Harjit Singh vs Punjabi University and Another

A.N. Jindal, J.—Having lost before both the Courts, the plaintiff who was slapped with the punishment of stoppage of two increments with cumulative effect, has preferred this regular second appeal. In nutshell, the facts are that the plaintiff- appellant joined Punjabi University, Patiala, as Learner Binder on 9.10.1992 and served his department to the satisfaction of his superiors. It was alleged that on 18.11.1997, he was served with a charge sheet containing the following charges:--

He availed earned leave w.e.f. 16.6.1997 to 27.6.1997 without approval; and

Non-performance of overtime duty on 12.4.1997 to 14.4.1997 during holidays.

Reply was submitted by the plaintiff alleging that since he was to visit ''Hem Kunt Sahib'', for which he had already reserved the tickets, therefore, in the absence of the Press Manager being away to Delhi, he appeared before the Registrar, who agreed to sanction the leave and permitted him to go. The Enquiry Officer while conducting the enquiry in a biased and arbitrary manner without providing assistance of any coworker, submitted the enquiry report. Consequently, he was served with show cause notice on 12.6.1998 and ultimately the enquiry resulted into stoppage of two annual increments with cumulative effect. His appeal was dismissed by the Syndicate, Punjabi University, Patiala without application of mind, therefore, he prayed for ignoring the enquiry report and setting aside the penalty.

Upon notice, defendant appeared and filed written statement wherein it was alleged that the application for leave filed by the plaintiff from 16.6.1997 to 27.6.1997 was declined by the Press Manager on account of heavy rush of work in the Press. When he was asked by the Manager to make a note in writing that his leave has not been sanctioned, the plaintiff refused to do so. He manipulated to get his leave sanctioned directly from the then Registrar of the University and when this fact came to the notice of the Press Manager, the plaintiff was proceeded against. Consequently, a charge sheet was issued to him. Enquiry was conducted and after completing all the formalities, penalty aforesaid was imposed upon him. The appeal preferred by him was also declined by the Syndicate on 29.10.2003.

From the pleadings of the parties, the trial Court framed the following:--

Whether the plaintiff is entitled to the declaration as prayed for?--OPP

Whether the plaintiff is entitled to mandatory injunction as prayed for?--OPP

Whether the suit is not maintainable in the present form?--OPD

Relief.

The plaintiff in order to shift the onus of the issues imposed upon him, appeared in the witness box as PW-1. On the other hand, the defendant examined Balbir Singh Sr. Assistant as DW-1 and closed the evidence.

The trial Court vide judgment dated 30.10.2006 dismissed the suit, however, the appeal preferred by him was also dismissed.

Arguments heard. Record perused.

The following substantial questions of law arise in this case for determination:

Whether the enquiry report is in violation of Rule 8.8 of the Punjab Punishment & Appeal Rules, 1970?

Whether the plaintiff stands prejudiced for non providing him the assistance of the co-employee/worker during the enquiry proceedings?

The learned Counsel for the appellant has raised two fold contentions. The first contention raised by the him is that the enquiry report is in violation of the mandatory provisions of law. He was not provided proper opportunity to cross examine the witnesses and provided no assistance of the co-worker when the prosecution case was duly presented by the Presenting Officer. Secondly, since he had already got sanctioned the leave from the Registrar as Manager was not available, therefore, it is not the case where the plaintiff had left the office without getting the leave sanctioned. It is the internal matter of the university and competence of Registrar could be challenged by the University regarding sanction of leave. At the same time, when the leave was sanctioned, the Manager could not compel the plaintiff to make wrong entry in the record. Similarly, the plaintiff could not be compelled to perform overtime duty as no rules provide for such act, therefore, the report of the Enquiry Officer cannot be said to be well founded and rather is biased.

To the contrary, learned Counsel for the respondent has refuted all the arguments and stated that non providing of the assistance of the coworker is hardly a circumstance to ignore the enquiry report unless bias or prejudice is proved.

