FAO No. 3995 of 2004 1 In the Punjab and Haryana High Court,at Chandigarh. FAO No. 3995 of 2004 Decided on February 25,2009. Shiromani Gurdwara Parbandhak Committee --Appellant vs. S.Harjot Singh --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.P.S.Thiara,Advocate, for the appellant Mr.K.S.Rekhi,Advocate,for the respondent. Rakesh Kumar Jain, J: This appeal is directed against the order of Sikh Gurdwara Judicial Commission, Amritsar,dated 15.4.2004,whereby petition filed by the appellant Shiromani Gurdwara Parbandhak Committee,against the respondent S.Harjot Singh under Section 142 of the Sikh Gurdwara Act, 1925, (for short,'the Act') has been dismissed. In brief, the facts of the case are that a petition under FAO No. 3995 of 2004 2 Section 142 of the Act, was filed by the appellant against the respondent alleging that he was an employee of the appellant having been employed by the then Receiver of Gurdwara Baba Budha Ji Bir Sahib on 26.3.1998 as Pharmacist in the hospital Baba Budha Ji Charitable Hospital which is run by the Gurdwara Sahib of the appellant where the respondent had worked as Pharmacist till 7.10.2000 and due to his absence and not depositing the amount of Rs. 42,240/- of Gurdwara Sahib, he was relieved from his service vide resolution No. 518 dated 07.3.2001. It was alleged by the appellant that the respondent had committed acts of mal-feasance, mis-feasance and non-feasance, breach of trust, neglect of duty and caused monetary loss to Baba Budha Ji Charitable Hospital because of which medicines worth Rs. 3,73,540.85 were found less and some of the expired medicines were also found. A Sub Committee consisting of S.Balbir Singh Pannu, the then Senior Vice President, Bibi Kiranjot Kaur, the then Member SGPC and S.Partap Singh Advocate, the then Member SGPC enquired into the matter and vide their enquiry report dated 4.4.1999 fixed the liability of the employee. Out of Rs. 3,73,540.85, a sum of Rs.1,08,749.39 was deducted as price of the excess amount and amount of Rs.2,64,000/- remained balance, for which S.Kashmir Singh, Manager, S.Balkar Singh,Assistant Manager, S. FAO No. 3995 of 2004 3 Jiwan Jot Singh Pharmacist, S.Harjot Singh Pharmacist (respondent) and Dr.Sandip Rana were held responsible to pay 16% along-with Rs.100/- as fine each according to their report dated 10.6.2000. In this way, the respondent was liable to pay Rs. 42,240/- being 16% of the aforesaid amount . This liability was fixed on each person according to Resolution No. 73 dated 19.6.2000. It was prayed in the petition filed under Section 142 of the Act that the respondent who has caused loss of Rs. 42,240/- to the petitioner be directed to pay the same for the benefit of Baba Budha Ji Charitable Hospital along-with cost of Rs.5000/- and interest @ 18% per annum and the respondent be also disqualified from becoming a Member/employee of any notified Sukh Gurdwara or Board for five years. In the written statement, besides taking preliminary objections in respect of the petition being bad for non-joinder and mis-joinder of necessary parties, the respondent had replied on merit that he was not an employee of SGPC but was the employee of Hospital of Baba Budha Ji Bir Sahib because at the time of his appointment, the management and control was not under the S.G.P.C. It was denied by the respondent that he was relieved from duty on 7.10.2000 due to absence from duty but in fact, he remained on leave by submitting various applications to the management and FAO No. 3995 of 2004 4 never intimated by the S.G.P.C. or the Institution that he stands relieved from service. It was also alleged that no charge of store of medicine was ever handed over to him nor he was the member of the committee constituted by the Receiver or S.G.P.C.,for purchase of medicines but the committee was constituted under the committee/SGPC members. It was maintained that the respondent had no authority to deal-with such articles which were purchased by the duly constituted committee by the SGPC or by the Receiver or Manager of Hospital of Baba Budha Ji Bir. He denied that he was having record regarding medicine of register or record of purchased drugs lying in the medical store. He also denied that he was to look after medicine, maintain the store or perform the duty in respect of medicines lying in the store. He rather averred that he joined the duty in April,1998, remained in the store up to August,1998 and during this period, he was deputed on various external duties. On the pleadings of the parties, following issues were framed:- 1. Whether the respondent has caused a loss of Rs.42,240/-to Gurdwara Bir Sahib