R.S.A. No. 3613 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3613 of 2006 Date of Decision: 22.07.2009 Manmohan Singh son of Ranjit Singh, Revenue Patwari, now posted at Jherianwali, Kanungoi, Raipur, Tehsil Sardulgarh, District Mansa. ... Appellant Versus 1. Punjab State through District Collector, Mansa, District Moga. 2. The Commissioner (Revenue) Faridkot Division, Faridkot, District Faridkot. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.K. Khunger, Advocate, for the appellant. Mr. Vivek Chauhan, Assistant Advocate General, Punjab, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 15.06.2006, rendered by the Court of District Judge, Mansa, vide which, it allowed the appeal, and set aside the judgement and decree, dated R.S.A. No. 3613 of 2006 2 25.04.2006, rendered by the Court of Additional Civil Judge (Senior Division), Sardulgarh. 2. Shorn of unnecessary details, the facts, relevant for the decision of this appeal, are that, the plaintiff/appellant, was working as Revenue Patwari at Jherianwali, Kanungoi Raipur, Tehsil Sardulgarh, District Mansa. His date of joining the service was 23.05.1992, as Halqa Patwari, Uddat Saidewala. It was stated that the District Collector, Mansa, his appointing authority, passed an order dated 31.12.1999, vide which, three punishments, i.e. the stoppage of five increments with cumulative effect; debarring him from further promotion; and declining the payment of pay and allowances for the suspension period, except 50% subsistence allowance, already paid were imposed upon him. It was stated that the plaintiff/appellant, filed an appeal, on 01.02.2000, before the Commissioner, Faridkot Division, Faridkot, which was dismissed vide order dated 09.08.2000, conveyed on 24.10.2000, mechanically, and in a cryptic manner. It was further stated that the order of rejection of appeal, was not conveyed to the plaintiff/appellant. Vide orders dated 05.06.1995 and 06.08.1999, passed by the District Collector, Mansa, penalty of stoppage of two increments with cumulative effect was also imposed upon the plaintiff. It was further stated that the plaintiff/appellant, was entitled to the step-up increment, under the Assured Career Progression Scheme (ACP). It was further stated that the plaintiff/appellant, had not been granted the annual increments, right from his initial posting, on 23.05.1992. All the aforesaid orders were challenged as illegal, void and inoperative against the rights of the plaintiff. The defendants were many a time, asked to withdraw the illegal orders, but to no R.S.A. No. 3613 of 2006 3 avail. Ultimately, a suit for declaration and mandatory injunction was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was barred by time. It was further pleaded that the suit was bad for mis-joinder of different causes of action. It was further pleaded that, valid notice under Section 80 of the Code of Civil Procedure, was not served. It was further pleaded that, the suit, was not maintainable, in the present form. It was stated that the plaintiff, was served with a chargesheet dated 18.06.1999, stating therein, that Bhura Singh son of Kaka Singh, r/o village Satike, hypothecated the land beyond his share, as he had already sold the land more than his share, with his connivance. It was further stated that, thus, Harnek Singh, complainant, was deprived of 5 kanals 14 marlas of his share of the land. It was further stated that the plaintiff knowingly issued wrong jamabandi to help Bhura Singh. It was further stated that the order, regarding debarring the plaintiff, from further promotion, had no effect, because he was too junior to be considered for promotion. It was further stated that the service record of the plaintiff, also showed that he was not fit for the grant of special increment, after rendering eight years of service. It was further stated that the orders aforesaid were passed, after following the due procedure, provided by the relevant Rules contained in the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and, thus, the same were legal and valid. It was further stated that three penalties were not imposed vide order dated 31.12.1999. The remaining averments, were denied, being wrong. R.S.A. No. 3613 of 2006 4 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is entitled to declaration prayed for? OPP ii) Whether plaintiff is entitled to mandatory injunction prayed for? OPP iii) Whether order No. 3/S.K. Dated 31.12.1999, with Endst. No. 33-SK, dated 07.01.2000, passed by the Collector, Mansa, stopping five annual increments of the plaintiff with cumulative effect is illegal, malafide, discriminatory, and against the service rules? OPP iv) Whether the suit of the plaintiff is barred by time? OPD v) Whether the suit of the plaintiff is not maintainable in the present form? OPD vi) Whether the suit is bad for mis-joinder of different causes of action? OPD vii) Whether the suit of the plaintiff is bad for want of notice under Section 80 of the Code of Civil Procedure? OPD viii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff/appellant, for declaration and mandatory injunction. 6. Feeling aggrieved, an appeal was preferred, by the defendants/respondents, which was allowed, by the Court of District Judge, Mansa, vide judgement and decree dated 15.06.2006. