RSA No. 3516 of 2008 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 3516 of 2008 (O&M) Date of Decision : 4.2.2009 State of Haryana & others .......... Appellants Versus Mohar Pal Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Madan Gupta, Sr. DAG, Haryana. Mr. Amit Goyal, Advocate **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 29.2.2008 and 21.7.2008 passed by the learned Courts below vide which suit filed by the plaintiff-respondent seeking declaration to challenge an order of punishment imposing recovery of Rs. 2,91,100.60 ps, has been decreed. The plaintiff-respondent was charged for negligence on the allegations that due to his negligence the State has suffered a loss of Rs. 2.91.100.60 ps. It is pertinent to mention here that the persons who were said to be accompanying the plaintiff / respondent when the dacoity which resulted in loss, took place were not even charged by the State Government. Though in the preliminary enquiry plaintiff-respondent was RSA No. 3516 of 2008 -2- found to be guilty of the allegations along with the S.D.O., however, in the regular enquiry the Enquiry Officer exonerated him from all the charges. After about 7 ½ years of enquiry and after the plaintiff-respondent had retired from service a show cause notice was issued holding him guilty of the charges and calling upon him to show cause as to why recovery be not effected from him. After receipt of the reply, the impugned order was passed. The suit was contested on the plea that the plaintiff-respondent was found guilty by the Enquiry Officer, and the due process of law was followed before imposing the penalty. On the basis of evidence led the learned Courts below have recorded a concurrent finding of fact that the Enquiry Officer exonerated the plaintiff-respondent of the main charge therefore the plaintiff could not be held guilty of having caused loss, thus, the order being perverse, could not be sustained. It may also be mentioned that after the retirement the plaintiff could not be charged for an act which was said to be four years prior to his retirement. The suit of the plaintiff stands decreed and the order impugned declared to be illegal, null and void and not binding on the rights of the plaintiff-respondent. Mr. Madan Gupta, learned Senior Deputy Advocate General, Haryana contends that this appeal raises the following substantial questions of law :- 1. Whether the finding recorded by the learned Courts RSA No. 3516 of 2008 -3- below setting aside an order of recovery is outcome of misreading of the documentary evidence brought on record i.e. the enquiry report and show cause notice ? 2. Whether the finding recorded by the learned lower appellate Court is perverse ? In support of the substantial question of law framed the learned Senior Deputy Advocate General, Haryana contends that the enquiry held in the year 1994, the plaintiff-respondent was held guilty and, therefore it was not open to the Court to have substituted its opinion as the Civil Court is not competent to sit in appeal over the findings of the Enquiry Officer. Thus, the substantial question of law that the findings recorded being perverse are not sustainable deserves to be decided in favour of the appellant-State. However, this plea of the learned Senior Deputy Advocate General, Haryana cannot be accepted as the enquiry in the year 1994 was only a preliminary fact finding enquiry in which the plaintiff / respondent was not associated. In the regular enquiry he was exonerated of the major charges and the findings were accepted as no action was taken for more than 7 ½ years of the submission of the enquiry report. The appointing authority was not competent to form a different opinion without issuing show cause notice to the plaintiff-respondent which was not done as the show cause notice issued was only regarding proposed penalty. The learned Courts below, therefore, were right in holding that the impugned order was contrary to the provisions of the statutory rules and, therefore, could not be sustained in law. RSA No. 3516 of 2008 -4- The findings of fact recorded by the learned Courts below can neither be said to be perverse nor misreading of enquiry report, order or show cause notice as is sought to be contended. The substantial questions of law, framed are answered against the appellant-State and the appeal is ordered to be dismissed in limine. 4.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE