Punjab-Haryana High Court
(O&M;) State Of Punjab And Others vs Balwat Singh on 27 August, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.134 of 1991 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.134 of 1991
Date of Decision:27.08.2014
State of Punjab and another ... Appellants
Vs.
Balwant Singh ... Respondent
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Dr. Puneet Sekhon, Addl. A.G. Punjab, for the appellant.
Mr. B.R. Mahajan, Sr. Advocate with
Ms. Gaganpreet Kaur, Advocate 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.
Present appeal, at the instance of defendants, is directed against the judgment of reversal passed by the learned Additional District Judge, whereby judgment and decree passed by the learned trial Court, dismissing the suit for declaration, were set aside and suit of the plaintiff was decreed.
Brief facts of the case, as recorded by learned first appellate court in para 2 to 4 of the impugned judgment, are that the plaintiff was employed as a conductor and he was allotted conductor No.3067 and was drawing salary to the tune of Rs.650/- P.M. The plaintiff was on duty on 21.11.1981 and his bus was checked by the Inspectorate Staff and the staff falsely reported that the plaintiff did not issue tickets to ten passengers who boarded bus from Phillaur to Partap Pur and realised 55 paise each as fare from them. A passenger was travelling without ticket and he was charged RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -2- ten times the fare by the plaintiff but the Inspectorate Staff made a wrong report against the plaintiff.
The plaintiff was removed from the service vide order dated 21.12.1981 passed by the General Manager without affording any opportunity to the plaintiff. The order of termination of the services of the plaintiff is illegal, contrary to rules of natural justice and is not sustainable in the eye of law because the order of termination has cast stigma on the character of the plaintiff as the said order was passed on the ground that the plaintiff embezzled a sum of Rs.5.50 charged as fare from the passengers. Aggrieved by the order of the General Manager, the plaintiff filed an appeal but the same was dismissed vide order dated 25.10.1982. One increment of the plaintiff was also stopped vide order dated 23.11.1981 and the plaintiff could not be punished twice for the same omission or wrongful act. The order of termination stood merged with the order of appellate authority dated 25.10.1982 and both the orders are null and void and against the provisions of Civil Services (Punishment and Appeal) Rules. The service of the plaintiff were terminated and juniors to the plaintiff were retained in service thereby violating the principle of first come last go. A valid notice was served upon the defendants before the institution of the suit, but the defendants did not take any action to reinstate the plaintiff in the service and hence the suit.
The suit was contested by the defendants and the defendants have taken the objections in their written statement that the order passed by the General Manager and the Appellate Authority are valid in the eye of law. The civil court has no jurisdiction to try the suit and the suit is time barred, but it is admitted that the plaintiff was employed as a conductor in RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -3- the Punjab Roadways, and termination of service is a major punishment.
On completion of pleadings of the parties, learned trial court framed the following issues:-
"1. Whether the plaintiff is entitled for declaration as prayed for? OPP
2. Whether the suit of the plaintiff is time barred? OPD
3. Relief."
In order to prove their respective stand 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 has failed to prove his case. Accordingly, suit was dismissed vide judgment and decree dated 24.8.1988. Feeling aggrieved, plaintiff filed his first appeal which came to be allowed by learned Additional District Judge, vide impugned judgment and decree dated 30.8.1990. Hence this second appeal, at the hands of the defendants.
Learned counsel for the appellant submits that plaintiff has failed to prove his case. Order dated 21.12.1981 passed by the competent authority-General Manager Punjab Roadways, Patti, was not a stigmatic order which was passed during probation period of the plaintiff. Under these circumstances, no regular enquiry was required to be conducted. Learned trial court rightly dismissed the suit of the plaintiff. However, since the learned first appellate court misdirected itself, while not appreciating the true facts of the case as well as the evidence available on record, impugned judgment and decree were not sustainable in law. She prays for setting aside the impugned judgment and decree.
