RSA No. 1564 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1564 of 2009 Date of Decision: 08.01.2010 1. Haryana Agro-Industries Corporation Ltd., through its Principal Officer, SCO No. 825-26, Sector 22-A, Chandigarh. 2. The Managing Director, Haryana Agro-Industries Corporation Ltd. SCO No. 825-26, Sector 22-A, Chandigarh. ... Appellants Versus 1. Sh. Jitender Singh; 2. Sh. Ravinder Kumar; 3. Sh. Surender Kumar; 4. Ms. Sunita Devi; 5. Ms. Raj Bala; all residents of Kutia Wali, P.O. Ghursai, Tehsil and District Hisar, Haryana; all LRs of Late Sh. Suraj Mal Nehra, s/o Sh. Udami Ram Nehra. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Pankaj Gupta, Advocate, for the appellants. Mr. R.K. Malik, Senior Advocate, with Mr. Ashish Chaudhary, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed against the judgement and decree RSA No. 1564 of 2009 2 dated 20.01.09, rendered by the Court of Additional District Judge, Hisar, vide which, it partly accepted the appeal, against the judgement and decree dated 23.08.07, rendered by the Court of Civil Judge (Senior Division), Hisar. 2. The facts, in brief, are that, Suraj Mal Nehra (since deceased), now represented by his legal representatives (respondents) was posted, as Chargeman, with the Haryana Agro Industries Corporation Ltd., and when, he was serving, as Store Keeper, in Sirsa Mandi, he was ordered, to be retired, from service, under Rule 2.2 (b) of the Punjab Civil Services Rules, Volume-II, w.e.f. 31.05.02, afternoon, vide order dated 08.05.02 and his retiral benefits were withheld. It was stated that Suraj Mal Nehra (since deceased), discharged his duties with sincerity and honesty. It was further stated that Suraj Mal Nehra (since deceased), was not governed by the Rules, ibid, and, as such, the order impugned, was not binding upon him. It was further stated that the order impugned, was not passed by the competent authority, and, no opportunity of being heard, was afforded, to the deceased. It was further stated that the order impugned was illegal and not operative against the rights of Suraj Mal. It was further stated that the retiral benefits, had not been released, to Suraj Mal Nehra (since deceased), despite making a number of representations, and, as such, he was entitled to the same, alongwith interest @ 24 per cent per annum. The defendants, were many a time, asked to treat the order impugned, as illegal, and release RSA No. 1564 of 2009 3 all the retiral benefits, but to no avail. Ultimately, a suit for declaration and mandatory injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that, no cause of action, accrued to the plaintiff, to file the suit. It was further pleaded that the Civil Court, at Hisar, had no jurisdiction, to entertain and try the suit. It was stated that the plaintiff, was retired from service, under Rule 2.2 (b) of the Rules, ibid, vide order dated 08.05.02. It was further stated that the Civil Services Rules, were made applicable, to the Corporation , as per resolution serial No. 3 item No. 4.1, dated 06.10.67, passed by the Board of Directors of the Corporation. It was further stated that the plaintiff, was negligent and careless, in the performance of his duties, and, as such, he was warned many times. It was further stated that the plaintiff, made payment, to the tune of Rs. 19,975/-, for the loss, suffered by the Corporation, on 15.05.02. It was further stated that the order impugned, was not illegal. It was further stated that the plaintiff, was responsible for heavy damage, to the wheat stock, which had already been admitted by him, in the charge list, at the time of handing over the charge to his (plaintiff's) successor. It was further stated that the value of the loss, was not less than Rs. 50 lacs. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were RSA No. 1564 of 2009 4 struck:- (i) Whether the order dated 08.05.02, vide which, retiral benefits of the plaintiff has been withheld is illegal, null and void and is not binding on the plaintiff? OPP (ii) Whether the plaintiff is entitled to release all the retiral benefits with interest @ 24% per annum? OPP (iii) Whether the plaintiff has no cause of action to file the present suit? OPD (iv) Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD (v) Whether the suit of the plaintiff is not maintainable in the present form? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the defendants/appellants, which was partly accepted, by the Court of Additional District Judge, Hisar, vide judgement and decree dated 20.01.09. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- RSA No. 1564 of 2009 5 Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that the order dated 08.05.02, withholding the retiral dues of the respondent, under Rule 2.2 (b) of the Rules, ibid, as applicable to the State of Haryana, was illegal? 