R.S.A. No. 671 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 671 of 1993 Date of Decision: 11.08.2009 Munshi Ram, Ex. Conductor No. 122, Punjab Roadways, Ferozepur, s/o Sh. Sain Dass, r/o V&PO Balluana via Abohar Tehsil Fazilka, Distt. Ferozepur. ... Appellant Versus 1. The State of Punjab through the Collector, Ferozepur, Distt. Ferozepur. 2. The General Manager, Punjab Roadways, Ferozepur. ..Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gaurav Chopra, Advocate, for the appellant. Mr. Vivek Chauhan, Assistant Advocate General, Punjab, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 20.11.92, rendered by the Court of Additional District Judge, Ferozepur, vide which, it accepted the appeal, against the judgement and decree dated 03.04.92, rendered by the Court of Sub Judge IIIrd Class, Ferozepur, and dismissed the suit. 2. Munshi Ram, plaintiff, was a conductor. When the bus, in R.S.A. No. 671 of 1993 2 which he was on duty on 28.08.07, was checked, it was found that he did not issue tickets of five passengers after having the fare of Rs. 15/- from them and, thus, embezzled the amount. Charge-sheet was served upon him. Inquiry was held. The Inquiry Officer held him guilty and, ultimately, his services were terminated vide order dated 11.08.88. The order was challenged as illegal, on the ground, that the plaintiff was not provided the services of a co-worker, as per Rule 8(16); that the evidence of the department was not put to him as per rule 8.18; that he was not allowed the inspection of the documents/records, as per rule 8(11); that the inquiry was not conducted in accordance with the relevant rules; that the statements of the passengers, who were travelling in the bus at the relevant time, were not recorded nor the cash recovered from his possession was checked by the Inspectors; that it was a case of no evidence; that the previous record of the plaintiff was not taken into consideration, at the time of passing the order, extraneous material was taken into consideration without affording him an opportunity to explain; that the order was cryptic and non-speaking; and the penalty was imposed upon the plaintiff with pre-determined mind. The defendants/respondents, were served with a notice, under Section 80 of the Code of Civil Procedure, but they failed to withdraw the illegal order. Ultimately, a suit for declaration, was filed. 3. The defendants, put in appearance, and filed written statement, wherein they took up various objections, and contested the suit. It was stated that the impugned order passed by the General Manager, Punjab Roadways, Ferozepur, was legal, constitutional, and in accordance with the rules, regulation and the principles of natural justice. It was further stated that the charge-sheet issued to the plaintiff, was legal, definite, and R.S.A. No. 671 of 1993 3 contained list of witnesses and documents and was not based on conjectures and surmises. It was further stated that the inquiry was entrusted to the Inquiry Officer, who conducted the inquiry, strictly in accordance with the Punjab Civil Services (Punishment and Appeal) Rules, 1970. It was further stated that the plaintiff was supplied the copies of documents. It was further stated that the plaintiff, was never disallowed the assistance of a co-worker and he was afforded maximum possible opportunity, to defend himself. It was further stated that the findings of the Inquiry Officer, were based on evidence, and facts on the file. It was further stated that there was no necessity to record the statements of the passengers, travelling in the bus, at the relevant time, and to check the cash, recovered from the possession of the plaintiff. It was further stated that the findings of the Inquiry Officer, were detailed and speaking in nature. It was further stated that the show cause notice, issued to the plaintiff, was also legal, proper and, in accordance with the rules. It was further stated that the show cause notice was accompanied by a copy of the findings of the Inquiry Officer. It was further stated that the impugned order contains reasons. It was denied that any extraneous matter was taken into consideration, before passing the impugned order. It was further stated that the past record of the plaintiff was not considered. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the impugned order dated 11.08.88, is illegal and is liable to be set aside? OPA (ii) Whether a valid notice under Section 80 CPC was served on the defendant before filing the present suit? OPP R.S.A. No. 671 of 1993 4 (iii) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the defendants/respondents, which was accepted, by the Court of Additional District Judge, Ferozepur, vide judgement and decree dated 20.11.92. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 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 questions of law, arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court recorded perverse findings, on misreading and misappreciation of evidence, that the inquiry was held in accordance with the relevant rules and full opportunity of putting-forth his version and defend the case, was afforded to the plaintiff/appellant, during the course thereof? (ii) Whether the first Appellate Court, on account of misreading and misappreciation of evidence recorded a perverse finding that it was not a case of no evidence? (iii) Whether the first Appellate Court recorded a perverse finding that the order impugned is legal and valid? 10. The Counsel for the appellant, submitted that the assistance of a co-worker was not afforded to the plaintiff/appellant, during the course of inquiry, as a result whereof, a prejudice was caused to him, in defending his case and cross-examining the witnesses. He further submitted that it was a R.S.A. No. 671 of 1993 5 case of no evidence, as is evident from the reply submitted by the plaintiff. He further submitted that the first Appellate Court, did not take into consideration this aspect of the matter. He further submitted that the show cause notice was issued with predetermined mind, as to which penalty was to be imposed upon the plaintiff/appellant, and, as such was illegal. He further submitted that the trial Court, was right, in holding that the order impugned was illegal, void, and inoperative against the rights of the plaintiff/appellant, and, thus, correctly set aside the same. He further submitted that the judgement and decree of the first Appellate Court, were, illegal, and liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that when the plaintiff, appeared before the Inquiry Officer, he recorded his statement, whether he wanted the assistance of a co-worker, to which he replied in the negative. He further submitted that, under these circumstances, it could not be said that an opportunity to engage a co- worker, was not granted to the plaintiff/appellant. He further submitted that the case of the defendants/respondents, was based, on the documentary, as well as oral evidence. He further submitted that the plaintiff/appellant, cross-examined the witnesses thoroughly, which duly proved that no prejudice was caused to him, in defending his case. He further submitted that sufficient evidence was led, which proved the guilt of the appellant, and, as such, it could not be said that it was a case of no evidence. He further submitted that neither the charge-sheet nor the show cause notice issued with a predetermined mind. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. R.S.A. No. 671 of 1993 6 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves 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 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 in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Coming to the first contention of the Counsel for the appellant, that the appellant, was not afforded the assistance of a co- worker, to defend him, during the course of inquiry, it may be stated here, that the same is not factually correct. When the plaintiff appeared before the Inquiry Officer, his statement was recorded. One of the questions put to him was, as to whether, he wanted to engage/produce his co-worker. He replied in the negative. It means that the plaintiff/appellant, was asked, whether he wanted the assistance of co-worker. He, however, chose not to have the assistance of a co-worker. Even if, it is assumed, for the sake of arguments, that the question, which was put to the plaintiff/appellant, by the Inquiry Officer regarding the assistance of a co-worker, could not be understood by him, it may be stated here, that he cross-examined the witnesses thoroughly. R.S.A. No. 671 of 1993 7 In case, he wanted the assistance of a co-worker, during the course of inquiry, he could move an application before the Inquiry Officer, for the said purpose. Had his application been declined, by the Inquiry Officer, the matter would have been different. In the first instance, the plaintiff, was afforded an opportunity of the assistance of a co-worker, but he of his own, did not chose to avail of the same. Secondly, even if, no co-worker was provided to him, since he cross-examined the witnesses, thoroughly, and did not raise any objection, during the course of inquiry, in regard thereto, it could not be said that any prejudice, whatsoever, was caused to him. The Counsel for the appellant, however, placed reliance on Kehar Din, Ex- Class IV employee Vs. The Presiding Officer, Labour Court and another, 1992(2) SLR, 199, in support of his contention. The perusal of the facts of the aforesaid case, reveals that the employee was not made aware of the fact, that he was entitled to be assisted in the enquiry by another Government servant. In these circumstances, it was held that he was, thus, prejudiced in not being made aware of the fact, that he was entitled to be assisted in the enquiry by another Government servant, particularly when the department was represented by its Presenting Officer, and the enquiry was, thus, held to be vitiated. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In these circumstances, no help, can be drawn, by the Counsel for the appellant, therefrom. The first Appellate Court, was right, in holding that the plaintiff, was afforded opportunity, to have the assistance of a co-worker, but he of his own did not avail of the same. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. The case of the respondents/defendants was based on R.S.A. No. 671 of 1993 8 documentary as well as oral evidence. In the departmental inquiry, if some evidence is led, to prove the guilt of the delinquent, that can be said to be sufficient to hold him guilty. Dara Singh, Inspector, who was a member of the checking party, and Shingara Singh, Inspector, another member of the checking party, were examined as witnesses. From their evidence, it was proved, during the course of inquiry, that five passengers from Abohar to un-metalled canal were travelling in the bus, without tickets. As such, the plaintiff, kept the amount of fare @ Rs. 3/- per passenger i.e. in all Rs. 15/- with him and embezzled the same. No doubt, in his reply, to the show cause notice, it was stated by the plaintiff, that he issued tickets to three passengers. He further stated that five un-punched tickets, without bringing to his notice, and without his signatures, were torn, of which, he came to know later on. This defence of the plaintiff was duly considered, by the Inquiry Officer, and competent authority, and was found to be not correct. In this view of the matter, the first Appellate Court, was right in coming to the conclusion, that evidence produced, during the course of inquiry, was sufficient to prove the guilt of the plaintiff. The first Appellate Court, was also right in coming to the conclusion that it could not be said to be a case of no evidence. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. No doubt, on receipt of the inquiry report, the competent authority appended an endorsement, showing that it agreed with the inquiry report, and show cause notice was ordered to be issued to the Conductor, for the termination of his services, and also that he would not get anything over and above he had already got. However, it is evident, from the file that a separate show cause notice was issued to the plaintiff, wherein, it was R.S.A. No. 671 of 1993 9 recorded that while agreeing with the findings of the Inquiry Officer, the competent authority proposed to impose punishment of termination of services of the plaintiff/appellant, and that he would not be paid anything over and above already paid to him as subsistence allowance, during the period of suspension. It was this show cause notice, in which, the proposed punishment was mentioned, which was, ultimately, given to the plaintiff, and he filed reply to the same. Had this show cause notice been not given, the matter would have been different. Under these circumstances, it could not be said that the competent authority, had predetermined mind, with regard to the punishment, which was to be awarded to the plaintiff. The first Appellate Court, was right, in holding that the competent authority did not act with predetermined mind. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference by this Court. The judgement and decree of the first Appellate Court, are liable to be upheld. The substantial questions of law, depicted above, are, thus, answered against the appellant. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 11.08.2009 (SHAM SUNDER) Amodh JUDGE