IMPORTANT POINTS
Termination – If past conduct of an employee is basis for imposing punishment, department is obliged to disclose that his past record will also be taken into consideration while inflicting punishment.

JUDGMENT :

VIJAY BISHNOI, J.

1. This appeal has been preferred by the appellants challenging the Judgment dated 04.08.2010 passed in R.S.A No. 3802 of 2004 passed by the High Court of Punjab and Haryana.

2. The facts, in brief, are that the respondent was appointed as a Constable in the Punjab Armed Forces on 04.08.1989. In the year 1992, the respondent was transferred to the Commando Force and was posted at Bahadurgarh, Patiala Headquarter of the 2nd Commando Battalion. The respondent applied for five days leave, however, was granted leave only for one day. He proceeded to leave on 02.04.1994 but did not join his duties on 04.04.1994, and instead resumed his duties only on 12.05.1994. The allegation against the respondent was that he remained absent from 04.04.1994 to 12.05.1994, i.e., for around 37 days.

3. For the said unauthorized absence, the departmental enquiry was initiated and a chargesheet containing allegations along with a list of prosecution witnesses was served upon the respondent on 07.08.1994. During the enquiry, statements of the prosecution witnesses were recorded, and an opportunity was granted to the respondent to cross-examine those witnesses. The respondent was also granted an opportunity to produce witnesses in defence, but he refused to avail the said opportunity. The enquiry officer concluded the enquiry and submitted his report. Pursuant to the same, a show cause notice dated 25.05.1995 was issued to the respondent by the Commandant, 2nd Commando Battalion, Bahadurgarh, Patiala. However, the respondent did not file any response to the show cause notice within the period as prescribed and the disciplinary authority vide order dated 03.05.1996 dismissed the respondent from the service and ordered for treating the period of absence, i.e., from 04.04.1994 to 12.05.1994 as non- duty period.

4. The order passed by the disciplinary authority was challenged by the respondent by way of an appeal before the appellate authority, though the said appeal came to be dismissed. The respondent further filed a revision petition before the revisional authority, which was also rejected.

5. Being aggrieved, the respondent instituted a suit for declaration and mandatory injunction praying that the order passed by the disciplinary authority, appellate authority and revisional authority be declared as null & void and illegal; and mandatory injunction be issued for his reinstatement with continuity of service along with back wages with interest @ 12% per annum.

6. The said suit was dismissed by the Additional Civil Judge (Senior Division), Sultanpur Lodhi vide judgment dated 18.07.2003. The first appeal, that was preferred by the respondent before the District Judge, Kapurthala, also came to be dismissed vide judgment dated 01.06.2004. Thereafter, the respondent preferred second appeal before the High Court, wherein following substantial questions of law were framed: -

1. Whether the action of the defendants-respondents in dismissing the appellant from service by taking into consideration the previous conduct of the plaintiff which was not a part of the charge-sheet can be said to be just and fair?

2. Whether the disciplinary proceedings against the appellant in violation of the provisions of Rule 16.2 of Punjab Rules, 1934 are liable to be vitiated?

7. Learned Single Judge of the High Court by judgment dated 04.08.2010 answered the above referred substantial questions of law against the appellants and in favour of the respondent, solely relying on the decision of this Court rendered in the case of State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506. The relevant portion of the impugned judgment is reproduced hereunder: -

“…Adverting to the instant case one, in the impugned order Ex.P-1 dated 03.05.1996, it has been observed that 17 years approved service of Constable Satpal Singh (referring to the plaintiff) has already been forfeited and that the absence period of 224 days has already been considered as non-duty period and four puni