Regular Second Appeal No. 669 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 669 of 2009 Date of decision: 09.03.2010 Prem Kumar and others ...Appellants Versus The Chairman, Punjab Mandi Board ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. J.S. Mannipur, Advocate for the appellant. None for the respondent. RANJIT SINGH J. The appellant-plaintiff filed a suit for declaration to the effect that charge sheet dated 27.09.1994 issued under Punjab Agricultural Produce Market Service (Punishment & Appeal) Rules, 1988 (hereinafter referred to as 'Rules') and the show cause notice dated 30.07.1998 leading to award of recovery of Rs. 5580.40 from the gratuity of the plaintiff is illegal, arbitrary and unconstitutional. It was also pleaded that the amount be paid back to the plaintiff with interest at the rate of 18% per annum. The appellant-plaintiff had retired as Secretary Market Committee on 30.11.1994 while he was posted at Rajpura. He was charge sheeted on 27.09.1994 for certain lapses on his part. He submitted his reply to the charge sheet. Without examining the same, the inquiry Officer was detailed to hold inquiry and without Regular Second Appeal No. 669 of 2009 2 properly considering the evidence and appreciating the same, the impugned order directing the recovery was passed on 30.07.1998. It was pleaded that the inquiry report on the basis of which recovery was ordered was not supplied to the appellant. On the notice being issued in the suit, the respondent appeared and justified the order. It was stated that the documents and the reply submitted were properly analysed. The inquiry officer statedly had conducted the inquiry by examining the relevant witnesses and had thus given the report thereafter. The assertion made by the appellant that he was held guilty arbitrarily was denied. It was urged that the appellant had committed an offence of misappropriation. It is pleaded that the finding is based on the document placed on the inquiry file. The trial followed on the following issues:- 1. Whether plaintiff is entitled to the declaration to the effect that the proceedings against the plaintiff and the charge sheet issued vide no. Amla Pral/5856 dt. 27.8.94 under the Punjab Agricultural Produce Market Service and show cause notice dt. 30.10.98 and order no. 1089 dt. 12.10.98 issued on 10.11.98 of the chairman awarding punishment for recovery of Rs. 5580.40 from the gratuity of the plaintiff withholding the whole amount of gratuity is unconstitutional, illegal and against the rules and regulations?OPP. 2. Whether plaintiff is entitled for mandatory injunction directing the defendant to pay the whole amount of Regular Second Appeal No. 669 of 2009 3 gratuity without any deduction from the date of retirement till the amount is paid?OPP. 3. Whether suit of the plaintiff is time barred?OPD. 4. Whether suit of the plaintiff is not maintainable?OPD. 5. Relief. What primarily weighed with the trial Court was the fact that the order, which was under challenge, namely the show cause notices dated 30.10.1998 and order dated 10.11.1998 directing the recovery from the gratuity of the appellant was not produced on file by him. It was observed that it was the duty of the appellant to produce all these orders, which were under challenge. Only photocopy of these orders were placed on record, which were not held admissible. Finding accordingly is that once the impugned order has not been proved or produced on file, no relief could be granted to the appellant. The suit of the appellant was thus dismissed on this limited ground. Even on limitation, the appellant was non suited by making reference to the provisions of Section 31 (2) of the Rules, which provided that suit could be filed within six months from the date of accrual of cause of action. The appellant filed an appeal before the First Appellate Court. Alongwith the appeal, he also filed an application under Order 41 Rule 27 for adducing additional evidence to place on record the impugned order, which was the main reason for which the appellant was non-suited by the trial Court. The First Appellate Court, however, has dismissed the appeal as well as the application filed under Order 41 Rule 27 by holding that this action on the part of the appellant Regular Second Appeal No. 669 of 2009 4 amounting to filling up the lacunas in the case. The counsel would contend that there was no specific denial forthcoming that the order directing recovery or the show cause notice were issued in this case and copies of these were placed. The limited question before the Court was whether the original orders were required to be produced and proved or not. Counsel would not seriously contest the observation made by the Court that in the absence of proof of the original, the court could have declined the relief as is held in this case. He, however, would contend that the approach adopted by the First Appellate Court in declining the prayer to allow him to lead additional evidence cannot be justified. As per the counsel, the aim was not to fill in lacuna, and it was purely technical defect, which had crept in, on account of some lapse on the part of the counsel that the appellant could not produce the original of the impugned orders on record. Order 41 Rule 27 makes a provision for production of additional evidence at the appellate stage. As per this rule, parties to the appeal are not entitled to produce additional evidence whether oral or documentary unless under