Regular Second Appeal No.552 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: April 07, 2010 Naresh Kumar ...Appellant VERSUS State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.P.K.Sachdev, Advocate, for the appellant. Mr.Sunil Nehra, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The appellant was working as a Conductor and has filed this Regular Second Appeal to impugn the judgments passed by the Trial Court as well as first Appellate Court, challenging the punishment of reduction to minimum of time scale. The facts, as pleaded, would show sometime in the year Regular Second Appeal No.552 of 2009 (O&M) : 2 : 1999, an excess amount of Rs.216/- was found with the appellant and he was served with the charge sheet on 21.6.1999. The appellant filed a reply denying the allegations and pleaded his false implication. After considering his reply, the Enquiry Officer was appointed to hold an enquiry. The appellant would complain that the Enquiry Officer held the proceedings in a biased and illegal manner and submitted his findings holding him guilty of the charges. The said findings were accepted by the General Manager and thereafter a show cause notice was issued to the appellant on 8.6.2001 asking him to explain as to why his services be not terminated. The appellant submitted his reply, but as per him, without considering the same, he was brought to minimum of his time scale permanently vide order dated 11.7.2003. This order was passed after affording opportunity of personal hearing. The appellant preferred a departmental appeal against the same and the punishment was reduced to reduction from minimum time scale permanently to that for a period of two years vide order dated 22.3.2004. The appellant preferred yet another appeal against the same, which was rejected on 16.2.2005 on the ground that there was no provision to file a second appeal. Thereafter he served a legal notice, which was rejected and hence he filed the present suit. In response to notice, the respondents had filed a written statement challenging the jurisdiction of the civil court to entertain the suit. It was pointed out that the work and conduct of the appellant was not satisfactory as he was awarded punishment on various occasions. The respondents would justify the action of charge Regular Second Appeal No.552 of 2009 (O&M) : 3 : sheeting the appellant on the ground that excess cash of Rs.216/- was found from his bag. It was alleged that he had collected this amount by charging fare from the passengers without issuing tickets. This is as per the report of the Inspectorate Staff and the admission sheet dated 24.4.1999. It is further pointed out that the full opportunity was afforded to the appellant to defend his case during the enquiry which was conducted fairly following all the procedures as given in the rules. Thereafter the appellant was awarded punishment on 22.3.2004. The trial proceeded on the following issues:- “1. Whether the imposed orders dated 22.3.2004 and subsequent appellate order dated 16.2.2005 are illegal, null and void on the grounds as alleged? OPP 2. Whether this court has no jurisdiction to entertain the present suit? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the plaintiff has not come to the court with clean hands and if so to what effect? OPD 5. Relief. The Trial Court held that the plaintiff was not entitled to the declaration and mandatory injunction as prayed for and accordingly dismissed the suit. The appellant thereafter filed an appeal against the same which was also rejected. The primary submission that is made by the counsel for the appellant is that he was denied opportunity to lead evidence. The submission is that the appellant had made a prayer for examining the Regular Second Appeal No.552 of 2009 (O&M) : 4 : persons as witnesses, who had allegedly been charged excess amount. The case set up by the appellant is that the amount was noted on the back of the tickets and was to be refunded. There was no intention to charge this amount in excess. Appellant would submit that the witnesses were not summoned and hence the case of the appellant was prejudiced. When specifically asked, the counsel could not point out anything from the record if any prayer was made to summon any witness, who had been charged money in excess. The counsel, however, has drawn my attention to his own statement where he has mentioned that it would be essential to examine the person who had allegedly been charged excess amount. There is no request made for them summoning the passenger. It cannot be made out from the record that the appellant had intended to produce some witnesses, but was denied any such permission to examine witnesses. The plea that the appellant wished to examine some witnesses and he was denied this opportunity thus is not made out. The counsel then refers to Punjab State and another Vs. Harnam Singh, 1988(1) SLR 97 to urge that termination on the basis of having excess amount in the bag without recording the statements of passengers would not be enough. This court in Harnam Singh's case (supra) had no doubt expressed this view but ultimately has given finding on the basis that the guilt recorded by the Enquiry Officer was based on no evidence. In this background, the termination was held to be illegal. The counsel for the appellant has not even pleaded his case to be a case of no evidence. Even Regular Second Appeal No.552 of 2009 (O&M) : 5 : otherwise, in State of Haryana & others Vs. Rattan Singh, AIR 1977 SC 1512, it has been held that non-examination of passenger in itself cannot be taken to be a case of no evidence, specially so when Inspector who had lodged the report is examined. The Hon'ble Supreme Court has observed that in such like position it is possible to say that there is some evidence and, thus, this case cannot be termed as a case of no evidence. Accordingly, this line of submission as made cannot be accepted. No infirmity in the enquiry is pointed out. The concurrent finding by both the courts below, thus, would not call for interference. The substantial question of law formulated for denying of opportunity is not made out. The Regular Second Appeal is accordingly dismissed. April 07, 2010 ( RANJIT SINGH ) ramesh JUDGE