Punjab-Haryana High Court
Amarjit Singh vs The Punjab Mandi Board And Others on 25 July, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
R.S.A. No. 1251 of 2012
Date of decision: July 25, 2012
Amarjit Singh
.. Appellant
Vs.
The Punjab Mandi Board and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. J.P.S. Sidhu, Advocate for the appellant. A.N. Jindal, J
Both the courts below declined to accept the prayer of Amarjit Singh plaintiff- appellant (herein referred as, 'the plaintiff') while declining him the relief of declaration that the order passed by the defendant for recovery of Rs.33,40,000/- from him is illegal, mala-fide arbitrary, discretionary and the against the service rules and principles of natural justice and the defendants be restrained from recovering any amount.
The plaintiff was working as Mandi Supervisor cum Fee Collector at Market Committee Mansa. The allegations against him are that he along with some other employees had caused loss to the Market Committee Mansa by entering less sarson (mustard) in the bidding register and showing connivance with the commission agents of Mansa regarding the loss of market fee and RDF against the plaintiff. A complaint in this regard was lodged by Gurbhag Singh, Mandi Supervisor-cum-Fee Collector, Mansa on 4.7.1989 which was enquired into and the allegations were found to be correct. The plaintiff was charge sheeted on 1.10.1990 under Rule 8 of the Punjab State Agriculture Marketing Service (Punishment and Appeal) Rules 1988. The plaintiff submitted reply to the regular enquiry so held and after giving him show cause notice regarding penalty, the Administrator decided to stop two increments with cumulative effect with 5% cut in his pay for the suspension period. However, the orders were silent regarding recovery of loss. Thereafter, on appeal before the Secretary, Punjab Mandi Board, the findings of eqnuiry were set aside and R.S.A. No. 1251 of 2012 -2- on considering the orders of the Administrator, Secretary, Punjab Mandi Board directed to hold fresh enquiry against the delinquent employee. Accordingly fresh enquiry was conducted by the Deputy District Mandi Officer, Sangrur and also sent his findings to Secretary, Mandi Board, Chandigarh. Again, employees, including the plaintiff were found responsible for the theft of the market fee and rural development fund. On the basis of the said report, Secretary, Mandi Board directed the Market Committee to initiate administrative action against the guilty employees to calclulate and recover the loss from these employees. The Market Committee Mansa decided to reduce the punishment of stoppage of two increments with cumulative effect with cut of 5% in pay for the suspension period to stoppage of one increment without cumulative effect and also decided to restore the cut of 5% in pay for the suspension period. However, no specific order regarding recovery of loss was passed in that order but order regarding recovery of loss was never set aside by the Punjab Mandi Board, Chandigarh.
The plaintiff challenged those orders. He raised finger for the violation of the rules in conducting the enquiry and defect in the enquiry proceedings and sought to withdraw the order with regard to recovery of the loss caused to the market committee as well as the order of penalty passed against him. The defendants-respondents appeared in the court and filed reply wherein they raised many legal objections inter alia that the plaintiff has no cause of action; the suit is time barred; civil court had no jurisdiction for want of notice under Section 31 of the Punjab Agricultural Produce Markets Act, 1961 and also Section 42 of the Act. The plaintiff did not avail the remedy of appeal before the Government, as such, the suit was not maintainable. On merits, it was admitted that some employees of the Market Committee had made a complaint against the theft of market fee of Rs.12,68,014/- and also theft of Rural Development Fund worth Rs.6,34,007/- in the Market Committee, Mansa in connivance with the other employees. On the basis of the said complaint, Gurjit Singh, Gora Singh, Ajaib Singh and the plaintiff were suspended and a detailed enquiry was held against them. The enquiry was sent to the Secretary, Punjab Mandi Board, Chandigarh, in which he found all the employees guilty and fully R.S.A. No. 1251 of 2012 -3- responsible for the theft of the market fee and the rural development fund. The proper procedure regarding framing of the charge sheet and holding of the enquiry was adopted and ultimately the Administrator decided to stop two increments with cumulative effect with 5% cut in their pay for the suspension period. It was also admitted that the Secretary, Punjab Mandi Board, had directed to initiate fresh enquiry and fresh enquiry was conducted and they were again held guilty of the charges. It was also pleaded that the Secretary, Mandi Board, directed the Market Committee to initiate administrative action against the guilty employee and recover loss from these employees. The said order was never set aside as such the respondents were bound to compensate the loss. It was also admitted that when the enquiry was remitted back, the Market Committee, Mansa decided to reduce the punishment to stoppage of one increment without cumulative effect and also to restore cut of 5% in pay for the suspension period, however, the order regarding recovery of loss was never set aside by the Market Committee or the Punjab Mandi Board, Chandigarh. It was further averred that after personal hearing on 14.8.2003, the Administrator Market Committee, Mansa as per direction of the Secretary Mandi Board, Chandigarh, vide resolution No.10 dated 19.8.2003 resolved regarding recovery of loss plus interest @ 5.5% amounting to Rs.33,44,000/- to be recovered equally from all the four guilty employees. As such, recovery of Rs.8,35,000/- was due against the present plaintiff and the same was to be deducted in monthly instalments as per rules. Order No.1246 dated 7.8.2003 and 6/4416 passed by the defendants for the recovery of Rs.33,40,000/- from the plaintiff, as per his share is legal and as per rules. The plaintiff had no right to challenge the said order. The defendants by virtue of provisions of Section 29 of the Punjab Agricultural Produce Act, 1961, could recover the amount as land revenue, therefore, the recovery could not be said to be time barred. The employee was suspended in the year 1989 and the charge sheet was issued to him in the year 1990. Notice was given to them in time as such there being no delay in the order, the same was bound to be maintained.
Defendant No.4 preferred separate written statement wherein he also raised similar pleas and prayed for dismissal of the suit.
R.S.A. No. 1251 of 2012 -4-Replication was also filed. From the pleadings of the parties, the trial court framed the following issues :-
1. Whether plaintiff is entitled to declaration as prayed for?OPP
2. Whether plaintiff is entitled to permanent injunction as prayed for?OPP
3. Whether plaintiff is entitled to mandatory injunction as prayed for?OPP
4. Whether plaintiff has no cause of action to file present suit?OPD
5. Whether plaintiff has no right to file suit as alternative remedy of appeal was available to him?OPD
6. Whether this court has no jurisdiction to hear and decide present suit?OPD
7. Whether suit is bad for want of notice under Section 31 of Punjab Market and Produce Act?OPD
8. Whether suit is not maintainable?OPD
9. Whether notice under Section 80 CPC was not legal and valid ?OPD
10. Relief.
Both the courts below observed that the proceedings of enquiry and order of recovery, both were quite valid and in consonance with the procedure as prescribed in Punjab Punishment and Appeal Rules as applicable to the Mandi Board employees'. Even during the course of arguments, learned counsel for the petitioner has failed to point out any defect in the enquiry proceedings. It is also apparent that the order of recovery was passed on 19.8.2003 which was never challenged by the appellant and the recovery of the loss caused by the appellant is being recovered as land revenue under Section 29 of the Punjab Agricultural Produce Markets Act. It may further be observed that the suit of the plaintiff is in violation of the provisions of Section 31 of the Punjab Agricultural Produce Markets Act, which reads as under :-
R.S.A. No. 1251 of 2012 -5-"No suit shall be instituted against Board or a committee or any member or employee thereof or any person acting under the direction of any such committee, member or employee for anything done or purporting to be done under this Act, until the expiration of two months next after a notice in writing, stating the cause of action, the name of place of abode of this intending plaintiff and the relief which he claims, has been in the case of Board or a committee delivered to him or left at its office, and in the case of any such member, employee or person as aforesaid, delivered to him or left at his office or usual place of abode and the plaint shall contain a statement that such notice has been so delivered or left"
"Every such suit shall be dismissed unless, it is instituted within six months from the date of accrual of cause of action."
The aforesaid section clearly indicates that before filing the suit, notice under Section 31 of the Act was required. Though the petitioner applied for exemption of notice under Section 80 CPC, yet it is does not exclude the notice under Section 31 which was made mandatory under the Act. The act being special statute has to prevail over the general law of the land. As such, the suit is bad for non compliance of the provisions of Section 31 of the Act.
On examination of the judgments passed by both the courts below, it transpires that the plaintiff has failed to allege or prove any fault in the order imposing recovery by the defendants against the plaintiff as well as other employees to the tune of Rs.33,40,000/-. The recovery is being effected from the plaintiff on the basis of a legal and valid order passed against him.
No other point has been raised by the learned counsel for the appellant.
Both the courts below have returned concurrent findings on all the issues and decided all the points correctly.
No substantial question of law arises for determination. Dismissed.
July 25, 2012 (A.N. Jindal) deepak Judge