Dalwinder Singh vs State of Punjab and Others

Rameshwar Singh Malik, J.—Present appeal, at the hands of plaintiff, is directed against the judgment of reversal, whereby the learned Additional District Judge partly allowed the appeal of the defendants, in a suit for declaration. Brief facts of the case, as recorded by the learned first appellate court in para 2 and 3 of the impugned judgment, are that plaintiff was working as conductor in Punjab Roadways, Patti Depot. The General Manager, Patti, vide his order dated 31.1.1983 stopped three annual increments of the plaintiff with cumulative effect. Further, as per order dated 7.2.1983, the General Manager, Patti, also stopped three increments of the plaintiff with cumulative effect and also withheld his wages for suspension period. These orders were stated to be totally illegal, contrary to the rules of natural justice, null and void for the following reasons:-

i) The General Manager served two charge-sheets dated 6.10.1981 and 14.10.1982 on him. No open and judicial mind was applied by the General Manager before issuing the charge-sheets. The charge-sheets were totally illegal and contrary to the Rules of principle of natural justice.

ii) That without considering the merits of the case and defence, the plaintiff-respondent was proceeded departmentally. He was not allowed the assistance of any person during the proceedings of the enquiry and the essential materials were also not supplied to him. The whole enquiry was conducted in contravention of Rules 7 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules and principles of natural justice.

iii) The show cause notices given to him were stereo-type which revealed nothing as to how why and under what circumstances the same were issued. The replies submitted by him to the show cause notices were not considered with judicial mind.

iv) The orders were passed by the person, having no powers to act as Punishing Authority and, thus, the same were illegal, null and void.

The suit was contested by the defendant-appellants. They took preliminary objections that the orders were perfectly legal and valid. They controverted all the allegations of the plaintiff-respondent and reiterated that the enquiries were conducted following the necessary rules, regulations and principle of natural justice. It was also pleaded that the show cause notices were served on the plaintiff-respondent, who was placed under suspension and that the orders were passed by the Punishing Authority of the plaintiff-respondent.

On completion of pleadings of the parties, learned trial court framed the following issues:-

"1. Whether the orders of the G.M. bearing Endst. No. 6820-23/GM dated 31.1.83 dated 31.1.83 and order bearing Endst. No. 7976-79/ST/GM/dated 7.3.83, by virtue of which, one and three increments of the plaintiff were withheld with cumulative effect and also the wages deducted for the suspension period, are illegal as alleged and not binding upon the plaintiff? OPP

Relief"

With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has duly proved his case. Accordingly, suit of the plaintiff was decreed, vide judgment and decree dated 14.8.1987. Punishment orders dated 31.1.1983 and 7.3.1983, whereby as many as six annual increments of the appellant were stopped with cumulative effect, were declared illegal. Feeling aggrieved, defendants filed their first appeal, which came to be partly allowed by the learned first appellate court vide impugned judgment and decree dated 25.10.1989. Hence this second appeal at the hands of the plaintiff.

Learned counsel for the appellant submits that so far as punishment order dated 7.3.1983 was concerned, both the courts below have decided the matter in favour of the plaintiff, recording their concurrent findings. Defendants did not challenge the impugned judgment rendered by the learned Additional District Judge, qua the findings recorded against the defendants, regarding order dated 7.3.1983. He would next contend that learned first appellate court fell into serious error of law, while partly allowing the appeal of the defendant, qua punishment order dated 31.1.1983 without recording any reason. He concluded by submitting that the findings recorded by the learned Additional District Judge in para 9 of the impugned judgment were factually wrong and against the judicial record, because as per Ex. P2, there was no scope for supplying an enquiry report to the plaintiff-appellant. He prays for setting aside the impugned judgment, by allowing the present appeal.

On the other hand, learned counsel for the State submits that findings recorded by the learned first appellate court were based on correct appreciation of evidence and the present appeal is liable to be dismissed. She further submits that plaintiff was found guilty of serious misconduct and the major punishment was rightly awarded to him. There was nothing wrong with the punishment orders. She prays for dismissal of the appeal.

Having heard the learned counsel for the parties 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, instant appeal deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

Keeping in view the peculiar facts of the case, noticed hereinabove, following substantial question of law arises for consideration of this Court:-

"Whether the impugned judgment rendered by the first appellate court is based on complete misreading of evidence and the findings recorded in para 9 of the impugned judgment runs contrary to the judicial record of the case."

The sole reason given by the learned first appellate court in para 9 of the impugned judgment, thereby partly allowing the appeal of the defendants-respondents, was that copy of original report has been supplied to the plaintiff. Learned Additional District Judge has referred to an endorsement to this effect at page 17 of the enquiry file Ex. P2, which contains the list of allegations. It also includes the list of witnesses. Copy of these allegations has been received by the plaintiff. However, a bare perusal of page 17 of Ex. P2, i.e. list of allegations, would show that there was no scope of even any presumption, that copy of the enquiry report was supplied to the plaintiff by way of this document. In fact, enquiry report was prepared much later. The date put on this list of allegations was 9.10.1982 whereas copy of enquiry report was dated 29.10.1982.

When a pointed question was put to the learned counsel for the State to show any other piece of evidence or document, to substantiate this factual aspect of the matter that copy of enquiry report, as a matter of fact, was supplied to the appellant, she had no answer and rightly so, because it was a matter of record. Since the only reason given by the learned first appellate court in para 9 of the impugned judgment, for partly allowing the first appeal of the defendants-respondents, has been found to be factually incorrect and contrary to the record, particularly Ex. P2, the impugned judgment cannot be sustained.

It is also undisputed on record that major punishment of stoppage of three annual increments with cumulative effect, was awarded to the appellant on the basis of enquiry report dated 29.10.1982. In case, defendants were intending to impose the major punishment on the appellant, they were under legal obligation to issue a show cause notice alongwith copy of enquiry report, so as to grant opportunity to the plaintiff to submit his reply to the show cause notice. However, since no copy of enquiry report was supplied to the plaintiff, punishment order dated 31.1.1983 was rightly declared illegal by the learned trial court recording cogent findings. However, learned first appellate court misdirected itself, while completely misreading the evidence available on record. Having said that, this Court feels no hesitation to conclude that learned first appellate court committed serious error of law, while partly allowing the appeal of the defendants qua the punishment order dated 31.1.1983 and the impugned judgment cannot be sustained, for this reason also.

Further, learned Additional District Judge tailed to refer to any illegal finding recorded by the learned trial court before partly allowing the appeal of the defendants. No reason, whatsoever, was recorded as to how the findings of the learned trial court were illegal or contrary to the record. In fact, the impugned judgment is non speaking in this regard. Since it was a finding of fact, learned first appellate court had no jurisdiction to set aside that finding recorded by the learned trial court, which was based on correct appreciation of facts as well as evidence available on record. In this view of the matter, the substantial question of law, posed hereinabove, is answered in favour of the plaintiff-appellant and against the respondents. Judgment and decree passed by the learned trial court are hereby restored.

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 since the impugned judgment rendered by the learned first appellate court has been found suffering from jurisdictional error as well as patent illegality, the same cannot be sustained. Thus, impugned judgment and decree passed by the learned Additional District Judge are hereby set aside. Judgment and decree passed, by the learned trial court are hereby restored. Resultantly, the instant second appeal stands allowed, however, with no order as to costs.