Punjab-Haryana High Court
Smt. Shashi Thakur vs Ashok Sharma on 6 February, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.2616 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2616 of 2011 (O&M)
Date of decision: 6.2.2012
Smt. Shashi Thakur ....Appellant
Vs.
Ashok Sharma ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Naveen Daryal, Advocate for the appellant.
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G. S. SANDHAWALIA, J (Oral).
Civil Misc. No.7183-C-2011 Prayer made in this application is for condonation of delay of 10 days in re-filing the appeal.
The application is allowed in view of the averments made in the application, which are supported by affidavit. The delay of 10 days in refiling the appeal is condoned.
Civil Misc. No.7184-C-2011 This is an application for making deficiency of court fee good. The Civil Misc. application is allowed in view of the averments made in the application, which are supported by affidavit. RSA No.2616-2011
1. The present appeal has been preferred by the plaintiff who is aggrieved against the concurrent findings of the Courts below whereby her suit for recovery of Rs.1 lac as damages for defamation, loss of prestige, womanly modesty, mental agony, harassment and malicious prosecution RSA No.2616 of 2011 -2- **** has been dismissed.
2. The claim of the plaintiff was that she was serving as Computer Operator with the Punjab National Bank, branch office, GT Road, Karnal and she had applied for 42 days authentic maternity leave as per rules as she suffered an inevitable abortion on 9.5.99. The said leave application was supported by a medical certificate dated 10.5.1999 issued by Dr. (Mrs.) Madhu Chaudhary. The defendant rejected the same on 15.5.1999 as the same was not acceptable and asked her to undergo medical examination from the Chief Medical Officer, Karnal. The plaintiff got herself medically examined by the Chief Medical Officer, Karnal, who submitted his report on 9.6.1999 and the defendant rejected her maternity leave and directed her to bring a medical fitness certificate from a qualified doctor. The defendant also contacted the attending physician of the plaintiff to clarify certain facts on the basis of which the plaintiff had felt humiliated and hurt and the Doctor issued a clarification emphasizing her need for rest. After five months i.e. on 5.10.99, the defendant demanded an affidavit as proof of inevitable abortion and the plaintiff was deprived of the salary for the month of June, 1999 and 12 days of July, 1999 and salary for the month of May, 1999 was also with held and kept in a sundry account. The defendant also threatened to avail detective services to verify whereabouts of the plaintiff during this period and all this was done as the defendant was prejudiced against her and bore a personal grudge. The plaintiff further alleged that thereafter the defendant also issued letter to her for not marking evening attendance on 8.11.99, 10.11.99 to 20.11.1999 and even the President of the Employees Union had approached the defendant in the matter and the matter was eventually settled. However, on 27.11.1999 a similar letter was issued and when the RSA No.2616 of 2011 -3- **** President of the Employees Union approached the defendant, the defendant wrote on a piece of paper that 'I am biased'. No show cause was issued to the plaintiff but she was charge sheeted on 23.12.99 and she filed reply thereto on 25.1.2000 and an award was also given by the disciplinary authority clearing the plaintiff, accordingly, the behaviour of the defendant is biased and had caused harassment, humiliation, mental torture and loss in mind, body, reputation and property and, thus, damages were claimed for.
3. In reply, the defendant admitted that being a senior officer he had demanded a requisite medical certificate as per rules and pleaded that suit was bad for non-joinder of parties as plaintiff had not arrayed the bank as party. It was alleged that plaintiff had suppressed the material facts and not disclosed that she had raised an industrial dispute which was subsequently withdrawn by her and her husband had also filed a complaint before the National Human Rights Commission, New Delhi. The application for 42 days maternity leave submitted by her was rejected on account of the inconclusive report of the Chief Medical Officer, Karnal. Previously, the plaintiff had applied for two days leave from 10.5.99 to 12.5.99 in which the ground for leave was not feeling well. On 15.5.99 she moved an application dated 10.5.99 on account of inevitable abortion on 9.5.1999 which was supported by a medical certificate issued by Dr. (Mrs.) Madhu Chaudhary recommending the medical leave from 10.5.99 to 20.6.99. Accordingly, all these facts raised a suspicion in the mind of the defendant regarding the genuineness of the grounds of leave and due to this reason he had further investigated the matter. It was denied that the plaintiff had been harassed and humiliated. It was alleged that the plaintiff had previously availed abortion leave on four occasions and most of these RSA No.2616 of 2011 -4- **** leaves had been availed by her during summer vacations of schools. Since there was no medical evidence to support her claim, the defendant had directed the plaintiff to submit an affidavit as proof of her inevitable abortion but she had never submitted the same. Accordingly, her salary was kept in sundry account as she was absent from duty. It was further alleged that the plaintiff was misbehaving by not marking her evening attendance as she used to leave the office early very often and vide letter dated 8.5.2001 a penalty of censure was imposed upon her.
4. The plaintiff appeared as witness as PW-1 and produced 12 exhibits whereas defendant submitted the letter dated 28.6.1995 Ex. D1 and letter dated 27.6.1991 Mark D1 while appearing as DW-1.
5. On the basis of the pleadings and evidence on record, the trial Court came to the conclusion that the certificate Ex. P1 issued by Dr. (Mrs.) Madhu Chaudhary, who was admittedly not an approved Doctor of the Bank and the application was filed by the plaintiff on 15.5.1999 which was dated 10.5.1999 and, therefore, the defendant was not wrong in directing the plaintiff to get herself medically examined from the Chief Medical Officer, Karnal Since the report of the Chief Medical Officer was inconclusive regarding the fact of abortion the defendant directed the plaintiff to file an affidavit regarding her alleged abortion which she failed to do. It was also noticed by the trial Court since the plaintiff had applied for leave for the same purpose earlier, the defendant tried to make a discreet enquiry from the Doctor and in the ensuing enquiry, she was found guilty of using questionable language and also found she was not marking her evening attendance properly. Accordingly, it was held that since the facts and circumstances were such, the defendant had sufficient reason to look into the leave sought by the plaintiff as officer in charge of the branch. The RSA No.2616 of 2011 -5- **** trial Court also held that no doubt pendency of the charge sheet must have been trying time for the plaintiff but that did not give itself to the plaintiff a ground to claim damages as she herself had failed to supply the required medical certificate and there was no motive for the defendant to act like this. Accordingly, compensation was declined vide judgment and decree dated 25.7.2007.
6. The plaintiff filed an appeal before the Lower Appellate Court which has been dismissed on 27.1.2011 and resultantly the present Regular Second Appeal has been filed.
7. Counsel for the appellant vehemently contended that the Courts below were in error in not granting damages and the plaintiff had been defamed by the defendant and he was only holding officiating charge at that point of time. The submission made by the counsel for the appellant cannot be accepted because it has been noticed by both the Courts below that there is a report of the Chief Medical Officer, Karnal that there was no instance of inevitable abortion or miscarriage when she reported for medical examination on 21.5.1999. It had also been noticed that earlier application dated 10.5.1999 has been moved, but no mention had been made regarding miscarriage and the sequence of events showed that the appellant had applied for medical leave on the same ground in the month of June also when the schools of the children was closed. The fact that the defendant had any bias could not be proved and, therefore, once he was acting in his official capacity and sought opinion of the fact that the leave application did not seem to be genuine would not entitle the plaintiff to claim damages on the ground of defamation or loss of prestige etc. Counsel for the appellant further contends that in departmental proceedings she was exonerated and, therefore, the Courts have misread RSA No.2616 of 2011 -6- **** the evidence. The findings in the departmental proceedings are such which would not have binding effect upon the Civil Court which had to decide as to whether there was any liability on the part of the defendant to pay damages and whether he acted in such a manner where the plaintiff had been defamed openly. The Courts below have come to the conclusion that defendant was acting in the discharge of his official duties and have denied the claim for damages.
Thus, no question of law much less substantial question of law arises from the records of the present case which would warrant interference in Regular Second Appeal. Accordingly, the present appeal is dismissed in limine and judgments and decrees of the Courts below are upheld.
(G.S.SANDHAWALIA) JUDGE 6.2.2012 Pka