Himachal Pradesh High Court
Lucky Sharma vs Babu Ram & Others on 11 June, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA
RSA No. 223 of 2019
Decided on 11.6.2019
Lucky Sharma .....Appellant
Versus
Babu Ram & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the appellant: Mr. Vijender Katoch, Advocate.
For the respondents: Mr. Hemant Vaid Addl. A.G. with Mr.
Y.S. Thakur & Mr. Vikrant Chandel,
Dy. A.G., for respondents No. 2 to 5.
Sureshwar Thakur, J (oral):
The plaintiff instituted, a, suit bearing Civil Suit No. 96 of 2011, before the learned trial Court, and, therein, he claimed rendition of a decree for declaration, besides, renditions of decrees of permanent prohibitory injunction, as well as, of, mandatory injunction, for setting aside memo, of, 26.7.2011, bearing No. EDN HMR(Elem)G1/Building/CMREF/201011781113, (i) and, therethrough, a sum of Rs. 13,500/, was, ordered to be recovered ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -2- .
from the salary of the plaintiff. The suit of the plaintiff was decreed by the learned trial Judge, and, hence the afore memo stood quashed, and, also the defendants were restrained, from recovering the amount borne a sum of Rs. 13,500/, from the salary, of the plaintiff, whereas, the, aforesaid espoused decree for mandatory injunction rather directing the defendants, to return the afore amount, visavis the plaintiff along with interest, at, the rate of Rs. 9% per annum, rather, stood declined.
2. The State of Himachal Pradesh, being aggrieved therefrom, instituted Civil Appeal No. 41 of 2016, before the learned first appellate Court, and, also one Babu Ram, being aggrieved therefrom, also filed thereagainst, Civil Appeal bearing No. 42 of 2016, before the learned first appellate Court. Both the afore civil appeals were decided, under, a common verdict, and, therethrough, hence Civil Appeal No. 41 of 2016, titled State of H.P. & others vs. Lucky Sharma, and, Civil Appeal No. 42 of 2016, titled Babu Ram vs. Lucky Sharma & others, were partly allowed, with, costs, and, the suit of the plaintiff stood dismissed. However, the ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -3- .
amount recoverable by the defendants, from the salary, of the plaintiff, was, restricted in a sum of Rs. 10,000/. The plaintiff is aggrieved by the judgment and decree, rendered, by the learned first appellate Court, hence has motioned this Court, through, his constituting the extant appeal herebefore.
3. Briefly stated the facts of the case are that the plaintiff has filed a suit for declaration and permanent prohibitory as well as mandatory injunction against the defendants with averments that the plaintiff on 20.2.2010 during the period he remained Headmaster of Government Middle School Khaggal, Tehsil and District Hamirpur entered into an agreement with defendant Babu Ram to construct Headmaster room in the school which was duly signed by contracting parties and the witnesses. As per same, the contract of construction was given for Rs. 62,000/ with a stipulation to complete the work by 30.4.2010 and in case of default, the contractor shall be liable to pay double the amount of the contract. In pursuance to said agreement defendant Babu Ram started digging and collecting material to raise construction and on ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -4- .
various dates at request received Rs. 32,000/ in total. When the expiry period of the agreement was approaching, the plaintiff as well as management of the school issued a letter as well as made numerous calls on the mobile No. 9418854299 of defendant Babu Ram to complete the work but he did not turn up which created unusual situation which forced in the interest and welfare of the institution to hand over the work to another contractor under separate writing. The defendant Babu Ram not only acted against letter and spirit of the agreement but also caused loss to the institution. But in order to avoid recovery or to prepare a defence, defendant Babu Ram served a legal notice dated 31.5.2010 for releasing second installment of Rs. 20,000/ which was contrary to the facts and accordingly notice was duly replied through counsel.
The defendant Babu Ram in order to harass the plaintiff lodged a complaint with District Collector, Hamirpur who sent the same to defendant No.2 to inquiry which was assigned to defendant No.3 Deputy D.E.O. Smt. Neera Mahajan. At that time plaintiff was posted in Government Middle School Bhatera, District Hamirpur ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -5- .
and as such along with Headmaster Government Middle School Khaggal was called for inquiry with record on 3.7.2010 but defendant No.3 did not conduct the inquiry as per established procedure under CSS (CCA) Rules 1965. Neither any show cause notice was issued nor memorandum of charges was prepared nor was read over and explained to him. Neither statement of the members of the staff who were present at the time of payment made to defendant Babu Ram recorded nor any opportunity was afforded to him to lead the evidence. Thus, the inquiry was arbitrary, unjust and improper. Also defendant Babu Ram nowhere had claimed amount Rs. 13,500/ as he had pointed out different figures in his claims. The plaintiff in pursuance to said illegal and arbitrary inquiry has been served with a memo dated 20.7.2011 directing to make payment of Rs. 13,500/ or otherwise the amount will be deducted from his salary. In these facts and circumstances, prayed for a decree of declaration that the inquiry conducted is wrong and illegal and resultantly memo dated 26.7.2011 is also wrong and illegal along with a decree of ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -6- .
permanent prohibitory injunction for restraining the defendants from recovering Rs. 13,500/ from the plaintiff and in case during the pendency of the suit succeeded in recovery then by way of a mandatory injunction be directed to return the same along with interest. r
4. The defendants contested the suit by filing separate set of written statements and took preliminary objections of maintainability, estoppel, nonjoinder and misjoinder of parties, cause of action and that of limitation and on merits it is averred that the inquiry was conducted as per procedure by joining them and that the provisions of CSS (CCA) Rules 1965 are not applicable in the case and prayed for dismissal of the suit with costs.
5. The plaintiff filed replication(s) to the written statement(s) of the defendant(s), wherein, he denied the contents of the written statement(s) and reaffirmed and reasserted the averments, made in the plaint.
6. On the pleadings of the parties, the learned trial Court struck the following issues interse the parties at contest: ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -7- .
1. Whether the inquiry conducted by defendant No.3 on the complaint of defendant No.4 against the plaintiff is wrong and illegal and against the established procedure and rules of law, as alleged? OPP.
2.
r to Whether memo dated 26.7.2011 is also wrong and illegal and not binding of the plaintiff, as alleged? OPP.
3. Whether plaintiff is entitled to decree for mandatory injunction, as prayed for? OPP.
4. Whether the suit of the plaintiff is not maintainable? OPD.
5. Whether plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD.
6. whether suit of the plaintiff is bad for non joinder and misjoinder of necessary party, as alleged? OPD.
7. Whether no jurisdiction to try the present suit, as alleged? OPD.
8. Whether the suit is not within time, as alleged? OPD.
9. Relief.
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7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court hence decreed, the, plaintiffs' suit qua declaration, and, hence declared, the inquiry conducted, by defendant No.3, on the complaint of defendant No.4, against the plaintiff, as, illegal it being against the established procedure and rules, (a) and, resultantly, the, memo dated 26.7.2011 vide NO.EDNHMR(Elem)G1/Building/CM REF/2010 11781113 was also declared illegal, and, not binding on the plaintiff, (b) and, suit for permanent prohibitory injunction, hence was also decreed, (c) and defendants were restrained, from recovering the amount borne, in, a sum, of Rs. 13,500/, from, the salary of the plaintiff, (d) whereas, the espoused decree for mandatory injunction, hence directing, the defendants, to return, the amount, in question along with interest @ 9% per annum rather stood declined. In appeals, preferred therefrom, by, aggrieved defendants, before the learned First Appellate Court, the latter Court partly allowed the appeals, and, set aside the findings recorded by the learned trial Court.
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8. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court.
9. The learned trial Judge had though struck an issue, visavis, the maintainability of the plaintiff's suit, yet, it recorded affirmative renditions' thereon. However, upon the issue hence appertaining, to the jurisdiction of the learned Civil Court, to try the plaintiff's suit, it, also returned affirmative findings thereon.
The learned first appellate Court allowed the aggrieved, State of Himachal Pradeshs' appeal reared against, the, afore part decreeing, of, the plaintiff's suit, by the learned trial Judge, and, obviously hence rendered findings adversial, to the plaintiff, upon the afore issues. The afore findings, do not merit any interference, as the recoveries, as were ordered to be made, from the salary disburseable, to the plaintiff, a, government employee, and, prima facie in concurrence, with, an inquiry conducted under the CCS (CCA) Rules 1965, (a) and, when the plaintiff rather held, a, ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -10- .
statutory right to make an appeal therefrom before the statutorily mandated appellate authority concerned, (b) thereupon the recoursings thereto, by the plaintiff, rather was the apt appropriate remedy, than his taking to institute the extant civil suit, before the learned trial Court, hence for setting aside the findings recorded, by the Inquiry Officer, (c) and, or in case the appellate authority also concurred with the findings recorded by the Inquiry Officer, thereupon the remedy available, to the plaintiff, was comprised, in his throughagainst rather filing a writ petition, before this Court.
Significantly, when hence the plaintiff held, the afore apt, statutorily recourseable remedy(s), comprised in his, therethrough(s) rather casting an appropriate, and, validly constituted challenge, upon the findings, recorded by the Inquiry Officer, (d) thereupon the nonrecoursing(s) thereof, by the plaintiff, despite the afore comprising, the, solitary remedy vested in him under law, hence obviously would not vest in him, to recourse an alternative thereto remedy, comprised in his instituting the extant civil suit, it being, a, misconstituted remedy, hence ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP -11- .
obviously rendering the suit, being not maintainable, and, concomitantly, the learned trial Judge, holding no jurisdiction, to, render any decree thereon.
10. In aftermath, the impugned judgment and decree, is, validly recorded, and, does not suffer, from any infirmity or perversity, and, as a corollary thereof, no substantial question of law, much less a substantial question of law, arises for determination in this appeal.
11. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the judgment and decree impugned before this Court is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) Judge 11th June, 2019 (kck) ::: Downloaded on - 28/09/2019 23:24:58 :::HCHP