R.S.A. No. 707 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 707 of 1995 Date of Decision: 11.08.2009 S. Mulakhjit Singh son of S. Ajaib Singh, ex-employee of he Markfed, now resident of 339-A, East Mohan Nagar, Amritsar. ... Appellant Versus 1. Punjab State Cooperative Supply and Marketing Federation Ltd. (Markfed), Sector 17, Chandigarh, through its Managing Director. 2. District Manager, Punjab State Cooperative Supply and Marketing Federation Limited (Markfed), Kennedy Avenue, Amritsar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. T.S. Dhindsa, Advocate, with Mr. Ishar Singh, Advocate, for the appellant. Mr. Dharamvir Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 20.09.94, rendered by the Court of Additional District Judge, Amritsar, vide which, it accepted the appeal, against the judgement and decree dated 20.12.88, rendered by the Court of Sub Judge 1st Class, R.S.A. No. 707 of 1995 2 Amritsar, and dismissed the suit of the plaintiff. 2. The facts, in brief, are that, Mulakhjit Singh, plaintiff-appellant, was originally appointed, as a Field Assistant, under the defendants- respondents, in the year 1968, and, was, later on, posted as Manager, in CMS (Cooperative Marketing Society), Patti, in the year 1975, in the pay scale of Rs. 225-500/-, which was subsequently revised to Rs. 570-1080/-, w.e.f. 01.01.78. At the time of his posting as Manager, in the CMS (Cooperative Marketing Society), Patti, in the year 1975, he was placed on probation for a period of one year, under rules, which was successfully completed by him. On expiry of the probation period, he was confirmed w.e.f. 18.05.77. However, subsequently, he was reverted, from the aforesaid post, to the post of Field Sub Inspector, on 30.04.79, without any just and valid ground, though he had, by that time, become permanent Manager. Thereafter, he was placed under suspension, on 11.06.79, in an illegal manner. Aggrieved by his reversion and suspension, the plaintiff, preferred a Civil Writ Petition, in the year 1986. Even after reversion and suspension of the plaintiff, the defendants, did not spare him, and he was subsequently served with a baseless charge-sheet, on 04.02.80. The plaintiff, in reply to the charge-sheet, stated that the same was served upon him, more than three months, after his suspension, and, as such, was not legally valid and he was not bound by the same. However, the defendants, were not satisfied with the same, and served another supplementary charge-sheet dated 22.09.80, upon him, without any basis. At the time of issuing the supplementary charge- sheet, to the plaintiff, he was not supplied the list of witnesses, nor was he supplied the documents, relied upon. He was not even called upon to submit his reply to the charge-sheet, before the Inquiry Officer, was appointed, by R.S.A. No. 707 of 1995 3 the defendants, to deal with the supplementary charge-sheet. The plaintiff vehemently denied the charges levelled against him, in the original charge- sheet dated 04.02.80, and the supplementary charge-sheet dated 22.09.80, and claimed that various charges, contained therein, were without any basis. The defendants, were, however, not satisfied with the same, and the Inquiry Officer, was appointed, for that purpose. During the course of inquiry proceedings, only charge No. 3, contained in the original charge-sheet dated 04.02.80, was held to have been proved, against the plaintiff, whereas, he was exonerated of the remaining eight charges. However, he was held guilty of a charge, contained in the supplementary charge-sheet. The plaintiff claimed that while serving the supplementary charge-sheet, upon him, he was not called upon, to file a reply thereto, and was straightway ordered to stand the inquiry. The proceedings initiated, by the defendants, on the basis of the charge, contained in the supplementary charge-sheet, revealed the real intention, on their part, just to harass the plaintiff, for no fault of his. It was stated by the plaintiff that, on the basis of the inquiry report, submitted by the Inquiry Officer, and without going into the merits of the case, he was ordered to be dismissed, from service, vide order dated 29.09.86, passed by the Managing Director of the defendant Corporation. The plaintiff challenged the legality and validity of the impugned order of dismissal, on the ground, that the charges pertained to the period, when he was on deputation with CMS (Cooperative Marketing Society), Patti, and the defendants, were not competent to issue any charge-sheet, upon him, and the Managing Director thereof, was also not competent to pass the impugned order, nor had he applied his mind, to the facts of the case, before passing the same. It was further stated by the plaintiff, that, he was, in fact, R.S.A. No. 707 of 1995 4 governed by Common Cadre Rules, 1967, framed by the department, and the order of dismissal, was passed, in violation of those rules, which wasnot binding upon him. 