Charanjit Singh Bedi Vs. State of Punjab - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - nagar, construction division, in which it had been mentioned that the petitioner had allowed the payment of special rates for well sinking to shri p. 1,01,959/-.the petitioner was asked to explain as to under what authority the payment of special rate for well sinking was recommended by him. in which the same rates had been sanctioned as were recommended by the petitioner as the rates already stood sanctioned and approved by the competent authority, in which the petitioner as junior engineer had no hand. (b&r) were also asked for wherein he had mentioned that the petitioner was responsible for 25% of the loss and, therefore, had recommended the recovery of rs. 6. learned counsel for the petitioner argued that the impugned order of recovery of the amount is wholly arbitrary and has ignored the legal as well as the factual aspect of the matter. the sub-divisional engineer and the executive engineer and if the petitioner had recommended the payment on the same rates as was done by his predecessor, which rates were sanctioned by his bosses i. how the chief engineer in his comments had recommended that the petitioner is responsible for 25% of the loss is also not decipherable from any document/averment. 8. i am of the view that the order of recovery of the petitioner suffers from factual as well as legal infirmities as has been pointed out above.r.s. mongia, j. 1. petitioner had joined punjab p.w.d. (b & r) department as a junior engineer in august, 1956. on september 1, 1976, tenders were invited for constructing bridge over the peripheral road between sectors 62-63, mohali by the then executive engineer, incharge of the construction division, s.a.s. nagar, before the posting of the petitioner as junior engineer in that division. the tenders submitted by shri p.l. dua, contractor, had been accepted by the then. executive engineer of the construction division, s.a.s. nagar. the rates etc. which were settled were also conveyed to the chief engineer on february 1, 1977.2. the petitioner joined the said construction division on transfer on june 14, 1977 as junior engineer when the above said work on the site was already in progress. even two running bills had already been sanctioned and paid to the contractor on the basis of the rates, which were settled by the then executive engineer.3. it has further been averred in the writ petition that the work on the site was completed somewhere in the year 1978 and in the audit inspector report of the year 1979, it had been pointed out that some irregularities had taken place while sanctioning the rates to the contractor and over payment to the tune of rs. 1,01,959/- had been made. the petitioner was issued a show cause notice dated september 5, 1980 (copy at annexure p.7) by the then executive engineer, s.a.s. nagar, construction division, in which it had been mentioned that the petitioner had allowed the payment of special rates for well sinking to shri p.c dua, contractor, in various running bills prepared by him which had resulted in excess payment to the contractor to the tune of rs. 1,01,959/-. the petitioner was asked to explain as to under what authority the payment of special rate for well sinking was recommended by him. the petitioner gave reply on september 12, 1980 (annexure p.8) mentioning therein that the petitioner had nothing to do with the settling of the rates and the rates had already been settled between the executive engineer and the contractor and the same had also been approved by the supdtg. engineer and sent to the chief engineer. not only that, prior to the petitioner's taking over as junior engineer, the work was already in progress and payments of the earlier running bills had been made by the previous officers' after due sanction by the sub-divisional engineer etc. in which the same rates had been sanctioned as were recommended by the petitioner as the rates already stood sanctioned and approved by the competent authority, in which the petitioner as junior engineer had no hand. after filing of the reply, the matter rested there. however, in february, 1990, a departmental enquiry was initiated against shri t.c. bali, executive engineer of the s.a.s. nagar construction division, regarding dereliction of his duties resulting into excess payment of rs. 1,01,959/-. it may be observed here that this enquiry was specifically against shri t.c. bali alone. in the report submitted by the enquiry officer, it was observed that since the competent authority had not approved any payment of n.s. rate at any stage, the action of shri bali in allowing n.s. rate is not justified. regarding the other plea of action of the other officers/officials it was observed that was not the issue before the enquiry officer, but the junior engineer, sub-divisional engineer, divisional accountant cannot be absolved of responsibilities and with this loss attributable to shri bali get reduced to 25% of the total loss. it was further reported that the charge of dereliction of duties as laid down in paragraph 5.4. of the p.w.d. manual of orders is proved against shri bali and the loss attributed to him was only 25% of the total loss.4. petitioner retired from service w.e.f. april 30, 1992. while releasing the retiral benefits, a sum of rs. 25,439/- was withheld from gratuity on account of recoveries against him. this was done vide order dated november 25, 1992 (copy at annexure p.14).5. it may be observed here that a show cause notice dated march 25, 1991 (copy at annexure p. 10) was issued to the petitioner, in which it was mentioned that the petitioner had got the work done in a hurry and made the over payments to the contractor which had resulted in a loss to the government to the tune of rs. 1,01,959/- but he was being held responsible for the loss of only rs. 25,489/- as that loss came to his share. it was also mentioned in the show cause notice issued to him as to why one increment without future effect be not stopped. he gave a detailed reply on august 28, 1991 (annexure p.13). it was inter -alia pleaded in the reply that apart from the fact that the matter related to the years 1976-78, the petitioner had nothing to do with the sanctioning of the rates. in any case, no enquiry had been held against the petitioner as to how he was responsible for any loss that might have been caused to the government and simply because the enquiry officer in his report in the departmental enquiry against shri t.c. bali, the executive engineer, had observed that the other officers/officials cannot be absolved did not mean that the petitioner was actually responsible for the loss and how the loss had been calculated to the tune of rs.25,489/-. the state government, however, passed the impugned order dated august 24, 1993 (annexure p.16), in which it has been mentioned that the reply of the petitioner has been considered and the comments of the chief engineer, punjab p.w.d. (b&r;) were also asked for wherein he had mentioned that the petitioner was responsible for 25% of the loss and, therefore, had recommended the recovery of rs. 25,489/- from the petitioner. this led the petitioner to file the present writ petition.6. learned counsel for the petitioner argued that the impugned order of recovery of the amount is wholly arbitrary and has ignored the legal as well as the factual aspect of the matter. he submitted that the petitioner, admittedly, had no role in settling the rates with the contractor, shri p.l. dua. the rates had already been settled prior to his joining in the concerned division by his superiors. not only that, some payments of the running bills had already been made by his predecessor, which were approved by his bosses i.e. the sub-divisional engineer and the executive engineer and if the petitioner had recommended the payment on the same rates as was done by his predecessor, which rates were sanctioned by his bosses i.e. executive engineer, he could not be held responsible for recommending the payment to the contractor on those rates. further he submitted that no enquiry was held against the petitioner regarding any loss that might have been incurred by the state government. the departmental enquiry was only against the executive engineer, shri t.c. bali, and it was only in the report of the enquiry officer that it was observed that the other officers/officials i.e. the sub-divisional engineer etc. cannot be absolved of the responsibilities and, therefore, the responsibility of the loss of shri t.c. bali, executive engineer, was only to the tune of 25%. he submitted that an independent enquiry should have been held against the petitioner. it was also argued that initially a show cause notice was issued to the petitioner inter-alia mentioning therein that he was responsible for the entire alleged loss of rs. 1,01,959/-, to which he gave reply. thereafter, just on the basis of the enquiry report against shri t.c. bali, the petitioner was made liable for loss to the tune of 25% of the total alleged loss. on what basis the petitioner was being held to be liable to the tune of 25%. the basis on which the chief-engineer in his comments held the petitioner liable to the extent of rs. 25,489/- are also not forthcoming at all. moreover, according to the learned counsel while withholding the impugned amount, when the other retiral benefits were released, vide order dated november 25, 1992, the mind had already been made up that amount in any case had to be recovered from the petitioner. it was still further argued that the petitioner could not have been punished just by issuing a show cause notice that why he should not be held liable for the loss to the tune of rs, 25,489/-. in fact, a regular departmental enquiry should have been held against the petitioner before ordering any such recovery.7. learned counsel for the respondents could not successfully argue as to how the petitioner was being held responsible for the payments that had been made on the rates which had been sanctioned atleast upto the level of executive engineer/superintending engineer. it is not disputed that prior to the petitioner's taking over, the work was already in progress and some payments of the running bills had already been made on the rates already sanctioned. further, how on the basis of enquiry against sh. t.c. bali, executive engineer, the petitioner has been burdened with a loss to the tune of 25% of the total loss in also not decipherable from any documents as to how this figure was reached so far as the petitioner is concerned. why can't it be said in a given case that the responsibility of the higher officers i.e. the executive engineer or the sub-divisional engineer was much more than a junior engineer. these are all facts which should have been taken into consideration before imposing any punishment and that too after following due procedure under law. how the chief engineer in his comments had recommended that the petitioner is responsible for 25% of the loss is also not decipherable from any document/averment. simply because there were four persons involved at the spot cannot lead to the conclusion that each one is responsible to the tune of 25% of the total loss. not only that, the matter related to the years 1976-78, the show cause notice was issued in the year 1990 asking the petitioner as to why he should not be held liable for the 25% loss. the observation in the enquiry report against shri t.c. bali by the enquiry officer could not be made the basis of the recovery against the petitioner.8. i am of the view that the order of recovery of the petitioner suffers from factual as well as legal infirmities as has been pointed out above. for the foregoing reasons this writ petition is allowed and the order dated july 20, 1993 (annexure p.16) is hereby quashed. the petitioner should be released the amount which has been recovered from his gratuity within a fortnight from the date of receipt of the order either from this court or a certified copy thereof from the petitioner. there will be no order as to costs.