State Consumer Disputes Redressal Commission
Sukhjinder Singh, vs Ruby Mushrooms & Canning on 25 January, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 2077 of 2010
Date of institution: 07.12.2010.
Date of Decision : 25.01.2011.
Sukhjinder Singh, Retd. Addl. Superintending Engineer, P.S.E.B., Mohali,
resident of H.No.3273, Sector 21-C, Chandigarh.
....Appellant.
Versus
Ruby Mushrooms & Canning Private Limited, through its Managing Director,
Jaswant Singh, Resident of H.No.2525/B, Sector 47-C, Chandigarh.
...Respondent.
The Punjab State Electricity Board through its Secretary, The Mall, Patiala
(Punjab)
Assistant Executive Engineer (Distribution), Punjab State Electricity Board,
Kurali, Teh. & Distt. Ropar (Punjab)
(Respondents No. 1 & 2 in the Original Application but not made party
in the appeal by the appellant)
First Appeal against the order dated
18.11.2010 of the District Consumer Disputes
Redressal Forum, S.A.S. Nagar, Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Sh. Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. L. M. Gulati, Advocate.
For the respondent : Sh. Jaswant Singh, in person.
INDERJIT KAUSHIK, PRESIDING MEMBER:
Sh. Sukhjinder Singh, appellant/respondent (hereinafter called 'the appellant') has filed this appeal against the impugned order dated 18.11.2010 passed by the District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali (in short, 'the District Forum').
2. Facts in brief are that the respondent filed misc. application no.31 of 2006 for partly implementation of the directions First Appeal No. 2077 of 2010 2 issued vide order dated 30.11.1999 passed by the learned District Forum, Ropar which attained finality.
3. It was submitted that the District Forum, Ropar decided the complaint no.119 of 10.03.1999 filed by the respondent on 30.11.1999 in favour of the respondent. The respondent as well as the appellant aggrieved from the said order, filed the cross appeals before the Punjab State Consumer Disputes Redressal Commission (In short, "the Commission") which were decided vide order dated 17.02.2003 partly in favour the respondent.
4. The respondent as well as PSEB and others(above mentioned not made party) aggrieved from the said orders, filed cross revision petitions before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, which were heard on 11.11.2005 and the respondents PSEB & Others above mentioned were directed to comply with the directions issued by the State Commission vide order dated 11.11.2005. The revision petition for enhancement of the reliefs filed by the respondent is still pending which is fixed for 21.07.2006. The above PSEB & others had not filed any SLP before the Hon'ble Supreme Court of India and vide their letter dated 06.02.2006, started implementation of the orders.
5. The District Forum vide order dated 30.11.1999, issued the directions vide para no.9-A which read as under:-
"......Sh. Sukhjinder Singh, Addl. Superintending Engineer, Operation Division, PSEB, Morinda at Kharar has the audacity of denying it as wrong. Obviously, this responsible functionary of O.P. PSEB has sworn a false affidavit on this material averment. Such a grave lapse, therefore, cannot be ignored. Hence, we direct the Superintendent of our office to issue a preliminary show cause notice to the said deponent before formally filing a First Appeal No. 2077 of 2010 3 criminal complaint in the court of Chief Judicial Magistrate, Ropar, after taking notice of other similar false averments".
6. The order dated 30.11.1999 issued by the District Forum, Ropar has attained finality and it was prayed that further action on the issue of filing of criminal complaint against Sh. Sukhjinder Singh may be initiated.
7. In the reply filed on behalf of respondents no.1 & 2 i.e. PSEB and Assistant Executive Engineer (Distribution), PSEB, Kurali(above mentioned), it was submitted that the application moved by the respondent is without any authority and he has no locus-standi to file the present application because it is the prerogative of the court to give show-cause notice to the persons mentioned in the judgment dated 30.11.1999. It was further stated that respondent no.3(appellant) was posted as Addl. Superintending Engineer at the time of filing the complaint and he has retired from service. No personal service has been effected on him or on his duly authorized agent. Respondents no.1 & 2 have nothing to do with the present facts of the case. It was admitted that the order has been passed by the District Forum and the same has been modified by the State Commission, Punjab, Chandigarh vide order dated 17.02.2003. The revision was preferred by both the parties i.e. the applicant and the PSEB before the Hon'ble National Commission, New Delhi and the same is still pending. The judgment passed by the District Forum has not yet attained finality. Moreover, the judgment has merged in the judgment of the Hon'ble State Commission. The Hon'ble National Commission has issued some interim directions to respondents no.1 & 2 and the same have been complied with. The SLP has not been filed because the matter has not been finally decided by the Hon'ble National Commission, New Delhi. The present application is abuse of process of law because the First Appeal No. 2077 of 2010 4 (applicant) respondent has nothing to do with the business of the Forum and no assistance of the (applicant) respondent is required and prayed that the application may be dismissed.
