Punjab-Haryana High Court
Kulbhushan Sharma vs State Of Haryana on 17 September, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.2301 of 1990 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2301 of 1990 (O&M)
Date of Decision:17.09.2014
Kulbhushan Sharma ... Appellant
Vs.
The State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. B.R. Vohra, Advocate for the appellant.
None for the respondent.
****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** RAMESHWAR SINGH MALIK J.
Having been non suited by both the learned courts below recording concurrent findings of fact, whereby his suit for declaration was dismissed, plaintiff has filed the instant regular second appeal.
Brief facts of the case, as noticed by the learned first appellate court in para 2 and 3 of the impugned judgment, are that the plaintiff- appellant was appointed as a bus conductor by the respondent-defendant on May 15, 1969. He allegedly defrauded the government money to the tune of Rs.18/- while he was on duty on 16.5.1981, 1.6.1981 and 9.7.1981 and was found negligent and indisciplined. A charge sheet was drawn up against him. The regular enquiry was conducted in which he was held guilty. On the basis of the report of enquiry officer, General Manager, Haryana Roadways, terminated the services of the plaintiff on 25.10.1982. The RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -2- plaintiff filed an appeal against the said order which was dismissed by the Transport Commissioner under his order dated 17.7.1984. The validity of the said orders was challenged on the grounds 'inter-alia':-
a) that even if the misconduct and embezzlement on the part of the plaintiff was proved, the extreme penality of termination was not justified in the facts and circumstances of the case.
b) that there was a pre-judgment, pre-determination and pre-assessment of the guilt in the charge sheet;
c) that the Transport Commissioner while deciding that appeal travelled beyond the scope of the charge-sheet and referred to the past record of the plaintiff while effecting penalty upon him whereas there was no mention in the charge sheet about his previous conduct.
d) that there was no legal evidence on record to substantiate the impugned conclusion drawn up against him;
e) that the enquiry findings dated 1.1.1982 submitted by the Station Supervisor Shri S. Nath were halting, ketchy and mechanical as there was no reference to or discussion of any evidence;
f) that no valid and proper enquiry preceded the impugned order of termination;
g) that no guidelines or judicial norms have been adhered to while deciding the appeal of the plaintiff by the Transport Commissioner;
h) that the personal hearing given to the plaintiff was a farce;
g) that no opportunity was afforded to the plaintiff at any stage to answer the case set up against him and the impugned orders of termination are nebulous and non speaking ones.
The defendant contested the suit and filed a written statement RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -3- taking up the pleas that the plaintiff was afforded every reasonable opportunity to defend himself and he could not prove himself to be innocent. The enquiry was duly and validly conducted in compliance with the relevant rules and the charges of embezzlement levelled against the plaintiff were fully proved in the enquiry. On the basis of the enquiry report the termination orders dated 25.10.1982 passed by the General Manager, Haryana Roadways, and the appellate orders dated 17.10.1984 passed by the Transport Commissioner were legal and valid. It was also pleaded that the plaintiff was heard personally before the order of termination was passed against him. The preliminary objections about the limitation, jurisdiction of the civil court to try the suit as well as maintainability of the suit in the present form were also raised.
On completion of pleadings of the parties, learned trial court framed the following issues:-
"1. Whether the impugned orders dated 25.10.1982 and 17.7.1984 are illegal, void and not binding on the plaintiff for the reasons given in the plaint?
2. Whether the suit is within limitation?
3. Whether this court has no jurisdiction to try this suit?
4. Whether the suit is not maintainable in the present form?
5. Relief."
In order to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff failed to prove his case. Accordingly, his suit for declaration was dismissed vide impugned judgment and decree dated 31.7.1987. Feeling aggrieved, plaintiff filed his first appeal which also came to be dismissed by learned Additional District Judge, vide impugned RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -4- judgment and decree dated 23.8.1990. Hence, this second appeal at the hands of the plaintiff.
Learned counsel for the appellant-plaintiff submits that plaintiff has duly proved his case. He brought on record cogent and convincing evidence which was sufficient to decree his suit. However, since learned courts below failed to appreciate true facts of the case as well as the evidence available on record, the impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
None came present on behalf of the respondent-State of Haryana.
Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
A bare combined reading of both the impugned judgments would show that appellant had been warned 43 times, before passing the order which was impugned by him in the present litigation. His annual grade increments were stopped 12 times. Appellant was punished with the punishment of censure for 14 times. He was found involved in 40 cases of embezzlement. These startling facts would show that appellant was an incorrigible employee. He was in the habit of indulging in dishonest RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -5- activities. He would commit embezzlement as and when he would find any opportunity.
A regular departmental enquiry was conducted against him. He was granted due opportunity to defend himself. He cross examined the prosecution witnesses, while participating in the enquiry proceedings. Disciplinary authority ensured meticulous compliance of the principles of natural justice, at every relevant stage of the proceedings. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing their respective impugned judgments and the same deserve to be upheld.
Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the facts of the case as well as the evidence led by the parties, so as to record his own cogent findings, in para 6 to 12 of the impugned judgment. The relevant findings recorded by the learned first appellate court in para 9 and 10 of the impugned judgment, read as under:-
"If the report of the enquiry officer Ex.P-11 is carefully and properly looked into in the light of the observations made in the above cited authorities, there is no reason to hold that it is based on no legal evidence. A perusal of the report reveals that the plaintiff-appellant charged more money from the passengers and he issued tickets of less denomination. Statements of all the concerned inspectors, who checked the record with the plaintiff at the relevant dates, were recorded. Their evidence was fully discussed by the enquiry officer. One of the charges of embezzlement of Rs.350/- was not even tried to be explained by the plaintiff before the enquiry officer and his explanation about the remaining charges who also not found to be satisfactory. Enquiry Officer also furnished full RAJEEV THAKRAL 2014.09.23 10:16 opportunity to the plaintiff to prove his innocence but he was I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -6- not able to establish his innocence. After discussing all the relevant and material circumstances the enquiry officer gave detailed report and it cannot be said that his report was based on no legal evidence. When the tickets issued by the plaintiff were found to be of less denomination, there was hardly any necessity for the inspectors to record the statements of the passengers. There seems to be no defect or error in this report Ex.P11, which is self explanatory. So it cannot be said to be based on no legal evidence as argued by counsel for the plaintiff-appellant.
No doubt the enquiry officer did not peruse the way bill before giving his report but this omission is not at all fatal because there was sufficient evidence with the enquiry officer to substantiate the guilt of the accused.
Counsel for the appellant further assailed the order of termination Ex.P-16 passed by the appellate authority on the ground that the previous conduct of the plaintiff has been discussed in that order whereas there was no such allegation about his past conduct in the charge sheet and he was not offered an opportunity to explain his past conduct. The counsel also submitted that the order of termination passed by the General Manager merges into the order of the Transport Commissioner and the later order being a non-speaking is not sustainable in the eyes of law. In support of his arguments, the counsel sought help from State of Mysore v. S. Manche Gowda, 1964 Supreme Court, Reports page 540 wherein it was held as follows:
"that it was incumbent upon the government to give the government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment was also based on his previous punishments or his previous bad record, that should be included in the second notice so that he may be able to give an explanation. The doctrine of 'presumptive knowledge or that of purpose less RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -7- enquiry is subversive of the principle of "reasonable opportunity"
After going through the report of the enquiry officer Ex.P-11 and the termination orders Ex.P15 and P16. I do not findany substance in the argument advanced by counsel for the appellant. The order passed in appeal by the Transport commissioner cannot be said to be non-speaking because he agreed fully with the order passed by General Manager. Moreover, there is nothing on record to suggest that some points were raised before the Transport Commissioner by the plaintiff which were not discussed in the order by him. When the Transport Commissioner agreed with the termination order passed by General Manager, there was no necessity for him to pass a detailed order.
So far as the past conduct of the plaintiff is concerned, it appears to have been mentioned in his order by the Transport Commissioner because the plaintiff must have made a mercy appeal and to take a lenient view against him and for that purpose the Transport Commissioner took into consideration the past record of the plaintiff. Even if that aspect of the order passed by the Transport Commissioner is ignored the punishment cannot be held to be disproportionate to the charge because the charge of embezzlement is serious one and the penalty of termination on that account cannot be held to be excessive or disproportionate.
Counsel for the appellant also challenged the validity of the impugned order on the ground of discrimination. He referred to the order Ex.P17 which was passed by the Transport Commissioner against one Azad Singh conductor who was found guilty of embezzlement of the Government money to the tune of Rs.43/-. The General Manager terminated his services but the Transport Commissioner while taking a lenient view awarded lesser punishment and stopped his three increments with cumulative effect. The counsel for the appellant contended that since Azad Singh conductor was found having RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -8- embezzled Rs.43/- and was awardeda penalty of stoppage of three increments then it is not understandable as to how the plaintiff, who was found guilt of committing embezzlement of Rs.18/- was awarded such a heavy penalty of termination and it is a clear cut case of discrimination. In support of his arguments, the counsel placed reliance upon the observations made in 1986(1) SLR 82. But this authority was not produced before me. Even otherwise when two persons placed in similar circumstances are found guilty of same charges and one of them is awarded a lessor penalty than the other, the later can complaint of discrimination. In the present case no doubt the plaintiff was found having committed embezzlement of lesser amount but the other relevant circumstances must have also been considered by the punishing authority. Even the appellate authority i.e. the Transport Commissioner appears to have made a reference to the past record of the plaintiff so as to take a lenient view. But his past conduct was highly blemished. So the Transport Commissioner did not think of awarding lesser punishment to him. When all the circumstances of plaintiff and Azad Singh were not the same, the plaintiff cannot contend that he was discriminated against because his past record was highly blemished and he was very much in the know of it.
The counsel for the appellant also challenged the validity of the impugned orders on the ground that the report of the enquiry officer is not reasoned and the statements of the witnesses were recorded by the enquiry officer without oath. But the counsel failed to show me any law which requires enquiry officer to record the statements of the witnesses on oath. Even the report of the enquiry officer is well reasoned and wall discussed. Statements of all the witnesses and the antecedent circumstances have been fully discussed. The order is self explanatory. By no stretch of imagination the report can be said to be unreasoned."
RAJEEV THAKRAL During the course of hearing, learned counsel for the appellant 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2301 of 1990 (O&M) -9- could not point out any jurisdictional error or patent illegality apparent on the record of the case in either of the impugned judgments. He also failed to put into service any substantive argument so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine quo non for interference at the hands of this Court, while exercising its jurisdiction under Section 100 CPC, as held by the Hon'ble Supreme Court in Naryanan Rajendran and another v. Lekshmy Sarojini and others; 2009(2) RCR (Civil) 286.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 17.09.2014 rajeev RAJEEV THAKRAL 2014.09.23 10:16 I attest to the accuracy and authenticity of this document High Court Chandigarh