IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1380 of 2008 Date of Decision : July 29, 2008 Sri Guru Ram Dass Charitable Hospital, Research and Medical Institute, Amritsar and another ......Appellants Versus Piara Singh ......Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. A.P.S. Mann, Advocate Mr. B.S. Jaswal, Advocate T.P.S. MANN, J. Plaintiff-Piara Singh, respondent herein, claimed to have joined the services of the defendant-Institute on 16.11.1983. He had been continuously working with it without there being any dissatisfaction or complaint against him. He was confirmed in service on 14.4.1988. On 18.12.1998, when he was working on the post of Staff Nurse (Male) as Ward Incharge, he received his suspension order issued by Medical Superintendent of the defendant-Institute informing him that he had misused some amount for which he had issued certain receipts and did not deposit the same in the office in time and, as such violated the rules. On 31.12.1998, he received a copy of charge-sheet. He was asked to reply to the charge-sheet within a period of five days. He submitted his reply dated 4.1.1999, Regular Second Appeal No. 1380 of 2008 whereby he gave his explanation regarding having deposited all the amounts from time to time on various dates. He further stated that there could be some receipts which might not have dates and that was due to the reason that he was over-burdened with work, as he was made to discharge various duties at a time. An amount of Rs. 42,350/- could not be deposited by him in time, as it was lost somewhere. He did not disclose the said fact to the officials, apprehending that departmental action might be taken against him. He borrowed the said amount from his relations and later on deposited the same in the office. He asked for his reinstatement in service. However, he received another intimation from the defendants directing him to deposit remaining amount along with interest. He replied that the total amount, which was in his custody against the receipts issued by him, had already been deposited. On this, the defendants appointed an Enquiry Officer to conduct an enquiry against him. During the enquiry, he was never given an opportunity to get his statement record nor his signatures were ever obtained on any such document containing his statement. No docu- ment was ever shown to him on which the statement of the witnesses against him were recorded. He was even asked to sign on blank papers. His explanation was never demanded by the Enquiry Officer. Even copies of the enquiry reports were never supplied to him, inspite of his making repeated requests. As such, the whole enquiry, was vitiated, being against the principles of natural justice. -2- Regular Second Appeal No. 1380 of 2008 Even second enquiry was ordered against him by the Medical Super- intendent without disclosing any reasons for the same. He was never intimated in writing that there was a proposal for conducting second enquiry against him. Even in the second enquiry, no statement of his was ever recorded, nor also that of the witnesses. Alleging that the defendants acted in a malafide and motivated manner and that the procedure adopted in terminating/dispensing with his services vide order dated 23.10.1999 was totally wrong, illegal, unjust, unfair, arbi- trary, null, void and unconstitutional, he prayed for setting aside the same, with the further prayer for his reinstatement in service along with all the consequential benefits of service. The stand of the defendants was that the plaintiff joined the service on 16.11.1983. It was denied that his services were con- firmed on 14.4.1988. He was directed to deposit the remaining amount along with interest, besides liable to pay interest at the rate of 18% per annum for temporarily misappropriating an amount of Rs. 1,69,900/-, but he failed to do the same. Other averments of the plaint were denied. It was categorically submitted that the defen- dants followed the due process, while awarding the punishment. It was also averred that the suit was not maintainable in the present form and the plaintiff was not entitled to the discretionary relief, as he misrepresented and suppressed the material facts from the Court. -3- Regular Second Appeal No. 1380 of 2008 On the pleadings of the parties, learned trial Court framed the following issues : 1. Whether the order dated 23.10.1999 passed by the Medical Superintendent is wrong, illegal, null and void ? OPP. 2. If issue No. 1 is proved, then whether the plaintiff is entitled to relief of declaration as prayed for ? OPP. 3. Whether the plaintiff has served notice under Section 80 of C.P.C. upon the defendant before fil- ing the present suit? OPP. 4. Whether the suit is not maintainable in the pres- ent form ? OPD. 5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 6. Whether the Court has no jurisdiction to try this suit ? OPD. 7. Whether the plaintiff has no cause of action to file the present suit ? OPD. 8. Relief. Plaintiff-respondent appeared as PW1 and closed his evi- dence in affirmative. On the other hand, the defendants-appellants examined DW1 Kashmir Singh and closed their evidence. -4- Regular Second Appeal No. 1380 of 2008 After going through the evidence brought on record, learned trial Court held that the enquiry proceedings against the plaintiff-respondent were totally vitiated, being in stark violation of the principles of natural justice as he was denied his valuable right of opportunity of being heard. It was also held that his suit was main- tainable as his services had been illegally terminated/dispensed with and therefore, he could enforce a civil right by filing the suit. The suit was, accordingly, decreed by learned Civil Judge (Junior Division), Amritsar on 10.10.2005 by setting aside the order of termination dated 23.10.1999 along with all consequential benefits of service. Aggrieved of the same, the defendants filed an appeal, which was, however, dismissed by learned Additional District Judge (Ad hoc) Fast Track Court, Amritsar on 5.9.2007. Findings arrived at by the learned trial Court were upheld. The defendants are now in second appeal before this Court under Section 100 of the Code of Civil Proce- dure. The main grouse of the appellants is that the suit filed by the respondent for declaration that he could not be removed from service and was entitled to reinstatement was not maintainable for the reason that it had been filed against a private institution, which did not come under the definition of ‘State’ under Article 12 of the Constitution nor it was an instrumentality of the State. The only rem- edy available to the respondent was to seek damages. Reliance in -5- Regular