Swatanter Kumar, J.
1. Suit filed by Harjinder Singh, an Ex. Senior Clerk in the Office of Town Employment Officer, Pathankot, for declaration that the order dated 15.11.1989 dismissing him from service read with the order of the Appellate Authority dated 7.8.1991 was illegal, ineffective and contrary to the provisions of the Constitution, was decreed by learned Sub Judge, Ferozepur, on 13.12.1995. Appeal against the said judgment and decree was dismissed by the learned Additional District Judge, Ferozepur vide judgment dated 21.7.1997 giving rise to the present Regular Second Appeal.
2. In order to appreciate the riv (sic) contentions raised on behalf of the parties by their respective learned counsels reference to facts would be necessary. The plaintiff was working as a Clerk under the Labour and Employment Department of State of Punjab and was subsequently promoted as Senior Clerk in the afore-stated department. Being the servant of the State of Punjab, the plaintiff claims the protection under the Punjab Civil Service Rules and Instructions issued by the Government in that regard. The charge-sheet was served upon the plaintiff and upon conclusion of departmental enquiry, vide order dated 15.11.1989 the plaintiff was dismissed from service. He preferred an appeal against the said order of dismissal which was also dismissed by the Appellate Authority on 7.8.1991 as conveyed to the plaintiff on 18.1.1993. While dismissing the plaintiff from service, the disciplinary authority also concluded that the plaintiff would not be entitled to receive any amount over and above the amount paid i.e. subsistence allowance during the period of suspension. According to the plaintiff, the enquiry was in violation of provisions of Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. It was further contended that there was violation of principles of natural justice as copies of the report and the statements were not supplied to him at the requisite time and stage.
3. The suit was contested by the defendants who denied the averments made in the plaint and took up a preliminary objection as to the maintainability of the suit on the ground that no valid and proper notice under Section 80 CPC was served upon the department. It was stated that prior to the present enquiry on three different occasions, the annual grade increments of the plaintiff were stopped with cumulative effect and adverse remarks had been recorded in his report. It was pleaded that the plaintiff had been making bogus cards in his department and that was a sufficient evidence against the plaintiff. According to the defendants there was no violation of rules or principles of natural justice.
4. The learned trial Court before directing the parties to lead evidence in support of their respective claims, framed the following issues:-
1. Whether the order dated 15.11.1989 passed by defendant No. 2 and order dated 7.8.1991 passed by the Secretary, Department of Labour and Employment, Punjab, are illegal, null and void? OPP.
2. Whether the suit is not maintainable in the present form? OPD.
3. Whether the notice under Section 80 C.P.C. was not legal and valid? OPD.
4. Whether the Civil Court at Ferozepur has no jurisdiction? OPD.
5. Relief.
All the material issues including the question of jurisdiction were answered by the learned Trial Court in favour of the plaintiff and against the defendants, thus, decreeing the suit of the plaintiff as prayed. The judgment and decree of the trial Court was affirmed by the learned First Appellate Court as already noticed.
5. The above narrated simple facts give rise to the following serious questions of law to be considered by this Court in this regular Second Appeal:-
a) Whether the disciplinary authority had the jurisdiction and it actually ordered denovo enquiry on submission of the enquiry report? If so, what is its effect on the impugned orders of dismissal?
b) Was the plaintiff not supplied the copy of enquiry report and reasons of disagreement expressed by the disciplinary authority for differing with the report of the enquiry officer? If so, what is its effect on the present case?
c) Whether the respondent herein is estopped from raising the pleas on the principle of acquiescence as having participated in the subsequent enquiry without protest?
6. In regard to the first issue the learned counsel for the State contended that the Courts below have fallen in error in coming to the conclusion that a denovo enquiry was ordered by the disciplinary authority. According to him this is a mistake of fact and in any case the disciplinary authority had the power to order denovo enquiry within the perview and scope of Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules. On the other hand, learned counsel appearing for the respondent-plaintiff argued that there was a direction for holding a denovo enquiry which was neither permissible under the Rules nor was justified in the facts and circumstances of the present case.
7. Reference to the relevant Rule 9 reads as under:-
'9. Action on the inquiry report.- (1) The punishing authority, if it is not itself the inquiring authority, may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 8 as far as may be.
(2) The punishing authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the punishing authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 5 should be imposed on the Government employee, it shall, notwithstanding anything contained in rule 10 make an order imposing such penalty.
