Paranjit Singh vs State of PunJab and Others

Permod Kohli, J.—This case has checkered history of litigation. The factual background leading to filing of the present petition is noticed here-in-below:

The Petitioner was served with a charge-sheet,--vide Memo No. 9423 dated 11th February, 2002 (Annexure P-9), alleging that he was transferred from Drawing Section to Central Works Sub-Division No. 6, Amritsar,--vide order dated 20th October, 2000 and relieved on 24th January, 2001, however, he did not submit the joining report to the Central Works Sub-Division No. 6 till the date of issuance of charge-sheet. He was accused of remaining absent from duty and disobeying the orders of the Executive Engineer. Written reply was solicited within 21 days. It is alleged that the Petitioner received the said charge-sheet in his office on 30th April, 2002. Reply thereto was submitted on 17th May, 2002 denying the allegations of absence from duty. He further objected to the competence of the authority issuing the charge-sheet. It appears that the reply did not find favour with the Respondents and an enquiry was ordered,--vide order dated 24th October, 2002 whereby one Mr. S.P. Singh was appointed as the Enquiry Officer. It is alleged that during the period of enquiry, neither he was paid any salary nor subsistence allowance. The Petitioner filed CWP No. 15948 of 2003. In response to the aforesaid writ petition, the Respondents pleaded that the enquiry against the Petitioner has been held. This Court,--vide its order dated 27th September, 2004 (Annexure P-10) directed the Respondents to pay the salary to the Petitioner with effect from 25th January, 2001 till the order of discharge dated 30th August, 2004. The aforesaid order was followed by the order dated 14th February, 2005. During the hearing on the said date, the Respondent pleaded that the Petitioner stands dismissed from service after completion of departmental proceedings and the Petitioner was granted liberty to challenge the departmental proceedings as also the order of dismissal 30th August, 2004 (Annexure P-13) before the appropriate authority.

As a consequence of the aforesaid liberty, the Petitioner filed an appeal before the Appellate Authority on 18th March, 2005 against the order of dismissal. Since the appeal was not decided for a considerable period, the Petitioner filed another CWP No. 20224 of 2006 wherein the State undertook to decide the appeal within two months and on that undertaking the writ petition was disposed of,-- vide order dated 23rd December, 2006 (Annexure P-15). Despite such an undertaking, the appeal was not decided within the stipulated period and the Petitioner filed COCP No. 197 of 2008 and during the pendency of the contempt petition, the Respondent produced copy of an order dated 2nd July, 2008 (Annexure P-16) rejecting the appeal of the Petitioner and on that basis the contempt petition was disposed of,--vide order dated 10th July, 2008 (Annexure P-17) granting liberty to the Petitioner to challenge the order passed by the Appellate Authority before the appropriate forum. The Petitioner has thus impugned the order of dismissal dated 30th August, 2004 (Annexure P-13) as also the order dated 2nd July, 2008 (Annexure P-16) dismissing the appeal, inter alia, on the following grounds:

(a) That the Petitioner has been treated as work charge employee whereas he was a permanent employee and could not have been discharged under paragraph 3.23 of Mannual of Orders, Edition 1962.

(b) That the Petitioner was not absent from duty.

(c) That the punishing authority appeared as a witness during the enquiry and was thus disqualified to pass the impugned dismissal order (Annexure P-13).

(d) That the disciplinary/punishing authority has considered and relied upon material other than the record of the enquiry to pass the impugned order thereby violating the principles of natural justice.

(e) That the entire approach of the authority was biased and pre-determined.

The Petitioner has specifically pleaded in the writ petition that he was appointed as Surveyor on work charge basis on 1st December, 1984 and his services were orally terminated on 23rd February, 1987. The order of termination was challenged in Civil Suit in the Court of Sub-Judge 1st Class, Amritsar. The suit was decreed in his favour,--vide judgment dated 28th July, 1993 passed by the trial court and it was held that the Petitioner is liable to be regularized. He was allowed to join duty on 10th May, 1994 as Surveyor, but was not given other benefits emanating from the judgment. The Petitioner filed an Execution Application on 11th June, 1994 claiming all service benefits. The Executing Court,--vide its order dated 24th April, 1995 clarified that Petitioner is to be regularized against the post of Surveyor in terms of the decree dated 27th August, 1993. The appeal preferred by the Respondent in the court of District and Sessions Judge, Amritsar resulted in dismissal on 23rd February, 1995. The Revision Petition filed against the order of Civil Court dated 24th April, 1995 was also decided by the Additional District Judge, Amritsar on 22nd February, 1999 and a direction was issued to regularize the services of the Petitioner on the post of Surveyor with effect from 24th February, 1987. The Petitioner again approached the Executing Court for compliance of the decree and,--vide order dated 18th October, 1999, the Petitioner''s services were regularized with effect from 24th February, 1987, but benefit was given with effect from 28th July, 1993. Another application was filed in the Executing Court where upon the Executing Court,-- vide order dated 17th May, 2000 directed the Respondents to give all the benefits to the Petitioner with effect from 24th February, 1987. Resultantly, the Petitioner was given the regular appointment,--vide order dated 10th April, 2001. However, again it was mentioned that the Petitioner is regular work charge surveyor. The Petitioner was forced to make another application in the Executing Court where upon a clarification was sought and the Respondents filed an affidavit on 10th May, 2001 stating that the Petitioner has been regularized as Surveyor with effect from 24th February, 1987. On the basis of the above facts and circumstances, the Petitioner claims that he was a regular employee at the time of issuance of charge-sheet. Mr. Chahal, learned Counsel appearing on behalf of the Respondents has also conceded this position and has stated that the Petitioner was not on work charge and was a regular employee on the date of issuance of the charge-sheet. Even in the reply filed, it is admitted that the Petitioner was regular employee.

