R. S. A. No. 1777 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1777 of 2011 (O&M) Date of Decision : April 25, 2011 Municipal Council, Balachaur .... Appellant Vs. Lal Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kamaljeet Singh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5007-C of 2011 : Allowed as prayed for. Main Appeal : Defendant Municipal Council, Balachaur, having failed in both the courts below, is in second appeal. Respondent-plaintiff Lal Chand filed suit against defendant- appellant. It is undisputed that defendant awarded contract to plaintiff- respondent for collection of garbage from house to house and for transporting the same to the specified dumps. R. S. A. No. 1777 of 2011 (O&M) 2 Plaintiff's grouse in the suit is that the defendant had not paid salary of plaintiff's workers for September and October 2005 amounting to Rs.55,689/- each month and had illegally terminated the plaintiff's contract and had also not refunded the security amount of Rs.50,000/-. The defendant alleged that work of the plaintiff-Contractor was not satisfactory and he did not engage requisite number of Sweepers as per contract. During trial, it emerged that defendant had deducted Rs.30,943/- from the amount payable for September 2005 and deducted Rs.26,057/- from the amount payable for the month of October 2005. Balance amount for the said two months stood paid. In addition to the aforesaid deductions, security amount of Rs.50,000/-, which admittedly stood deposited by the plaintiff with the defendant, was also not refunded. Accordingly, learned Additional Civil Judge (Senior Division), Balachaur, vide judgment and decree dated 31.03.2009, decreed the plaintiff's suit for the aforesaid amounts totaling Rs.1,07,000. First appeal preferred by the defendant has been dismissed by learned District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 03.12.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that R. S. A. No. 1777 of 2011 (O&M) 3 the plaintiff did not engage requisite number of Sweepers and did not do the work properly, and therefore, the aforesaid amounts were deducted from the amounts payable to the plaintiff. The contention cannot be accepted. In order to prove its case, the defendant examined Vipan Kumar – Junior Assistant (DW-1) and Jai Dev – Junior Assistant (DW-2). However, from their statements, it cannot be said that they themselves had checked the work of the plaintiff and found it to be unsatisfactory. On the contrary, plaintiff's contract was terminated vide resolution Ex.D-4 mentioning that according to the report of the Clerk, cleanliness was not proper and was not done despite oral as well as written warnings. However, the said Clerk has not been examined as witness by the defendant-appellant, nor the report made by him, on the basis of which, plaintiff's contract was cancelled, has been produced in evidence. Consequently, adverse presumption arises against the defendant-appellant. Moreover, Jai Dev (DW-2) admitted that no complaint was pending against the plaintiff regarding work of October 2005. In this regard, report Ex.P-X made by defendant's officials has also been produced in evidence. The said report of defendant-appellant itself and the testimony of DW-2 have not been rebutted by defendant in any manner. It is evident from these admissions of defendant itself that there was no deficiency in the work done by the plaintiff in the month of October 2005. On the contrary, these admissions of the defendant itself depict that there was no complaint regarding the work done by the plaintiff in October R. S. A. No. 1777 of 2011 (O&M) 4 2005. Defendant has not produced any evidence, any document or report made by its officials after checking the work of the plaintiff, that his work was unsatisfactory or suffered from any deficiency. Plaintiff was not even heard before cancellation of his agreement. No written warning allegedly given to the plaintiff regarding unsatisfactory work has either been placed on record. From the defendant's evidence, it is also not borne out as to which official or officer exactly checked the work of the plaintiff and found the same to be deficient. Sanitary Inspector, President or Vice President and Executive Officer of the defendant-appellant had the authority to check the number of workers engaged by the plaintiff, but none of them have stepped into the witness-box nor any report made by any of them that plaintiff had not engaged sufficient number of workers or that his work was unsatisfactory, has either been produced. There is practically no evidence to substantiate the defendant's version. It has also not come in defendant's evidence as to how the amounts of Rs.30,943/- and Rs.26,057/- deducted from the amounts payable to the plaintiff for September and October 2005 were calculated or arrived at. The defendant-appellant has worked in most arbitrary manner in deducting the said amounts and also in not refunding the security amount to the plaintiff. It has also not come in evidence as to how many employees were to be engaged by the plaintiff as per contract and how many employees were actually found employed by the defendant during the aforesaid months. Vide report Ex.P-X, payment for October 2005 was R. S. A. No. 1777 of 2011 (O&M) 5 recommended to be made observing that work of the plaintiff was found satisfactory, but in spite thereof, the defendant deducted Rs.26,057/- from the said amount without any basis. The aforesaid report had been made even after termination of the contract had been communicated to the plaintiff. It is thus manifest that work of the plaintiff was not found unsatisfactory and the defendant arbitrarily deducted the amount from his dues. For the reasons aforesaid, I find no infirmity in the concurrent finding recorded by both the courts below in favour of the plaintiff. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The fate of the lis depends upon finding of fact. Lower appellate court is the final court of fact. The appeal is completely frivolous and meritless and is accordingly dismissed in limine. April 25, 2011 ( L. N. MITTAL ) monika JUDGE