Present:- Mr.Gurdip Singh Advocate Vs. State of Punjab and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1055117
CourtPunjab and Haryana High Court
Decided OnJan-24-2013
AppellantPresent:- Mr.Gurdip Singh Advocate
RespondentState of Punjab and Others
Excerpt:
c.w.p.no.5465 of 2011 -1- in the high court of punjab and haryanaat chandigarh c.w.p.no.5465 of 2011 date of decision:- 24.01.2013 dr.nidhan singh ....petitioner(s) versus state of punjab and others ....respondent(s) *** coram:- hon'ble mr.justice augustine george masih *** present:- mr.gurdip singh, advocate, for the petitioner. ms.monica chhibbar sharma, sr.d.a.g, punjab. *** augustine george masih, j. (oral) petitioner has approached this court impugning the order dated 20.01.2011 (annexure p-5) vide which, as per the order passed by the appellate court on dismissal of the regular second appeal no.1268 of 1997 on 2.7.2010 preferred by the state of punjab (annexure p-3).fresh enquiry has been initiated against the petitioner by appointing an enquiry officer. it is the contention of the counsel for the petitioner that the petitioner has retired from service on 31.5.2002 and after his retirement, no departmental proceedings can be initiated against him and, therefore, the holding of fresh enquiry vide order dated 20.1.2011 (annexure p-5) is not sustainable. he places reliance upon the judgment of this court in the case c.w.p.no.5465 of 2011 -2- of mukhtiar chand dhir versus the state of punjab and others.1982 (1) slr 88.as also in the case of punjab state versus rattan singh, 2000(4) sct 155. his further contention is that despite the petitioner having been retired from service, till date, no retiral benefits have been released to him, to which he is entitled to. he has placed reliance upon the judgment of the supreme court in the case of r.s.misr.versus union of india and others.(2012) 8 supreme court cases 558 to contend that the petitioner would be entitled to the grant of retiral benefits on his retirement in case the order of dismissal has been set aside. reliance has also been placed upon the judgment of this court in the case of dayal singh versus uhbvn, panchkula and others.2010 (1) slr 22.in support of the contention that 100% provisional pension is to be released to the petitioner. prayer has accordingly been made for releases of the retiral benefits. on the other hand, counsel for the respondents submits that a charge-sheet was served upon the petitioner on 4.3.1985 and departmental enquiry was held against him, in which he was found guilty and an order of dismissal dated 18.8.1989 was passed by respondent no.1. this order was challenged by the petitioner by filing a civil suit which was decreed by the civil judge (jr.division) on 25.4.1996 (annexure p-1) by holding that the order dated 18.8.1989 dismissing the petitioner from service is illegal, null and void and is not binding on the petitioner and he shall continue in service as if the said order has not been passed. state of punjab preferred an appeal against the said judgment and decree, which was decided on 20.12.1996 (annexure p-2) wherein the additional district & sessions judge, jalandhar modified the decree under appeal partly by giving liberty to the department c.w.p.no.5465 of 2011 -3- to conduct fresh enquiry regarding the absence period of the petitioner for awarding punishment if it so desires. this order was challenged further by the state of punjab by filing rs.no.1268 of 1997 titled as the punjab state and others versus dr.nidhan singh, which was dismissed by this court on 2.7.2010 (annexure p-3).it is thereafter that order dated 20.1.2011 (annexure p-5) has been passed by respondent no.1 initiating fresh enquiry against the petitioner as per the liberty granted by the firs.appellate court, which has been reiterated by this court vide its judgment dated 2.7.2010. she further states that the petitioner preferred not to challenge the liberty granted by the firs.appellate court to the department to proceed against him by conducting fresh enquiry and, therefore, the said judgment has attained finality and the petitioner cannot no.challenge the initiation of fresh enquiry, which has been ordered to be held against him. she contends that the fresh enquiry which has been initiated against the petitioner is not barred under the punishment and appeal rules as the charge-sheet dated 4.3.1985 served upon the petitioner remains the same and the process has been initiated not as per the liberty granted by the court. the judgments which have been relied upon by the counsel for the petitioner are those cases where departmental proceedings were initiated by the punishing authority after the retirement of the employee. she accordingly contends that the impugned order dated 20.1.2011 (annexure p-5) being in accordance with law cannot be set aside. as regards the claim of the petitioner for retiral benefits, she contends that since the departmental enquiry is pending against the petitioner, he is not entitled to the retiral benefits. accordingly, prayer has