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the punishing authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government employee.(4) If the punishing authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the enquiry, is of opinion that any of the penalties specified in clause (v) to (ix) of Rule 5 should be imposed on the Government employee, it shall make an order imposing such penalty and it shall not be necessary to give the Government employee any opportunity of making representation on the penalty proposed to be imposed.Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the punishing authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government employee.'
8. The language of Rule 9(1) is not suggestive that the disciplinary authority is vested with the jurisdiction of direct denovo enquiry and rendering the previously held enquiry as ineffective. The power vested in the authority is limited for further enquiry and report. This authority cannot be enlarged if the rule making authority opted to limit the powers of the disciplinary authority where it has intention and it records reasons for remittance of the case to the enquiry officer. In this regard reference can be made to the judgment of the Hon'ble Supreme Court in the case of K.R. Deb v. The Collector of Central Excise, Shillong, A.I.R. 1971 Supreme Court 1447, where the Court was concerned with, somewhat similar rules governing the conditions of service of the petitioner in that case. It was held as under:-
'It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.'
9. I do not wish to discuss this point further because factually the controversy does not give rise to the issue of jurisdiction of the disciplinary authority. It is an admitted position that the enquiry officer submitted his report on 3.11.1987 he found the plaintiff guilty of two charges and one charge was stated to be not proved against the plaintiff. On this report the disciplinary authority vide its order dated 3.5.1988 ordered fresh enquiry to be conducted by an other enquiry officer. It is conceded that Rule 8 of 1970 Rules does not give such power and the disciplinary authority had to act within the scope of Rule 9(1) above reproduced.
10. I am of the considered view that firstly the case of K.R. Deb (supra) does not have a direct bearing on the facts of the present case and, secondly, if any objection was available to the respondent in this appeal, he waived the same by participating in the enquiry without protest and did not assail that issue except after passing of the impugned order. Consequently, I am of the view that the respondent cannot take any benefit of this argument, and appointment of a fresh enquiry officer to hold the enquiry denovo, would not vitiate the order of dismissal in the facts and circumstances of this case.
11. Coming to the second point, it is the conceded position on record that copy of the report of the enquiry officer was furnished to delinquent plaintiff only along with the order of dismissal i.e. 15.11.1989. Note to this order clearly indicates that report of the enquiry officer has been enclosed to the order of dismissal for the first time. Further more, the plaintiff was admittedly also not furnished with the copy of the reasons recorded by the disciplinary authority for disagreeing with the findings of the enquiry officer as submitted vide his report Dated 3.11.1987. Non furnishing of these documents at the relevant time and stage has certainly prejudiced the interests of the plaintiff. Sub Rule (2) of Rule 9 reproduced above clearly states that the disciplinary authority is duty bound to record reasons for disagreement and once such reasons are recorded, delinquent would be entitled to receive the copy of such reasoning and would also be entitled to be heard. In this regard, reference can be made to a recent judgment of the Hon'ble Supreme Court of India in the case of Punjab National Bank and Ors. v. Kunj Behari Misra, J.T. 1998(5) S.C. 548, where the Court held as under:-
'Regulation-7(2). Does not specifically state that when the disciplinary authority disagrees with the findings of the inquiring authority, and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.'
'The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reasons as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer.'
12. The above principles were followed by a Division Bench of this Court in the case of State Bank of Patiala v. Ram Gopal Gupta and Ors., (1997-3)117 P.L.R. 663, where upon a reference by a learned Single Judge of this Court, the Division Bench settling the controversies between different decisions on the subject, held as under:-
'In a nutshell, it can be said that no material can be relied upon against an employee without giving him an opportunity to controvert it. The reasons which may be recorded by the disciplinary for disagreeing with the conclusion recorded by the enquiry officer from a part of the material which has to be taken into consideration. It cannot be used against the employee unless he gets an opportunity to controvert it. The failure of the disciplinary authority to afford such an opportunity to the employee would be violative of the principles of natural justice. The fact that the rule does not specifically provide for the grant of such an opportunity, is of no consequence. It is implicit in the provision that the reasons recorded by the disciplinary authority shall be communicated to the employee.'