Second Appeal No. 1380 of 2008 this regard has been placed upon Executive Committee of Vaish De- gree College, Shamli and others v. Lakshmi Narain and others, AIR 1976 SC 888 and Vishwakarma Education Society (Regd.) v. Madhu Dhamija, Rohtak 1996(1) PLR 288. On the other hand, learned counsel for the respondent submitted that the services of the respondent had been illegally ter- minated from the post to which he had civil right, which he was enti- tled to enforce by filing the suit. On the basis of the evidence led by the parties, learned trial Court rightly came to a conclusion that the respondent had been denied the opportunity of being heard at various stages. Even the defendants admitted that the disciplinary authority was not bound to communicate the fact regarding holding of second enquiry. In this regard reliance was placed upon cross-examination of Kashmir Singh DW1, who stated that although the plaintiff had made an application for supplying him copy of the second enquiry report yet the same was not done. It was also admitted by him that even show cause notice was not served upon the plaintiff before passing the order of punishment. This assumes importance in view of report of Ex. PW1/16 pertaining to the first enquiry, wherein it was recommended that the plaintiff be reinstated in service after degrading him. Ex. PW1/20 is the letter regarding holding of second enquiry. No reasons, whatsoever, had been given in the same as to why the -6- Regular Second Appeal No. 1380 of 2008 second enquiry was to be held. It was, accordingly, held that the order regarding holding of second enquiry was passed in a mechani- cal manner. Even copy of the report of second enquiry was not given to the plaintiff nor he was given any show cause notice before his services were terminated. Accordingly, it was held that valuable right of the plaintiff of being heard was denied to him, which was against the principles of natural justice. The above findings arrived at by the learned trial Court were rightly accepted by the learned first appellate Court. In such a situation, the plaintiff could enforce his civil right of asking for setting aside the order of termination of his services by filing the suit. In the case of Executive Committee of Vaish Degree College (Supra) , it was held by the Hon’ble Supreme Court that the relief of declaration and injunction under the provisions of the Specific Relief Act, was purely discretionary and the plaintiff could not claim it as a matter of right. The relief had to be granted according to sound legal principles and ex debito justitiae. The Court had to administer justice between the parties and could not convert itself into an instrument of injustice or an engine of oppression. The relevant observations, as contained in para 26 of the judgment, are as under :- “It seems to us that neither the first Additional Civil and Sessions Judge nor the High Court, while decreeing the plaintiff’s suit, considered this as- -7- Regular Second Appeal No. 1380 of 2008 pect of the matter whether this was a fit case in which the discretion should have been exercised in favour of the respondent. It is manifestly clear from the authorities discussed above that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The re- lief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the par- ties and cannot convert itself into an instrument of injustice or an engine of oppression. In these cir- cumstances, while exercising its discretionary powers the Court must keep in mind the well set- tled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum.” In the aforementioned decision, the Court declined to ex- ercise its discretion to grant a declaration or injunction on the ground that the plaintiff therein had served the institution for a short period of two years only and if the declaration or the injunction sought for was granted, the result would have been that he would have to be paid his full salary with interest on the provident fund for full nine -8- Regular Second Appeal No. 1380 of 2008 years even though he had not worked in the institution for a single date during that period. On the other hand, in the present case, the plaintiff had worked in the institution from 16.11.1983 till 18.12.1998 when he was suspended from service. Moreover, at the time of his suspension, the plaintiff was only working as a Staff Nurse and not holding any high post, like that of Principal of the College, as in the aforementioned judgment of Hon’ble Supreme Court. The judgment in Vishwkarma Education Society (Regd.) (Supra) was delivered on the basis of the aforementioned judgment of the Hon’ble Supreme Court. Moreover, the decision was rendered on a revision filed by the defendants, whereby they had challenged the interim order of reinstatement of the plaintiff therein. Still, it was held that the plaintiff could seek damages. As such, both the afore- mentioned judgments are not directly applicable to the facts and cir- cumstances of the present case. Learned counsel for the appellants submitted that even if the order of termination was not as per the provisions of law, still the learned lower Courts could not order reinstatement of the plaintiff- respondent and, that too, with all consequential benefits. After holding that order dated 23.10.1999 passed by the defendants terminating/dispensing with the services of the plaintiff- respondent was against the principles of natural justice as it had been -9- Regular Second Appeal No. 1380 of 2008 passed without giving any effective opportunity of being heard, the learned Courts below set aside the same. No option was given to the defendants to consider the matter afresh. Under these circum- stances, the learned Courts below could rightly grant the benefit of reinstatement with consequential benefits of service to the plaintiff- respondent. In case the learned Courts below had given an option to the authorities to consider the matter afresh from a particular stage, only then the passing of order regarding reinstatement with all con- sequential benefits of service could have been improper. There is nothing available on the file from which it could be said that case for reinstatement with all the consequential benefits of service was not made out. The concurrent findings of facts arrived at by the learned Courts below are based on proper appreciation of evidence led by the parties. These findings cannot be disturbed in a second appeal. None of the substantial questions of law, as claimed by appellants, arises for consideration. The appeal is without any merit and, therefore, dis- missed. ( T.P.S. MANN ) July 29, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -10-