being run by SGPC as alleged ?OPP FAO No. 3995 of 2004 5 2. Whether the petitioner is entitled to recover damages and interest as claimed ? OPP 3. Whether this Court has no jurisdiction to entertain and try the present petition as alleged ? OPR 4. Whether the petition has been filed by dully authorized person ? OPR 5. Whether the petition is bad for non-joinder and mis- joinder of necessary parties, as alleged ? OPR 6. Whether the petitioner is estopped to their own acts and conduct to file the present petition ? OPR 7. Whether the present petition is not maintainable in the present form ? OPPR 8. Relief: Both the parties led their evidence. The appellant examined PW-1 S.Gurminder Singh, PW-2 S.Gurmej Singh, PW-3 S.Hardeep Singh, PW- 4 S. Harbhajan Singh, PW-5 S.Sukhbir Singh, PW-6 S.Devinder Singh and PW-7 S. Harjit Singh proved documents Exs.P-1 to P-18. On the other hand, respondent examined S.Harjot Singh respondent himself as RW-1 and proved documents Exs. RW1/A and to AR to HR. The learned Judicial Commission while dealing with issue Nos. 1 and 2, held as under:- FAO No. 3995 of 2004 6 “The issue No.1 and 2 are inter connected, as such, we decide both issues together. To prove these issues, onus was upon the petitioner. The case of the petitioner is based upon the enquiry report. The enquiry was held by S.Balbir Singh Pannu the then Vice President, Bibi Kiranjot Kaur and S. Partap Singh,Advocate,both members of the SGPC. To prove this report, no member of the enquiry committee is produced as witness. As per averments in the petition, enquiry committee hold responsible, for the loss of Rs. 2,64,000/-, to the entire committee constituted for the purchase of medicine headed by Dr.Sandeep Rana and other members were namely S.Kashmir Singh Manager, S.Balkar Singh,Assistant Manager,S.Jiwanjot Singh Pharmacist and S.Harjot Singh Pharmacist (respondent). Petitioner has not produced any evidence to prove the enquiry report and base of enquiry report. Similarly, the entrustment of medicine to the respondent is also not proved as there is no evidence on the file to show any entrustment of medicine to the respondent. There is no evidence to prove malfeasance, misfeasance and non-feasance caused by the respondent on the file. It is not justified to hold guilty to respondent causing loss of Rs.42,240/- without cogent evidence on the file. The petitioner committee failed to prove these issues, as such, these issuers are decided against the petitioner committee.” FAO No. 3995 of 2004 7 Similarly,while dealing with issue No.5, has held:- “To prove this issue, the onus was upon the respondent. The respondent has not produced any documents or any evidence to prove this issue. As per averment of the petitioner, an enquiry was held under the Presidentship of the then Vice President of SGPC S.Balbir Singh Pannu and entire purchase committee constituted, headed by Dr. Sandeep Rana was held responsible for the loss of Rs. 2,64.000/-. But the petitioner had not made them party in the present petition, as such, the petition is bad for non-joinder and mis-joinder of necessary parties. This issue is decided accordingly in favour of the respondent and against the petitioner. Learned counsel for the appellant while assailing the findings on issues No.1 and 2 has vehemently contended that other employees who have been found guilty of mis-feasance have already deposited their share of money with the appellant, therefore, the present respondent is also liable to deposit the amount, therefore, the findings recorded under issue Nos. 1 and 2 deserve to be reversed. On the other hand, learned counsel for the respondent has argued that the appellant has failed to prove by leading cogent evidence that the respondent was ever entrusted with the medicines FAO No. 3995 of 2004 8 or he was the Incharge of the store . In this regard, learned counsel for the appellant has very fairly stated that there is no direct evidence that the respondent was the Incharge of store. In these circumstances, in the absence of any evidence on record in respect of entrustment of medicines, which have either allegedly expired or lost, cannot be attributed to the respondent since he was not Incharge of the store or having any access to the medicines. No other point has been argued before me by the learned counsel for the appellant. In view of the above discussion, I do not find any error in the order of the learned Siklh Gurdwara Judicial Commission. Thus, the present appeal is found to be devoid of any merit and the same is hereby dismissed without there being any order as to costs. February 25,2009 (Rakesh Kumar Jain) RR Judge