Jitender Singh Vs. State of Haryana and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - it was further alleged that he had leveled baseless and false allegations on the authority and there was a charge of dereliction of house master's duty affecting the well-being of the students. any representation which you may like to make in that connection will be considered by me before the proposed action is taken. 6. when the facts of the instant case are examined in the light of the principles laid by the hon'ble supreme court no doubt is left that the disciplinary authority has failed to furnish a copy of the enquiry report to the delinquent employee before concurring with the finding recorded by the enquiry officer. the result is disastrous for the disciplinary authority as it continued to follow rule 7(6). the rules which were framed in the year 1987 would certainly required to be creased out in accordance with the law laid down by the hon'ble supreme court.m.m. kumar, j. 1. the order dated 30.9.2004 (p-7) imposing punishment of reduction to a lower stage of rs. 6,500/- in the time scale of rs. 6500-10300 for a period of five years, passed by the principal and director, motilal nehru school of sports, rai (respondent no. 3), is the subject matter of challenge in this petition filed under article 226 of the constitution. the aforementioned order was challenged in appeal under the haryana civil services (punishment and appeal) rules, 1987 (for brevity, 'the rules') and the appellate authority-cum-commissioner and secretary to government of haryana, sports and youth welfare department, has upheld the same vide its order dated 2004.2005 (p-9). the order passed by the appellate authority has also been challenged by the petitioner.2. brief facts of the case are that the petitioner, who has been working as math master with the respondent school was assigned the job of house master at the soma house on 25.7.2003, on 15.5.2004, he was directed to shift to the accommodation earmarked for the house master, which was on the 4th floor. the petitioner showed his difficulty to shift to the 4th floor on medical ground of having pain in knees. the aforementioned skirmish between the petitioner and respondent no. 3 led to unpleasantness and eventually a charge sheet was issued to the petitioner on 12.7.2004 (p-1). it was alleged that the petitioner has willfully disobeyed the orders of the principal-cum-director, respondent no. 3, which was an act of insubordination. it was further alleged that he had leveled baseless and false allegations on the authority and there was a charge of dereliction of house master's duty affecting the well-being of the students. shri v.c. vats, office superintendent was appointed as an enquiry officer in order to inquire into the matter, under rule 7 of the rules (p-3). however, on the asking of the petitioner, he was replaced by one major n.k. bakshi, bursar (administrative officer) of the respondent school (p-4). the enquiry officer submitted his inquiry report on 18.8.2004 (p-6) and found that all the charges stand proved against the petitioner. the disciplinary authority-cum-principal and director (respondent no. 3) agreed with the opinion expressed by the enquiry officer, vide his order dated 3.9.2004 (p-5) and proposed the penalty of reduction to the lower stage of pay for a period of five years. a copy of inquiry report was sent to the petitioner along with the order dated 3.9.2004. it is significant to point out that a copy of the inquiry report was not given to the petitioner before forming an opinion accepting the findings of the enquiry officer. it is obvious that the enquiry officer and the disciplinary authority are two different individuals. in para 7 of the writ petition, the aforementioned averments have been made. however, respondent no. 3 proceeded to pass the order of punishment, dated 30.9.2004 (p-7), which has been upheld by the appellate authority on 20.4.2005 (p-9).3. the aforementioned factual position is not disputed by the respondents in their joint written statement. however, in reply to para 7 it has been asserted that the petitioner was served with second show cause notice proposing the penalty and also by handing over a copy of the inquiry report as per the procedure prescribed in the rules. some other details with regard to holding of inquiry and granting opportunity to the petitioner has also been given in the written statement.4. the only question which requires consideration on the basis of the arguments addressed by the learned counsel for the parties is whether the report of the enquiry officer should have been furnished to the delinquent petitioner before the disciplinary authority arrived at its conclusion with regard to the guilt or innocence of the petitioner in respect of the charges leveled against him. it is admitted position that the report of the enquiry officer was furnished to the petitioner along with the order dated 3.9.2004 (p-5). in the aforementioned order the disciplinary authority had recorded his conclusion and had accepted the findings recorded by the enquiry officer. a perusal of para 2 of the order dated 3.9.2004 (p-5) makes the aforementioned position explicit and the same reads as under:2. on careful consideration of the report i fully agree with the conclusions reached by the enquiry officer in respect of charges mentioned at sr. no. 1 to 4 leveled' against you and hold that all the charges stand proved. i am provisionally of the opinion that a penalty of a reduction to the lower stage of rs. 6500/- in the pay scale of rs. 6500-10500/- for a period of five years be imposed upon you with immediate effect. you shall not earn increments of pay during the period of reduction. the reduction will have the effect of postponing the future increments of your