On the other hand, learned senior counsel for the respondent- plaintiff submits that the plaintiff filed his statutory appeal against the initial RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -4- removal order dated 21.12.1981 and the appellate authority dismissed the departmental appeal of the plaintiff by passing a stigmatic order dated 21.10.1982. It was specifically alleged against the plaintiff that he has committed a fraud, while conducting the bus No.2243 on 22.11.1981. It was further recorded in the appellate order that one increment of the plaintiff was stopped on 30.11.1981. The appellate authority concluded by observing that conduct of the plaintiff was such that he was not fit to be retained in service. Learned senior counsel for the respondent would next contend that in view of the observation made by the appellate authority in order dated 25.10.1982, it was imperative on the departmental authority to conduct a departmental enquiry so as to give reasonable opportunity to the respondent-plaintiff to defend himself. However, since no enquiry was conducted, the appellate authority has violated the basic principle of natural justice. Since, the learned trial court failed to appreciate this material aspect of the matter, the learned first appellate court was well justified while reversing the findings of the learned trial court, allowing the first appeal of the plaintiff. He prays for dismissal of the appeal.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival 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 perusal of the appellate order dated 25.10.1982 passed RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -5- by the Director State Transport, Punjab, dismissing appeal No.4/55 of 1982 filed by the plaintiff-respondent which is available at page 79 of the Lower Court Record (for short "LCR"), would make it crystal clear that the order was stigmatic in nature. It is also a matter of record and not in dispute that no departmental enquiry was conducted against the plaintiff. Initial order dated 21.12.1981 discontinuing service of the plaintiff has since merged in the appellate order dated 25.10.1982, it was required by the appellant- department to conduct an appropriate enquiry, if the plaintiff-respondent was sought to be removed from service by way of punishment. In the absence of any departmental enquiry, the appellate order dated 25.10.1982 was not sustainable in law, because it was in glaring violation of the principle of natural justice. The plaintiff-respondent was condemned unheard, thereby violating the principle of Audi Altrem Partrem. Having said that, this court feels no hesitation to conclude that the learned Additional District Judge committed no error of law, while passing the impugned judgment and the same deserves to be upheld.
A bare combined reading of both the impugned judgments rendered by the learned courts below would show that so far as the punishment order was concerned, both the courts below have held that the order passed by the authority of the department were void ab-initio. However, learned trial court proceeded on wholly misconceived and perverse approach, while dismissing the suit only for want of jurisdiction. In these circumstances, learned first appellate court was well justified in reversing the said perverse finding of the learned trial Court. Thus, the impugned judgment rendered by the first appellate court deserves to be upheld, for this reason also.
RAJEEV THAKRAL2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -6-
It is again a matter of record that after passing of the impugned judgment dated 30.8.1990, plaintiff came to be re-instated in service on 1.11.1990 and thereafter present appeal was filed on 4.12.1990. No application for stay was moved alongwith the appeal, which was admitted for regular hearing by this Court vide order dated 9.4.1991. Thereafter, civil miscellaneous application No.3495-C of 1991 was moved by the appellants seeking stay of execution of the impugned decree. This stay application came up for hearing before this Court on 14.11.1991 and the following order was passed:
"Notice to counsel for the respondent for 13.12.1991. At this stage, the State will deposit three years arrears of pay and allowances in the executing court within two weeks. Execution of remaining decreetal amount is stayed till the final disposal of the C.M. A copy of this order may be given dasti to the AG Punjab by the Registry."
After hearing both the learned counsel for the parties on 17.12.1991, the above-said order dated 14.11.1991 was further clarified as under:
"After hearing the learned counsel for the parties, I hereby confirm the stay order dated 14.11.1991. It is, however, clarified that the State will deposit the arrears of pay and allowances for a period preceding three years prior to the institution of the suit within three weeks. The decreetal amount deposited by the State will be disbursed to the respondent on his furnishing security. A copy of the order be given dasti."
Plaintiff is continuing in service and as per the statement made by the learned senior counsel for the respondent-plaintiff, he is going to superannuate on 31.12.2015. It is further pertinent to note that respondent- RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -7- plaintiff moved civil miscellaneous application No.12-C of 1993, wherein the above-said orders were further clarified vide order dated 12.3.1993 passed by this Court, which reads as under:
"After going through the application, I am of the opinion that stay order granted by this Court on 17.12.1991 deserves to be modified. The appeal was admitted on the ground that the respondent cannot claim the arrears for more than three years prior to date of institution of the suit. As the Court has found the termination order illegal, I direct that the respondent should be reinstated immediately. He should be paid all the arrears from the date of grant of declaration in his favour by this Court with 6 per cent interest. The execution of the decree as regards arrears which were due three years prior to the institution of the suit would remain stayed."
