Punjab-Haryana High Court
Darshan Kumar vs State Of Punjab And Another on 22 August, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
MUKESH KUMAR SALUJA
RSA No.3409 of 2011 (O&M) 1 2014.09.01 15:41
I attest to the accuracy and
integrity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.3409 of 2011 (O&M)
Date of decision:22.08.2014
Darshan Kumar
...Appellant
Versus
The State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.Harinder Kumar Aurora, Advocate for the appellant.
RAMESHWAR SINGH MALIK, J. (Oral)
Plaintiff is in second appeal against the concurrent findings, recorded by both the learned courts below, whereby the matter was remanded back to the punishing authority, to enquire into the matter afresh and then pass an appropriate order.
Brief facts of the case, as recorded by the learned first appellate Court in paras 2 and 3 of the impugned judgment, are that the plaintiff filed a suit for declaration that the order passed by the Appellate Authority and the order dated 23.6.2004 passed by the Director, State Transport, Punjab, Chandigarh, vide which the plaintiff was dismissed from service, was illegal and was not based on any evidence. It was further prayed that the defendants be directed to treat the plaintiff as prematurely retired from service w.e.f. 19.1.2004 and pay him all his pensionary benefits alongwith interest. It was submitted in the plaint that the plaintiff was working as conductor No.136 in the Punjab Roadways, Nawanshahr and the plaintiff MUKESH KUMAR SALUJA RSA No.3409 of 2011 (O&M) 2 2014.09.01 15:41 I attest to the accuracy and integrity of this document falls within the purview of Punjab Civil Services (punishment and Appeals). It was further submitted that on the basis of false complaint of the Checking Staff, the plaintiff was charge sheeted vide order dated 13.12.2000 by the General Manager on the allegation that the plaintiff had not issued tickets worth Rs.42/- each to two passengers who were traveling from Nawanshahr to Kharar, after having charged the said fare from them while conductor on the Bus No.9813 on 20.11.2000. It was further submitted that the charges leveled against the plaintiff were vague as no copy of the complaint of the Checking Staff was supplied to the plaintiff and the General Manager, without enquiring as to whether the plaintiff had submitted any reply to the charge sheet, ordered an enquiry, through he was not competent as he not being the punishing authority qua the plaintiff. The plaintiff submitted his comments that findings of the Inquiry Officer were perverse. Thereafter, show cause notice was issued to the plaintiff illegally asking for his explanation as to why one of the prescribed major penalty may not be imposed upon him. The plaintiff filed reply to the said notice on 22.2.2002 again denying the charges and requested for his exoneration. Thereafter, the Director, State Transport, Punjab, issued letter dated 31.10.2003 to the plaintiff directing him to appeal before him for personal hearing. Thereafter, the plaintiff was dismissed from the service. The order was totally illegal and hence, the suit was filed.
Notice of the suit was issued to the defendants. Defendants filed written statement in which apart from taking certain preliminary objections, it was submitted that the opportunities of hearing were given to the plaintiff and the plaintiff never raised any objection that he was not given any reasonable opportunity of defending himself in the departmental MUKESH KUMAR SALUJA RSA No.3409 of 2011 (O&M) 3 2014.09.01 15:41 I attest to the accuracy and integrity of this document proceedings. The enquiry was conducted in accordance with law and orders passed against the plaintiff are valid and legal.
On completion of pleadings of the parties, following issues were framed by the learned trial Court:-
1. Whether the order having Endst. No.1/185/04-3T19610 dated 16.11.2006 passed by the Secretary to Government of Punjab, Transport Department, Chandigarh, vide which the appeal of the plaintiff against order having Endst. No. 7893/ECR dated 23.6.2004 passed by the Director, State Transport Punjab, Chandigarh, vide which the plaintiff was dismissed from service, was rejected, is illegal? If so its effect? OPP
2. Whether the plaintiff is entitled to pensionary benefits such as Gratuity, Provident Fund and Pension etc.? OPP
3. Whether the plaintiff is entitled to charge interests? If so at what rate? OPP
4. Whether the plaintiff is entitled to get relief of declaration as prayed for? OPP
5. Whether the plaintiff is entitled to get the relief of mandatory injunction as prayed for? OPP
6. Whether this Court has no jurisdiction to try this suit? OPD
7. Whether notice under Section 80 of the CPC was duly served upon the defendants before filing of this suit? OPP
8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
9. Whether the suit is properly valued for the purposes of court MUKESH KUMAR SALUJA RSA No.3409 of 2011 (O&M) 4 2014.09.01 15:41 I attest to the accuracy and integrity of this document fee and jurisdiction? OPP
10.Whether the suit is not maintainable in the present from?
OPD
11.Relief.
To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that the punishing authority exceeded its jurisdiction, while passing the punishment order on the basis of a defective enquiry conducted against the plaintiff-appellant. Accordingly, the suit was partly decreed, remanding the matter back to the punishing authority after setting aside the punishment order dated 23.6.2004. Plaintiff was directed to appear before the competent authority and liberty was granted to the competent authority to pass fresh order, in accordance with law, vide impugned judgment and decree dated 25.2.2010. Feeling aggrieved, plaintiff filed his first appeal which came to be dismissed by the learned Additional District Judge, vide impugned judgment and decree dated 22.3.2011. Hence this second appeal.
Learned counsel for the appellant submits that both the learned courts below misdirected themselves, while not decreeing the suit of the plaintiff in toto. Once the punishment order dated 23.6.2004 was found to be illegal, the same was rightly set aside, but the learned trial Court illegally remanded the matter back to the punishing authority. He further submits that learned first appellate court also fell in serious error of law, while passing the impugned judgment. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
MUKESH KUMAR SALUJA
RSA No.3409 of 2011 (O&M) 5 2014.09.01 15:41 I attest to the accuracy and integrity of this document 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 arguments advanced, 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 Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that a charge-sheet was issued against the plaintiff-appellant. Departmental enquiry was conducted and thereafter punishment order was passed. He filed his statutory appeal, which was also dismissed by the appellate authority of the respondent-department. The learned trial Court rightly followed the law laid down by the Hon'ble Supreme Court in State of Punjab v. Dr.Harbhajan Singh Greasy 1996 (3) SCT 411 and remanded the matter back, granting liberty to the competent authority to pass a fresh order. The punishment order dated 23.6.2004 was set aside.
In compliance of the impugned judgment dated 25.2.2010 passed by the learned trial Court, plaintiff-appellant submitted to the jurisdiction of the competent authority of the respondent-department. Learned counsel for the appellant has fairly stated that during the pendency of the present litigation, the competent authority had already passed the appropriate punishment order, in compliance of the judgment dated 25.2.2010 passed by the learned trial Court. Fresh order was passed on 17.3.2011, during the pendency of the first appeal of the plaintiff. Admittedly, fresh punishment order dated 17.3.2011 is not under challenge MUKESH KUMAR SALUJA RSA No.3409 of 2011 (O&M) 6 2014.09.01 15:41 I attest to the accuracy and integrity of this document in the instant litigation, because the appellant will have an independent and separate cause of action to challenge the said punishment order.
Once the appellant has submitted to the jurisdiction of the competent authority, in compliance of the impugned judgment dated 25.2.2010 passed by the learned trial Court, he was not competent to pursue his appeal any further against the same impugned judgment passed by the learned trial Court. After passing of the fresh punishment order by the competent authority, in compliance of the judgment of the learned trial Court, hardly anything would survive to be decided. Having said that, this Court feels no hesitation to conclude that both the 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, learned Additional District Judge rightly re-appreciated the true facts of the case as well as the evidence available on record in paras 8 to 13 of the impugned judgment. Relevant part of paras 11 to 13 of the impugned judgment, containing cogent findings recorded by the learned first appellate court, read as under:-
"Perusal of the order passed by the learned trial Court shows that the learned trial Court set aside the order dated 23.6.2004 passed by the Director, State Transport, Punjab Chandigarh and directed the Punishing authority to pass speaking order after taking into consideration submission, if any, raised by the delinquent. Hon'ble Supreme Court in a case titled as State of Punjab Versus Dr. Harbhajan Singh Greasy 1996(3) Service Cases Today 411 held that if the punishment order is found to be illegal on account of defect in the enquiry, MUKESH KUMAR SALUJA RSA No.3409 of 2011 (O&M) 7 2014.09.01 15:41 I attest to the accuracy and integrity of this document the Court should not direct the reinstatement with all consequential benefits but the proper course is to direct the authority to proceed with the enquiry afresh in accordance with law from the stage the defect has been pointed out. The perusal of the order passed by the Punishing Authority shows that the same is non-speaking one and thus the trial Court simply directed the competent authority to pass speaking order. The argument of the learned counsel for the appellant that in view of order 7 Rule 7 of the CPC the learned trial Court could have only decreed the suit of the appellant and could not have granted the relief which was not even prayed in the plaint, is totally devoid of any merit. Order 7 Rule 7 of the CPC is re- produced before for sake of ready references:-
Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for and the same rule shall apply to the relief claimed by the defendant in his written statement.
Perusal of the afore-mentioned order 7 Rule 7 of the CPC shows that order 7 of the CPC deals with the pleadings of the plaint and it no where debars the Court for granting relief which is not prayed by the plaintiff. Perusal of the aforementioned section further shows that the Court can relief which it may thinks just.MUKESH KUMAR SALUJA
RSA No.3409 of 2011 (O&M) 8 2014.09.01 15:41 I attest to the accuracy and integrity of this document As a sequel to my above discussion, I do find any infirmity and illegality in the judgment passed by the learned trial Court and the same is affirmed..."
During the course of hearing, learned counsel for the appellant failed to 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 qua 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 Vs. Lekshmy Sarojini and others, 2009 (2) RCR (civil) 286. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld, for this reason as well.
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, the impugned judgments and decrees passed by the learned courts below are upheld.
Resultantly, the instant appeal stands dismissed. Pending application also stands disposed of. No costs.
22.08.2014 (RAMESHWAR SINGH MALIK) mks JUDGE