RSA No.3853 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3853 of 2008 Date of Decision: 17.12.2008 State of Haryana and others .....Appellants Vs. Kharag Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Ajay Chaudhary, DAG, Haryana for the appellants. None for the respndents. .... RAJIVE BHALLA, J (Oral) The State of Haryana, challenges the judgement and decree dated 25.8.2008, passed by the Additional District Judge, Hisar, accepting the appeal filed by respondent no.1 and as a result, setting aside the judgement and decree dated 18.11.2006, passed by the trial Court. The plaintiff-respondent and Kashmiri Lal, Chowkidars were served with notices, requiring them to show cause why departmental proceedings be not initiated against them for theft during their watch of spare parts valued at Rs.16,486/-. Pursuant to a departmental enquiry, the punishing authority held them guilty of failure to report the theft upto 24.12.2003 and equally liable to make good the loss of Rs.16,486/-. Respondent no.1 filed the civil suit challenging the order of punishment. After considering the merits, the trial Court dismissed the suit. RSA No.3853 of 2008 2 The first appellate Court, however, accepted the appeal and set aside the order of punishment by holding that as the letter No.1182 dated 22.12.2003 was forwarded for registration of a FIR on 22.12.2003, it belied comprehension as to how the respondent could be punished for not reporting the theft upto 24.12.2003. The punishment was held to be illegal, as the right to a hearing was denied to the respondent. Counsel for the State of Haryana submits that in his plaint, the respondent has not challenged the enquiry on the ground that the theft did not take place during his watch. It is submitted that the first appellate Court, therefore, exceeded its jurisdiction in appraising departmental proceedings and recording the order on merits of the allegations levelled against respondent no.1. I have heard learned counsel for the appellants, perused the impugned judgements and in view of the findings recorded by the first appellate Court, express my inability to accept the submissions advanced by counsel for the State of Haryana. Apart from the findings recorded by the first appellate Court, it would be appropriate to mention that the theft took place on 21.12.2003. Respondent no.1 was admittedly on duty on 21.12.2003 from 4.00 PM to 12.00 midnight. Kashmiri Lal, Chowkidar was on duty from 12 midnight to 6.00 AM. The theft could have occurred either during respondent no.1's or Kashmiri Lal's watch and, therefore, one of them and not both would be guilty of negligence. The Enquiry Officer, however, held both guilty of negligence, leading to theft. The Enquiry Officer's conclusion belies logic and suffers from non-application of mind. It would also be necessary to mention here that the charge of delay in informing the department about theft is belied by the document Ex.P-4, RSA No.3853 of 2008 3 which clearly states that the department addressed letter No.1182 dated 22.12.2003, requesting the police to register an FIR. The charge, against respondent no.1 that he did not inform the department about theft upto 24.12.2003 is, therefore, factually incorrect and rightly set aside by the first appellate Court. Findings of fact recorded by the first appellate Court do not suffer from any error of law and as no substantial question of law arises for consideration, the appeal is dismissed. The appellants, may if so permissible in law consider initiating departmental proceedings afresh. 17.12.2008 (RAJIVE BHALLA) GS JUDGE