So far as the arrears of salary beyond three years preceding the date of institution of suit is concerned, learned senior counsel for the plaintiff-respondent fairly states that let there be clarification in this regard. In this view of the matter, it is clarified that the plaintiff-respondent will be entitled for arrears of salary only for a period of three years prior to the date of institution of the suit. It is also made clear that plaintiff-respondent would be entitled for all the other service benefits which would flow from the impugned decree, including full salary for the post on which he was working, annual grade increments, promotion, if any, and other ancillary benefits.
Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the true facts of the case as well as the evidence led by the parties, so as to record its own cogent findings, in para 5 to 9 of the impugned judgment. Relevant findings recorded by the learned first appellate court in para-8 of the impugned judgment read as under:- RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -8-
"The trial court did not frame issue regarding jurisdiction of the civil court, but suo moto decided that plaintiff had availed of alternate remedy. Two remedies were available to the plaintiff either to approach the civil court or the labour court, but the reference to Civil Court was declined. So, it cannot be said that the rights of the plaintiff have been finally adjudicated through the reference to the Labour Commissioner who declined to refer the dispute of the plaintiff to the labour Court. In a similar case, the plaintiff filed a suit and the suit of the plaintiff was dismissed in default and not on merits. Our own Hon'ble High Court has held that the rights of the plaintiff were not decided by the civil court on merits and as such the alternate remedy available to the plaintiff has not been exhausted and the alternate remedy available to the plaintiff to approach the Labour Court remains intact. My view in this respect are supported by the decision of our own Hon'ble High Court reported as 1985(2) S.L.J 306-308, (Ferozzepur Central Co-operative Bank Ltd. V. Presiding Officer, Labour Court Bhatinda and another). Hence, the dispute raised by the plaintiff was not referred to the Labour Court by the Labour Commissioner and so it cannot be said that the rights of the plaintiff were decided on merits by the Labour Court as the reference was declined to the Labour Court. As the rights of the plaintiff were not decided on merits, the alternate remedy available to the plaintiff remained intact. The view of the trial court that the dispute of the plaintiff was referred to the Labour Commissioner and hence the civil court has no jurisdiction is contrary to law as laid down by our own Hon'ble High Court and is not sustainable in the eye of law. It is held that the civil court has jurisdiction to try the suit. The findings of the trial court that the civil court had no jurisdiction to try the suit as the dispute raised by the plaintiff was referred to the Labour Commissioner who declined to refer the dispute to the Labour Court. I have gone through the letters addressed by the Labour Commissioner to the plaintiff Ex.P5 dated RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -9- 11.7.1984 and Ex.P8 dated 9.4.1984 whereby the Labour Commissioner declined to refer the dispute of the plaintiff to the labour court. The learned counsel appearing for the plaintiff appellant contended that the dispute of the plaintiff was referred to the Labour Commissioner but the Labour Commissioner declined to refer the dispute raised by the plaintiff to the Labour Court and as such thedispute raised by the plaintiff was not decided on merits. As the rights of the plaintiff were not decided on merits, the civil court had the jurisdiction to try the suit and the approach of the trial court is against law which held that the civil court has no jurisdiction in the matter because the dispute raised by the plaintiff had been referred to the Labour Commissioner. It is well settled proposition of law that a workman raising a dispute cannot claim a reference u/s 10 of the Industrial Dispute Act, as a matter of right and proviso to section 10 cannot be considered to be providing an alternative remedy and my views in this respect receive support from a ruling of Division Bench of our own Hon'ble High Court reported as 1983(1) S.L.R. Page 38 (Rajbir Singh and others v. State of Haryana and others). The dispute raised by the plaintiff was not referred to the Labour Court and as such it could not be said that to the effect that the civil court has no jurisdiction are set aside. The trial court has held that the orders dated 21.11.1981 and 25.10.1982 are null and void and the suit is not barred by limitation because no limitation is provided to challenge an illegal and void order and therefore I agree with the findings of the trial court on issues No.1 and 2."
During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgment passed by the learned Additional District Judge. She also failed to put into service any substantive argument so as to convince this Court to take a different view than the one RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.134 of 1991 -10- taken by the learned first appellate court. 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.
Consequently, subject to the above-said clarification, restricting the claim of the plaintiff-respondent for arrears of salary to a period of three years preceding the date of filing of the suit, impugned judgment and decree rendered by the learned first appellate court, are hereby upheld.
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 27.08.2014 rajeev RAJEEV THAKRAL 2014.09.01 16:55 I attest to the accuracy and integrity of this document High Court Chandigarh