10. The Counsel for the appellants, submitted that the plaintiff/respondent (now deceased), was appointed, as Chargeman, on 07.02.73, by the appellants, and he retired, from service of the Haryana Agro Industries Corporation, on 31.05.02. He further submitted that the Board of Directors of the Appellate Corporation, had resolved, to adopt the provisions of the Civil Services Rules, referred to above. He further submitted that, during his service career, the respondent, did not enjoy good reputation. He further submitted that the respondent, caused substantial financial losses, to the appellants, on account of shortage of material and damage to wheat stock. He further submitted that, on account of the substantial financial losses, caused by the respondent, the Haryana Agro Industries Corporation Limited, was competent, to withhold his retiral benefits, under Rule 2.2 (b) of the Rules ibid, as applicable, to the State of Haryana. He further submitted that preliminary Vigilance inquiry, was pending, against the plaintiff/respondent, at the time of his retirement. He further submitted that the interest awarded is exorbitant. He further submitted that, thus, the order dated 08.05.02, was legal and valid. He further submitted that the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, resulting into RSA No. 1564 of 2009 6 decreeing the suit. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that, the order dated 08.05.02, withholding the retiral benefits of the respondent, was completely illegal, being in total transgression of the Rules ibid. He further submitted that, admittedly, the plaintiff/respondent, was retired from service, on 31.05.02. He further submitted that, undisputedly, no departmental proceedings, had been initiated, against the respondent, during the course of his service, nor the same, were pending, against him, at the time of his retirement, nor the same, were initiated, after his retirement, in relation to the event, which took place, not more than four years, before the institution of such proceedings. He further submitted that preliminary Vigilance inquiry, pending against the plaintiff/respondent, did not, in any way, authorize the appellants, to withhold the retiral benefits. He also placed reliance, on J.K. Dhir, Chief Engineer Lining/Panning, P.W.D. (Irrigation Branch) Chandigarh Vs. The State of Punjab and others, (1950-1988), RSJ, Volume I, 50, decided by a Full Bench of this Court, Boota Ram, Tehsildar (Sales) and others Vs. State of Punjab and others, 1996(2), RSJ, 63, K.C. Gupta Vs. The State of Haryana (1995-1), The Punjab Law Reporter, 237, Gulzar Singh Khokhar Vs. State of Punjab, 1995(1), Service Cases Today, 381, and Ghanshyam Dass Goyal Vs. Dakshin Haryana Bijli Vitran Nigam Limited and others, Civil Writ Petition No. 8100 of 2005, decided, on 21.09.06, by RSA No. 1564 of 2009 7 a Division Bench of this Court, in support of his contention, that the amount of retiral benefits, could not be recovered, from a retired government employee, if the departmental proceedings, were not pending, against him, at the time of retirement, nor any penalty, was imposed, upon him, in accordance with the provisions of law, prior to his retirement, nor any departmental proceedings, were initiated, against him, in respect of an event, which took place not more than four years, before the institution of such proceedings. He further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court RSA No. 1564 of 2009 8 in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. With a view to understand the controversy properly, the provisions of Rule 2.2 (b) ibid, as applicable, to the State of Haryana, are extracted, as under:- “(b) The government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of ay pecuniary loss cause to Government, if the pensioner is found in departmental or judicial proceedings, to have been guilty of grave misconduct or to have caused pecuniary loss to government by misconduct or negligence, during his service including service rendered on re-employment after retirement. Provided that- (1) such departmental proceedings, if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner and if the officer had continued in service. (2) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re- employment- (i) shall not be instituted save with the sanction of the government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and RSA No. 1564 of 2009 9 (iii) shall be conducted by such authority and at such place or places as the government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made. (3) such judicial proceedings, if not instituted while the officer was on duty either before his retirement or during his re-employment, shall be instituted in respect of an event as is mentioned in Clause (ii) of proviso (2); and (4) The Public Service Commission shall be consulted before final orders are passed. Explanation:- For