Having heard the rival contentions and having examined the records of the case, bias and prejudice against the plaintiff are highlighted from the very inception. The case of the plaintiff is that he was to proceed on leave from 16.6.1997 to 27.6.1997 in connection with the pilgrimage of "Hem Kunt Sahib", but since he failed to contact the Manager on account of the fact that he had gone to Delhi, he moved an application before the Registrar, who sanctioned the leave. The reply dated 13.12.1997 (Ex. P3) highlights this fact. Later on, out of prejudice, Press Manager declined the leave and compelled the plaintiff to make entry in the register maintained in the office which was no part of his duties. Even thereafter, despite the fact that plaintiff was legally entitled to leave, Press Manager challenged the Registrar and thereafter he got him charge sheeted.

Further having seen the enquiry report, the same appears to be in violation of the mandatory provisions of law as envisaged under Punjab Punishment and Appeal Rules, 1970. The report reveals that the department was represented by Mr. Bishamber Chand Supervisor, but the plaintiff was not offered the help of any co-worker for defending him during the enquiry proceedings. It was a case of earned leave which was due to the plaintiff and he had applied before hand i.e. on 10.6.1997 and he had proceeded on leave after getting it sanctioned from the Registrar. The enquiry report reveals that the Registrar had accepted this fact in the enquiry. Now the matter remained between the Registrar and the Press Manager with regard to the controversy as regards the competency of Registrar to sanction the leave but the delinquent could not be condemned on the ground that the plaintiff had enjoyed the leave without sanction.

As regards the spending overtime of two days, it is often seen that the employees working overtime are paid for the overstay. But, in any way, this defiance of the plaintiff for working overtime in certain circumstances, cannot be said to be so serious as to invite the major penalty of stoppage of two annual increments with cumulative effect. Above all, since the plaintiff was not provided assistance of any co-worker in defending his case, appears to have resulted into serious prejudice to him. Had there been any co-worker/employee to represent him, then he could summon the entire record of the university in order to contend that the leave was validly sanctioned and the Registrar was competent to sanction the leave. It could also be proved on the record with the said assistance that the Press Manager was not present in the university during the period he applied for the leave. Rule 8.8 of Punjab Punishment and Appeal Rules, 1970 reads as under:--

8(8) The Government employee may take the assistance of any other Government employee to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Punishing Authority is a legal practitioner, or the Punishing Authority having regard to the circumstances of the case, so permits.

The rule envisages that the university had to provide opportunity to have help of the co-employee for defending his case particularly when there was a Presenting Officer on behalf of the University to prove the charge sheet against the plaintiff. Though the settled law is that non compliance with the said rules does not ipso facto result in the invalidation of the enquiry proceedings and order of punishment, but the Court has to examine on the facts of each case in order to find out whether violation of rule has caused prejudice to the delinquent and if he finds that the delinquent employee was not handicapped in defending himself without the assistance of the co-employee then the order of punishment will not be nullified. In case the Court finds that the violation of the rules and the principles of natural justice have prejudiced the defence, then the order of punishment is liable to be quashed.

There is no dispute with the aforesaid proposition, but the circumstances in the instant case transpire that the plaintiff was not so educated and well versed with the law so as to plead by taking all legal precautions. He was a learner binder of Class-C category and it was for him to face the Enquiry Officer and the officer of a higher grade to him. Many documents remained un-presented which he could produce by way of defence for want of help of the co-employee. In the circumstances, this Court reaches the conclusion that the plaintiff has been seriously prejudiced for want of assistance of the co-employee which amounts to denial of the reasonable opportunity, invalidating the enquiry proceedings. Similar observations were made in case State of Punjab v. Rawal Singh, 2006(4) SCT 188.

It may further be observed that the order passed by the Syndicate on 29.10.2003 also appears to be without application of mind. It records only that "the appeal filed by the plaintiff was not satisfactory". No reasons have been assigned for dismissing the appeal, therefore, order (Ex. P8) is not a valid order in the eyes of law.

Both the Courts below appear to have not appreciated the evidence in the right perspective. The substantive questions of law have not been properly discussed. As such, the substantial questions of law, as framed by this Court are decided in favour of the plaintiff. Resultantly, this appeal is accepted, impugned judgments are set aside and the suit filed by the plaintiff stands decreed and the plaintiff would be entitled to all consequential benefits.