8. Re-joinder to the application was filed in which, the preliminary objections were taken that the reply filed by Sh. P.S. Bains, Addl. S.E. by way of affidavit, is not maintainable in the present form, as the same has neither been filed by the recognized agent of respondents no.1 & 2, nor he is acquainted with the facts. The averments made by respondents no.1 & 2 are not specific and some averments made in the reply, are false, amounting to contempt of court and require proper adjudication and further action as per law. Verification of the affidavit is not proper. On merits, it was pleaded that against the orders of the Chief Electrical Inspector and Principal Secretary, Power and Irrigation (Govt. of Punjab), the respondents filed civil writ petition no.1177 of 2001 before the Hon'ble High Court of the States of Punjab & Haryana, which was dismissed vide order dated 25.01.2001. No SLP was preferred. The respondents filed first appeal before the State Commission, Punjab, Chandigarh, which was dismissed with costs of Rs.10,000/- vide order dated 17.02.2003. Respondents again filed revision petition before the Hon'ble National Commission which was decided vide order dated 11.11.2005 and only revision filed by the respondent, is pending for grant of further relief and the next date is 21.07.2006. The respondent suffered huge financial loss/closure of the factory as well as personal injuries to him and his wife and this led to infringement of his fundamental rights including his wife and children and both the directors were declared indigent persons due to the illegal and arbitrary act with malafide intention, causing temporary disconnections and permanently on 31.12.1998 during the pendency of civil suits. Respondent owes to First Appeal No. 2077 of 2010 5 refund Rs.4.84 lacs due as on 19.12.1997 on account of fast meter @ 163.36% plus Rs.2,05,744/- excessively charged on account of laying service line since 08.03.1994 due to intentional omissions and commissions on the part of the appellant and respondents no.1 & 2 and the respondent suffered the loss as described in sub paras (a & b) of the re-joinder. Other pleas were re-iterated and prayed that criminal action of issuance of filing of criminal complaint after issuing show- cause notice to Sukhjinder Singh, Addl. SE (Retd.) may kindly be initiated.
9. Accordingly, show-cause notice bearing no.DCDRF/ SAS Nagar/10/1487 dated 2.8.2010 was issued to the appellant and he filed the reply on 20.09.2010 and at the very outset, the appellant tendered his un-conditional apology and assured the District Forum that the said mistake on the part of the appellant, was inadvertent beyond his knowledge and in good faith as the appellant was not aware of the detailed facts and circumstances of the present controversy as the dispute was of the period prior to his posting and he took the words of the Assistant Executive engineer, who had assured that the reply has been prepared by legal advisor after verifying the records and factual position and believing that the reply has been prepared in a proper manner, the answering respondent being in ex-officio capacity, signed the reply by way of affidavit. The said mistake was unintentional and bonafide one and there was no intention to make false averments and the same is deeply regretted and the appellant is now leading a retired life for the last 10 years with un-blamed service record and the show- cause notice may kindly be withdrawn.
10. It was further submitted that in the reply to para no.9 of the complaint, it was admitted that the meter was got checked by the Executive Engineer (Chief Mohali) on 30.9.1997 and he found the First Appeal No. 2077 of 2010 6 meter OK. It was further submitted that the respondent was not satisfied with the report of the said officer and he insisted to get the meter checked from the MMTS, Mohali and the same was got checked from the MMTS, Mohali on 19.12.1997. It was also admitted that in view of the report of the MMTS, Mohali, and the instructions of the board, as the meter was erratic, refund of 20% was allowed to the respondent within six months prior to the date of his request. In para no.12 of the complaint, the respondent has again mentioned the same facts and what was denied in para no.12 as wrong, was the effect of ill- will attributed by the respondent to the said checking and the rest of the contents of para no.12 mentioned by the respondent, had already been admitted in the reply to para no.9 of the complaint. There is no question of concealing any information from the court. The appellant was totally unaware of the legal niceties and submitted the reply as a layman and therefore, elaboration could not take place due to that reason.