c.w.p.no.5465 of 2011 -4- been made for dismissal of the writ petition. i have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case. the fact that the charge-sheet was issued to the petitioner on 4.3.1985 is not disputed and in the light of the order passed by the additional district judge dated 20.12.1996 (annexure p-2).liberty has been granted to the department to conduct fresh enquiry regarding the absence period of the petitioner for awarding appropriate punishment if it so desires, the said order was not challenged by the petitioner and has accepted the same. the order, thus, had attained finality vis. a vis. the petitioner. state of punjab also made an effort to challenge the said order by filing regular second appeal no.1268 of 1997, which was dismissed by this court on 2.7.2010 (annexure p-3).the position which emerges from the above is that a fresh departmental enquiry can be initiated against the petitioner on the limited liberty which has been granted to the department as per the judgment dated 20.12.1996 which only says that the department is at liberty to conduct a fresh enquiry regarding the absence period of the plaintiff. the fresh enquiry which has not been initiated against the petitioner vide order dated 20.1.2011, therefore, can proceed against him with regard to willful absence from duty only. the contention of the counsel for the petitioner that the enquiry cannot proceed against the petitioner after he has retired from service on 31.5.2002 and this assertion is based upon the judgment passed by this court in mukhtiar singh dhir's case (supra) as also in rattan singh's case (supra) is totally misplaced as in those cases departmental proceedings were initiated against the petitioner after they c.w.p.no.5465 of 2011 -5- had retired from service. in the present case, the position is not the same. charge-sheet was issued to the petitioner on 4.3.1985 and, therefore, the proceedings stood initiated against him on the day when the charge-sheet was served against him. this happened when the petitioner was in service and, therefore, it cannot be said that the enquiry, which is not being sought to be conducted against him vide order dated 20.1.2011 (annexure p-5) is initiation of departmental proceedings against the petitioner after his retirement. in fact, it is the continuation of the same which was initiated on 4.3.1985. although it need not be added, but on repetition it is again asserted that this is as a result of consequence of the order passed by the additional district judge, jalandhar dated 20.12.1996, which has been upheld by this court vide order dated 2.7.2010 (annexure p-3).the prayer of the petitioner for stopping the enquiry proceedings against him in pursuance to the order dated 20.1.2011, stands rejected as per the clarification already observed above. as regards the contention of the petitioner for the grant of retiral benefits, the same also cannot be accepted in toto. however, petitioner is entitled to the grant of provisional pension, leave encashment and the release of general provident fund to him as there is no bar under the statutory rules. if the said relief has not been granted to him, the needful is required to be done within a period of one month from the date of receipt of certified copy of the order. petitioner is further granted liberty to make a representation to claim the retiral benefits in accordance with law. a contention has been raised by the counsel for the petitioner that in the light of the superannuation of the petitioner on 31.5.2002, the c.w.p.no.5465 of 2011 -6- directions issued by the firs.appellate court vide judgment dated 20.12.1996 (annexure p-2) has become infructuous. the said contention of the counsel for the petitioner cannot be accepted as the directions issued by the court have been duly accepted by the petitioner as he had not challenged the said order and the same having attained finality, it would be act as an estoppel against him to raise such a plea. that apart, there is no bar under the statutory rules in continuing with the departmental proceedings initiated at the time when the petitioner was in service after his retirement. in the light of the fact that the charge-sheet was issued to the petitioner on 4.3.1985 and the enquiry proceedings are still continuing against him, it cannot but be just and appropriate that these disciplinary proceedings culminate at an early date. counsel for the petitioner, on instructions from the petitioner, who is present in court, states that he would fully co-operate with the enquiry proceedings and further states that some time schedule may be fixed for conclusion of the disciplinary proceedings against him. in the light of the above, a direction is issued to the respondents to conclude the departmental proceedings initiated against the petitioner within a period of three months from the date of receipt of certified copy of the order. writ petition stands disposed of with above observations and directions. january 24, 2013 ( augustine george masih ) poonam judge
Judgment:

C.W.P.No.5465 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH C.W.P.No.5465 of 2011 Date of Decision:- 24.01.2013 Dr.Nidhan Singh ....Petitioner(s) versus State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Gurdip Singh, Advocate, for the petitioner.

Ms.Monica Chhibbar Sharma, Sr.D.A.G, Punjab.

*** AUGUSTINE GEORGE MASIH, J.

(Oral) Petitioner has approached this Court impugning the order dated 20.01.2011 (Annexure P-5) vide which, as per the order passed by the Appellate Court on dismissal of the Regular Second Appeal No.1268 of 1997 on 2.7.2010 preferred by the State of Punjab (Annexure P-3).fresh enquiry has been initiated against the petitioner by appointing an Enquiry Officer.

It is the contention of the counsel for the petitioner that the petitioner has retired from service on 31.5.2002 and after his retirement, no departmental proceedings can be initiated against him and, therefore, the holding of fresh enquiry vide order dated 20.1.2011 (Annexure P-5) is not sustainable.

He places reliance upon the judgment of this Court in the case C.W.P.No.5465 of 2011 -2- of Mukhtiar Chand Dhir versus The State of Punjab and otheRs.1982 (1) SLR 88.as also in the case of Punjab State versus Rattan Singh, 2000(4) SCT 155.

His further contention is that despite the petitioner having been retired from service, till date, no retiral benefits have been released to him, to which he is entitled to.

He has placed reliance upon the judgment of the Supreme Court in the case of R.S.MiSr.versus Union of India and otheRs.(2012) 8 Supreme Court Cases 558 to contend that the petitioner would be entitled to the grant of retiral benefits on his retirement in case the order of dismissal has been set aside.

Reliance has also been placed upon the judgment of this Court in the case of Dayal Singh versus UHBVN, Panchkula and otheRs.2010 (1) SLR 22.in support of the contention that 100% provisional pension is to be released to the petitioner.

Prayer has accordingly been made for releases of the retiral benefits.

On the other hand, counsel for the respondents submits that a charge-sheet was served upon the petitioner on 4.3.1985 and departmental enquiry was held against him, in which he was found guilty and an order of dismissal dated 18.8.1989 was passed by respondent No.1.

This order was challenged by the petitioner by filing a civil suit which was decreed by the Civil Judge (Jr.Division) on 25.4.1996 (Annexure P-1) by holding that the order dated 18.8.1989 dismissing the petitioner from service is illegal, null and void and is not binding on the petitioner and he shall continue in service as if the said order has not been passed.

State of Punjab preferred an appeal against the said judgment and decree, which was decided on 20.12.1996 (Annexure P-2) wherein the Additional District & Sessions Judge, Jalandhar modified the decree under appeal partly by giving liberty to the Department C.W.P.No.5465 of 2011 -3- to conduct fresh enquiry regarding the absence period of the petitioner for awarding punishment if it so desires.

This order was challenged further by the State of Punjab by filing Rs.No.1268 of 1997 titled as The Punjab State and others versus Dr.Nidhan Singh, which was dismissed by this Court on 2.7.2010 (Annexure P-3).It is thereafter that order dated 20.1.2011 (Annexure P-5) has been passed by respondent No.1 initiating fresh enquiry against the petitioner as per the liberty granted by the FiRs.Appellate Court, which has been reiterated by this Court vide its judgment dated 2.7.2010.

She further states that the petitioner preferred not to challenge the liberty granted by the FiRs.Appellate Court to the Department to proceed against him by conducting fresh enquiry and, therefore, the said judgment has attained finality and the petitioner cannot No.challenge the initiation of fresh enquiry, which has been ordered to be held against him.

She contends that the fresh enquiry which has been initiated against the petitioner is not barred under the Punishment and Appeal Rules as the charge-sheet dated 4.3.1985 served upon the petitioner remains the same and the process has been initiated not as per the liberty granted by the Court.

The judgments which have been relied upon by the counsel for the petitioner are those cases where departmental proceedings were initiated by the Punishing Authority after the retirement of the employee.

She accordingly contends that the impugned order dated 20.1.2011 (Annexure P-5) being in accordance with law cannot be set aside.

As regards the claim of the petitioner for retiral benefits, she contends that since the departmental enquiry is pending against the petitioner, he is not entitled to the retiral benefits.

Accordingly, prayer has C.W.P.No.5465 of 2011 -4- been made for dismissal of the writ petition.

I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.

The fact that the charge-sheet was issued to the petitioner on 4.3.1985 is not disputed and in the light of the order passed by the Additional District Judge dated 20.12.1996 (Annexure P-2).liberty has been granted to the Department to conduct fresh enquiry regarding the absence period of the petitioner for awarding appropriate punishment if it so desires, the said order was not challenged by the petitioner and has accepted the same.

The order, thus, had attained finality vis.

a vis.

the petitioner.

State of Punjab also made an effort to challenge the said order by filing Regular Second Appeal No.1268 of 1997, which was dismissed by this Court on 2.7.2010 (Annexure P-3).The position which emerges from the above is that a fresh departmental enquiry can be initiated against the petitioner on the limited liberty which has been granted to the Department as per the judgment dated 20.12.1996 which only says that the Department is at liberty to conduct a fresh enquiry regarding the absence period of the plaintiff.

The fresh enquiry which has not been initiated against the petitioner vide order dated 20.1.2011, therefore, can proceed against him with regard to willful absence from duty only.

The contention of the counsel for the petitioner that the enquiry cannot proceed against the petitioner after he has retired from service on 31.5.2002 and this assertion is based upon the judgment passed by this Court in Mukhtiar Singh Dhir's case (supra) as also in Rattan Singh's case (supra) is totally misplaced as in those cases departmental proceedings were initiated against the petitioner after they C.W.P.No.5465 of 2011 -5- had retired from service.

In the present case, the position is not the same.

Charge-sheet was issued to the petitioner on 4.3.1985 and, therefore, the proceedings stood initiated against him on the day when the charge-sheet was served against him.

This happened when the petitioner was in service and, therefore, it cannot be said that the enquiry, which is not being sought to be conducted against him vide order dated 20.1.2011 (Annexure P-5) is initiation of departmental proceedings against the petitioner after his retirement.

In fact, it is the continuation of the same which was initiated on 4.3.1985.

Although it need not be added, but on repetition it is again asserted that this is as a result of consequence of the order passed by the Additional District Judge, Jalandhar dated 20.12.1996, which has been upheld by this Court vide order dated 2.7.2010 (Annexure P-3).the prayer of the petitioner for stopping the enquiry proceedings against him in pursuance to the order dated 20.1.2011, stands rejected as per the clarification already observed above.

As regards the contention of the petitioner for the grant of retiral benefits, the same also cannot be accepted in toto.

However, petitioner is entitled to the grant of provisional pension, leave encashment and the release of General Provident Fund to him as there is no bar under the Statutory Rules.

If the said relief has not been granted to him, the needful is required to be done within a period of one month from the date of receipt of certified copy of the order.

Petitioner is further granted liberty to make a representation to claim the retiral benefits in accordance with law.

A contention has been raised by the counsel for the petitioner that in the light of the superannuation of the petitioner on 31.5.2002, the C.W.P.No.5465 of 2011 -6- directions issued by the FiRs.Appellate Court vide judgment dated 20.12.1996 (Annexure P-2) has become infructuous.

The said contention of the counsel for the petitioner cannot be accepted as the directions issued by the Court have been duly accepted by the petitioner as he had not challenged the said order and the same having attained finality, it would be act as an estoppel against him to raise such a plea.

That apart, there is no bar under the Statutory Rules in continuing with the departmental proceedings initiated at the time when the petitioner was in service after his retirement.

In the light of the fact that the charge-sheet was issued to the petitioner on 4.3.1985 and the enquiry proceedings are still continuing against him, it cannot but be just and appropriate that these disciplinary proceedings culminate at an early date.

Counsel for the petitioner, on instructions from the petitioner, who is present in Court, states that he would fully co-operate with the enquiry proceedings and further states that some time schedule may be fixed for conclusion of the disciplinary proceedings against him.

In the light of the above, a direction is issued to the respondents to conclude the departmental proceedings initiated against the petitioner within a period of three months from the date of receipt of certified copy of the order.

Writ petition stands disposed of with above observations and directions.

January 24, 2013 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE