Regular Second Appeal No.2372 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2372 of 2011 (O&M) Date of Decision:-25.7.2011 Union of India and others ...Appellants Versus P.K.Garg ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Anil Rathee, Advocate for the appellants. Mr.Pankaj Mahavir Chauhan, Advocate for the caveator-respondent. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties in detail, so, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeal. However, concisely, the facts, culminating in the commencement, relevant for deciding the present appeal and emanating from the record, are that P.K.Garg son of Roshan Garg respondent-plaintiff (for brevity “the plaintiff”) was recruited and posted as J.T.O. in the department of Telecommunications/Bharat Sanchar Nigam Limited and his services were regularized in the year 1984. In the wake of promotion from the post of JTO, he was posted as SDE)G), Sunam on 27.10.1997. In view of the approval of tenders, the work of laying the cables at Sunam, was completed in the year 1997-98. After six years of completion of the work, plaintiff was charge sheeted with five charges, by means of charge sheet (Ex.P1). He filed the reply. The Inquiry Officer exonerated him, but the Disciplinary Authority disagreed with his findings and ultimately imposed the penalty by reducing two stages in the time scale of pay for Regular Second Appeal No.2372 of 2011 (O&M) -2- a period of two years with immediate effect and also postponed two future increments, by virtue of punishment order dated 16.1.2006 (Ex.P13). 2. Faced with the situation, plaintiff filed the suit seeking a decree for declaration, challenging the punishment order (Ex.P13), with a consequential relief of permanent/mandatory injunction, directing the Union of India and its officers appellant-defendants (for short “the defendants”), to promote him as Divisional Engineer before the promotion of his juniors. 3. The case set up by the plaintiff, in brief in so far as relevant, was that tender for laying the cables at Sunam was duly approved by the GMT/D Sangrur, vide letter dated 8.7.1997. The work was carried out by the contractor, as per specifications and as per terms and conditions of approved rates. The work was duly supervised by the superior staff. The reports submitted by the plaintiff were stated to have been accepted by the reporting officer, without any objection. The work was completed and progress report submitted by the plaintiff in the presence of supervising staff, was accepted by the department, without any objection. The payments were duly made to the contractor. 4. According to the plaintiff that the whole of the work of laying the cables was cross checked by the A/T staff and no irregularity was found in it. The work was completed in the year 1997-98, but after six years of its completion, false charges were levelled against him. He filed the reply to the charge sheet (Ex.P1). Still, the inquiry was ordered. However, the Inquiry officer, after taking into consideration the evidence and the documents on record, held that the plaintiff was not guilty of the charges framed against him and recommended his exoneration. The Disciplinary Authority disagreed with the report of the Inquiry Officer and by ignoring the second representation of the plaintiff, passed the penalty order dated 16.1.2006 in this regard. 5. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that the impugned penalty order is illegal, null, Regular Second Appeal No.2372 of 2011 (O&M) -3- void and against the principle of natural justice and challenged the same on the following grounds:- 1. The charge sheet has been issued after six years and no reason has been given for inordinate delay in the issuance of charge sheet. 2. Work of laying the cable if not satisfactory and was not in financial interest of the department, then there was no occasion of disbursing the payment to the contractor. Even a single penny of the bills submitted by the contractor was never objected to either on account of the improper laying of cable or violation of the tender work. 3. The plaintiff was not the only person to be responsible for the work as it was a joint team, who was to examine the work, check and cross check the work, carried by the contractor and whole of the work when reported to the reporting officers was thoroughly checked and approved by the superior officers, which ultimately led to the clearance of payment to the contractor. Thus, when the work was checked, cross checked by the superior officers and bills were approved and payment were made and then to issue the charge sheet to plaintiff, pointing out defects in the cable laying work after 6 years ipso facto shows that such charge sheet has been issued with mala fide attention to malign the prospective carrier of plaintiff in the matter of promotion. 4. The inquiry officer who conducted the enquiry was the employee of the department and of status over and above plaintiff and the inquiry officer is expected to be impartial. Considering the Inquiry Officer as impartial he was appointed in the case of plaintiff. There is nothing on the record, which may show that Inquiry Officer had any role of partially towards plaintiff and had gone beyond his powers and beyond records to give the findings in favour of plaintiff. Once the Inquiry Officer who is departmental officer and appointed by Disciplinary Authority is not stated to have exercised his jurisdiction in unfair manner, there is no cause for the Disciplinary Authority to disagree with the report submitted by him. 5. That the rules provide in the case of disagree with the report of inquiry officer, the disciplinary authority could hold de-novo enquiry by appointing any other inquiry officer, but no inquiry officer has been appointed later. 6. The disagreement note is on the basis of hypothetically consideration and without any basis of evidence. There is no evidence on the record, which may prove any act of malafide on the part of plaintiff in the matter of Regular Second Appeal No.2372 of 2011 (O&M) -4- acting against the interest of department or of causing financial loss to the department. 7. Before imposing the penalty no opportunity of personal hearing was afforded to plaintiff. 8. The order of imposing of penalty is non-speaking as none of the version of plaintiff stated in the representation has been discussed and touched to show as to how the facts related in the representation are not to be believed. 9. That the order of punishment is discriminatory and none of the superior officers or other supervising staff who had supervising the work, approving the work of contractor, approving the bills of the contractor, finding the work in conformity with the tender have been charge sheeted. 10.Defendant no.2 is not competent to pass the impugned order, therefore, order is without jurisdiction. 11.That the act of Appellate Authority i.e. defendant no.3 is arbitrary against the rules due to the following:- i. That despite the representation sent in the form of appeal plaintiff has not been afforded opportunity of personal hearing. ii. That as per rules, it was mandatory to decide the appeal within one month, but the same has not been decided up till now and statutory period of one month has expired. 6. On the basis of aforesaid grounds, the plaintiff filed the suit for a decree of declaration/permanent/mandatory injunction against the defendants, in the manner described hereinabove. It is not a matter of dispute that during the pendency of the civil suit, the appellate authority modified the punishment order and reduced the penalty to one stage in the time scale of pay for a period of one year instead of two years, by means of order dated 13.12.2006, which was also challenged by the plaintiff. 7. The defendants contested the suit. Defendant Nos.1 and 2 filed their written statement, in which, it was mentioned that the cable laying work was not carried out by the contractor, as per terms and conditions of the contract. During the investigation by the Vigilance Team, certain shortcomings were noticed in the indicated work. The plaintiff was stated to be negligent in performing his duties in Regular Second Appeal No.2372 of 2011 (O&M) -5- this relevant connection. However, it was admitted that the Inquiry Officer has exonerated him, but the punishing authority was stated to have rightly passed the penalty order against the plaintiff, after following the due procedure under the rules. The factum of acceptance of progress reports sent by the plaintiff to the department, on the basis of the certificate recorded by the supervising staff, was admitted by defendant Nos.3 to 6. In all, according to the defendants that since the certain shortcomings were found by the Vigilance Department in the work attributable to plaintiff, so, the Disciplinary Authority has rightly punished him in this context. It may be added here that defendant Nos.3 to 6 have also toed the line of pleadings contained in the written statement filed on behalf of defendant Nos.1 and 2. It will not be out of place to mention here that all the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 8. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether plaintiff is entitled to declaration as prayed for ?OPP 2. Whether plaintiff is entitled to mandatory injunction as prayed for ?OPP 3. Whether plaintiff is entitled to permanent injunction as prayed for ?OPP 4. Relief. 9. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 10. The trial Court, after taking into consideration the entire evidence on record, partly decreed the suit of the plaintiff, by way of impugned judgment and decree dated 21.4.2007, the operative part of which is (para 46) as under:- “In view of my findings on the above issues, the suit of the plaintiff is partly decreed to the effect that order dated 16.1.2006 passed by defendants no.2 and further the appellate order dt.13.12.2006 imposing the reducing of one stage in the time scale of pay for a period of one year and Regular Second Appeal No.2372 of 2011 (O&M) -6- further that the plaintiff will not earn increments of pay during the period of such reduction and on expiry of this period of reduction will have the effect of postponing his future increment of his pay during such period reduction are illegal null and void and against the principle of natural justice and not binding upon the plaintiff. In case of implementation of such order/orders any deduction has been made or benefit have been withheld, the plaintiff shall be entitled to all benefits attached thereto which have been withheld on account of existence of such order(s). The suit for permanent injunction and mandatory injunction is dismissed for having no cause of action, with no order as to costs. Decree sheet be prepared and the file be consigned to the record room.” 11. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist appellate Court, by virtue of impugned judgment and decree dated 27.11.2010. 12. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. That is how I am seized of the matter. 13. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this behalf. 14. Ex facie, the argument of the learned counsel for the appellant- defendants that since the delay of six years in initiating the departmental proceedings against the plaintiff is duly explained and no prejudice is shown to have been caused to him by non-supplying the documents, so, the Courts below committed a legal mistake in decreeing his suit, is not only devoid of merit but misplaced as well. 15. As is evident from the record that the indicated work of laying the cables at Sunam was completed in the year 1997-98. The charge sheet (Ex.P1) was issued to the plaintiff on 1.6.2004 i.e. after six years. The plaintiff was charge sheeted only on the basis of alleged vigilance inquiry report in the wake of an anonymous complaint, copy of which was not supplied to him. Again, it is not a Regular Second Appeal No.2372 of 2011 (O&M) -7- matter of dispute that the tenders for the work were duly approved by the competent authority. Supervising staff inspected the works at the spot. The department had made the payments to the contractor after satisfying itself on completion of work and no accusing finger was ever raised by any one against the plaintiff prior to serving of charge sheet (Ex.P1). The plaintiff filed the reply, explaining the entire gamut. The Inquiry Officer, after taking into consideration the material on record, found the plaintiff innocent and recommended that he be exonerated from the charges alleged against him. Except the plaintiff, no other officials, who were directly connected with the affairs of execution of indicated works at different stages, were held responsible nor any departmental proceedings were initiated against them. The plaintiff appears to have been made an escape- goat to cover the deficiency of higher officials. Why the higher officials, who approved the tenders, supervised the work at the spot, submitted, verified the reports and made the payments to the contractor after completion of the work, were not touched, remained an unfolded mystery during the entire disciplinary proceedings and during the course of trial of the suit. So much so, the vigilance report, on the basis of an anonymous complaint, which was made the basis for punishing the plaintiff, was not supplied to him. The Disciplinary Authority did not record the cogent reason to differ with the report of the Inquiry Officer. Therefore, taking into consideration the delay of six years in initiating the departmental proceedings, non-supplying the copies of vigilance report and other documents to the plaintiff as also non-recording of valid reasons of disagreement report by the punishing authority, violation of principle of natural justice and other attending circumstances, emanating from the record, to me, the trial Court has rightly decreed the suit of the plaintiff, vide impugned judgment and decree dated 21.4.2007. 16. Not only that, the decision of the trial Court was upheld by the first appellate Court, by means of impugned judgment dated 27.11.2010, which, in Regular Second Appeal No.2372 of 2011 (O&M) -8- substance, is (paras 17 & 18) as under:- “17. Undisputedly, in the instant case, the copy of the vigilance report has not been given to the respondent-plaintiff, I am of the view that this also violates the principles of natural justice inasmuch as the document affecting the respondent-plaintiff or his case are used without giving copy thereof to him. It may be possible that the competent authority is not bound to take into consideration the recommendations of the vigilance committee, but seen from the human nature, such recommendation, if any may affect the final decision that may be taken by the disciplinary authority. In this view of the matter, in my opinion that the procedure adopted by the disciplinary authority and the recommendation if any made by the vigilance committee have clearly prejudiced the case of the respondent-plaintiff. These are steps, which are violative of the principles of natural justice. From the testimony of DW1 B.M.Sharma Secretary Vigilance Branch, it is clear that upon receiving the complaint from one Gurdev Singh, the same was got investigated from vigilance committee, and the disciplinary committee has submitted its report that the respondent-plaintiff was identified for the irregularities in the cable laying work at Sunam during vigilance inquiry. But, the report has been kept back with the result that the nature of the report is not disclosed. Even, DW1 in his cross examination has submitted that there is no provision in the rules to provide/supply copy of the preliminary investigation report of the vigilance to the delinquent official. However, from the testimony of DW1, it is clear that the preliminary investigation report of the vigilance was taken into account by the department. It cannot be for the department to say that the preliminary investigating report is confidential in character and they are not to be brought to the notice of the delinquent concerned. In quasi-judicial inquiry, there is nothing that can be said to be confidential. Any material that is implied against a delinquent official to his prejudice, has to be brought to his notice so that he may his own say in this regard. Thus, the non-supply of the vigilance report to the respondent-plaintiff would be contrary to the principles of natural justice. I am, therefore, of the opinion that the non- supply of the report has prejudiced the respondent-plaintiff case and reasonable opportunity of demolishing of such report has not been given to the respondent-plaintiff, which resulted into denial of reasonable opportunity violating the principles of natural justice. 18. xxx xxx xxx xxx xxx xxx xxx xxx xxx Regular Second Appeal No.2372 of 2011 (O&M) -9- Having gone through the contents of the disagreement note Ex.P3, it has been found that in respect of the Article 1 of the charge, it has been stated that warning bricks are laid breadth-wise in the whole SSA, Sangrur and work was not done as per agreement. The work was to be carried as per the agreement not as per practice. However, the said disciplinary authority while disagreeing the article has not referred the particular clause of the agreement, whereas specific definite bricks were not required to be laid in the manner, it has been laid. Moreover, it has not been shown in Article 1 of the charges as to how much loss was caused to the department in the light of laying of the bricks breadth-wise. Thus, this Court also concur with the findings of learned Trial Court and Trial Court has rightly held that it is a case of no evidence. Learned Trial Court has rightly dealt with the findings of the disciplinary authority as per each of the articles of the charge sheet and rightly concluded that the disagreement report given by the disciplinary authority is not based upon any evidence. No doubt, the punishing authority has power to disagreement with the findings of the inquiry officer but it can be exercised such powers only if there is a plausible evidence on record to adjudicate and show that the findings of the inquiry officer are perverse and against the record. One cannot lost sight of the fact that in the instant case, the inquiry officer exonerated the respondent-plaintiff, on the basis of available evidence, but the disciplinary authority disagrees with the report of inquiry officer, without any luculent evidence available on record. Under that circumstances, I am also of the view that the learned Trial Court has rightly concluded that under such circumstances, the Civil Court has right to look into evidence which was collected during inquiry and see as to whether the reasons given by the disciplinary authority are not hypothetical and whimsical.” 17. Learned counsel for the appellant-defendants did not point out any material, much less cogent, so as to warrant any interference in the impugned judgments and decrees of the Courts below. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, both the courts below have recorded the above-mentioned concurrent findings of fact. Such pure concurrent Regular Second Appeal No.2372 of 2011 (O&M) -10- findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 18. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below. 19. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 25.7.2011 Judge AS Whether to be referred to reporter?Yes/No