RSA No.2228 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No.6660- C of 2009 and RSA No.2228 of 2009 Date of decision 06.07.2010. State of Haryana and others. ...... Appellants. versus Hari Ram. ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Lekh Raj Nandal, AAG, Haryana for the appellants. Mr. B.B.Sharma, Advocate for respondent. K.C.PURI, J. C.M. No.6660- C of 2009 There is a delay of 30 days in filing the appeal. The same stands condoned on the reasons mentioned in the appeal. Main appeal. This is a regular second appeal directed by respondent-State against the judgment dated 8.1.2009 passed by Mrs.Shailini Singh Nagpal, Additional District Judge, Karnal vide which the appeal preferred by the plaintiff-respondent against the judgment dated 29.8.2008 passed by Mrs. RSA No.2228 of 2009 2 Ritu Y.K.Behl, Civil Judge (Senior Division), Karnal, stood partly accepted. Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that plaintiff- Hari Ram driver No.81 working in the office of General Manager, Haryana Roadways, Chandigarh has filed a suit for declaration seeking a decree to the effect that he was entitled to first higher standard scale and second ACP scale on completion of 10 and 20 years service along with arrears of pay and penal interest. The plaintiff- respondent further sought a mandate directing defendants to pay him arrears of pay along with interest at the rate of 18% per annum. He pleaded that he was initially working in Haryana Roadways Karnal and was later on transferred to the office of General Manager, Haryana Roadways, Chandigarh. He was recruited as driver in Haryana Roadways, Karnal in October, 1984. The plaintiff is entitled to grant of first ACP Scale on completion of ten years of service on 1.10.1994 and second ACP scale on completion of 20 years of service on 1.10.2004. The office of General Manager, Haryana Roadways, Karnal negligently withheld the benefit of first higher standard scale and second ACP scale and discriminated against the plaintiff. The action of defendant No.2 has been challenged as illegal, null and void. Appellants-defendants filed joint written statement raising preliminary objections regarding maintainability of the suit, valuation, cause of action, suppression of material facts, notice under Section 80 CPC, jurisdiction of Court, limitation etc. On merits, they submitted that plaintiff was employed as driver RSA No.2228 of 2009 3 on adhoc basis in March 1984 and his service were regularized on 5.6.1985. He was transferred from Karnal Depot to Chandigarh Depot with effect from 25.1.2006. As per Government instructions conveyed vide letter dated 8.2.1994 and its clarification dated 29.12.1995, adhoc service could not be counted for grant of benefit of higher standard scale. It has been further pleaded that service of the plaintiff was regularized with effect from 5.6.1985 and on completion of ten years regular satisfactory service, he became entitled to higher standard scale with effect from 1.1.1996. Plaintiff was having one years five months and twenty days non-qualifying service, therefore,m his ten years service completed on 25.11.1996. He would have become eligible for consideration for first higher standard scale/ACP scale with effect from 1.12.1996. A disciplinary case under Rule 7 was pending against him which was decided vide order No.8867/ECD dated 29.10.1997, therefore, he was not allotted ACP scale with effect from 1.12.1996. On 25.7.1997, plaintiff again caused an accident on account of which he was charge sheeted under rule 7 which was finally decided vide order dated 4.9.2000. His case was examined with effect from 1.10.2000 and he was allowed first ACP scale with effect from 1.10.2000. Plaintiff would complete 20 years service on 7.4.2007 and his case would be considered for second ACP scale at the appropriate time. Plaintiff had not been discriminated against nor any benefit was illegally denied. The action initiated by the defendants was in accordance with Rules. They prayed for dismissal of the suit. Following issues were framed :- 1. Whether the plaintiff is entitled to first higher standard scale and second ACP after completion of 10 and 20 years along RSA No.2228 of 2009 4 with arrears and penal interest from the date of emolument fell due till the actual payment ?OPP 2. If issue No.1 is proved whether the plaintiff is entitled to a consequential relief directing defendant to pay arrears along with penal rate of interest instead of 18% p.a.?OPP 3. Whether the plaintiff has no locus standi and cause of action to file and maintain the present suit ?OPD. 4. Whether the present suit is not maintainable in the present form ? OPD 5. Relief. The Trial Court after recording evidence of both the parties and hearing the counsel for both the parties, decided issue Nos.1 and 2 against the plaintiff and issues No.3 and 4 were decided in favour of the defendants, and consequently dismissed the suit of the plaintiff vide judgment and decree dated 29.8.2008. Feeling dis-satisfied with the above said judgment dated dated 29.8.2008, the plaintiff preferred the First Appeal. The said appeal was partly allowed by Mrs.Shailini Singh Nagpal, learned Additional District Judge, Karnal vide judgment dated 8.1.2009 holding that the plaintiff is entitled to first ACP scale on completion of 10 years regular satisfactory service on 25.10.1997 along with arrears and interest at the rate of 9% per annum from the date he became entitled to the ACP scale till actual payment. Feeling dis-satisfied with the judgment passed by Mrs.Shailini Singh Nagpal, learned Additional District Judge, Karnal, the State of Haryana and others-appellants have preferred the present regular second appeal. RSA No.2228 of 2009 5 The appellants in paragraph No.8 of the grounds of appeal have mentioned that following substantial questions of law are involved in this case :- (i)Whether the learned Lower Appellate Court has not erred in holding that the plaintiff-respondent became entitled to the First ACP Scale on 25.10.1997 in view of the fact that the plaintiff-respondent had a case which was still pending regarding another accident which was caused by him ? (ii)Whether the suit of the plaintiff-respondent was maintainable ? The nutshell submissions of the learned counsel for the appellants is that since disciplinary proceedings against the plaintiff were pending in respect of another accident and as such the department has rightly provided him First ACP from 1.10.2000. It is further submitted that both the Courts below have wrongly allowed the plaintiff the First ACP as on 29.10.1997 from 25.10.1997 after excluding period of adhoc service of one year five months and twenty days. I have considered the said submission but found the same without any substance. Similar argument was raised by the appellants before the first Appellate Court and had been dealt in, in paragraph No.14 of the judgment. It is held by the first Appellate Court that defendants were not justified in withholding the First ACP scale inasmuch as no disciplinary proceedings were pending against the plaintiff after the completion of ten years of his service excluding the period of adhoc service of one year five months and twenty days. The accident alleged to be caused by the plaintiff is dated 25.7.1997 for which charge-sheet under Rule 7 was decided on 4.9.2000. The disciplinary proceedings were initiated only on 29.1.1999. So, the First RSA No.2228 of 2009 6 Appellate Court has rightly held that after the completion of ten years regular service, the plaintiff was entitled to First ACP. In para No.15 of the judgment of the First Appellate Court, it has been mentioned that DW-1 Jagdish Kumar Clerk stated about the order dated 4.9.2000 Ex.P-7 vide which the plaintiff has been held guilty and his two increments were stopped with cumulative effect. The plaintiff challenged the said order Ex.D-7 by way of civil suit, which was decreed in his favour. The appeal preferred by the present appellants was dismissed by Shri P.L.Ahuja, the then District Judge, Karnal. So, the order of punishment of stoppage of two increments against the plaintiff was also quashed. So, in view of the above discussion, both the points raised by the counsel for the appellants are not the substantial questions of law much- less the substantial questions of law but questions of fact and as such stand determined accordingly. Since the First Appellate Court has rightly held that withholding the claim of the plaintiff regarding grant of First ACP on completion of ten years regular satisfactory service is illegal and unjustified. That being a finding of fact cannot be interfered in the second appeal. Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. July 06th , 2010 (K.C. PURI) sv JUDGE