R.S.A. No. 2159 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2159 of 2008 (O&M) Date of decision: 04.05.2009 State of Punjab and others ....appellants versus Chaman Lal ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.L. Gupta, Addl. A.G., Punjab. Mr. S.K. Chawla, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.1.2008 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent seeking permanent injunction, stands decreed. The plaintiff brought a suit on the pleadings that vide order dated 23.7.2004, defendant No. 3 imposed penalty of Rs.5,47,623/-, and further down-graded the plaintiff/respondent for a period of five years. The plaintiff/respondent challenged the said order by filing a statutory appeal. It was pleaded that Conservator of Forest Department had issued instructions, that if an order of punishment of recovery etc. is passed against delinquent official, and an appeal is filed against such order, then R.S.A. No. 2159 of 2008 (O&M) -2- the punishing authority should not implement the order of punishment. It was also claimed that the impugned order to effect recovery of , and down-grade the plaintiff by reducing his salary was illegal. He sought mandatory injunction for refund of the amount deducted along with interest @ 18 per cent per annum. The suit was contested, wherein preliminary objections were taken, that the Court had no jurisdiction to hear and try the present suit, as the jurisdiction of the civil Court was barred. Plea was also taken that the suit was not maintainable for want of notice under Section 80 of the Code of Civil Procedure, and further that the plaintiff/respondent had no cause of action. The plea of non-joinder of necessary parties was also taken. On merits, it was pleaded that the plaintiff/respondent was posted as Forest Guard in Karan Garh and Breta beats of Budhladha block of Mansa. When the plaintiff/respondent was transferred and one Sukhdev Singh was posted there, it was found that 1201 trees were less at the spot, which the plaintiff/respondent could not cound for. The departmental proceedings were initiated, and the plaintiff/respondent was held responsible for loss of 1159 trees having value of Rs.8,21,434/-, and was imposed penalty of 2/3rd i.e. Rs.5,47,673/-. The amount was ordered to be deducted @ 2,000/- per month from the salary of the plaintiff/respondent. The learned trial Court was pleased to dismiss the suit filed by the plaintiff/respondent by observing, that the plaintiff/respondent had filed suit only for permanent injunction, restraining the defendant/appellants to implement the order No. 45 dated 23.7.2004. the R.S.A. No. 2159 of 2008 (O&M) -3- order was said to have been passed by the competent authority after giving full opportunity to the plaintiff/respondent, where he was found guilt of having removed 1201 trees, as the same were found to be less on counting. He was given benefit of disposal of 42 trees. It was held, that full opportunity was given to the plaintiff/respondent to defend himself when the impunged order was passed. The learned trial Court further held, that the plaintiff/respondent was to go in appeal against the impugned order, which, in fact, he did. The learned trial Court, thus, held that it was not open to civil Court to sit in appeal and pass an order of injunction to restrain the defendant not to implement the order against the plaintiff. The preliminary objections raised were decided against the defendant/appellants, as they did not press the same. In view of the findings recorded, suit was dismissed. The plaintiff/respondent preferred an appeal. The learned lower appellate Court went into the merits of the punishment awarded, and held that there was violation of principles of natural justice, and accepted the appeal by holding the order of punishment to be bad in law, though the said order was not impugned, as the suit was only for seeking injunction from implementing the order due to the pendency of appeal. In order to reach to this conclusion, the reliance was placed on the judgment of this Court in Hans Raj Gupta Vs. State of Punjab, 1992(1) Service Law Reporter 146. The learned Additional Advocate General, Punjab, contends that the appeal raises the following substantial question of law: - "Whether the judgment and decree passed by the learned lower appellate Court is on the face of it R.S.A. No. 2159 of 2008 (O&M) -4- perverse, as it is based on over-ruled judgment?' In support of the substantial question of law, the learned Additional Advocate General, Punjab, contends that the suit as framed was not competent, as it was not open to the plaintiff/respondent to seek injunction from implementation of the order, though remedy of statutory appeal was available which, in fact, was availed. It was for the plaintiff/respondent to have sought stay from the appellate authority, and he could not come to the civil Court seeking injunction pending appeal, by treating it to be appellate authority. It is also the contention of the learned State counsel, taht the judgment in case of Hans Raj Gupta Vs. State of Punjab (supra) has been over-ruled by the Division Bench of this Court in Dheru Ram Vs. The State of Punjab, 1993(3) P.L.R. 476. As the judgment of the learned lower appellate Court is based on the over-ruled judgment, the same cannot be sustained being perverse. Consequently, the substantial question of law raised is answered in favour of the appellants, the regular second appeal is allowed, by setting aside the judgment and decree passed by the learned lower appellate Court and the case is remanded back to the learned lower appellate Court to consider the appeal on points raised in the appeal, and dispose off appeal on merit. The parties, through their counsel, are directed to appear before the learned trial Court on 25.5.2009. (Vinod K. Sharma) Judge May 04, 2009 R.S.