13. The learned counsel for the State argued that there was no obligation on the part of the disciplinary authority to furnish a copy of the report prior to serving the order of dismissal upon the plaintiff. This argument is totally without any foundation. If the State wishes to take advantage of 1970 Rules governing the plaintiff then under Rule 9(4) of the said Rules the authority was obliged to provide the copy of the enquiry report to the delinquent officer in compliance of the said rule. In view of the above well enunciated principle of law more particularly in Kunj Behari Misra's case (supra), the respondents were obliged to furnish not only the copy of the report of the enquiry officer at the relevant stage but also the reasons recorded by the disciplinary authority for partially disagreeing with the report of the enquiry officer. Non-furnishing of these reports have certainly caused serious prejudice to the defence of the delinquent officer. In the quasi-judicial proceedings, the concept of fairness is not merely an expression or a phrase to be apparently used in proceedings but the record of the proceedings must reflect adherence to this basic rule of law. Learned counsel for the respondent has also relied upon the judgment of the Supreme Court in the case of Brij Nandan Kansal v. State of U.P. and Anr., A.I.R. 1988 Supreme Court 908, and Narayan Misra v. State of Orissa, 1969 S.L.R. 657.
14. The learned counsel appearing for the State placed reliance upon the amended Rules, where under Rule 9 there was no obligation upon the authority to give a show cause notice to the delinquent official while considering the imposition of punishment. Firstly, it is not fair for a disciplinary authority to take such a stand keeping in view the law laid down by the Hon'ble Supreme Court of India and secondly issuance of a show cause notice cannot be equated to furnishing report of the enquiry officer and reasons for differing with the findings recorded by the enquiry officer, which are favourable to the delinquent officer. These are two distinguished and different grounds and they cannot be intermingled at that stage of the departmental proceedings. In addition to these fonts the learned Court below have come to a finding that there was violation of principles of natural justice.
15. The Trial Court specifically recorded that the witnesses who were not mentioned in the list of witnesses were permitted to be examined by the enquiry officer and consequently the delinquent officer was taken at a surprise in the departmental proceedings. This finding was affirmed by the learned first Appellate Court. It was further contended on behalf of the State that the Appellate Authority had applied its mind and decided the case in accordance with law, as such the findings of the Court below that the appellate order was not sustainable on the ground of non-application of mind was erroneous.
16. It is a conceded position even before this Court that the delinquent official had submitted a detailed appeal on 13.2.1991 taking up all the grounds which have been stated in the plaint. The ground with regard to violation of principles of natural justice, examination of the witnesses in an unfair manner directing denovo enquiry without furnishing copy of the enquiry report and declining of a legal help were taken. It was also contended in the grounds of appeal before the authority that in any case the quantum of punishment called for interference in the facts and circumstances of the case. However, this appeal was dismissed without discussion on any of the grounds or reference to the record of the departmental proceedings. The order dated 7.8.1991 certainly suffers from lack of application of mind. It is only one line order, 'The appeal of the plaintiff has been considered and rejected.'
17. It must be noticed that along with the petitioner another person Shri Amrit Lal Bansal was given a common charge-sheet and a common departmental enquiry was held against both the delinquent officials. Against Mr. Amrit Lal Bansal a lesser punishment only of reversion has been imposed while the petitioner has been dismissed from service. The learned counsel for the respondents while relying upon a judgment of Full Bench of this Court in the case of Ram Niwas Bansal v. State of Bank of Patiala, (1998-2)118 P.L.R. 768, prayed that the Appellate Authority was obliged to grant him personal hearing before dismissing his appeal. From the grounds of appeal which were filed before the Appellate Authority, it is clear that the appellant did not ask for any personal hearing. As such I cannot find that the order of the appellate authority is vitiated on that ground.
18. It is clear that the appellate authority was obliged to apply its mind fairly to the facts of the case, record and grounds of appeal stated by the delinquent official and pass a speaking order. A speaking order does not mean a judgment in law but the order must apparently show that pleas raised have been considered and rejected for valid and proper grounds. This Court would not sit as a Court of appeal over such disciplinary orders, but certainly the order must satisfy the basic ingredients of proper application of mind. The order of the appellate authority cannot be passed in a mechanical manner. In this regard reference can be made to the judgment of the Supreme Court, in the case of The State of Punjab etc., v. Bakhtawar Singh, A.I.R. 1972 Supreme Court 2083.
19. The application of principles of natural justice and their adherence at every stage stands fully established by the pronouncement of the judgment by the Supreme Court in Kunj Bihari Misra's case (supra). In that case, the Hon'ble Supreme Court also held as under:-
'Principles of natural justice have to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer.'
20. The above stated apparent errors in departmental proceedings in passing of the impugned orders render the said impugned orders invalid in the eyes of law. The delinquent official has certainly suffered serious prejudice in his case.
21. The cumulative effect of the above discussion is that this Regular Second Appeal has no merit and is liable to be dismissed. However, as per the mandate of the Supreme Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma, 1996(2) R.S.J. 41, disciplinary authority would be at liberty to pass the order afresh in accordance with law. With the above observations, this appeal is dismissed, however, without any order as to costs.