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M.L. Gera Vs. the Chief Engineer (D), Irrigation Work, Punjab and Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1135 of 1968
Judge
Reported inAIR1973P& H287
ActsPunjab Civil Services ( Punishment and Appeal) Rules, 1952 - Rules 4, 7 and 8; Constitution of India - Articles 226, 227 and 311
AppellantM.L. Gera
RespondentThe Chief Engineer (D), Irrigation Work, Punjab and Chandigarh and ors.
Excerpt:
.....of the said order. - it was represented to the superintending engineer, respondent 3, by the executive engineer, respondent 4, that the petitioner was not taking proper interest in the discharge of his duties and always put flimsy excuses for failure to execute important errands entrusted to him. he denied a good bit of factual statement as made in the letter of respondent 4 calling for his explanation. further letters passed between these two officers which are not couched in happy language and rather disclose a state of strained relations. rule 4 enumerates various type of penalties some out of which are considered to be minor like, censure, withholding of increments or promotion, including stoppage at an efficiency bar, if any. it appears that both the executive engineer and the..........not necessary to refer to the contents thereof for the purposes of the present writ petition. the chief engineer, respondent, served a show-cause notice under rule 8 of the punjab civil services ( punishment and appeal) rules, 1952, hereinafter called the rules on 20th may, 1964. a statement of allegations was appended to this notice. the opening para of the show-cause notice reads under :--'on the basis of statements of allegations annexed hereto it is proposed to imposed penalty of stoppage of one increment with future effect upon you.' there were three heads of charges one of which related to the conversation between the executive engineer and the petitioner on telephone on 17th march, 1964. an explanation was submitted by the petitioner on 4th july, 1964. an order dated 4th march.....
Judgment:

1. This writ petition must be allowed on the short ground that the impugned order has been passed in violation of the rules of natural justice.

2. The petitioner was working as a Sub Divisional Officer, Public Works Department, Irrigation Branch, and respondent 4 was his immediate higher officer. It was represented to the Superintending Engineer, respondent 3, by the Executive Engineer, respondent 4, that the petitioner was not taking proper interest in the discharge of his duties and always put flimsy excuses for failure to execute important errands entrusted to him. A letter ( Annexure 'A') pointing out the complaint was addressed by the Superintending Engineer to the petitioner on 12th March 1964. On 17th March, 1964, the petitioner gave an explanation for his inability to get an explanation for his inability to get some information as desired by the Executive Engineer and further added that the latter, during a telephonic conversation, had urged abusive language for him calling him idiot. The explanation was more in the nature of a complaint about the alleged misbehavior of respondent 4. While respondent 3 warned the petitioner on 12th March, 1964, respondent 4 too asked for an explanation of the petitioner for his alleged impertinence towards him in the course of a talk on telephone. The act of importance attributed to the petitioner, as to be seen from the letter Annexure 'D', was that he had uttered the following words:--

'Pehlan Meri Bakwas Sun Lau-(First listen to whatever nonsense I am to say).' Correspondence started on the same day between the petitioner and the Executive Engineer respondent and the former furnished an explanation. He denied a good bit of factual statement as made in the letter of respondent 4 calling for his explanation. Further letters passed between these two officers which are not couched in happy language and rather disclose a state of strained relations. On 20th March, 1964 the Superintending Engineer again, as per letter Annexure 'H', asked the petitioner to explain his conduct towards the Executive Engineer and also charged him with not exhibiting proper interest in the discharge of his duties. The explanation was to be furnished within four days of the receipt of the letter and on 24th march, 1964, the Executive Engineer, respondent spent a reminder to the petitioner requiring him to submit the explanation within further two days failing which exparte action would be taken against him. It appears that in reply to the last notice no explanation was given and on 9th April, 1964, respondent 4 served another reminder. There then came an explanation which is a detailed one and it is not necessary to refer to the contents thereof for the purposes of the present writ petition.

The Chief Engineer, respondent, served a show-cause notice under Rule 8 of the Punjab Civil Services ( Punishment and Appeal) Rules, 1952, hereinafter called the Rules on 20th May, 1964. A statement of allegations was appended to this notice. The opening para of the show-cause notice reads under :--

'On the basis of statements of allegations annexed hereto it is proposed to imposed penalty of stoppage of one increment with future effect upon you.'

There were three heads of charges one of which related to the conversation between the Executive Engineer and the petitioner on telephone on 17th March, 1964. An explanation was submitted by the petitioner on 4th July, 1964. An order dated 4th march 1965 ( Annexure 'P') from the Chief Engineer was then received by the petitioner whereby it was convened that his explanation having been found unsatisfactorily a penalty of stoppage of one increment with future effect had been imposed on him. It may be mentioned that the petitioner before submitting his explanation had applied to the Executive Engineer for permission by the said officer and the Executive Engineer, but this request was declined. Against the imposition of penalty under Rule 8, the petitioner has invoked the extraordinary jurisdiction of this Court by a petition under Articles 226 and 227 of the Constitution to get the impugned order quashed.

