Punjab-Haryana High Court
Ishwar Chand vs State Of Haryana on 17 February, 2025
Neutral Citation No:=2025:PHHC:023044
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
210
CWP-18244-2019
Date of decision: 17.02.2025
ISHWAR CHAND ......Petitioner
VERSUS
STATE OF HARYANA .......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present: - Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Keshav Pratap, Advocate and
Mr. Sumbhav Parmar, Advoate
for the petitioner.
Mr. Tapan Kumar, DAG, Haryana.
*****
VINOD S. BHARDWAJ, J. (Oral)
Challenging the order dated 26.04.2019 passed by the
respondents whereby the petitioner has been dismissed from Government
Service w.e.f. 20.04.2018, the instant petition has been filed.
2. Learned Counsel appearing on behalf of the petitioner contends
that the petitioner was served with a Show Cause Notice vide Memo No.
3788/Local/5-2011/8661 dated 18.08.2011 on the following charges.
“1. That Sh. Ishwar Chand prepared the detailed
particulars of share of shamlat land belonging to village
Dhamala, Manakpur Nanak Chand, Manakpur Thakur1 of 15
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Dass, Surajpur, Rajjipur, Milk, Rampur Sayudi &
Lohgarh, falling in Tehsil Kalka, acquired by various
departments, on his own level and that too without
getting prior permission from the Collector, Panchkuka.
2. That Sh. Ishwar Chand directly sent the SO
worked out shares to the concerned Land Acquisition
Officers without getting permission from Collector,
Panchkula, resulting which, the Land Acquisition
Authorities distribution compensation amounting to
Rs.7,89,53,600/- to the concerned persons.
3. That Sh. Ishwar Chand prepared the detailed
particulars of share of shamlat land belonging to village
Dhamala, Manakpur Nanak Chand, Manakpur Thakur
Dass, Surajpur, Rajjipur, Milk, Rampur Seudi & Lohgarh
in violation of the provisions of Para No. 348 of Haryana
Land Record Manual & Section 71 of Punjab Land
Revenue Act.”
3. He submits that the Regular Departmental Enquiry was ordered
to be conducted into the above said three charges. He contends that an
Inquiry officer was eventually appointed by the Government who submitted
his report dated 07.01.2014 in which the three charges were returned to have
been proved against the petitioner. The authorities thereafter supplied the
aforesaid Inquiry report and also passed the impugned order dated
26.04.2019 whereby the petitioner has been dismissed from service w.e.f.
20.04.2018 on the charge of misappropriation of Rs. 7.90 crores. The
relevant extract of the above order reads thus:-
“After going through the contents of file, charge
sheet under Rule 7 of the Haryana Civil Services2 of 15
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(Punishment & Appeal) Rules, 1987, reply thereof, report
of regular enquiry officer, representation made against
the findings of the Inquiry Officer’s report submissions
made at the time of personal hearing and connected
provisions of the Haryana Civil Services (Punishment &
Appeal) Rules, 2016, it is clear that all the three charges,
as mentioned above, have been proved by the regular
Inquiry officer. There is no denying the fact that the
delinquent has calculated the shares of ‘shamlat deh’
lands in complete violation of para 3.48 of the Haryana
Land Records Manual and Rule 71 of the Punjab Land
revenue Rules, 1909 without seeking the
permission/approval of the competent authority i.e.
District Collector, Panchkula and submitted the shares to
the Land Acquisition Collector, Panchkula at his own
level. It was incumbent upon the delinquent to refer the
matter to the Land acquisition Collector, Panchkula for
seeking concurrence of the District Collector. In the
alternative, he could have proposed to the Land
acquisition Collector either to send the case to the
District judge under Section 30 of the Land Acquisition
Act, 1894 or refer the matter to the District Collector
Panchkula to adjudicate the title of ‘shamlat dah’ land
under Section 13A of the Punjab village Common Lands
(regulations) Act 1961 especially to safeguard the
interest of the Gram Panchayat/local bodies concerned,
which he has failed to do so altogether. Consequently,
land acquisition compensation to the tune of Rs. 7.90
crore has been distributed to private persons without
adjudication of title under Section 13A of the Punjab
Village Common Lands (Regulations) Act, 1961. Thus, it
can be concluded that all the charges have been proved
against the delinquent especially those relating to3 of 15
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causing of financial loss to the concerned local body by
way of illegal distribution of compensation amounting to
Rs. 7.90 crores. Sh. Ishwar Chand, Tehsildar was retired
from Government service w.e.f 30-4-2018 on attaining
the age of superannuation i.e. 58 years subject to the
final outcome of departmental proceedings pending
against him under rule 7 of the Haryana Civil Services
(Punishment and Appeal), rules, 1987 (now 2016).