With a view to support the contention that the Petitioner was not absent from duty with effect from 24th January, 2001, the Petitioner has referred to Medical Certificate dated 3rd May, 2001 (Annexure P-20) to indicate that the Petitioner was medically examined at the instance of Respondent while in service. He has also referred to Annexure P-22, the charge-sheet which was addressed to the Petitioner at his official address and he is said to have received the same while working in the office. He has also referred to some telephonic message said to have been received in the office where the Petitioner was working and was on duty,--vide Annexure P-28. Even the enquiry report was sent to the Petitioner at his Official address as is evident from Annexure P-29. Even though the Petitioner placed on record number of documents to show that all the correspondence was addressed to the Petitioner at his official address and this correspondence relates to the period the Petitioner is said to be absent from duty. But the fact remains that there is an enquiry report against him wherein the findings of absent have been recorded. The enquiry report is not under challenge. It is not possible for this Court to return any finding on this issue in exercise of the writ jurisdiction under Article 226 of the Constitution of India and I refrain to do so:

It has been specifically pleaded by the Petitioner that Mr. K.S. Virdi appeared as a witness during the enquiry on 15th January, 2004. The statement of Mr. K.S. Virdi as a witness has also been placed on record as Annexure P-12. In the enquiry report, the Enquiry Officer has specifically referred to the statement of Mr. K.S. Virdi, Superintendent Engineer at internal page 5 of the enquiry report (Annexure P-12).

Though he was summoned as a witness by the Petitioner,, but he deposed against him. The impugned termination order dated 30th August, 2004 has been passed by Mr. K.S. Virdi, Superintendent Engineer, Central Works Circle, PWDB & R, Amritsar (Annexure P-13). It is argued on behalf of the Respondents that the said Officer was summoned as a witness by the Petitioner and thus the Petitioner cannot be permitted to dispute his competence as a disciplinary authority. The fact that Mr. K.S. Virdi, the disciplinary authority who passed the impugned termination order has appeared as a witness is admitted position on record. It becomes immaterial whether he was a witness at the instance of the Petitioner or at the instance of the disciplinary authority. The fact remains that he was a witness in the enquiry against the Petitioner and has deposed against the Petitioner. It is settled position of law that a person cannot be judge of his own cause. In the case of A.K. Kraipak v. Union of India AIR 1970 SC 50 the Hon''ble Supreme Court observed as under:

It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most-appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.

In the case of Workmen of The Bharat Petroleum Corporation Ltd. (Refining Division) Bombay Vs. Bharat Petroleum Corporation Ltd. and Another, , a railway employee was charged of misconduct. Hon''ble Supreme Court while setting aside the order of disciplinary authority made following observations:

?Evidently, Respondent No. 3 assessed the weight of his own accusations against the Appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the Appellant a liar. In doing this, Respondent No. 3 violated a fundamental principle of natural justice. The main thrust of the charges against the Appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the Appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. The order of dismissal passed against the Appellant stands vitiated for the simple reason that the issue as to who, between the Appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself.

The disciplinary authority, despite being a witness and having deposed against the Petitioner sat over the judgment to assess his own credibility and passed the impugned order of termination against the Petitioner. Whether the statement was true or not is not the question and issue ? The question is whether a disciplinary authority was right and entitled to assess his own statements made during the course of enquiry and pass consequential order of imposition of punishment. Even from a layman''s point of view, such a course is impermissible. Bias is a state of mind. It is very difficult to know the real intention, but under such a situtation where a person becomes judge of his own cause, the possibility of bias cannot be ruled out and rather bias can be conveniently inferred. The answer is clearly contained in the two judgments of the Hon''ble Apex Court referred to here-in-above. The impugned order thus suffers from credibility and is liable to be quashed.

