Regular Second Appeal No.2772 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 12, 2010 The State of Haryana & others ...Appellants VERSUS Santosh Kumar Mitta l ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sunil Nehra, Sr.DAG, Haryana, for the State. Mr.Gobind Dhanda, Advocate, for the respondent. ***** RANJIT SINGH, J. This order will dispose of two Regular Second Appeal Nos.2772 of 2009 (The State of Haryana & others Vs. Santosh Kumar Mittal) and 2773 of 2009 (The State of Haryana & others Vs. Santosh Kumar Mittal). The facts are being taken from RSA No.2772 Regular Second Appeal No.2772 of 2009 (O&M) : 2 : of 2009. The respondent-plaintiff had filed a suit seeking declaration and relief of mandatory injunction pleading that the amount of Rs.1,27,561-50P directed to be recovered from the death- cum-retirement gratuity is illegal and wrong. A sum of Rs.94,265/- was sanctioned to the respondent-plaintiff as death-cum-retirement gratuity on 12.5.1998. Only Rs.6018/- was recommended for release after withholding Rs.88,247/-. A sum of Rs.17,682/- was deducted from his death-cum-retirement gratuity on 12.5.1998. This amount was again deducted by District Food & Supplies Controller on 9.2.1999. Deduction of the amount second time was from the leave encashment amount of Rs.76,248/- due to the respondent-plaintiff. Plea is that the amount of Rs.17,734-25P was deducted/withheld wrongly. Another sum of Rs.34,127-95P relating to the period of respondent-plaintiff staying at Headquarter was also deducted from his death-cum-retirement gratuity on 12.5.1998 by wrongfully and forcibly getting it deposited from the respondent-plaintiff by appellant No.4. No enquiry was held and amount was deducted without passing any order of punishment. Another sum of Rs.4037/- deducted from gratuity. Thus, a total sum of Rs.1,27,561-59P has been illegally and wrongly deducted. Respondent-plaintiff would also make a grievance that an enquiry was initiated against him in regard to Rs.34,127-95P, but no formal order was passed. No directions for recovery were statedly passed. Respondent-plaintiff would also highlight that for the same very allegations, he was charge sheeted in the year 1983-84 and the respondent-plaintiff was exonerated. Yet again another charge sheet Regular Second Appeal No.2772 of 2009 (O&M) : 3 : was issued on 27.1.1993 after lapse of ten years of the date of allegation. Another order is thereafter passed in the year 2000, whereas the respondent-plaintiff had retired in 1997. His plea accordingly is that after retirement, no enquiry or proceedings could be taken against him on the basis of said charge sheet. A sum of Rs.32,789-74P as deducted upon directions of appellant No.2 issued on 12.5.1998 are termed as illegal, null & void and against the service rules. Having so pleaded, the respondent-plaintiff has challenged the recovery of the amount from his gratuity. The respondent-plaintiff had accordingly filed this suit for refund of this amount along with interest @18% per annum from the date it was due to the date of realisation. Reference is also made to Rule 2.2(b) of C.S.R.Vol.II to say that recovery in this manner could not have been ordered. Upon notice, the appellants filed reply taking various preliminary objections. It is stated that on the basis of no demand certificate, an amount of Rs.92,284/- was found recoverable from the respondent as on 19.4.1999. Appellant No.2 accordingly had sent a letter to appellant No.3 for withholding the amount from the death- cum-retirement gratuity of the respondent-plaintiff. The details of the amount withheld were also given. It is then stated that the respondent-plaintiff was charge sheeted vide letter dated 27.1.1993 for causing loss of Rs.13,58,286-57P during the period he was posted at P.R.Centre, Fatehabad where the wheat stock got damaged in August, 1983. At that time, the respondent-plaintiff was posted as Supervisory Officer of the said centre. As the respondent- plaintiff was to retire on 30.4.1997, order effecting the recovery of Regular Second Appeal No.2772 of 2009 (O&M) : 4 : Rs.34,127-95P was passed on 31.1.1997. Difference was to be recovered thereafter. It is also pleaded that the final decision was taken by the competent authority on the said enquiry on 8.2.2000 and it was ordered that 20% of the total loss be recovered from the respondent-plaintiff. Accordingly, it is stated that sum of Rs.2,37,529- 36P was due towards the respondent-plaintiff after deducting aforesaid amount of Rs.92,284-10P. It is also disclosed that a sum of Rs.92, 284-10P has been recovered from the leave encashment due to the respondent. It is stated that valid enquiry was conducted against the respondent-plaintiff but the Enquiry Officer did not find him guilty. The disciplinary authority did not agree with the findings and in this regard a dissent note was recorded and second show cause notice was issued to him, which was ultimately decided on 8.3.2000. Since a sum of Rs.2,71,657-31P was to be recovered from the respondent-plaintiff, out of which amount of Rs.34,127-95P stood already recovered from leave encashment, an amount of Rs.2,37,529-36P, thus, was still recoverable from him as is claimed by the appellants. It is also stated that the charge sheet, which was earlier issued in the year 1983-84, had no relevance to the charge sheet issued to the respondent in the year 1993. Accordingly, the appellants have justified their action. The trial proceeded on the following issues:- “1. Whether the plaintiff is entitled for declaration to the effect that the plaintiff is entitled to receive all his retiral benefits alongwith interest? OPP 2. Whether the order dated 8.2.2000 passed by the defendants during the pendency of the case is in Regular Second Appeal No.2772 of 2009 (O&M) : 5 : violation of statutory Rules and hit by the doctrine of lis- pendense? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether no proper court fees have been affixed? OPD 5. Relief. The trial Court decreed the suit by observing that the enquiry held against the respondent-plaintiff on the earlier charge sheet and the one which was held now giving direction for recovery of this amount, was for same or similar allegations. However, no finding was given by the trial court in regard to the plea of promotion which has also been raised by the respondent-plaintiff in the suit. Aggrieved against this finding, both the appellants as well as the respondent-plaintiff filed appeals before the first Appellate court, which has upheld the findings of the trial court in regard to the recoveries as ordered from the gratuity of the respondent-plaintiff. The first Appellate Court has also held the respondent-plaintiff entitled to promotion and has accordingly dismissed the appeal filed by the State. The primary issue that has been addressed by Mr.Nehra is that the finding returned by the courts that first charge sheet issued to the respondent-plaintiff is for the same or similar allegations as contained in the second charge sheet issued in 1993 is factually misconceived. Mr.Nehra has drawn my attention to the charges in the first charge sheet preferred against the respondent-plaintiff, which were as under:- “1. That he failed to submit fortnightly return in form Regular Second Appeal No.2772 of 2009 (O&M) : 6 : P.R. 38 from the date he was posted at Fatehabad P.R. Centre and is guilty of negligence in performing his duties. 2. That he did not submit monthly efficiency certificate in the form P.R. 87 sine his joining there in May, 1983 and showed remissness in the performance of his official duties. 3. That he did not take interest in delivering Govt. wheat stocks to the FCI though the instructions were that the stocks be delivered to the FCI expeditiously.” He would then refer to the second charge sheet issued in the year 1993, which contains following charges:- “i) That due to carelessness and negligence of Shri S.K. Mittal Asstt. Food and Supplies Officer a quantity of 20027-000 Qtls. of what pertaining to the crop year 1983- 84 was damaged at P.R.Centre Fatehabad. These stocks were not accepted by the FCI as a result of which Government had to auction the stocks resulting in a loss of Rs.13,58,286.57 to the State for which he is liable. ii) That as per P.R. 38 reports the stocks stored in the open started atta formation between 1.8.83 to 16.8.83 i.e. Just after 3-4 months after the procurement of wheat. Thus, Sh.S.K.Mittal A.F.S.O. failed to safeguard the stocks although sufficient quantity of polythene covers, Tarpaulins and fumigants were available at P.R. Centre and also he failed to dispose off the damaged stocks immediately for which he is liable.” Regular Second Appeal No.2772 of 2009 (O&M) : 7 : From this, Mr.Nehra would contend that the finding of the courts that the charges in both the charge sheets were identical or similar is apparently not correct. Counsel for the respondent-plaintiff, however, seriously disputes the submission made by Mr.Nehra on this count and would say that these may not be identically worded, but the gist and the gravamen of the allegations in both the charge sheets remain the same. The perusal of the charges earlier preferred in the light of the subsequent charge sheet issued to the respondent-plaintiff would show that in the first charge sheet, respondent-plaintiff was primarily blamed for being guilty of negligence in performance of his duties. He was also accused of not submitting monthly efficiency certificate and, thus, was accused of being remiss in performance of his official duties. Respondent-plaintiff was also accused of not taking interest in delivering Government wheat stocks to FCI. In the second charge sheet issued in the year 1993, the respondent-plaintiff is again accused of being careless and negligent, as a result of which wheat crop pertaining to the year 1983-84 was damaged on account of which the FCI did not accept the stocks for which the Government had to put the same to an auction. On this count, the Government statedly suffered a loss of Rs.13.50 lacs approximately. The second charge pertains to P.R. 38 reports and it is now stated that stock, which was stored in the open led to atta (flour) formation. When this is compared with the first charge in the first charge sheet, it would sound somewhat similar to the allegations made in the first charge sheet. In the first charge sheet, the respondent-plaintiff was accused of not submitting fortnightly return in form P.R. 38. If there was any Regular Second Appeal No.2772 of 2009 (O&M) : 8 : negligence which led to atta formation or a loss, the appellants were required to ascertain the same and then take action against the respondent-plaintiff. The appellants were not well advised to initiate proceedings against respondent-plaintiff without first ascertaining the aspect of loss on the basis of negligence alleged against him. It would not be out of place to notice that negligence or respondent- plaintiff being remiss in performing his duties was not found against respondent-plaintiff by the Enquiry Officer. No further action was taken on the first charge sheet to either differ with this finding. Once the finding that the respondent-plaintiff was not negligent or remiss in performance of his duties and which finding was allowed to acquire finality, it is not understood as to how the negligence or being remiss in performance of duties could be alleged to have led to causing a loss. In a way, it can be said that the earlier enquiry finding was given go-by in this manner by directing another enquiry by changing the wording of the allegations made. It is also worth notice that the first enquiry was held in the year 1984 and was immediately after the negligence or remissness on the part of respondent-plaintiff was noticed. The enquiry statedly was finalised in the year 1985 and the final order thereon was passed by the Director on 11.11.1986. The matter rested at that till the year 1993 when the second charge sheet was issued to the respondent-plaintiff. In the meantime, respondent-plaintiff retired in 1997. Action in this manner has been taken against respondent- plaintiff after lapse of so much time that too for almost similar or identical allegations, which were enquired into and respondent- plaintiff exonerated. This certainly would not sound fair approach on Regular Second Appeal No.2772 of 2009 (O&M) : 9 : the part of the appellants. The findings returned by the trial Court as well as by the first Appellate Court appear reasonable and just having regard to the facts and circumstances of the case. The substantial question of law whether the second enquiry could be ordered or it is for different charges as formulated by the State counsel, in my view, has been rightly considered and decided. The State is also bound to realise that a person, who has been exonerated after a due enquiry, which was allowed to acquire finality, could not have been dealt with in this manner to withhold retiral benefits of the employee. No case for interference, thus, is made out. The Regular Second Appeals are, therefore, dismissed. May 12, 2010 ( RANJIT SINGH ) ramesh JUDGE