In the light of allegations, findings of the Inquiry
Officer as regard misappropriation of Rs. 7.90 crore, Sh.
Ishwar Chand, Tehsildar is dismissed from government
service w.e.f 20-4-2018 i.e. from the date of approval of
Punishing Authority as provided in Rule 4(b)(vii) of the
Haryana Civil Services (Punishment and Appeal), Rules,
2016.”
4. Learned Senior Counsel for the petitioner contends that the
order of dismissal is based on an allegedly proven charge of
misappropriation of Rs. 7.90 crores whereas it is evident from a perusal of
the statement of allegations that there was no charge of misappropriation
against the petitioner. It is further argued that in a best case, the allegation is
that a financial loss to the tune of Rs. 7.90 crores was caused on account of
sending the worked out shares of the proprietors by the petitioner in the land
which now the State claims to be Shamlat Deh as per the Punjab Village
Common Lands (Regulations) Act, 1961, however, in the statement of
allegations/charge-sheet served upon the petitioner, there was again no such
allegation of the petitioner having caused any financial loss to the State
Exchequer. He further argues that the order of dismissal, as has been
imposed upon the petitioner retrospectively from 20.04.2018, vide order
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dated 26.04.2019 even though the petitioner had already superannuated on
30.04.2018. He contends that an order of dismissal from service could not
have been imposed retrospectively. It is further argued that originally the
charge was about submitting the list of proprietors for the Revenue Estate of
08 villages, however, no evidence was led by the respondents in relation to
three villages as to whether any work was ever undertaken by the petitioner
or not and that with respect to one of the villages, there was no record
available and that the petitioner had never sent any report. The report
submitted by him was only for four villages. The respondents have,
however, proceeded on an assumption as if the charge with respect to all the
08 villages have been established against the petitioner notwithstanding
absence of any evidence of petitioner having prepared record for 4 out of 8
villages. Hence, even the allegation of loss pertaining to 8 villages is wrong
and there is nothing on record to show as to what was the total statement
area compensation that had been apportioned for each of the villages and
how much of it related to the four villages for which record was sent by him.
In the absence of any such evidence, petitioner cannot be accused of having
worked shares of all the 8 revenue estates leading to disbursement of the
award.
5. Counsel for the respondent-State on the other hand contends
that the petitioner, while being posted as Tehsildar at Kalka, calculated the
shares of the alleged proprietors in relation to the Shamlat land and
forwarded the same to the Land Acquisition Collector. Relying on the same,
the LAC distributed award to the tune of Rs. 7.90 crores approximately to
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the private persons who were not entitled to the same and thus causing a
huge loss to the State exchequer. He fairly concedes that in so far as the
averment contained in the written statement that there was a
misappropriation of the above amount by the petitioner, the same was
actually not the charge that had been leveled against the petitioner. He,
however, submits that the petitioner was not empowered to apportion the
shares over the said land in view of Para No. 348 of the Haryana Land
Record Manual & Section 71 of Punjab Land Revenue Act except with the
prior approval of the competent authority. No such prior approval had been
taken by him before forwarding such list to the Land Acquisition Collector
and had it not been for the above said act of the petitioner, the wrongful
compensation would not have been distributed. He further submits that no
petition under Section 13-A of the Punjab village Common Lands
(Regulations) Act, 1961 had ever been preferred by the claimants/alleged
proprietors for adjudication of title over the land, hence, despite absence of
any proceedings for determination of title, the petitioner determined the
shares of proprietors in an illegal manner and submitted the same to the
Land Acquisition Collector. He further submits that after the conclusion of
the Regular enquiry, the report was supplied to the petitioner to file his
objection/reply and final decision was taken on 26.04.2019. Even though the
petitioner was due for his superannuation on 30.04.2018 but there is no bar
to conclude an already pending disciplinary proceedings against such a
Government employee. The services of petitioner was hence dismissed vide
order dated 26.04.2019 w.e.f. 20.04.2018 i.e. from the date of approval of
the order of dismissal by the punishing authority, as provided under Rule 4
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(b) (vii) of the Haryana Civil Services (Punishment and Appeal) Rules,
2016. He also submits that since the requisite approval of Haryana Public
Service Commission for imposing the punishment of dismissal was received
vide letter dated 04.05.2018 from HPSC, after retirement of the petitioner
from Government Service on 30.04.2018, hence, there was some delay in
finally communicating the order of imposition of punishment.
