IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.136 of 2007 (O&M) Date of decision: 12.02.2009 Gurmej Singh ....Appellant versus State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. S.K.S. Bedi, Advocate for the appellant. Vinod K. Sharma, J(Oral) This regular second appeal is directed against the judgment and decree dated 27.02.2004 and 30.08.2006 passed by the learned Courts below vide which suit filed by the plaintiff-appellant for declaration to challenge the order of punishment stands dismissed. The plaintiff-appellant brought a suit to challenge the order dated 15.04.1996 passed by the D.I.G. Railways and Commando, Haryana and order dated 01.04.1997 passed by the D.G.P., Haryana, rejecting the revision petition, being illegal, null and void, ineffective and having no effect on the rights of the plaintiff. Consequently, plaintiff claimed the release of two increments. The allegations against the appellant-plaintiff were that one accused namely Vijay Kumar along with an attache-case was arrested by the police and he was produced before the S.I./S.H.O., Police Station, GRPs, Ambala Cantt. The accused was challaned under Section 109 Cr.P.C. and the recovered articles were taken into possession under Section 102 Cr.P.C. A departmental enquiry was held against the RSA No.136 of 2007 - 2 - plaintiff and the Enquiry Officer Shri Anil Dawra, the then Superintendent of Police, Haryana Railways, held him guilty of charge and imposed a penalty of stoppage of two future increments with cumulative effect. The plaintiff filed an appeal against the said order, which was dismissed by the D.I.G. Railways and Commando Haryana. The orders were challenged on the ground that they are against the law and facts, arbitrary, mala fide and against the principles of natural justice . It was also claimed that the review sought of the said order also stood dismissed. After his request for review failed, he issued a notice under Section 80 C.P.C. and finding no reply thereto, the suit was filed. The suit was contested and the allegations on merits were denied. It was asserted that the appellant-plaintiff was guilty of charge levelled against him. It was pointed out in the written statement that the witnesses were examined by the Enquiry Officer and the plaintiff was given full opportunity to cross-examine these witnesses. He was also allowed to produce the defence witnesses. After taking the defence statement, the Enquiry Officer submitted his findings holding the appellant-plaintiff guilty of the charge regarding failure to get the case registered against accused Vijay Kumar, but he was exonerated of the charge of misappropriation of a sum of Rs.400/-. The punishing authority issued a show cause notice to the plaintiff and after taking reply thereto, the order of punishment of stoppage of two increments with cumulative effect was passed. RSA No.136 of 2007 - 3 - On the pleadings of the parties, learned trial Court framed the following issues:- “(i) Whether impugned orders dated 17.11.95, 15.4.95 and 1.4.97 passed by competent authorities are illegal, null and void and have got no effect on the rights of the plaintiff? OPP (2) Whether the plaintiff is entitled to his two increments along with all other benefits of service? OPP (3) Whether plaintiff has no cause of action to file the present suit? OPD. (4) Whether no proper court fee has been affixed on the plaint? OPD. (5) Relief.” The learned trial Court dismissed the suit by observing as under :- “17. As it is already observed that pleading of the plaintiff, no where, provides for that on which ground, he is challenging the impugned orders. But, during the course of arguments, learned counsel for plaintiff has constrained his arguments to challenge the validity and legality of the impugned orders, in regard to Punjab Police Rule 16.38 (i) Vol.-II. By making the mention of above said Rule, it has been argued that earlier to taking of any departmental/disciplinary action against the plaintiff, it was required upon the part of the State of Haryana/defendants to obtain necessary concurrence of District Magistrate. Further, in regard of his such submission, he made references of case laws cited as Bhajan Singh Vs. Shri Bahal Singh, 1967 S.L.R. (P&H) 601, State of Haryana and another Vs. Surjan Singh 1990 (2), Services Law Reporter (P&H) 88, Union of India Vs. Ram Kishan, 1972 S.L.R. (SC) 11, and the State of Punjab Vs. Raj Kumar, 1989 (1) C.L.R. (SC) 386. At the same, it is seen that in regard of non- compliance of Rule 16.38, on file, it has come for the first time in the affidavit of the plaintiff, which was got tendered by him in his evidence.” “18. Since, there is no doubt about the above said mentioned Rule as well as case laws, but in the given circumstances, a legal question, definitely arises whether on the basis of evidence, in regard of which, there is no pleading, a suit can be got decreed. Legally and technically on the basis of the evidence, which is beyond pleadings, a suit can not be got decreed. Moreover, it is a well settled principles of law that evidence beyond