State of Punjab vs Kesar Singh

Hemant Gupta, J.—The State is in Appeal aggrieved against the judgment and decree passed by the Courts below whereby punishment of reduction in rank to the initial stage of pay for a period of 3 years as well as recovery of loss of Rs. 20,258.40p was imposed vide order dated 26.04.1991 was set aside. Such order was set aside on the ground that the plaintiff was not supplied with the copy of the inquiry report before imposing punishment as laid down in the judgment of Hon''ble Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, After hearing learned counsel for the parties, I find that the following substantial question of law arises for consideration:-

"Whether the Civil Court while setting aside the order of punishment for the reason that copy of the inquiry report was not supplied, is bound to give liberty to the employer to initiate proceedings from the stage of illegality?"

The order of punishment against the plaintiff was passed on 26.02.1991 that is after the judgment of the Hon''ble Supreme Court in Mohammad Ramzan Khan''s case (supra) delivered on 20.11.1990. In the aforesaid case, it was held that the principles of natural justice warrants that copy of the inquiry report is supplied to the delinquent in cases where the Inquiry Officer is other than the disciplinary authority, even after the amendment in Article 311 and other Punishment and Appeal Rules applicable to the different departments. Thereafter, the Hon''ble Supreme Court in the judgment Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , has held that the rule laid down in Mohammad Ramzan Khan''s case (supra) is prospective i.e. from the date the order was announced by the Hon''ble Supreme Court in Mohammad Ramzan Khan''s case (supra).

In the present Regular Second Appeal, learned counsel for the appellant argued that the order of punishment should not be set aside merely for the reason that the copy of the inquiry report was not supplied. The employee needs to prove the prejudice suffered by him on account of non supply of the inquiry report. I do not find any merit in such argument at this stage. Both the Courts have set aside the order of punishment for the reason that the copy the inquiry report was not supplied. At the stage of second appeal, the question of prejudice cannot be permitted to be raised for the first time.

In view of the said fact, the order of punishment having passed after the judgment in Mohammad Ramzan Khan''s case (supra), the same has been rightly set aside.

Having said so, a perusal of the order passed by the learned trial Court shows that while decreeing the suit of the plaintiff, no liberty was granted to the defendant to proceed against the delinquent from the stage the inquiry proceedings were found to be defective. Such liberty was required to be granted as held by the Hon''ble Supreme Court in B. Karunakar''s case (supra) wherein it has been held that the Court is not to set aside the order of punishment without giving liberty to the employer to proceed against the delinquent from the stage of illegality. It was observed as under:

"31. ..... Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."

At this stage, it may be noticed that learned counsel for the respondent has pointed out that similarly situated employees have been exonerated in proceedings when the matter was remitted back to the disciplinary authority. Such aspect cannot be examined at this stage. It is for the disciplinary authority to consider the affect of exoneration, if any, in respect of other similarly situated employees. Consequently, the present appeal is partly accepted. The judgment and decree passed by the Courts below is modified so as to grant liberty to the defendant-appellant to proceed against the plaintiff from the stage of submission of the inquiry report. It shall be open to the appellant to supply a copy of the inquiry report and to take action against the plaintiff in accordance with law thereafter.