IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2922 of 2010 (O&M) Date of decision: 18th July, 2011 Ajay Singh Chauhan … Appellant Versus Union of India and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Raj Mohan Singh, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Appellant-plaintiff remained unsuccessful in two rounds of litigation. Hence, he has filed the present regular second appeal to assail the judgment dated 31st October, 2003 rendered by the Court of Additional Civil Judge (Senior Division), Faridabad, whereby the suit filed by the appellant-plaintiff was dismissed. Furthermore, he has prayed for setting aside the judgment dated 25th August, 2006 rendered by Additional District Judge, Faridabad, whereby the findings returned by the trial Court were affirmed. The appellant-plaintiff stated that he was posted as a Section Supervisor in the office of Regional Provident Fund Commissioner, Faridabad. It was further averred that he was selected and appointed as a Lower Division Clerk on 6th December, 1982 and was promoted as Upper Division Clerk on 18th December, 1984 on adhoc basis. Subsequently, on passing the departmental examination, the appellant- plaintiff was regularized as Upper Division Clerk in the year 1986 and Regular Second Appeal No.2922 of 2010 (O&M) thereafter, he was promoted and posted as a Section Supervisor at Faridabad. The appellant-plaintiff had become an eyesore for the disgruntled elements in the department. It was stated that some persons working in the office of respondent-defendant No.2 i.e. Regional Provident Fund Commissioner, Faridabad had formed a caucus and indulged in malpractices. Prithvi Raj Azad, who had not been impleaded as a party to the suit, was apprehended in a corruption matter and a case was registered against him. This action had annoyed the other employees of the office and they started an agitation which due to the efforts of the appellant-plaintiff failed. It was further pleaded that the appellant-plaintiff was wrongly indicted in a case regarding purchase of office chairs and he was served with a wrong show-cause notice. Later- on, in an enquiry conducted by A.Mohd. Basha, Regional Provident Fund Commissioner, the appellant-plaintiff was exonerated of the said charges of irregularity. It was stated that those persons again tried to involve the appellant-plaintiff in a false case regarding some bills of newspapers with a malafide intention. It was further averred in the suit that respondent- defendant No.3 in conspiracy with respondent-defendant No.5 had given adverse remarks to the appellant-plaintiff in his confidential report. It was stated that respondents-defendants No.3 to 5 with an ulterior motive had harassed, humiliated and tortured the appellant-plaintiff, and thus, he was entitled to damages to the tune of Rs.1.00 lakh from the respondent- defendants jointly and severally. Furthermore, it was stated that the appellant-plaintiff was entitled to promotion with effect from 30th December, 1996 on regular basis and that he should have been paid salary including all other allowances with effect from that date. In the suit for mandatory injunction, it was prayed that benefit of promotion be 2 Regular Second Appeal No.2922 of 2010 (O&M) granted to the appellant-plaintiff with effect from 30th December, 1996 and he should also be paid compensation of Rs.1.00 lakh. In the written statement filed by the defendants No.1 to 5, a preliminary objection was taken that the Civil Court has no jurisdiction to entertain and try the civil suit in the service matter as equally efficacious remedy is available to the plaintiff to approach Central Administrative Tribunal. It was further stated that the damages of Rs.1.00 lakh cannot be paid as the value of the suit is only Rs.200/-. The trial Court after conclusion of the pleadings had drawn the issues and thereafter, the appellant-plaintiff examined his witnesses. The defendants had only tendered documents and had not examined any witness. The trial Court held that the plaintiff failed to lead any cogent and convincing evidence to show that his confidential report was written by the defendants with a malafide intention and arbitrarily, and therefore, he is not entitled to any compensation. The Court further held that from a perusal of the annual confidential report Ex.P4 malafide intention on the part of the Reporting Officer is not discernible. Issue No.3 was decided against the defendants. The issues No.4 and 6 were not pressed by the defendants, and therefore, they were also decided against them as not pressed. Qua issue No.5, the trial Court held that it has no jurisdiction to try the suit so far as the prayer of promotion is concerned, however, qua the damages the Court held that since it has been held that the plaintiff has suffered no harassment and mental agony, therefore, the compensation as prayed for cannot be granted. 3 Regular Second Appeal No.2922 of 2010 (O&M) The findings returned by the trial Court were affirmed by the lower appellate Court. While concurring with the findings of the trial Court, the lower appellate Court held as under: “20. … … … The writing of ACR of an subordinate employee is a subjective satisfaction of the supervisory or controlling officer and if at all, in the eyes of employee such adverse remarks in the ACR are wrong and against the facts, then the said supervisory or controlling officer cannot be held liable for passing of such remarks until and unless proved malafide. 21. Similarly, the delay in communication of adverse remarks and delay in the decision of the representation made by appellant against the said remarks cannot be termed as malafide conduct of the respondents because such delay as in the case in hand is not culpable but only a routine administrative matter.” Mr.Raj Mohan Singh, Advocate appearing on behalf of the appellant-plaintiff, has stated that this Court should infer malafide from the testimony of O.P. Dhiman, Section Supervisor, who has appeared as PW-2. Learned counsel has further stated that this witness specifically stated that K.L. Parihar respondent-defendant No.4 had pressurized him to record an adverse confidential report of the plaintiff so that he could be chargesheeted and is not promoted. Counsel has submitted that there is a misreading of this part of the evidence. A perusal of judgments of both the Courts below reveals that the Courts have held that no convincing and cogent evidence has been led by the plaintiff. Thus, the Courts below have rightly not placed implicit reliance upon the testimony of O.P. Dhiman Section Supervisor PW-2. In cross-examination, O.P.Dhiman PW-2 admitted that no report given by him is available on the file. This 4 Regular Second Appeal No.2922 of 2010 (O&M) witness before appearing in the Court as a plaintiff’s witness had not intimated any authority and had not issued any communication, therefore, no corroborative evidence to the bald assertion made by O.P. Dhiman PW-2 is available on the record. Both the Courts below have appreciated the evidence and held that the appellant-plaintiff is not entitled to any compensation. This Court in regular second appeal shall refrain from doing reappreciation and reappraisal of the evidence. Therefore, the law point formulated by learned counsel for the appellant that there has been a misreading of evidence by both the Courts below is not made out. This Court thus, is not in a position to say that any substantial question of law arises for its consideration. Hence, there is no merit in the present appeal and the same is dismissed. Civil Misc. No.8711-12-C of 2010 Since, the main appeal has been dismissed on merits, no order is required to be passed in both of these applications and the same stand disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE July 18, 2011 rps 5