11. The complaint was filed by the respondent on the grounds that the respondent was a company incorporated under the Companies Act, 1956. As per the terms and conditions of the PSEB SM-I-161 of Industrial an Bulk like meters having load more than 20 KW were to be checked once in every six months. The respondent was stated to be drawing the load of 80 KW and the date of the installation of the meter was 1.2.1998. On the advice of the SDO, PSEB, Kurali, meter checking fee of Rs.250/- was deposited on 14.2.1997 but the meter checking was not carried out which resulted in filing of the civil suit by the present respondent on 27.2.1997 and on the receipt of the summons from the court, the electric meter was checked by Senior Executive Engineer (Enforcement Staff), PSEB, Mohali, on 30.9.1997 and it was reported meter accurate "OK". First Appeal No. 2077 of 2010 7 Request was made by the respondent to the court to direct the respondents (PSEB & Others) to get the disputed meter checked from the Meter Mobile Testing Squad (MMTS), PSEB, Mohali. The MMTS again checked the meter of the respondent on 20.12.1997 and the suit was dismissed on the ground that he had not availed the remedy of approaching the Disputes Settlement Committee and then respondent approached the District Forum and filed the complaint, claiming deficiency in service on the part of the PSEB on the grounds as mentioned in para no.5 and in sub para nos. A to F. The appellant has taken the charge as Addl. Superintending Engineer, PSEB, Morinda at Kharar w.e.f. 4.5.1998 vide office order no.354 dated 30.4.1998. The respondent in his complaint, has stated that he has applied for electric connection way back on 8.1.1993 and his dispute regarding the testing/checking of the meter continued upto 30.9.1997 and as such, the entire period of dispute relates prior to joining/taking over of the charge of Operation Division, PSEB, Kharar by the appellant and period qua which the present complaint was filed, was a period dealt by the predecessor of the appellant. Therefore, the then Assistant Executive Engineer, Incharge Operation Sub Division, Kurali i.e. Er. M.G. Singla, was directly responsible for dealing with all the consumers including electric connections and all the complaints.
12. After taking over the charge as Addl. Superintending Engineer on 4.5.1998, when the PSEB received a notice from the District Forum in complaint no.119, the appellant immediately directed the AEE, Incharge, Sub Division, Kurali, i.e. Er. M.G. Singla, to submit reply after consulting the concerned branch lawyer vide letter no.3832/CC/435 dated 15.4.1999. The said officer i.e. AEE, Incharge Operation was, in fact, actually effective party and he was the person against whom, the allegations were levelled by the respondent. The First Appeal No. 2077 of 2010 8 said AEE after getting a reply prepared in the shape of affidavit, had put up the said reply prepared by the legal advisor and it was assured by the said AEE that the affidavit-cum-reply has been prepared and verified by the concerned legal advisor of the PSEB after verifying all the facts on record. The only fault of the appellant is that in good faith of the said AE and legal advisor of PSEB, he signed on the said affidavit-cum-reply in ex-officio capacity of Superintending Engineer. The intention of the appellant was not to give a false affidavit, nor there was any element of personal interest involved in the said matter.
13. The orders passed by the District Forum as well as the Hon'ble Appellate Authorities have already been complied with by the PSEB. There was no element of malice in the reply and carelessness is only to the extent that the appellant believed his subordinate officer, who was asked to file the reply. The appellant tendered his un- conditional apology and prayed that the show-cause notice may kindly be withdrawn.
14. Learned District Forum after mentioning the case law cited by the appellant in the order, found that it is a fit case to file criminal complaint against Sukhjinder Singh, as he appears to have intentionally and deliberately filed a reply on affidavit based on false pleas to save his colleagues and his organization, and ordered that the complaint against him, as directed in para no.9-A of the order of the District Forum dated 30.11.1999, be filed in the court of Sub Divisional Judicial Magistrate, SAS Nagar, Mohali.
15. Aggrieved by the said order dated 18.11.2010, the appellant has filed the present appeal, challenging the impugned order on the grounds similar to the grounds as mentioned in the reply to the show-cause notice.
First Appeal No. 2077 of 2010 9
16. The respondent filed a caveat application and on notice, filed reply-cum-written arguments.
17. We have considered the submissions made by the learned counsel for the appellant as well as respondent Sh. Jaswant Singh in person and have also gone through the written arguments filed on behalf of the respondent as well as the case law cited by both the parties.
18. To appreciate the facts and to adjudicate, the relevant paras i.e. Para Nos.9, 9-A, Sub Paras XIV, XV and Para no.14 of the order of the District Forum, Ropar are reproduced as under:-
"9. We are now left with two material problems - the over-all effect of the defective meter of the consumer plus the ways and means of effectively compensate him.
9-A. Going back to the grievance of delayed and im-proper checking of the meter in question the relevant averment in para 12 of the complaint ran :
"That on the receipt of summons from the learned trial court, the respondent got the meter checked from Senior Executive Engineer (Enforcement Staff) P.S.E.B., Mohali on 30.9.97 and the same was done with ill-will and result shown as 'Accuracy of meter is correct-OK (+00.00)". Checking was done with rating capacity of meter i.e. 12.5 revolutions = 1 KWH with the help of ERS Meter, but fast recording of reading was not checked by placing a parallel meter. The complainant started to write observations on testing report itself but it was prevented by them. In this context cuttings can be seen on the Enforcement Staff Testing Report bearing No. 79 - copy of which is annexed as per Annex C-11."
However, we are simply amazed to find in reply the relevant stereo- typed averment - "That this para is wrong and hence denied." But the First Appeal No. 2077 of 2010 10 factum of meter testing in question on 30.9.97 with the said result, stands admitted in reply to para 9 of the complaint. Moreover, the copy of Test Report Ex. A-16 being the document of P.S.E.B. could in no manner be denied. Again, on the left bottom corner of the document some words scribed and scored out over the signatures of "Jaswant Singh" plus "cutting attested" notation by "Jaswant Singh" - rather fully corroborated the averment in the complaint. Then how come that the relevant pleading in the written reply-cum-affidavit (of Sh. Sukhjinder Singh, Addl. Superintending Engineer, Operation Division, P.S.E.B. Morinda at Kharar) has the audacity of denying it as wrong. Obviously, this responsible functionary of O.P. P.S.E.B. has sworn a false affidavit on this material averment. Such as grave lapse, therefore, cannot be ignored. Hence, we direct the Superintendent of our office to issue a preliminary show cause notice to the said deponent before formally filing a criminal complaint in the court of Chief Judicial Magistrate, Ropar, after taking notice of other similar false averments in Reply.
xiv) The Superintending Engineer (Operations) PSEB, Ropar is directed to keep a close personal watch over the field staff to ensure a satisfactory and complaint-free service to the petition Company, after reconnection of the meter.
xv) The Chairman, PSEB, Patiala is also requested to please get the entire matter of this case enquired into in the light of observations, remarks and adjudication given by us at different paras of the judgment. The Enquiry Officer should also pin-point the concerned delinquent functionaries of PSEB found liable as per the discussion in the preceding paras, pursuant to which 50% of the compensation ordered at Serial No. (vi), (viii), (ix) and (x) be got re-imbursed to PSEB through appropriate deductions from monthly salary of the defaulters so detected. A comprehensive Action Taken Report be sent to our office within 4 months.
First Appeal No. 2077 of 2010 11
14. Before parting with this discussion, we expect the O.P. PSEB to treat even our pungent remarks as a factual healthy criticism - made with a view to bring about appropriate streamlining in the functioning of one of the vital service providing agencies of the State. We also expect that the concerned authorities of the Opposite Party shall actively participate in the almost a national cause of rehabilitation of a sick industrial unit in the form of the petitioner Company - instead of making endeavours to shield the culprits concerned under a mistaken notion of brotherhood of colleagues/co- workers."
19. The relevant para 9 of the complaint as well as para 12 of the complaint and the written reply filed by the appellant in the capacity of Addl. Superintending Engineer, Operation Division, P.S.E.B., Morinda at Kharar, District Ropar are also required to be reproduced:-
Para Complaint Para Written Reply
9. That on the advice of SDO, 9. That this para is admitted to
PSEB, Kurali meter the extent that the
challenge fee of Rs. 250/- complainant deposited Rs.
was deposited on 14-02-97 250/- on alleged date and
copies of letter and receipt challenged the working of
of deposit of meter the Meter and the Meter was
challenge fee are attached got checked by the
as Annex. C-4 & C-5 and Executive Engineer (E)
as per SMI-113 the meter Mohali on 30.9.97 who found
on challenge is to be that the Meter is OK. The
checked and according to complainant was not
the result thereof account satisfied with the report of
of the consumer to be said officer and he insisted
overhauled and whole this to get the Meter checked
process should not take from MMTS, Mohali and the
more than one month but same was got checked from
in our case account is not MMTS Mohali on 19.12.97.
overhauled till to date. In view of the report of
MMTS Mohali and
instructions of the Board the
Meter was erratic and a
refund at the rate of 20% has
been allowed to the
First Appeal No. 2077 of 2010 12
complainant six months prior
to the date of his request.
12. That on the receipt of 12 That this para is wrong,
summons from Learned hence denied.
Trial Court the respondent
got the meter checked
from Senior Executive
Engineer (Enforcement
Staff), PSEB, Mohali on
30-09-97 and the same
was done with ill will and
result shown as "Accuracy
of meter is correct O.K.
(+0.00). Checking was
done with rating capacity
of meter i.e. 12.5
revolutions = 1KWH with
the help of ERS Meter but
fast recording of reading
was not checked by
placing a parallel meter.
The complainant started to
write observations on
testing report itself but it
was prevented by them. In
this context cuttings can be
seen on the Enforcement
Staff Testing report
bearing No. 79 page No.
031 dt. 30-09-97 copy of
which is annexed as per
Annex. C-11.
20. From the above it is clear that in reply to para 9 of the complaint, it was admitted that the complainant(respondent) deposited Rs. 250/- and challenged the working of the meter and the meter was got checked by the Executive Engineer (E), Mohali on 30.9.1997 and the same was found 'OK'. The complainant i.e. respondent was not satisfied with the report of the said Officer and he insisted to get the meter checked from MMTS, Mohali and the same was got checked First Appeal No. 2077 of 2010 13 from MMTS, Mohali on 19.12.1997. In view of the report of MMTS, Mohali and instructions of the Board, the meter was erratic and refund @ 20% was allowed to the complainant(respondent) six months prior to the date of his request.
21. Para 12 of the complaint is also regarding the checking of the meter, which was got done from Senior Executive Engineer (Enforcement Staff), PSEB, Mohali on 30.9.1997 and the checking of the meter was done with the help of ERS meter but fast recording of the meter was not checked by placing a parallel meter. The complainant started writing observation on the testing report itself and he was prevented and cutting was made on the testing report dated 30.9.1997.
22. Answer to this para in the written reply filed by the appellant on behalf of the P.S.E.B. and others is simply wrong and denied. The interpretation of wrong and denied is discussed in the later part of the order but at this stage the mind of the District Forum which firstly decided the complaint of the respondent on 30.11.1999 and passed the above remarks against the appellant is reflected in the concluding paras which have been reproduced above and the PSEB was expected to take the above remarks as factually healthy criticism made with a view to bring about appropriate streamlining in the functioning of the PSEB.
23. Before the District Forum, PSEB and others were the opposite party and PSEB and others filed the appeals and the revisions before the State Commission and the Hon'ble National Commission and before both these Commissions the factum regarding the reply by way of affidavit singed by the appellant was neither pointed out either by the respondent or by the appellants and the observations passed by the District Forum remained in the order of the First Appeal No. 2077 of 2010 14 District Forum itself and no findings were given on this issue either by the State Commission or by the Hon'ble National Commission and the present application was filed by the respondent on 30.4.2009 after about 10 years of the first order passed by the District Forum. The respondent and the PSEB were contesting the claim of compensation awarded by the District Forum. The respondent was seeking enhancement of the compensation and the PSEB was seeking dismissal of the complaint but ultimately the compensation was awarded to the respondent and the same has been received by the respondent. The respondent never agitated regarding the filing of the written reply by way of affidavit before the State Commission as well as the Hon'ble National Commission and as stated above after achieving his goal of seeking compensation, which has been awarded to the tune of Rs. 19,00,000/-, the respondent all of a sudden filed the present application after about 10 years of the first order.
24. The District Forum, who passed the remarks against the appellant was swayed with the words 'wrong and denied' and interpreted that the facts which were required to be admitted were denied by the appellant. Although the similar facts were admitted in para 9 of the reply filed by the appellant. The words 'wrong and denied' or denied for want of knowledge are considered to be admissions on the part of the person/department replying in this manner. Although the provisions of the CPC are not strictly applicable yet the principles are applicable and under Order 8 Rule 5 of CPC, the denial has to be specific and if the denial is not made specifically then the allegations of the fact are taken to be admitted. The Division Bench of the Hon'ble Punjab & Haryana High Court in case "Sarwan Singh Vs. Kankar Singh", 2001(1) Civil Court Cases 571 (P&H) in para 15 observed as follows(relevant part):-
First Appeal No. 2077 of 2010 15
"....Further, as per the provisions of Rules 3, 4 and 5 of Order VIII, it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. He must deal specifically with each allegation of fact of which he does not admit the truth, except damages and further pleadings. If not denied specifically or by necessary implication, allegations of fact shall be taken to be admitted except as against a person under disability."
The Hon'ble Supreme Court in case "Sushil Kumar Vs. Rakesh Kumar", 2004(1) Civil Court Cases 63 (S.C.) in para 72 made reference to the observation of a case "Badat and Co." and reproduced the observations, which are as follows:-
"72. In Badat and Co. (supra) this Court upon referring to Order VIII, Rules 3, 4 and 5 of the Code of Civil Procedure, observed:
"These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequence flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
Similar law was laid down by the Hon'ble Punjab & Haryana High Court in case "Mehnga Singh & Ors. Vs. Gurdial Singh & Ors." 2004(1) Civil Court Cases 525 (P&H) observed as follows (relevant part):-
"A perusal of Rule 5 shows that in cases an allegation of fact in the plaint has not been specifically denied or it has not been denied by necessary implications then such a fact must be taken as an admission. The proviso to Rule 5 confers a discretion on a Court to First Appeal No. 2077 of 2010 16 require a party to prove a fact despite such an admission. These provisions have been subject matter of interpretation by the Supreme Court in numerous judgments. Reference may be made to the judgment of the Supreme Court in the case of Badat and Company, Bombay (supra). The observations of their Lordships read as under :-
"Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If this denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
25. Thus, from the above interpretation given by the Hon'ble Supreme Court as well as by the Hon'ble Punjab & Haryana High Court, it is clear that mere replying a para as 'wrong and denied' cannot be taken as denial of facts pleaded in the corresponding para rather it amounts to admission. These authorities are applicable to the facts of the present case because in this case also the reply by way of affidavit was given and reply to Para 12 was given as wrong and denied. There was no specific denial made of the facts pleaded by the respondent in para 12 of the complaint and in the eyes of law these facts stood admitted and as such, the District Forum, who passed the order on 30.11.1999 was not correct in holding that the facts have been wrongly denied and the false affidavit has been filed.
26. The District Forum, Mohali, who passed the impugned order under appeal for lodging a complaint has not held any inquiry in the matter and has not distinguished in any manner the authorities of the Hon'ble Supreme Court and the Hon'ble High Court as to how the First Appeal No. 2077 of 2010 17 same were not applicable to the facts and circumstances of the present case and simply quoting the observations of the District Forum observed that it is a fit case to file a criminal case against Sukhjinder Singh as he appears to have intentionally and deliberately filed reply on affidavit based on false pleas to save his colleagues and his organization and ordered to file the complaint. The impugned order passed by the District Forum, Mohali is against the factual position as discussed above and is not sustainable in the eyes of law. The District Forum has failed to satisfy itself regarding the two basic conditions, which are required to be fulfilled before lodging the complaint under Section 340 of the Criminal Procedure Code. In a very recent judgment, the Hon'ble Supreme Court of India in case "B.K. Gupta Vs. Damodar H. Bajaj & others" reported in 2010(3) Recent Criminal Reports 886 in para 3 observed as follows:-
"From the above, it follows that there are two conditions, on fulfillment of which a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a Court. The first condition being that a person has given a false affidavit in a proceeding before the Court and, secondly, in the opinion of the Court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him. It is no doubt true that the High Court has recorded a finding that the appellant has made a false statement on oath and has also used evidence known to be false and fabricated. On perusal of the record we do not find any material on record to show that there was any application of mind by the Court that it was expedient in the interest of justice to make an inquiry and file a complaint against the appellant. We have also perused the judgment in Writ Petition No. 1442/1983 and the judgment does not show that the Court applied its mind regarding the second condition as to whether it is expedient in the interest of justice to make an inquiry into the false evidence given by the appellant and a complaint is to be filed. In the absence of application of mind in regard to expediency for filing complaint against the appellant, the order passed by the High Court directing the Prothonotary and Senior First Appeal No. 2077 of 2010 18 Master of the High Court to file a complaint against the appellant was vitiated."
27. District Forum has nowhere stated that the filing of the complaint against the respondent is expedient in the interest of justice nor any reasons have been given for filing the complaint.
28. There was no malice, ill-will or bad intention much less man'srea on the part of the appellant in signing the reply prepared by the Legal Advisor and the Engineer of his Department.
29. As discussed above, by writing a word 'wrong and denied' the facts were admitted and there was no specific denial of the facts as pleaded in the complaint in para 12.
30. Counsel for the appellant has also relied upon "BSES Rajdhani Power Ltd. Versus Shiv Lal" 2009 (5) RCR Criminal 398, "Iqbal Singh Marwah & Anr. Versus Meenakshi Marwah & Anr.", 2005 (2) RCR (Criminal) 178(SC) (Constitution Bench of Five Judges), "Rugmini Ammal (dead) by Lrs Versus V. Narayana Reddiar & Ors." 2008(1) RCR (Criminal) 387.
31. The Hon'ble Supreme Court in "Iqbal Singh Marwah & Anr." case (supra) and in "M.S. Ahlawat Versus State of Haryana"
case (supra) held that every incorrect order or false statement does not make it incumbent upon the Court to order prosecution but to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice. Similar law has been laid down in other authorities.
32. The respondent has relied upon C.W.J.C. No. 1235 of 2003 decided on 14.9.2007 2008 CRI. L.J. 59 "Mahesh Ram v. State of Bihar" but the same is not applicable because the same was regarding the compensation for malicious prosecution whereas the First Appeal No. 2077 of 2010 19 facts of the present case are totally different. Although no reply to the appeal was required to be filed by the respondent yet alongwith the written arguments he has filed the same. In the reply as well as while arguing he has tried to built-up his case arguing emotionally and putting every blame on the PSEB for ruining his factory and blaming the authorities of the PSEB including the appellant but emotions cannot be considered above the law and as stated above for that he has been compensated by the Hon'ble National Commission and the appeal filed by the P.S.E.B. and others was dismissed by the Hon'ble Supreme Court at the initial stage. Thus, the respondent has been compensated appropriately and for that he cannot raise any objection and the chapter of compensation stand closed with the highest Court of the land dismissing SLP of the PSEB. Now re-agitating the matter after 10 years seems to be mere frustration and is also time barred as per Section 468 of Criminal Procedure Code.
33. In view of the above discussion and the law laid down, the order of the District Forum being erroneous cannot be sustained in the eyes of law and the appeal deserves to be allowed. Accordingly the appeal is accepted and the order under appeal is set-aside. Consequently, the application filed by the respondent is dismissed.
34. The arguments in this appeal were heard on 14.1.2011 and the orders were reserved. Now the order be communicated to the parties.
(Inderjit Kaushik)
Presiding Member
January 25, 2011. (Baldev Singh Sekhon)
As (Gurmeet Singh) Member
First Appeal No. 2077 of 2010 20