6. Responding to the above, learned Senior Counsel for the
petitioner contends that the respondents had not supplied copy of the
opinion/report furnished by the Haryana Public Service Commission, from
whom an advise had been taken, even though the same was relied upon by
the disciplinary authority in imposing the punishment of dismissal. He
contends that in view of the judgment of the Hon’ble Supreme Court of
India in the matter of “Union of India and others versus R.P. Singh“
passed in Civil Appeal No. 6717 of 2008 reported as 2014 (3) S.C.T 3,
opinion/advise received from the Public Service Commission was also
required to be supplied in advance to the delinquent official so as to respond
to the same. It is contended that the non-supply of the said advice caused
prejudice to the petitioner and he was not granted a fair opportunity to rebut
the material that was relied upon by the punishing authority against him.
7. Reference is also placed on the judgment of the Hon’ble
Supreme Court in the matter of “State of Punjab versus “Bakhtawar Singh
and others” reported as 1972 AIR (Supreme Court) 2083 which held that
when a charge has not been leveled or inquired into against a delinquent
employee, the same cannot form basis for imposition of a penalty against
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such an employee. Hence, it is submitted that a mere claim that a loss has
occurred on a misappropriation by the petitioner cannot be the basis for
imposition of penalty once the same was not a part of a charge framed
against him which was to the effect that amount has been disbursed wrongly.
The relevant extract of the order reads thus:-
“10. It may be noted that Shri Bakhtawar Singh
was not charged with having not discharged his duties
impartially. None of the charges levelled against him
accused him of not discharging his duties impartially.
Hence the Minister was not justified in taking into
consideration a charge in respect of which the member
was not given any opportunity to explain his position.
Further the finding of the Minister that Shri Bakhtawar
Singh was taking part in politics is a vague finding.
Politics is a word of wide import. By merely saying that
he was taking part in politics nothing concrete is
conveyed or established. In view of this conclusion of
ours, it is not necessary to go into the other grounds
urged on behalf of Shri Bakhtawar Singh.”
8. It is further submitted that the aforesaid judgment in the matter
of Bakhtawar Singh (supra) was relied upon by this Court in the matter of
“K.B. Rai versus State of Punjab” bearing CWP-5471 of 1995 reported as
1996 (1) SCT 639. Reference is made to Para No. 18 thereof which reads
thus:-
“18. The second facet of the last contention
of Shri Atma Ram is that the petitioner was not charged
with the allegation of committing financial irregularities
by splitting work order and, therfore, he could not be8 of 15
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held guilty for the same and he could not be punished on
the basis of such a charge. After having carefully perused
the charge sheet, the findings recorded by the enquiry
officer, the show cause notice and the punishment order, I
am convinced that the learned counsel for the petitioner
is right in contending that the petitioner had not been
charged with the allegation of having committed financial
irregularities by splitting work orders. For the reasons
best known to it, the Government did not charge the
petitioner with the allegation of financial irregularities by
splitting work orders. Charge No. 1 relates to
loss/embezzlement to the State exchequer. Charge No. 2
relates to lack of integrity. Charge No. 3 relates to
improper upkeep of financial accounts. Charge No. 4
relates to lack of financial control of work. Charge No. 5
relates to dereliction in performance of duties and
Charge No. 6 is of incompetency in performance of Govt.
duties. In the first allegation levelled against the
petitioner, it has been stated that the petitioner purchased
non-consumable/major items without requirement and
thereby caused loss to the Exchequer. There is not an iota
of inidication either in the charge or in the statement of
allegations that the petitioner was to answer the
allegation that he had splitted up the work orders and
has, thus, committed financial irregularities. In the
absence of such charge or allegation, the enquiry officer
did not have jurisdiction to record evidence on this
charge much less to record a finding of guilt against the
petitioner. Similarly, the Government did not have the
authority to issue show cause notice to the petitioner on
the premise that he has been found guilty of financial
irregularities by spitting the work orders nor could the9 of 15
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Government punish him for such a charge which did not
form part of the charge sheet.
9. The said judgment was followed yet again by this Court in the
matter of “Joginder Singh versus the Gobind Pura Co-operative
Agricultural Service Society Ltd. and others” reported as 2013 (18) SCT
684. The relevant extract thereof reads thus:-
“6. On due consideration of the matter, I am of the
opinion that the Revisional authority, while passing the
impugned order, could not travel beyond the scope of the
charges which were levelled against the petitioner. If the
petitioner had faced proceedings in a related case that
would be an independent cause to be dealt with
separately by the competent Authority and for which an
appropriate disciplinary proceeding and punishment
should have been the logical course. This course has
indeed been adopted by the authorities and regarding
which a separate petition was preferred by the petitioner.
But to say that the petitioner is charged with retaining an
amount of 660 and some odd, which also he deposited
though after some time and to take into consideration
some other material which does not form part to charge-
sheet against him and then to form this to be the basis of
restoring the punishment of dismissal, would be a course
which would be unjustified and impermissible.”
10. In support of his argument that post superannuation of a person,
a penalty cannot be imposed, he places reliance on the judgment in the
matter of “Tarsem Singh versus the Punjab Scheduled Castes Land
Development and Finance Corp.” reported as 2013 (2) SCT 342. The
relevant extract thereof reads thus:
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“5. The facts, which are not in dispute are
that the petitioner retired from service on 30.9.2008. No
doubt, at that time, a criminal case was pending against
him, in which he was convicted vide judgment dated
25.11.2010, passed by Sub Divisional Judicial
Magistrate, Malout. As a consequence thereof, without
issuing any show cause notice to the petitioner, he was
dismissed from service vide order dated 21.1.2011 with
retrospective effect from 30.9.2008, the date of his
retirement. It is settled that an employee cannot be
dismissed from service from retrospective effect.
Regulation 44 of the Regulations though enables the
competent authority to dismiss an employee on account of
conviction in a criminal case for any offence involving
moral turpitude, explanation to the aforesaid Regulation
clearly provides that dismissal can be from a date when
an employee is convicted. In the present case, admittedly
the petitioner was convicted by the Sub Divisional
Judicial Magistrate on 25.11.2010, which was after the
petitioner had already retired from service and there
being no relationship of master and servant between the
parties on that day, he could not be dismissed from
service with retrospective effect. Accordingly, the
impugned order dated 21.1.2011 (Annexure P-10)
dismissing the petitioner from service is quashed.”
11. Reliance is also placed on the judgment of the Hon’ble Supreme
Court in the matter of “UCO Bank and others versus Prabhakar Sadashiv
Karvade” reported as 2018 (2) SCC (L&S) 630. The operative part thereof
reads thus:-
“10. A reading of the plain language of Regulation
4 of the Discipline and Appeal Regulations and11 of 15
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Regulation 20(3)(iii) of the 1979 Regulations makes it
clear that any of the penalties, whether major or minor
can be imposed only on a serving officer employee of the
Bank. This necessarily implies that none of the penalties
specified in Regulation 4 of the Discipline and Appeal
Regulations can be imposed on an officer employee after
his retirement from service, though in terms of Regulation
20(3)(iii) of the 1979 Regulations, the disciplinary
proceedings initiated against an officer employee before
his retirement can be continued and final order is passed
and further that such officer employee is not entitled to
retiral benefits till the conclusion of disciplinary
proceedings and passing of final order. The only
exception to this is that the officer is entitled to receive
his own contribution to CPF. However, there is nothing
in the language of these regulations from which it can be
inferred that the disciplinary authority has the power to
impose a substantive punishment on retired officer
employee. This becomes more explicit from a conjoint.