following circumstances:- (a) the Court from whose decree the appeal is preferred has refused to admit evidence, which ought to have been admitted (b) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced Regular Second Appeal No. 669 of 2009 5 by him at the time when the decree appealed against was passed (c ) that the Appellate Court requires any document to be produced, or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In above noted events, the appellate Court may allow such evidence and document to be produced or witness to be examined. The reasons for which the appellant was non suited, as already noticed are purely technical in nature. The Courts are required to do substantial justice between the parties. It is a different matter, if the court forms a particular view on the merits of the case. One of the grounds on which the additional evidence can be allowed at the appellate stage is where the court requires any document be produced to enable it to pronounce the judgment or for any other substantial cause. The non production of original document was something which could have been done at the trial stage. The claim made by the appellant could have been otherwise declined on merit even if appellant was allowed to produce on record the additional evidence but non suited him on the ground that he did not produce the original of all the orders and had produced photocopy thereof, can be termed a situation where the Court required of the appellant to produce the document or witness to enable it to pronounce a judgment. It can also be said that this requirement was for a substantial cause of justice. Regular Second Appeal No. 669 of 2009 6 In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another, AIR 2006 S.C. 269 it is observed that the substantive rights of the party cannot be allowed to be defeated by procedural defects and irregularities. It is further observed that procedure should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The Courts have also noted the well recognised exceptions to this principle that the substantive rights should not be allowed to be defeated, which are as under:- (i)Where the statute prescribing the procedure, also prescribes specifically the consequence of non compliance; (ii)Where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii)Where the non compliance or violation is proved to be deliberate or mischievous; (iv)Where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court. The present case would not fall in any of the exceptions noted above and can be termed as a case where the defect came to the notice of the appellant once the suit was decided by the trial Court. No opportunity for rectification was given but the appellant made an attempt to rectify the defect by moving an application for leading additional evidence. There is nothing to indicate that the original of the order was not proved due to any deliberate or mischievous intent. Thus in this case, this defect is not such which Regular Second Appeal No. 669 of 2009 7 should be allowed to defeat the substantive right as it will lead to defeating the case of justice. Hon'ble Supreme Court in the case of Wadi v. Amilal and others 2002 (2) P.L.J. 228, after making reference to the provisions of Order 41 Rule 27. has gone into the need and requirement arising before the appellate Court. It is observed that the interest of justice is paramount and invocation of clause (b) to Order 41 Rule 27 does not depend upon vigilance or negligence of parties. Clause (b) is an enabling provision and it provides that if appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such evidence to be produced or witnesses to be examined. The requirement of need is that of appellate Court bearing in mind the interest of justice, which is paramount. If it is felt that pronouncing the judgment in the absence of such evidence would result in effective decision and to pronounce the effective judgment, admission of such an evidence is necessary than this clause enables the Court to adopt that course. It is in this context observed that invoking of this clause would not depend upon vigilance or negligence of the parties as it is not meant for them. Accordingly, it can be said that the appellate Court was not justified in declining the prayer of the appellant to lead this additional evidence. The order dated 18.10.2008 dismissing the application for permitting the appeal to lead additional evidence thus cannot be sustained. The same is set aside. As a consequence thereof, the impugned order dated 18.10.2008 passed by the appellate Court in dismissing the appeal Regular Second Appeal No. 669 of 2009 8 filed by the appellant would also not stand. The case is remanded back to the First Appellate Court to permit the appellant to lead additional evidence to produce on record both these orders in original by examining the witness. Let the parties appear before the First Appellate Court on 31.03.2010. The First Appellate Court would be at liberty to pass any appropriate order after this evidence is produced on record as additional evidence. At this stage, Mr. Ankur Soni, Advocate appears to state that he is appearing as a proxy counsel for Mr. Pavit Mattewal. When asked, if the counsel wishes to make any submission, he states that he has just been told by a clerk to appear as proxy for the counsel as is not acquainted with facts. The Regular Second Appeal is accordingly disposed of. March 09, 2010 ( RANJIT SINGH ) rts JUDGE