same cannot be construed as an effective opportunity having been granted to the petitioner prior to passing of the impugned orders. A reference in this regard may be made to the judgment reported as State of Maharashtra and Others Vs. Kanchanmala Vijaysing Shirke and Others, and Jaswant Singh Vs. State of Rajasthan, 2004 (1) SCT 612.

As such without even going into the issue as to whether any liability could have been fastened upon the petitioner in pursuance to the award passed by the Motor Accident Claims Tribunal, it is held that the impugned order cannot sustain on the short ground that these have been passed in clear violation of the principles of natural justice. The impugned orders are cryptic and non-speaking and have been passed without affording an effective opportunity to the petitioner.

For the reasons recorded above, the writ petition is allowed. Impugned orders dated 10.09.1992 (Annexure-P3) and 22.03.1993 (Annexure-P4) are set-aside. Writ petition is, accordingly, allowed.