pleadings is not RSA No.136 of 2007 - 4 - liable to be read to see the merits of the case. Accordingly, evidence which is led by the plaintiff to establish the merits of his case, is not admissible as per law and same can not be seen to establish the merits of his case. In the given circumstances, when there is no specific mentioning in the pleadings, on the basis of which ground, he has challenged the impugned order, plaintiff is not entitled for the relief on the basis of ground which does not form part of his pleadings. Accordingly, both of these issues are hereby decided against the plaintiff.” In appeal, the findings recorded by the learned Lower Court stand affirmed. Shri S.K.S.Bedi, learned counsel appearing on behalf of the appellant contended that this appeal raises a substantial question of law as to : Whether the appeal by delinquent could be dismissed without affording personal hearing by the Appellate Authority ? Learned counsel for the appellant in support of the substantial question of law has referred to para 3 of the plaint, which reads as under :- “3. That the orders of the Superintendent of Police, GRP Railway Haryana, Ambala Cantt dated 17.11.1995 and that of the D.I.G. Railways Haryana, Ambala Commando Haryana Panchkula dated 15.4.1996 are against law and facts, arbitrary, malafide, unconstitutional and against natural justice and in this way by stopping the two annual increments with permanent effect vide order dated 17.11.1995 of GRPS and the above order of DIG Railways and Commando Haryana Panchkula have caused great loss financial loss because of the illegal act of the Department/defendants.” He has also referred to the affidavit of the plaintiff-appellant given in examination-in-chief to contend that he has specifically stated in RSA No.136 of 2007 - 5 - the affidavit that an appeal was filed to DIG Railways (Ex.P-13) who without affording personal hearing dismissed the same (Ex.P-14). The contention of the learned counsel for the appellant is that the order being in violation of principles of natural justice could not be sustained and therefore, the substantial question of law deserves to be answered in favour of the appellant. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of this Court in the case of 'S.L.Loona v. The Punjab National Bank and another-1992(1) SLR Page 250, wherein this Court has been pleased to lay down that the dismissal of appeal without giving personal hearing cannot be sustained. Reliance was also placed on the judgment of Hon'ble the Supreme Court in the case of 'Sayeedur Rehman v. The State of Bihar and others-AIR 1973 Supreme Court 239,' to contend that right of hearing is a fundamental unwritten right for giving just decision by an authority which decides a controversial issue affecting the rights of rival contestants. Reliance is also placed on the judgment of Hon'ble the Supreme Court in the case of 'Ram Chander v. Union of India and others-AIR 1986 Supreme Court 1173, wherein it has been laid down by the Hon'ble Supreme Court that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. Learned counsel for the appellant also placed reliance on the judgment of the Full Bench of this Court in the case of 'Ram Niwas RSA No.136 of 2007 - 6 - Bansal v. State Bank of Patiala-1998(3) S.C.T. 550', to contend that waiver to personal hearing should be specific. However, on consideration of the matter, I find no force in the contentions of the learned counsel for the appellant. Proposition of law as canvassed cannot be disputed that appellate authority is bound to give personal hearing to the delinquent before deciding the appeal. However, substantial question of law as raised, does not arise for consideration in this appeal. It may be noticed that before the learned trial Court there was no specific plea that hearing in appeal was not given so as to enable the defendants to rebut this assertion rather the order was challenged on general grounds by mentioning therein that the order was in violation of principles of natural justice. The plaintiff-appellant could not take benefit of assertion in the affidavit regarding plea of personal hearing by appellate authority. There was no pleading that the appellate authority had not given personal hearing, before deciding that appeal. It is not open to plaintiff-appellant to raise this plea for the first time in regular second appeal by claiming it to be question of law. The point raised is question of fact which was required to be pleaded and proved by evidence. Even otherwise before the learned Courts below, the appellant challenged the order only by invoking the provisions of Rule 16.38 of the Punjab Police Rules to contend that the permission of the Sub Divisional Magistrate was pre-requisite before holding RSA No.136 of 2007 - 7 - departmental enquiry. Both Courts have recorded concurrent findings to decide the point raised against appellant. In view of what has been stated above, the substantial question of law raised does not arise for consideration in this appeal. No merit. Dismissed. (VINOD K. SHARMA) JUDGE 12.02.2009 sanjeev