B.K. Talwar vs State of Haryana and Others

The petitioner joined service of the Punjab Government as Assistant Surgeon (Gazetted) on April, 22, 1942. After partition of the country, he came to India and was posted in Punjab (India).

He was Assistant Surgeon Incharge of Civil Hospital, Bhiwani, from May 16, 1960, to May 4, 1963. During that period the petitioner charged fees from 262 indoor patients amounting to Rs. 6652-00. An enquiry was held by an Inspector of the Vigilance Department into the matter as it was alleged that he had charged Rs. 2-00 per visit whereas he was entitled to charge only Re. 1-00 per visit. As a result of the enquiry, a show-cause notice was issued to him under Rule 9 of the Punjab Civil Services (Punishment and Appeal ) Rules, 1952, intimating that it was proposed to impose on him the penalty of stoppage of one increment with cumulative effect and the amount of Rupees 3326-00 was proposed to be recovered from him, which he had charged on account of excess fees.

To this notice, the petitioner sent his explanation which was considered by then Secretary to Government, Punjab, Vigilance Department, and was found unsatisfactory. An order was passed by the President of India ( as the State of Punjab was under President''s rule then), in consultation with the Punjab Public Service Commission, imposing the penalty of stoppage of one increment with cumulative effect on the petitioner. This order is contained in a letter addressed by the Secretary to Government, Punjab, Vigilance Department, to the petitioner, dated October 20, 1966, but it was not communicated to the petitioner before the reorganisation of the State of Punjab with effect from November 1, 1966.

This letter was sent to the petitioner by the Director, Health Services, Haryana, to which State the petitioner had been allocated after re-organisation of the State of Punjab, along with his letter dated April, 10, 1967, and action was taken on this letter by the Haryana State Government.

The petitioner sent a memorial to the Governor on April 24, 1967, which was rejected and the rejection was conveyed to the petitioner by letter dated September 5, 1968. On April 18, 1967, the petitioner made a request for staying the implementation of the order but it was not acceded to. The petitioner then filed the present writ petition in this Court challenging the order passed by the President of India, contained in the letter dated October 20, 1966, referred to above.

The return to the writ petition has been filed by the Deputy Secretary to Government, Haryana, (Vigilance Department), on behalf of respondents 1 to 3. The other respondents are the State of Punjab, the Secretary, Vigilance Department, Punjab and the Director of Health Services, Punjab, who have not cared to appear and oppose the petition.

The first point urged by the learned counsel for the petitioner is that the order imposing the penalty of stoppage of one increment with cumulative effect on the petitioner is not a speaking order and is, therefore, liable to be quashed. Reliance is placed on the judgment of P. C. Jain, J. in C. W. No. 28 of 1967, D/- 10-9-1968 (Punj) a short note of which appears in Ram Dass Chaudhry v. State of Punjab 1968 SLR 792. That was also a case under Rule 8 of the Punjab Civil Services Punishment and Appeal) Rules, 1952 imposing the penalty of stoppage of one increment with cumulative effect, and, therefore, the facts of both these cases are identical. The learned Judge held that -

"there is substance in the contention of the learned counsel for the petitioner ad this petition must succeed. From the main reading of the orders of the Director and respondent No. 1, it is clear that no reasons whatsoever have been given for arriving at a decision against the petitioner and the impugned orders are scrappy and nebulous. In the present case, it was incumbent on the respondents to give reasons while arriving at a decision against the petitioner as they were exercising quasi-judicial functions and in not doing so they have acted illegally. The decision of the Supreme Court in Bharat Raja Vs. The Union of India (UOI) and Others, , is fully applicable to the facts of the present case.

In view of the clear dictum of their Lordships in Bharat Raja Vs. The Union of India (UOI) and Others, there is no shadow of doubt left that the impugned orders are illegal and must be quashed. I am unable to persuade myself to accept the contention of the learned counsel for the State that any action taken under Rule 8 does not require the authority to pass a speaking order. the learned counsel had ignored the provisions of Rule 4; under this rule, a penalty can be imposed upon members of the services only if good and sufficient reasons are shown. The existence of good and sufficient reasons can only be found out from the reading of these orders which admittedly do not exist in the present case. Hence, I find that there is no force in the contention of the learned counsel for the respondents. "

I am in respectful agreement with the dictum of the learned Judge and for similar reasons I hold that the order passed by the President of India and contained in the letter of the Secretary to Government, Punjab, Vigilance Department, dated October 20, 1966, is liable to be quashed on that ground I may point out that no record has been produced wherein any detailed order was passed giving reasons why the explanation of the petitioner was not found to be satisfactory. It has, therefore, to be presumed that no speaking order was passed.

The only other argument advanced by the learned counsel for the petitioner is that the State of Haryana could not take action on the order passed by the President of India before the reorganisation of the State of Punjab, which had not been communicated to the petitioner before the reorganisation was effected. It is submitted that thereafter the State of Haryana had to apply its mind t the facts of the case, if that State wanted to take any action against the petitioner. It is quite evident, that the State of Haryana never applied its mind and merely brought into effect the order passed by the President of India before the reorganisation of the State by sending the letter of the Secretary to Government, Punjab, Vigilance Department, dated October 20, 1966, to the petitioner along with the letter of the Director of Health Services, Haryana, dated April 10, 1967.

This matter was considered by a Division Bench of this Court (Mehar Singh, C. J. and R. S. Sarkaria, J. ) in L. P. A. No. 289 of 1968, D/- 21-5-1969 (Punj). In that case, orders of reversion of officiating Sub-Divisional Officers in the Punjab Public Works Department (Buildings and Roads Branch) were passed on October 28, 1966, but were communicated to them after November 1, 1966, that is, the appointed day on which the former Sate of Punjab ceased to exist and four successor States of Punjab, Haryana, Union Territory of Chandigarh and the Transferred Territory came into being. The question that was considered in that case was ; Whether the impugned orders remained ineffective and still-born by reason of their not having been communicated to the concerned officers before November 1, 1966.

Reliance was placed on a Division Bench judgment of this Court in State of Punjab v. Resham Singh, L. P. A. No. 193 of 1968. D/- 5-9-1968 (Punj), which had followed the decisions of the Supreme Court in Bachhittar Singh Vs. The State of Punjab, and State of Punjab Vs. Amar Singh Harika, . Various other judgments were also considered and it was finally ruled by the Bench that the impugned orders remained ineffective and inoperative because they were not communicated to the concerned officers or publicised in the appropriate manner before November 1, 1966. The learned Judges thus agreed with the Division Bench of this Court in Resham Singh''s case, L. P. A. No. 198 of 1968, D/- 5-9-1968 (Punj) (supra).

Sitting singly, I am bound by that Judgment and in fact it has not been argued that the judgments in the two cases referred to above, delivered by the Division Benches of this Court, were not correct in law. For similar reasons, the order passed by the President of India, imposing the penalty on the petitioner, remained ineffective and inoperative because it was not communicated to the petitioner before November 1, 1966, and it was, therefore, still-born. The State of Haryana could not give effect to this order without reconsidering the matter and applying its own mind.

For the reasons given above, this petition is accepted with costs and the impugned order is quashed. Counsel''s fee Rs. 100/-.

Petition allowed.