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through R.S.A. No. 3613 of 2006 5 the evidence and documents, on record, carefully. 9. The following substantial questions of law arise, in this appeal for the determination of this Court:- (i) Whether the first Appellate Court recorded a perverse finding that the suit was barred by limitation? (ii) Whether the judgement and decree of the first Appellate Court, are based on complete misreading and misappreciation of evidence? (iii) Whether the first Appellate Court, wrongly held that the order dated 31.12.1999 did not amount to double jeopardy? 10. The Counsel for the plaintiff/appellant, submitted that, the judgement and decree of the First Appellate Court, to the effect, that the suit, was barred by limitation, and that the orders impugned, were legal and valid, are the result of mis-appreciation and mis-reading of evidence. He further submitted that the first Appellate Court, was also wrong, in coming to the conclusion, that the order dated 31.12.1999 conveyed on 07.01.2002, awarding the punishment of stoppage of five increments, with cumulative effect and debarring the plaintiff/appellant, from further promotion for five years, and also declining the payment of pay and allowances, for the period of suspension except the suspension allowance did not amount to double jeopardy. He further submitted that the judgement and decree, rendered by the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that, the judgement and decree, rendered by the Appellate Court, are legal and valid. He further submitted that the orders impugned did not amount to double jeopardy. He further submitted that the suit, was rightly held to be R.S.A. No. 3613 of 2006 6 barred by time, by the First Appellate Court. He further submitted that, even the plaintiff/appellant, admitted that the orders, did not cause him any prejudice. He further submitted that, even during the period of five years, for which, his five increments, with cumulative effect, were stopped, he could not become eligible for consideration for next promotion, on account of the reason, that he was too junior. He further submitted that, even the competent authority, could also deny the pay and allowances, to the delinquent, during the period of suspension, except the subsistence allowance, already paid to him. He further submitted that the orders impugned, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. In the suit, challenge R.S.A. No. 3613 of 2006 7 was made, to the orders dated 05.06.1995 and 06.08.1999, vide which, two increments with cumulative effect of the plaintiff were stopped; the order dated 31.12.1999 conveyed on 07.01.2000, passed by the Collector, imposing penalty of stoppage of five increments with cumulative effect, at the same time, holding that, the plaintiff/appellant, would not be entitled to promotion, for five years, and denying him the pay and allowances, for the period of suspension, except the subsistence allowance, already paid to him, and the order dated 09.08.2000, vide which, the Commissioner, Faridkot dismissed the appeal. The suit could be filed within three years, and two months, from the date(s) when the cause of action accrued. The cause of action accrued, on the date(s) the orders were passed by the competent Authorities, and the appeals against the same were dismissed. Similar principle of law was laid down in State of Punjab Vs. Gurdev Singh Ashok Kumar (1991(5) Service Law Reporter I (S.C.). The suit having been filed on 13.02.2004, was certainly barred by limitation. The first Appellate Court, was, thus, right in holding, that the suit, was barred by limitation, and rightly reversed the findings of the trial Court, on issue no. (iv). Substantial question No. 1 of law, is, thus, answered against the appellant. 13. On due consideration of the evidence produced, on record, and law, on the point, the first Appellate Court, came to the conclusion, that the orders impugned, were legal and valid. Chargesheets were served upon the delinquent. He filed replies to the same, which were considered to be not satisfactory. Regular departmental inquiries, were held, wherein, he was granted opportunity, to cross-examine the witness(s) and defend his case. The first Appellate Court, by relying on State of Punjab Vs. Surjit Singh, R.S.A. No. 3613 of 2006 8 Conductor, 1996(2), Service Law Reporter, 722 (SC), came to the conclusion, that the competent authority, could withhold the payment of salary, for the period of suspension, till the passing of the final order. It was also observed, in the aforesaid case, by the Apex Court, that the Civil Court, had no jurisdiction, to substitute the punishment, imposed by the competent authority. The judgement and decree of the first Appellate Court, being based, on the correct appreciation of evidence, and law, on the point, does not suffer, from any illegality, or perversity, and, therefore, warrant no interference. The submission of the Counsel for the plaintiff/appellant, being without merit, must fail, and same stands rejected. The judgement and decree of the first Appellate Court, are liable to be upheld. Substantial questions No. 2 and 3 of law, are, thus, answered against the appellant. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 22.07.2009 (SHAM SUNDER) Amodh JUDGE