Regular Second Appeal No.732 of 2011 (O&M) -1- IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.732 of 2011 (O&M) Date of Decision: 29.07.2011 State of Haryana and another .....Appellants Versus Pritam Kaur and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Anjum Ahmed, Addl. Advocate General, Haryana for the appellants. M ehinder S ingh S ullar , J. (Oral) Concisely, the facts, which require to be noticed, for the limited purpose of deciding the core controversy, involved in the present appeal and emanating from the record, are that Shingara Singh son of Kesar Singh, (since deceased), being represented by his legal representatives Pritam Kaur and others respondent-plaintiffs (for short “the original plaintiff”) filed the suit for decree of declaration to the effect that the impugned recovery order bearing No.351 dated 16.01.2003 (Ex.P-8) passed by Divisional Forest Officer-appellant No.2-defendant No.2 (for brevity “the defendants”) by means of which a recovery of Rs.1,11,582.50 P has been imposed on him, is illegal, null, void, liable to be set aside and is not binding on his rights. 2. The case set up by the original plaintiff, in brief, in so far as relevant, was that he was illegally put under suspension for the cutting/falling of 43 trees in Bappan Beat. Subsequently, his suspension was revoked during the course of regular departmental enquiry, by virtue of order No.65 dated 15.12.2000 (Ex.P1). It was claimed that on the basis of some other inquiry against his co-employee Mohinder Kumar, the original plaintiff was ordered to pay a sum of ` 1,11,582.50 P as recovery, without affording any opportunity, which was stated to be illegal, null, void and liable to be set aside. Regular Second Appeal No.732 of 2011 (O&M) -2- 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the original plaintiff that once he has been completely exonerated for alleged cutting/falling of 43 trees, then, subsequently, no recovery can be effected from him without holding any fresh inquiry. On the basis of aforesaid allegations, the plaintiffs filed the suit seeking a decree for declaration against the defendants in the manner indicated hereinabove. 4. The defendants contested the suit and filed the written-statement, inter-alia pleading, certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiffs. The defendants claimed that the Range Officer found one Mohinder Kumar and original plaintiff responsible for illegal cutting/falling of 43 years, by way of his report dated 18.09.2010. Therefore, he was rightly directed to make the payment of the aforesaid amount. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the order dated 16.1.2003 is illegal, null and void and is liable to be set-aside?OPP. 2. If issue no.1 is proved, whether the plaintiff is entitled to the relief of injunction as prayed for?OPP. 3. Whether the suit is not maintainable in the present form?OPD. 4. Whether the suit is bad for want of prior notice under Section 80 CPC?OPD. 5. Relief. 6. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 7. The trial Court, after taking into consideration the entire evidence on record, decreed the suit of the plaintiffs, by virtue of judgment and decree dated 12.05.2009. 8. Aggrieved by the decision of the trial Court, the defendants filed the Regular Second Appeal No.732 of 2011 (O&M) -3- appeal, which was dismissed as well, by the first appellate Court, by means of impugned judgment and decree dated 07.04.2010. 9. The appellant-defendants still not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present Regular Second Appeal. 10. After hearing the learned State Counsel, going through the record with his valuable assistance and after deep consideration over the matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex-facie, the argument of the learned State counsel that as the original plaintiff alongwith one Mohinder Kumar, Forest Guard was found responsible for illegal cutting/falling of 43 trees, therefore, the defendants have every right to recover the impugned amount, on account of loss caused by the original plaintiff, sans merit. 12. As is evident from the record that a regular inquiry was earlier ordered against the original plaintiff for the same charges and he was exonerated by Jaswant Singh, Inquiry officer, vide his report dated 4.9.2001. His period of suspension was also treated as a duty period. Once the original plaintiff has already been exonerated from the indicated charges, then the defendants cannot recover the aforesaid amount, in the wake of inquiry report held only against Mohinder Kumar, that too, without holding any inquiry against the original plaintiff. In this manner, the trial Court, after taking into consideration the entire material on record, has held that the impugned order (Ex.P-8) of recovery is illegal, null, void and in operative on the rights of the plaintiffs. 13. Not only that, the decision of the trial Court was upheld by the first appellate Court, by virtue of impugned judgment dated 07.04.2010, which, in substance, is (para 12) as under:- “Undisputedly, as also evident from the record of the trial Court shows that earlier enquiry was conducted against the respondent/plaintiff by Sh.Jaswant Singh who submitted his report Ex-D12 in which Shingara Regular Second Appeal No.732 of 2011 (O&M) -4- Singh respondent was found innocent and accordingly his suspension period from 20.9.2000 to 14.11.2000 was treated on duty period qua falling/cutting of 43 trees. Again enquiry was conducted against Mahinder Singh as per the enquiry report Ex.P6 in which he was found guilty. Admittedly, Shingara Singh plaintiff was not party in that enquiry report meaning thereby that no notice, opportunity of hearing, cross-examining of the witnesses and opportunity of defending himself was not provided by the enquiry officer. On the basis of the enquiry report Ex.D16, notice Ex.P5 was served upon the plaintiff/respondent Shingara Singh with order Ex.D65 qua recovery of the suit amount. He was third person in the enquiry report Ex.D16 conducted against Mahinder Kumar. It is well settled law that finding of the enquiry officer in an enquiry against third person that loss was caused to the Government due to his negligence. The mere finding in an enquiry against a third person cannot be stretched against the other employee. The citation of this authority is fully applicable to the facts of the present case as in the instant case Shingara Singh was not a party in the enquiry conducted against Mahinder Kumar. It is immaterial that he has stated that he and Shingara Singh were responsible for cutting/falling of the trees and reliance can be placed on the authority Charanjit Singh Bedi Vs. State of Punjab and another (supra). Moreover, it is well settled law that no person can be punished without providing the opportunity of being heard. In the instant case also DW1 Bant Singh has admitted that neither the copy of enquiry report Ex.D16 was given to Shingara Singh nor his name was mentioned rather he was given only usual show cause notice to which he has submitted his reply Ex.D31 and thereafter the impugned order Ex.D65 was passed against him on the basis of the enquiry report against Mahinder Kumar. It also appears that impugned order Ex.D65 (Ex.P8) was passed by the concerned authority against the respondent which is against the law and accordingly the trial Court has passed the impugned judgment and decree dated 12.05.1999 in favour of him i.e respondent as per law. Thus, the appellants have failed to prove that there is any illegality or infirmity in the impugned judgment and decree dated 12.05.2009 and accordingly the same are held valid ones.” 14. The learned State counsel did not point out any material, much less cogent, as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant Regular Second Appeal No.732 of 2011 (O&M) -5- connection. 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 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 State counsel, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 15. No other meaningful argument has been raised by the learned State counsel 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 State, in this relevant direction, have already been duly considered and dealt with by the Courts below. 16. No other legal point, worth consideration, has either been urged or pressed by the learned State counsel. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 29.7.2011 Judge AS Whether to be referred to reporter?Yes/No