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 admitted that the plaintiff, originally joined, as a Field Sub Inspector, under the defendants, in the year 1968. Later on, he was posted as Manager, in CMS (Cooperative Marketing Society), Patti, in a stop gap arrangement, in his own pay scale. It was denied that the plaintiff, was promoted, as a Manager, on regular basis. It was admitted that the plaintiff, was placed under suspension, on 11.06.79. It was stated that the plaintiff, was suspended, from service, on account of his non-compliance of the transfer orders, from Amritsar to Ferozepur, as also, on account of some other irregularities. It was further stated that the plaintiff, was never promoted, to the post of Manager, and there was hardly any question of his reversion, from that post. It was further stated that the plaintiff was, in fact, working as a Field Sub Inspector, under the defendants. It was admitted that the writ petition, filed by the plaintiff, regarding his suspension etc., was pending, in the High Court, at the time of filing the written statement. It was further stated that the plaintiff, was served with regular charge-sheets dated 04.02.80 and 22.09.80, and a regular departmental inquiry, was held. The plaintiff, was held guilty, by the Inquiry Officer, for various charges, contained in the charge-sheets, and, ultimately, vide order dated 29.09.86, passed by the Managing Director of the defendants Federation, he was ordered to be dismissed, from service. It was further stated that the order of dismissal, was validly passed, by the competent authority, in exercise of the R.S.A. No. 707 of 1995 5 disciplinary powers, after complying with the rules and regulations of the department, and the plaintiff was bound by the same. It was further stated that, no notice, under Section 79 of the Punjab Cooperative Societies Act, 1961, was served, before filing the suit, and, as such, the same (suit) was not maintainable. It was further stated that the jurisdiction of the Civil Court, in such matters, was specifically barred, under Section 82 of the Punjab Cooperative Societies Act, 1961, and, as such, the suit was not maintainable. It was further stated that the plaintiff, did not file any appeal or revision, against the orders of dismissal, and, as such, the suit filed, by him, was premature. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to declaration as prayed for? OPP (ii) Whether order dated 29.09.86, is illegal, null and void? OPP (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether this Court has no jurisdiction to try and decide the present suit? OPD (v) Whether notice under Section 79 of the Punjab Cooperative Societies Act, was served upon the defendants before filing the present suit? If so, its effect? OPD (vi) 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 R.S.A. No. 707 of 1995 6 District Judge, Amritsar, vide judgement and decree dated 20.09.94. 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 account of misreading and misappreciation of evidence that the Managing Director, was vested with the powers to pass the order dated 29.09.86, dismissing the appellant from service? (ii) Whether the subsequent resolution passed by the respondents could validly vest the Managing Director with the power retrospectively, to pass the order dated 29.09.86, dismissing the appellant from service? (iii) Whether the first Appellate Court, recorded perverse findings, on misreading and misappreciation of evidence that, on account of non- furnishing non-supply of documents and the list of witnesses, as also copy of the discordant note in respect of charge No.1 of the original charge sheet of which he was exonerated by the Enquiry Officer, but was held guilty by the Punishing Authority, the order impugned, did not stand vitiated? (iv) Whether the first Appellate Court, recorded a perverse finding, in holding that, in the absence of service of notice, under Section 79 of the Cooperative Societies Act, 1961, the suit, was not maintainable? 10. The Counsel for the appellant, submitted that, on 29.09.86, when the order, was passed, by the Managing Director, dismissing the appellant from service, he was not vested with the power to impose such R.S.A. No. 707 of 1995 7 punishment. He further submitted that, vide resolution, dated 24/26.09.79, copy whereof is DW1/2, the Managing Director, Markfed, was competent, to impose punishment, upon the employees, including the plaintiff. He further submitted that, vide resolution dated 19.01.83, copy whereof is DW1/3, all the powers of the Chief Executive Officer of the Markfed, who was the Managing Director, vested, in the Chairman. He further submitted that, vide resolution dated 31.10.86, copy whereof is DW1/1, the power of punishment again vested in the Managing Director, w.e.f. 04.01.84. He further submitted that, vide resolution DW1/1 dated 31.10.86, the power could not be vested, in the Managing Director, retrospectively, to punish the employees, including the plaintiff. He further submitted that the net result, was that, on 29.09.86, it was the Chairman, who was competent, to impose punishment, upon the appellant. He further submitted that since the Managing Director, was not competent, to impose punishment, upon the appellant, on 29.09.86, the order having been passed by an officer subordinate in rank to the competent Authority, being without jurisdiction, was a nullity, and liable to be set aside. He further submitted that even the copies of the documents and the list of witnesses, were not supplied to the appellant, and, as such, he was prejudiced, in his defence, before the Inquiry Officer. He further submitted that, even the Inquiry Officer, exonerated the appellant of charge No. 1, levelled against him, in respect of the first charge-sheet, but the competent authority, without supplying a copy of the discordant note to the appellant, held him guilty. He further submitted that this was also violative of the principles of natural justice, and, as such, the order impugned, was illegal, and liable to be set aside. He further submitted that the first Appellate Court, recorded perverse findings, on account of R.S.A. No. 707 of 1995 8 misreading and misappreciation of evidence, resulting into the dismissal of the suit, filed by the plaintiff/appellant. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that earlier, the Managing Director, being the Chief Executive Officer of the Markfed, was vested with the powers to impose punishment, upon the employees, including the plaintiff. He further submitted that, vide resolution, copy whereof is DW1/3, dated 19.01.83, the Chairman, was vested with the powers of the Managing Director. He, however, submitted that this power, was vested, in the Chairman, in pursuance of the amendment, in Rule 80 C of the Punjab Cooperative Societies Rules, 1963, as notified by the Government of Punjab, vide notification, published on December 13, 1982. He further submitted that, later on, vide GSR1 dated 04.01.84, the powers, were again revested, in the Managing Director, on account of amendment of Rule 80 C. He further submitted that, under these circumstances, on 29.09.86, the Managing Director, was vested with the power of imposing punishment, upon the appellant. He further submitted that, even his act of dismissing the appellant from service, was duly ratified, in the meeting dated 31.10.86 of the Administrative Committee. He further submitted that the appellant, was given an opportunity, to inspect the record, and, as such, alleged non-supply of the documents, did not at all cause prejudice, to him, during the course of inquiry. He further submitted that no prejudice, was caused, to the appellant, on account of non-furnishing of the discordant note. He further submitted that the first Appellate Court, did not record perverse findings. R.S.A. No. 707 of 1995 9 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. The first question, that falls for decision, is as to whether, the Managing Director, was competent to pass the order of punishment, dismissing the plaintiff from service, on 29.09.86. It may be stated here, that the Managing Director, is the Chief Executive Officer of the Markfed. Vide resolution dated 24/26.09.79, copy whereof is DW1/2, the Managing Director, was authorized to impose punishment. Later on, there was amendment, in Rule 80 C, in the year 1982, whereby the Chairman, was vested with the powers of awarding punishment to the employees like the plaintiff. Rule 80 C, was amended, vide notification dated 04.01.84, and again, the power of punishment, was revested, in the Managing Director. It means that, as on 29.09.86, the Managing Director, being the Chief Executive Officer, Markfed, was competent to pass the R.S.A. No. 707 of 1995 10 order of punishment. Since the amendment of Rule 80 C, on 04.01.84, revested the Managing Director, with the power, of punishment, the resolution dated 31.10.86, having been passed, on the basis of the notification dated 04.01.84 , could not be said to be, in any way, invalid. It was not the resolution, copy whereof is DW1/1, dated 31.10.86, which revested the Managing Director, with the power of punishment, but it was the amendment of Rule 80 C w.e.f. 04.01.84, which revested him with the power of punishment. The resolution dated 31.10.86, in the face of the notification dated 04.01.84, was of no consequence. Even the order, passed by the Managing Director, on 29.09.86, was ratified, vide resolution dated 31.10.86, copy whereof is exhibit DW1/1, by the Administrative Committee. That ratification, could be said to be valid. In Maharashtra State Mining Corporation Vs. Sunil, 2007(1) SLR, 525 (SC), a case, decided by a three Judge Bench of the Apex Court, the dismissal order, was passed by the Managing Director of Maharashtra State Mining Corporation. The Managing Director, was not the competent authority, on the date, the order, was passed, but subsequently, the said order, was ratified by the Board of Directors. In these circumstances, it was held, that the order, was legal and valid. The principle of law, laid down, in this case, is fully applicable, to the facts of the present case. From whatever angle, the case may be seen, it may be stated here, that the order dated 29.09.86, passed by the Managing Director, dismissing the plaintiff, from service, could not be said to be illegal and invalid, in any manner. The first Appellate Court, was right, in holding so. 13. The Counsel for the appellant, however, placed reliance on Haryana Seeds Development Corporation Ltd. (State Government R.S.A. No. 707 of 1995 11 Undertaking), Chandigarh and others Vs. Shri J.K. Aggarwal, Company Secretary, 1989(1) SLR, 381, a case, decided by the Division Bench of this Court, to contend, that ratification of invalid order of termination subsequently by the Board of Directors, tentamounted to surrendering their powers to Managing Director and did not validate the order of termination. In the instant case, as stated above, on the date, the order, was passed, dismissing the appellant from service, the Managing Director, was competent to pass the same. Even otherwise, in view of the principle of law, laid down, in Maharashtra State Mining Corporation's case (supra), decided by a three Judge Bench of the Apex Court, the principle of law to the contrary, laid down, in Haryana Seeds Development Corporation Ltd's case (supra), decided by a Division Bench of this Court, does not hold the field. No help, therefore, can be drawn,by the Counsel for the appellant, from Haryana Seeds Development Corporation Ltd's case (supra). The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. The next question, that falls for consideration, is, as to whether, on account of non-supply of copies of the documents, and list of witnesses, to the appellant, he was prejudiced, in the inquiry. The first Appellate Court, in so many words, recorded that, the appellant, was afforded an opportunity, to inspect the record, and he cross-examined the witnesses thoroughly, during the course of inquiry, and, as such, no prejudice, was shown to have been caused to him. No doubt, copies of the documents, as also the list of witnesses, were not supplied, to the appellant, in respect of the supplementary charge-sheet. He was, however, afforded an opportunity, to inspect the documents and record. He inspected the same. He also R.S.A. No. 707 of 1995 12 effectively cross-examined the witnesses. On account of this reason, non- furnishing of copies of statements, did not disable him, in any manner, during the course of inquiry, nor it caused any prejudice, to him. In State Bank of Patiala Vs. S.K. Sharma, AIR 1996 (SC), 1669, the copies of statements of two witnesses, were not furnished, to the delinquent employee, but he was permitted, to peruse the same, and take notes therefrom, more than three days, prior to their examination. He did not raise any objection, during the enquiry, that non-furnishing of the copies of statements, was disabling him, or disabled him, as the case may be, from effectively cross-examining the witnesses, or defending himself. The Apex Court, held that, no prejudice, was caused, to the delinquent official, on account of non-supply of copies of statements of the witnesses. It was further held that, on account of the said violation, it could not be said that the respondent, did not have a fair hearing, or that the disciplinary enquiry, against him, was not a fair enquiry. The appeal of the State Bank of Patiala, was allowed, by the Apex Court. The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. The next question, that falls for determination, is, as to whether, on account of non-supply of a copy of the discordant note, to the appellant, in relation to charge No. I of the first charge-sheet, of which, he was exonerated, by the Inquiry Officer, but was found guilty by the punishing authority, the order dated 29.09.86, became illegal and void, it may be stated here, that in the first charge-sheet dated 04.02.80, as many as nine charges, were levelled against the appellant. The supplementary charge-sheet dated R.S.A. No. 707 of 1995 13 22.09.80, containing the additional charge, was also served upon him. Charge No. I, contained, in the original charge-sheet, was to the effect, that during posting of the plaintiff, as Manager, in CMS (Cooperative Marketing Society), Patti, he had purposely transported the wheat stocks of CMS, Patti to Chetanpura godowns, at a distance of 75 kms, whereas, the wheat stocks are despatched from Patti, which has a rail head, and as such the respondents, had to suffer overhead losses to the tune of Rs.10,590.40 paise. The additional charge, contained in the supplementary charge-sheet, was to the effect, that the respondents, were made to suffer loss, to the tune of Rs. 2.95 lacs. The appellant, was held guilty of some other charges, except charge No. 1. Though the appellant, was absolved, by the Enquiry Officer of charge No.I of the original charge-sheet, but was held guilty, by the competent authority. On account of the proof of some other charges, which related to the causing of loss of Rs. 4 lacs, on account of the negligence of the appellant, to the department, he was dismissed from service. No doubt, no discordant note, was supplied, to the appellant, in respect of charge No. 1, for which, he was exonerated, by the Inquiry Officer, but was held guilty by the competent authority. In the first instance, it was not proved by the appellant, as to what prejudice, was caused, to him, on account of non- supply of the discordant note, to him, in respect of charge No. 1. He faced the inquiry, cross-examined the witnesses, and led his defence. He was very well aware of charge No. 1. Since no prejudice, was shown to have been caused, to the appellant, on account of non-supply of discordant note, the order dated 29.09.86, could not be said to be illegal. Even if, it is assumed that, in respect of charge No. 1, the appellant, could not be held guilty, without affording him an opportunity, to put-forth his version, as he was R.S.A. No. 707 of 1995 14 exonerated by the Inquiry Officer, he could not absolve himself of the other charges. The other charges, which were proved, against him, during the course of inquiry, were sufficient to award him the punishment of dismissal, by the competent authority. Under these circumstances, the order dated 29.09.86, could not be held to be illegal, on account of the aforesaid reasons. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 16. Section 79 of the Punjab Cooperative Societies Act, 1961, is mandatory, in nature. No notice, was given, by the plaintiff, before filing the suit, under Section 79 of the Punjab Cooperative Societies Act, 1961. The plaintiff, in this case, had already been dismissed, from service, before he filed the suit. There was, therefore, no urgency, in the matter, nor there was any ground, to dispense with the provisions, regarding the notice. Section 79 of the Punjab Cooperative Societies Act, 1961,