Darshan Lal Bhandari v. State Of Punjab And ORS.


 

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"When you were on medical leave from 14.01.2005, then you made a request vide application dated 12.09.2005 for grant 05 years leave for self employment, but as per order No.19/AS issued by this office vide endorsement No.268269/AS dated 24.02.2006, you were directed that earned leave was granted till 28.02.2006 and it was also made clear that as per instructions which were issued by Punjab Government for selfemployment vide letter No.6/21/20016P.P.3/5108 dated 8.5.2002, no person shall be appointed in place of the employee to whom the leave is granted. Since there was a shortage of staff in this office, therefore, while rejecting your leave for 05 years, you were directed to be present in office on 01.03.2006. Despite that you did not appear. Then again vide letter No.439/AS dated 22.03.2006, reminder was given to you to come present in the office, but you did not appear. As a result, you deliberately remained absent and made yourself liable for the punishment."


 



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"5.

It is thus obvious that the appellate authority is required to pass a well reasoned order to meet with the requirements of subrule (2) of Rule 19, reproduced above. In the instant case, we find from the appellate order that the complete factual history though has been narrated alongwith comments

received from the Deputy Commissioner, Moga on the grounds of appeal of the appellant, nonetheless the appellate authority dismissed the appeal observing that the appellant did not turn up despite notice sent to him vide registered post and that "on the basis of record, the appeal is dismissed." 6.

Suffice it would be to observe that the appellate authority has not considered whether the findings of the punishing authority are warranted by evidence on record and whether the procedure prescribed under the statutory rules has been followed or not. Similarly the appellate authority was required to look into the quantum of punishment awarded to the employee. However, none of these factors have been dealt with while passing the impugned order. In our considered opinion, the order passed by the appellate authority does not comply with the requirements of Rule 19(2) of the Punjab Civil Services (Punishment & Appeal) Rules, 1970, and therefore, is totally cryptic, nonspeaking hence unsustainable.

7.

For the reasons aforestated, the appeal is allowed in part and the order passed by the learned Single Judge is modified to the extent of setting aside the order dated 22.6.2010/ 1.7.2010 (Annexure P18) passed by the Commissioner, Ferozepur Division, Ferozepur, exercising his powers as the appellate authority. Consequently, the appellant authority is directed to decide the departmental appeal of the appellant afresh and in accordance with law and Rule 19(2) of the Punjab Civil Services (Punishment & Appeals) Rules, 1970."

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"During the course of hearing, learned State counsel has pointed out that regular departmental enquiry was conducted in the matter on 27.08.2007, but no such report is available with the paperbook.

In view of the above, enquiry report, if any, along with other relevant material be placed on record at the earliest.

Posted on 10.09.2021."

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(1) >>>>>>>>>>>>>>>>>>>>>>>>>

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 5 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider (a) whether the procedure laid down in these Rules has been complied with, and if not, whether such noncompliance has resulted in the violation of any provision of the Constitution of India or in the failure of justice. (b) whether the findings of the punishing authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate , inadequate or severe and pass orders- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:

Provided that>>>>"



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"11. After hearing both the parties and going through entire record, I have come to the conclusion that appellant remained continuous absence from duty without getting sanctioned the leave. Appellant had no right to avail leave. The Deputy Commissioner, Moga had refused him said leave due to administrative reasons. The Deputy Commissioner, Moga has conducted stipulated proceeding against the appellant on having proved the allegations levelled against him and dismissed him from service. The previous Commissioner had afforded an opportunity of personal hearing to appellant on 22.06.2010, but he did not came present on that day before appellate authority, due to which, the appeal was

decided on merit and he had dismissed the appeal filed by the appellant. As per fresh report of Deputy Commissioner, Moga, payment of entire dues of appellant stands made and nothing is due now. Since the appellant is found intentionally absent from duty and Inquiry Officer has proved allegations against him, hence he has no right to continue in service. Hence his appeal, being devoid of merits, is hereby dismissed and order passed by Deputy Commissioner, Moga is upheld."





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"An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 8788. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.

See Service v. Dulles, 354 U.S. 363. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword". 9

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