R.S.A. No. 2518 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. R.S.A. No. 2518 of 2010 (O&M) Date of decision : 16.8.2010 ... Haryana State through Collector, Hisar District, Hisar and another ................Appellants vs. Dharam Chand .................Respondent 2. R.S.A. No. 2542 of 2010 (O&M) ... Haryana State through Collector, Hisar District, Hisar and others ................Appellants vs. Dharam Chand .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ajay Gulati, Deputy Advocate General, Haryana. ... K.C. Puri, J. By this judgment, I intend to dispose of RSA Nos. 2518 of 2010 and 2542 of 2010. The facts have been taken from RSA No. 2518 of 2010. There is a delay of 70 days in filing the both the appeals. The R.S.A. No. 2518 of 2010 -2- same stands condoned on the grounds mentioned in the applications. These two regular second appeals have arisen out of judgment dated 18.12.2009 passed by Ms. Neena Chaudhary, Additional District Judge, Hisar, vide which the two appeals preferred by the defendant-appellants against the judgment dated 28.1.2009 passed by Sh. J.B. Gupta, Civil Judge (Senior Division), Hisar, were dismissed. Plaintiff Dharam Chand filed a suit bearing No. 53-C dated 28.2.2005, for declaration against the defendant-State of Haryana and others to the effect that he is entitled to get basic pay of Rs.5,000/- from 1.7.1998 with all consequential benefits and allowances and regular increments as per scale of Rs.5000-7850 from the defendants with consequential relief of mandatory injunction. The brief facts of the case of the plaintiff was that he was appointed as Conductor in the Haryana Roadways on 25.3.1977. He was penalized by defendant No.3 on the ground of fraud alleged to have been committed by him on 4.5.1993 as Conductor and by the order dated 26.5.1998 passed by defendant No.3 two permanent increments and one temporary increment were stopped. It was further pleaded that as the plaintiff had completed his 20 years of service in the Haryana Roadways, so he was granted ACP grade and pay scale of Rs.5000-150-7850 from 1.7.1996. It was further pleaded that after discharging the liabilities/penalties as per order dated 26.5.1998, the plaintiff was entitled to get pay scale of Rs.5000/- from 1.7.1998 with regular increments in future. The plaintiff was entitled to get Rs.5150/- from 1.7.1999 and pay as per scale onwards. He has also R.S.A. No. 2518 of 2010 -3- sought interest @ 18% per annum on the arrears from 1.7.1998 onwards. Defendants filed joint written statement taking preliminary objections regarding locus standi, cause of action, maintainability. It is pleaded that plaintiff got the ACP benefit from 1.8.1998 wrongly in collusion with the official of the office of the defendants and was granted pay scale of Rs.5000-150-7850 from 1.7.1996. The same was withdrawn vide order dated 18.7.2005. The suit is premature, the plaintiff has not come to the Court with clean hands. On merits, it was contended that on 4.5.1993 while the plaintiff was on duty at Bus No. 5379 as Conductor, he committed fraud of Rs.102/- by not issuing the tickets, issuing old tickets and committed misbehave with the checking staff. He was charge sheeted under Rule 7 of which he did not give reply. To know the reality of the case, an Enquiry Officer was appointed who conducted a legal and proper enquiry and found the plaintiff guilty of the charges leveled against him. A show cause notice for termination alongwith restriction of suspension period was served upon the plaintiff, of which he gave reply but the same was not found to be satisfactory. He was heard personally on 31.3.1998 but he could not prove any defence in his favour and thereafter order dated 26.5.1998 was passed. It was further contended that he was appointed as Conductor on 25.3.1977. As per appointment letter his 20 years service would complete on 25.3.1997 but there was non- qualifying service of 1 year 3 months and 20 days. As per ACP rules the period is to be deducted in counting the qualifying service. So, after deducting that period he completed 20 years regular and R.S.A. No. 2518 of 2010 -4- satisfactory service on 15.7.1998 upon that the plaintiff was granted the benefit of ACP on 8.5.2000 w.e.f. 1.8.1998. It was contended that at the time of careful examination of the record of the plaintiff, it was found that plaintiff was not entitled for the ACP which was paid to him already because it was noticed that there was forged signatures of the then General Manager in the ACR for the year 1993-94. A Photostat copy of the ACR for the year 1993-94 of the plaintiff was found in his record in which his integrity was shown Zero. The dispatch register shows that the ACR for the year 1993-94 was conveyed to the plaintiff vide memo dated 25.11.1994. All this shows that the ACR of the plaintiff for the year 1993-94 was adverse but some one committed mischief and prepared a bogus ACR by showing it Good with motive to get undue benefit. Both ACRs were sent to the then General Manager Shri M.P. Bansal, IAS, for verifying his actual signature vide letter dated 11.10.2004, upon which he remarked that his signature on ACR in question (Exhibit D-26) was correct while on Exhibit D-25 was found forged signature. As per ACP rules there should be 100% honesty and no adverse remarks should be about integrity. A show cause notice to withdraw the ACP and for its recovery was issued to the plaintiff of which he gave reply but the same was found unsatisfactory. He was hear personally in this regard on 15.7.2005, in which he could not prove any solid proof. Hence, the order dated 18.7.2005 was passed, according to which his ACP was withdrawn and pay was re-fixed. Replication was filed controverting the pleas taken in the written statement and reiterated the stand taken in the plaint. R.S.A. No. 2518 of 2010 -5- From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to a decree for declaration to get basic pay of Rs.5000/- from 1.7.1998 with all benefits and allowances on the grounds as alleged in the plaint? OPP. 2. Whether the defendants are liable to be directed to pay the arrears to the plaintiff, as alleged in the plaint? OPP. 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action or locus standi to file the present suit? OPD 5. Whether the plaintiff has not come to the Court with clean hands? OPD 6. Relief. Another suit bearing No. 187 C dated 15.10.2005 for declaration titled as Dharam Chand vs. State of Haryana and another was filed. Learned trial Court has decided both the suits No. 53-C and 187-C, vide common judgment dated 28.1.2009 passed by Sh. J.B. Gupta, Civil Judge (Senior Division), Hisar. Learned trial Court after hearing both the sides, decreed the suit of plaintiff to the extent that he is entitled to basic salary of Rs.5000/- from 1.7.1998 with all benefits. Feeling dissatisfied with the above said judgment dated 28.1.2009, the State of Haryana filed two civil appeal Nos. 27 of 2009 and 28 of 2009. Both the appeal were decided against the defendant- R.S.A. No. 2518 of 2010 -6- appellants, vide judgment dated 18.12.2009, passed by Ms. Neena Chaudhary, Additional District Judge, Hisar. Still feeling dissatisfied with the judgments dated 18.12.2009 and 28.1.2009, referred to above, the present two regular second appeals have been filed. The appellant in paragraph No. 6 of the grounds of appeal has mentioned that following substantial questions of law are involved in the present appeal:- i) Whether the suit of the plaintiff can be decreed when proper enquiry was conducted by the department? ii)Whether the ACP grade as prayed for by the plaintiff/respondent can be granted when the ACR of the plaintiff/respondent is not upto the mark? iii)Whether the benefit of ACP granted to the plaintiff/respondent under wrong impression can be withdrawn when the forgery of signature of General Manager on the ACR was realized? Learned counsel for the appellant has submitted that ACR of the plaintiff for the year 1993-94 was adverse. The plaintiff prepared bogus ACR by showing the same as Good with ulterior motive to get the undue benefit. After verifying the actual signatures vide Exhibit D-26, the ACR which was bad, was found to be genuine. The plaintiff was entitled to benefit of 2nd Grade only if his ACRs are good and there is 100% honesty and no adverse remarks regarding integrity as well. Plaintiff was issued show cause notice and thereafter order dated 8.5.2000 was withdrawn. R.S.A. No. 2518 of 2010 -7- I have carefully considered the said submission, but do not find any force in that submission. There is concurrent finding of both the Courts below that no adverse remark has been conveyed to the plaintiff. It has been further observed by both the Courts below that defendants have failed to prove that plaintiff has placed wrong ACR on the record. Both these facts are not the questions of law, but the questions of fact. Since there is concurrent finding of both the Courts below and as such the High Court cannot interfere in view of the provisions of Section 100 CPC. The questions of law raised by the appellants, in fact does not exist in the present appeals. So, in view of the above discussion, both the appeals are without any merit and the same stand dismissed. ( K.C. Puri ) 16.8.2010 Judge chugh