It has been specifically pleaded that the disciplinary authority has relied upon the material other than the enquiry record while passing the impugned order. At page 80 of the paper-book (impugned order), the disciplinary authority has relied upon letter No. 1107 dated 17th August, 2004 issued from the Executive Engineer, Central Works Division No. 2, Amritsar to the Superintending Engineer, Central Works Circle, Amritsar to arrive at the conclusion that the Petitioner was absent from service. The enquiry against the Petitioner was completed on 23rd January, 2004 and report was submitted on 12th February, 2004. Admittedly, this document could not have been part of the enquiry report having come in existence after the conclusion and submission of enquiry report, but the disciplinary authority has relied upon this document to arrive at the conclusion against the Petitioner while passing the impugned order of dismissal. This position is against the settled principle of service jurisprudence. Hon''ble Supreme Court in the case of State Bank of India v. D.C. Aggarwal 1993 (1) S.C.T. 225 has observed as under:

...Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers commit such basic and fundamental procedural errors with courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law by itself.

The action of the Respondents is contrary to the fundamental principles of natural justice. The Respondents could not have relied upon any extraneous material not part of the enquiry, particularly such material/document which came into existence after the enquiry having concluded and report completed. If the authority intended to rely upon such material, it was incumbent/obligatory to have put the Petitioner to notice. However, the desciplinary authority chose to rely upon extraneous material in gross violation of principles of natural justice and even without notice to the Petitioner. The impugned order is liable to be set aside on this count as well.

It is lastly contended that the authorities acted with biased and pre-determined mind. In order to bring forth the contention, the Petitioner has referred to communication dated 6th March, 2006 (Annexure P-33) from the Chief Engineer, the Appellate Authority to the Secretary, Punjab Government, Department of Public Works, B&R Branch, Chandigarh which reads as under:

From Chief Engineer, Department of Public Works, B&R Branch, Punjab, Patiala.

To Secretary, Punjab Government, Department of Public Works, B&R Branch, Chandigarh.

Memo No. 61/II/2000/400/:II dated 6th March, 2006.

Subject: Civil Writ Petition No. 15948 of 2003 Paranjit Singh v. Punjab State and Ors. Reference: Government Memo No. 6/232/03-4 B&R-3/3015, dated 10th August, 2005.

On the above cited subject, copy of the appeal received from Shri Paranjit Singh, Surveyor alongwith the parawise remarks sent by Superintending Engineer, Central Works, Amritsar is sent herewith for further necessary action. This office agrees with the report submitted by the Superintending Engineer. Therefore, it is requested that the appeal filed by the employee may kindly be rejected.

Ends: As above. Sd/-Joint Director (Admn.) For Chief Engineer, Department of Public Works, B&R Branch, Punjab, Patiala

This communication has not been disputed in the reply. From this communication, it appears that the Appellate Authority had decided to reject the appeal even without considering the facts and pleas raised by the Petitioner in the memo of appeal with pre-determined and biased mind. One of the impugned orders dated 2nd July, 2008 (Annexure P-16) has been passed by the Chief Engineer on whose behalf this communication was sent. From the appellate order, it appears that the Appellate Authority did not apply its independent mind nor the issues raised in the appeal have been considered and dealt with. In the case of Cantonment Executive Officer and Anr. v. Vijay D. Wani and Ors. 2008 (4) SCT 16, the Hon''ble Supreme Court made following observations:

Therefore, the ratio of all these cases is that a person cannot be a Judge in his own case. Once the disciplinary committee finds the incumbent guilty; they cannot sit in the judgment to punish the man on the basis of the opinion formed by them. The objectivity is the hallmark of a judicial system in our country. The very fact is that the disciplinary committee who found the Respondent (herein) guilty participated in decision making process for finding the Respondent (herein) guilty and to dismiss him from service is bias which is apparent and real. Consequently, the view taken by the Division Bench of the High Court cannot be faulted.

Considering the totality of the circumstances, it is established on record that right from the beginning when the Petitioner was terminated as a work charge employee and later as a permanent employee, the entire action of the Respondents directed against the Petitioner is result of an appearent bias. The impugned orders are otherwise vitiated on account of gross violation of principles of natural justice, as observed here-in-above and are liable to be quashed.

This petition accordingly succeeds and the impugned order dated 30th August, 2004 (Annexure P-13) and the order dated 2nd July, 2008 (Annexure P-16) are hereby quashed. Respondents are directed to reinstate the Petitioner forthwith. The Petitioner shall be entitled to all consequential benefits including monetary benefits. It is, however, left open to the Secretary, PWD B&R Branch, Punjab to reexamine the entire issue, if permissible under law and in the light of the observations made here-in-above.