I.S. Tiwana, J. - (1.) (Oral) - The two petitioners (in C.W.P. Nos. 3559 and 3578 of 1978) who at the relevant time (1969-70) were working as Pharmacists in a Sub Depot at Chhehratta, impugn two different but similar orders passed by the Director, Health Services, Punjab (Annexures P. 5 and P. 4 respectively) as a result of the departmental enquiries held against them, ordering certain amounts of recovery on account of embezzlement/shortage in the stock of medicines in their custody. The learned counsel for the parties are agreed that on account of the identity of facts and contentions raised in these petitions, the same can be disposed of together and for that purpose the facts stated in the first petition only need be taken notice of. The primary challenge of the petitioner is that while serving him with a second show-cause notice (copy Annexure P. 3) proposing the imposition of the following punishment - "1. It is proposed to effect recovery of Rs. 138.70 and Rs. 2687.06 from you on account of embezzlement in the medicines. 2. Stoppage of your two yearly increments permanently. 3. Suspension period to be treated as on leave due. 4. You should not be paid anything more than the subsistence allowance already paid for the suspension period because your suspension was justified." no copy of the enquiry report was sent to him and in the absence of the same he was seriously handicapped in the submission of his reply. His learned counsel further contends that in pursuance of this show-cause notice no final order has even been passed and rather the Director, Health Services has communicated to the Civil Surgeon, Ludhiana, vide Annexure P. 5, that an amount of Rs. 2, 825.75 be recovered from the monthly emoluments of the petitioner by imposing a 60% cut in the same. With regard to the rest of the proposed punishments it has been said in this communication "as regards other punishment, stoppage of increments and treating of his suspension period as proposed in the show cause notice served upon him, these issues will be decided later on". The learned counsel contends that the punishing authority could not possibly pass piece-meal orders and thereby prejudice the right of the petitioner to file an appeal against the orders including annexure P. 5 so far as it deals with the recovery of Rs. 2,825.75.
(2.) On the other hand, the stand of the respondent-authorities is that since the recovery of the amount in question is a minor punishment in terms of rule 5 of the Punishment & Appeal Rules, 1970 (for short, the Rules), the petitioner was not required to be served with the copy of any enquiry report and only his reply to the show-cause notice was required to be considered before the passing of any order imposing any minor penalty on the petitioner. Further it is contended on their behalf that vide communication annexure P. 5, no penalty other than the one relating to the recovery of Rs. 2,825.75 has been awarded to the petitioner and, therefore, no violation of rule 11 of the Rules is involved in this case.
(3.) Having heard the learned counsel for the parties at some length I find no merit in the stand of the respondents. On the face of it, the stand taken by the respondent-authorities is contradictory. If the petitioner was sought to be visited with one of the major penalties prescribed under the rules, then the procedure prescribed in rule 8 had to be followed and has, as per their stand actually been followed In that situation, the compliance of rule 11, i.e., the supplying of a copy of the report of the enquiry officer to the petitioner was a must. On the other hand, if their case as now sought to be pleaded is that the petitioner has only been awarded a minor penalty of recovery of the above-noted amount then the punishing authority was under an obligation to discuss the merits of the reply furnished by the petitioner to the show-cause notice and for that it cannot possibly rely on or refer to the contents of the enquiry report. It is patent from a bare reading of annexure P 5 that the punishing authority has not discussed the merits of the reply (annexure P 2) submitted by the petitioner to the show-cause notice. In this five-page reply, the petitioner had raised a number of contentions, none of which has been dealt with by the punishing authority, i.e., the Director, Health Services, in his impugned communication annexure P 5.;