reading of Regulation 48 of the Pension Regulations
which empowers the competent authority to withhold or
withdraw a pension or a part thereof and order recovery
from pension of the whole or part of any pecuniary loss
caused to the bank if in a departmental or judicial
proceedings, the pensioner is found guilty of grave
misconduct or negligence or criminal breach of trust or
forgery or acts done fraudulently during the period of his
service. Second proviso to Regulation 48 contains a
fiction and lays down that if the departmental
proceedings are instituted while the employee was in
service, the same shall be deemed to be proceedings
under the regulations and continued and concluded as if
the employee had continued in service. The third proviso12 of 15
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imposes a bar on the initiation of departmental or
judicial proceedings against an employee after his
retirement in respect of an event which took place more
than 4 years before such institution. The sum and
substance of these regulations is that even though a
departmental inquiry instituted against an officer
employee before his retirement can continue even after
his retirement, none of the substantive penalties specified
in Regulation 4 of 1979 Regulations, which include
dismissal from service, can be imposed on an officer
employee after his retirement on attaining the age of
superannuation. Therefore, we have no hesitation to hold
that order dated 12.10.2004 passed by the disciplinary
authority dismissing the respondent from service, who
had superannuated on 31.12.1993 was ex facie illegal
and without jurisdiction and the High Court did not
commit any error by setting aside the same.
11. We may also observe that master and servant
relationship between the respondent and the employer
i.e., appellant No.1 Bank had come to an end for all
practical purposes on 31.12.1993 i.e., the date of
superannuation. The departmental inquiry initiated
against the respondent before his retirement could be
continued for a limited purpose for determining whether
or not he is entitled for full pensionary benefits and
gratuity.”
12. Even though certain other judgments have also been referred to
by the Counsel for the petitioner, however, since the same are reiteration of
the aforesaid principle, hence, the same need not be extracted yet again. The
set position of law has been reiterated even in the judgment of “Rama Nand
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versus State of Haryana and others” passed in CWP-19650 of 2018
decided on 28.02.2023.
13. Counsel for the State reiterates the facts noticed above and
submits that arguments of petitioner are devoid of merit and the judgments
cited are not applicable. It is submitted that disciplinary proceedings having
been initiated prior to the date of retirement, a final order could be passed by
the competent authority. The judgments relied upon by the petitioner are not
applicable as in those cases. The proceedings itself commenced after the
retirement.
14. He further submitted that had it not been for the wrong working
of shares, the compensation could not be distributed, hence, loss is caused to
the State exchequer.
15. He however submits that there was no change of
misappropriation but the same seems to be an erroneous reason given.
16. He pleads ignorance about whether the disbursed amount was
recovered by the State from the landowners later and whether the petitioner
submitted the shares for 3 villages or 7.
17. He is not in a position to refer to the material on record that any
evidence was led to prove misappropriation or any foul play by the
petitioner.
18. On the other hand, no judgment has been cited by the learned
State Counsel to rebut the arguments advanced by the Counsel for the
petitioner.
19. The following undisputed facts emerge from the above:-
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i) Even though the dismissal order records that there was
an embezzlement to the tune of Rs. 7.90 crores by the
petitioner but there was no change to the said effect.
ii) The specific change against the petitioner is that he
worked out shares of proprietors in 7 villages but he
specifically denied any involvement in 4 villages.
20. Prima facie both these aspects were required to be taken into
consideration but the same has not been done.
21. Hence, I am of the opinion that order of dismissal is seemingly
driven by an allegation of embezzlement and loss to the State exchequer,
which has not been established. The matter is accordingly remanded to the
punishing authority after setting aside the impugned order for passing a fresh
decision in accordance with law and after granting an opportunity of
hearing. This Court has thus not dealt with the applicability of judgments
cited by the Counsel for the petitioner on merits lest it causes prejudice to
either party.
The present writ petition is accordingly allowed in above terms.
(VINOD S. BHARDWAJ)
FEBRUARY 17, 2025 JUDGE
Vishal Sharma
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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