3. Rule 8 is in the following terms:--

Without prejudice to the provisions of Rule 7, no order under clause (i), (ii) or (iv) of Rule 4 shall be passed imposing a penalty on a Government servant, unless he has been given an adequate opportunity of making any representation that he may desire to make, and such representation has been taken into consideration:

Provided that this condition shall not apply in a case where an order based on facts has led to his conviction in a criminal Court or National Trading Corporation order has been passed superseding him for promotion to a higher post on the ground of unfitness for the post on account of the existence of unsatisfactory record:

Provided that the requirements of this rule may, for sufficient reasons to be recorded in writing, be waived where it is not practicable to observe them and where they can be waived without injustice to the officer concerned.'

4. A plain reading of this rule leaves no room for doubt that no penal action of any sort can be taken unless the person against whom the order is proposed has been given adequate opportunity of making any representation that he may desire to make and that such a representation has got to be taken into consideration by the authority competent to punish. Rule 4 enumerates various type of penalties some out of which are considered to be minor like, censure, withholding of increments or promotion, including stoppage at an efficiency bar, if any. The stoppage of increment is undoubtedly a minor punishment for which the procedure as contained in Article 311 of the Constitution and Rule 7 of the Rules is not necessarily attracted. At the same time, the matter of imposition of a minor penalty, as contemplated in Rule 8. is a quasi judicial function requiring a judicial approach which amongst other things envisages an opportunity to give an explanation. In order that the opportunity is real and not merely illusory, the punishing authority must act with an open mind and should not allow its decision to be influenced by comments on the explanation by another person howsoever high be that person, much less by the comments of the complaint himself who was respondent 4 in the instant case. Discipline in undoubtedly of great value and the Courts must not permit indiscipline to be encouraged, but injustice too cannot be allowed to be perpetrated by a punishing authority acting on the advice of the complainant and thus with a biased mind. When an explanation under Rule 8 is received, its consideration is a matter solely for the authority competent to take action. The need for a speaking order, therefore, becomes apparent so that the employee concerned knows the process of reasoning that led to the penal action. Any indication of predetermination will, beyond doubt, vitiate the proceedings and the consequent action.

5. Mr. T. S. Doabia, learned counsel for the petitioner, has strenuously urged that the impugned order suffers from the following two infirmities:--

(1) that the Chief Engineer acted with bias as he had made up his mind on the ex parte reports of the Executive Engineer and the Superintending Engineer, before the show-cause notice under Rule 8 was served on the petitioner; and

(2) that the punishing authority performing a quasi-judicial function has not passed a speaking order.

6. After hearing the learned counsel for the parties, I find substance in both the contentions. The trend of letters exchanged in great haste between the Superintending Engineer and the Executive Engineer on one side and the petitioner on the other goes to show that both these officers were acting against the petitioner for what was considered to be misconduct on his part in the use of language in his talk with the Executive Engineer on telephone on 17th March,1964. A charge of not taking interest in his duties was also levelled against the petitioner and he offered his explanation. In regard to the talk on telephone, the petitioner according to the showing of respondent 4 had stated that he should first be allowed to say whatever nonsense it was. It appears that both the Executive Engineer and the petitioner were in a bad temper while talking to each other on telephone. Respondent 4 was personally involved in the matter and it was incorrect on the part of the Chief Engineer to have accepted the comments of this officer on the explanation of the petitioner. In the show-cause notice also, the Chief Engineer specifically stated that the punishment by way of stoppage of increment was proposed to be imposed. Rule 4 covers several kinds of minor punishments and it was improper on the part of the punishing authority to have decided before the receipt of the explanation as to what punishment was going to be imposed. There may be cases where on plantation, a punishment of censure or warning or any other minor punishment would meet the ends of justice. The mention of the proposed punishment in the show-cause notice under Rule 8 was in the circumstances of the present case, an indication of predetermined mind which made the opportunity for explanation a farce.

7. The impugned order cannot be sustained also on the ground that it is not a speaking one. As already stated, the dispute between the petitioner and his immediate officer involved questions of fact on which there were two versions before the Chief Engineer who is the punishing authority. An appraisal of the value of the explanation was for him alone but he obtained comments of the office through the Executive Engineer and Superintending Engineer and mechanically agreed to the proposed action as the executive file discloses. There is indeed no order passed by the Chief Engineer himself much less a speaking order and the one communicated to the petitioner gives no reasons.

8. For the foregoing reasons, the writ petition must be allowed with cost and the impugned order. Annexure 'P'. stopping the increment of the petitioner quashed. The costs are assessed at Rs. 100/.

9. Petition allowed.


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