the purpose of this rule- (1) departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (2) judicial proceedings shall be deemed to have been instituted:- (i) in the case of criminal proceedings, on the date on which the complaint is made or a challan is submitted to a Criminal Court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to Civil Court. Note-1: As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant General. RSA No. 1564 of 2009 10 Note-2: In a case in which a pension as such is not withheld or withdrawn, but the amount of any pecuniary loss caused to government is ordered to be recovered from the pension, the recovery should not ordinarily be made at a rate exceeding one-third of the gross pension originally sanctioned including any amount which may have been commuted.” 13. It was admitted, by the defendants/appellants, that the plaintiff, retired from service, on 31.05.02, afternoon. The defendants/appellants, under the aforesaid Rule, withheld the gratuity and other pensionary benefits of the plaintiff, vide order dated 08.05.02, on account of the reason, that when he was in service, he caused substantial financial losses, to them. The perusal of the record shows that, at the time of retirement of the plaintiff, no regular departmental enquiry was pending, against him, with regard to the alleged losses, having been caused, by him, to the Corporation. Even, chargesheet, had not been served upon the plaintiff, at the time of his retirement, levelling the charge, against him, that he caused substantial financial losses, to the Corporation. Only a preliminary Vigilance inquiry, was pending, against the plaintiff/respondent, at the time of his retirement. Pendency of preliminary Vigilance inquiry, as per the Rule ibid, did not amount to initiation of departmental proceedings. As per the explanation, added to the aforesaid Rule, departmental proceedings, shall be deemed to have been instituted, when the chargesheet, framed against the pensioner, is issued, to him. No chargesheet, was issued, to the plaintiff, in respect of any event, which RSA No. 1564 of 2009 11 took place not more than four years. The chargesheet, as is evident, from para 7 of the appeal, was, for the first time, served upon the plaintiff/respondent, on 05.02.08. It means, that the chargesheet, was served upon the plaintiff/respondent, after six years of his retirement, and, admittedly, it did not relate to an event, which took place not more than four years, before the service of the same. The appellants, could only act, in accordance with the provisions of law, and Rules, which were applicable to its employees. No action, could be taken, against the plaintiff/respondent, as it was not provided by the Rule, ibid. Similar principle of law, was laid down, in the aforesaid cases. The first Appellate Court, was, thus, right in holding, that the order dated 08.05.02, passed by the defendants/appellants, to the extent of withholding all the pensionary benefits of the plaintiff/respondent, was illegal, being contrary to the provisions of Rule 2.2 (b) ibid. It, therefore, could not be said, that the Courts below, misread or misappreciated the evidence, or the provisions of the aforesaid Rule. On the other hand, the Courts below, were right, in holding, that since the order dated 08.05.02, to the extent aforesaid, was contrary to the Rule 2.2 (b), ibid, the same, was liable to be set aside. The findings of the Courts below, thus, do not suffer from any perversity or illegality. 14. The next question, that arises for consideration, is, as to whether, the interest, awarded by the Courts below, while ordering the release of the retiral benefits, withheld by the defendants/appellants, could be said to be reasonable, or not. The Courts below, awarded RSA No. 1564 of 2009 12 interest @ 12 per cent per annum, on the amount of retiral benefits, which was illegally and improperly withheld, by the defendants/appellants. In my considered opinion, interest @ 12 per cent per annum, could be said to be un-reasonable. The judgements and decrees of the Courts below, thus, need modification, with regard to the rate of interest. It is ordered, that the plaintiff/respondent, shall only be entitled to interest @ 8 per cent per annum, on the amount, withheld, until the passing of the decree, and @ 6 per cent per annum, from the date of passing the decree, until the realization of the amount. 15. The substantial question of law, depicted above, is answered, against the appellants. 16. For the reasons recorded above, the appeal, is dismissed, with costs, with the modification, that the respondents, shall only be entitled to interest @ 8 per cent per annum, on the amount due, until the passing of the decree, and @ 6 per cent per annum, from the date of passing the decree, until the realization of the amount. 08.01.2010 (SHAM SUNDER) Amodh JUDGE