pay. before 1 take that action, i desire to give you an opportunity, of showing cause against the action proposed to be taken. any representation which you may like to make in that connection will be considered by me before the proposed action is taken. such representation, if any, should be made, in writing and submitted to me so as to reach not later than 15 days the receipt of this communication by you.sd/- principal & directormnss rai',(emphasis added)5. it is, thus, obvious that the inquiry report was not furnished to the petitioner before applying its mind by the disciplinary authority to the findings recorded by the enquiry officer. a constitution bench of the hon'ble supreme court in the case of managing director, ecil v. b. karunakar : (1994)illj162sc , has held that such a course is not open to the disciplinary authority and the law requires furnishing of an inquiry report to a delinquent employee in cases where the enquiry officer and disciplinary authority are two different entities so as to provide an opportunity of hearing to the delinquent employee. in para nos. 29 and 30(iv) of the judgment, the following observations have been made, which are extracted below:29. hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. that right is a part of the employee's right to defend himself against the charges levelled against him. a denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of breach of the principles of natural justice.30. hence the incidental questions raised above may be answered as follows:xxx xxx xxx xxxxxx xxx xxx xxx xxx[iv] in the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in mohd. ramzan case should apply to employees in all establishments whether government or non-government, public or private. this will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. hence question (iv) is answered accordingly.6. when the facts of the instant case are examined in the light of the principles laid by the hon'ble supreme court no doubt is left that the disciplinary authority has failed to furnish a copy of the enquiry report to the delinquent employee before concurring with the finding recorded by the enquiry officer. it is also obvious that enquiry officer and disciplinary authority are two different entities, therefore, the principles extracted above have to be followed. thus, the petition deserves to succeed.7. we have been put to thinking as to why such an error has been committed by the disciplinary authority. the answer is not far to seek. the disciplinary authority has followed the rules religiously. a close look at rule 7(6) of the rules would make it patent that the disciplinary authority is required to furnish the copy of enquiry report to the petitioner at the stage of proposing punishment which could be arrived after recording a delinquent employee guilty of charges. rule 7(6) of the rules is extracted below for facility of reference and the same reads as under: -7. inquiry before imposition of certain penalties.xxx xxx xxx xxxxxx xxx xxx xxx xxx(6) after the enquiry against a government employee has been completed, and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, the government employee shall, if the penalty to be imposed is major penalty be supplied with a copy of the report of enquiring authority and be called upon to show cause, within reasonable time, not ordinarily exceeding one month against the particular penalty proposed to be inflicted upon him. any representation submitted by him in this behalf shall be taken into consideration before final orders are passed:provided that if the punishing authority disagrees with any part or whole of the findings, of the enquiring authority, the point or points of such disagreement, together with a brief statement of the ground thereof, shall also be supplied to the government employee.8. a perusal of the above extracted rule 7(6) of the rules would show that law has changed by virtue of the judgments in the cases of union of india v. mohd. ramzan khan : (1991)illj29sc and b. karunakar's case (supra). however, rule 7(6) continues to be static. the result is disastrous for the disciplinary authority as it continued to follow rule 7(6). the rules which were framed in the year 1987 would certainly required to be creased out in accordance with the law laid down by the hon'ble supreme court. the necessity for incorporation of the above suggestion has been felt in view of the fact that number of cases appear before the court by virtue of lapse committed by the disciplinary authorities. another petition bearing c.w.p. no. 17710 of 2005 has been allowed by us today for the same reason. if the amendment is carried it would avoid unnecessary burden on the public exchequer, wastage of precious time and advance public interest.9. in view of the above factual and legal position, order of the disciplinary authority, dated 30.9.2004 (p-7) along with all subsequent proceedings are quashed. in other words, the order dated 30.9.2004 (p-7) and order dated 20.4.2005 (p-9) are also set aside. the disciplinary authority shall proceed with the inquiry on the assumption that the petitioner is deemed to have been supplied the copy of the inquiry report today in the court i.e. 15.5.2006, as has been agreed between the parties and the respondents shall now proceed with the inquiry proceedings in accordance with law from that stage. the petitioner may file his reply within a period of four weeks from today, which shall also be considered by the disciplinary authority in accordance with law. the petitioner shall be entitled to all the consequential benefits10. the writ petition is allowed in the above terms.11. the office is directed to send a copy of this order to the chief secretary to government of haryana, for taking necessary action as per the suggestion made.