- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: J U D G M E N T Smt. Usha Sahni vs. State & Ors. S.B. CIVIL FIRST APPEAL NO.613/2004 UNDER SECTION 96 AND 151 READ WITH ORDER 41 RULE 25 CPC AGAINST THE JUDGMENT AND DECREE DATED 8.12.2003 PASSED BY SHRI NAR SINGH VYAS, RHJS LEARNED ADDL. DISTRICT JUDGE (FAST TRACK) NO.2, JODHPUR IN CIVIL ORIGINAL SUIT NO.440/2003 DATE OF JUDGMENT : 18 February, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA REPORTABLE Mr.OP Sawhney, for the appellant. Mr.N. Moolchandani, Dy. GA for the respondents. <><><> BY THE COURT: Heard learned counsel for the appellant as well as learned counsel for the respondent. The plaintiff filed the suit for award of damages of Rs.71,500/- on account of damages which according to her she suffered because of initiating departmental inquiry against her by - 2 - the respondents-defendants as it caused mental harassment and mental torture to the plaintiff. According to plaintiff, the respondents treating her to be the officer incharge on behalf of the State in Civil Original Suit No.21/85, initiated departmental inquiry against the appellant- plaintiff wherein she was exonerated by order of the disciplinary authority dated 24th July, 1993. The appellant's-plaintiff's contention is that the respondents from the very beginning were well aware that the appellant was not the officer incharge in the said civil original suit no.21/85 but still she was asked to submit her explanation and when she submitted her complete explanation, then by ignoring that explanation, the respondents decided to hold inquiry under Rule 17 of the CCA Rules of 1958. During this period of inquiry, which continued from the month of Feb., 1993 to July, 1993, promotions were given to the persons junior to the appellant-plaintiff and even after her exoneration in the said departmental inquiry, further promotions were given to the persons junior to the appellant-plaintiff. However, the appellant's admitted that matter of her - 3 - promotion was kept in sealed cover by decision dated 3rd Dec., 1993. The appellant challenged the order of the department dated 3rd Dec., 1993 by filing SBCWP No.5931/1993. The said writ petition was decided by this Court by order dated 3.2.1994 and the copy of the said decision of this Court was sent to the defendant no.2 by the plaintiff-appellant by speed post on 11.2.1994. Appellant also submitted a contempt petition being S.B. Civil Contempt Petition No.99/1994 and, thereafter only on 23rd May, 1994, the plaintiff-appellant was given promotion and was posted in Jodhpur itself. In pursuance of the order of promotion dated 23rd May, 1994, the plaintiff-appellant joined the duties of her post of promotion on 25th May, 1994. The plaintiff further stated in the plaint that neither she get the salary from 7.1.1994 to 24.5.1994 nor she was given due increments. The plaintiff also pleaded that before all that on 28th Sept., 1992, she came to know from one of her husband's friend that during visit of Hon'ble Chief Minister, some school children held demonstration and in that demonstration they shown banner wherein - 4 - plaintiff's name has been shown as a corrupt officer and that caused mental torture to the plaintiff. However, fortunately, her name was not shown in the news published by the newspapers on the next day. The plaintiff further pleaded that on 29th Sept., 1992 she gave a letter to the defendant no.2 through defendant no.4 and prayed that the action may be taken against the officers of the Education Department because of their corruption. The said letter was sent for proper action by defendant no.4 to defendant no.2 on 30th Sept., 1992. The defendant no.2 also sought explanation of the plaintiff vide letter dated 12th Oct., 1992 and according to the plaintiff in the said explanation the principal question was whether the plaintiff was officer incharge in the above civil original suit no.21/85. The plaintiff gave her explanation and submitted that she was never officer incharge in the said case as she was holding the post of District Education Officer (Girls) and was incharge of Account Section only. The court cases were dealt with by the District Education Officer, General Section. The appellant's contention is that since the - 5 - respondents were knowing it well that she was not officer incharge in the said civil original suit no.21/85, still they initiated proceedings for departmental inquiry against the appellant for not conducting said case properly and granted promotions to the certain junior persons during short period of inquiry and gave promotion to the plaintiff but after delay, therefore, she is entitled for damages against the respondents, which is about Rs.50,000/- because of causing harassment to the plaintiff from 28th Sept., 1992 to 24th May, 1994, expenses for making correspondence Rs,5,000/-, expenses incurred by plaintiff on telephone Rs.1,000/- and Rs.3,500/- which she incurred for travelling to restore her position on the post of promotion and other travellings and the plaintiff also claimed Rs.6,000/- for expenses incurred by her for filing writ petition no.5931/1993 and contempt petition no.99/1994 as well as Rs.6,000/- for conducting SBCWP No.3472/1995. In total, the plaintiff claimed decree of Rs.71,500/- with interest @ 18% per annum. In the trial court an application was submitted by the defendants pointing out that - 6 - plaintiff claimed salary for the period from 7.1.94 to 24.5.94 treating her to be on duty with pay and also claimed interest @ Rs.18% per annum. The appellant also preferred writ petition no.3475/1995 which has been rejected by the High Court on 27th Sept., 1996 and the High Court observed that the relief, which has been claimed in the writ petition, is already subject matter in the appeal preferred before the Rajasthan Civil Services Appellate Tribunal. On this application, the trial court vide order dated 24th Oct., 1996 ordered that the plaintiff may file amended plaint as per Order 6 Rule 2 CPC. Thereafter, one application under Order 7 Rule 11 CPC was submitted by the defendants, upon which, the trial court held that no cause of action has been disclosed against the defendants nos. 3 to 8 and, therefore, the suit against the defendants nos. 3 to 8 was dismissed by the trial court. While allowing the defendants' application and rejecting the plaint of the plaintiff against the defendants nos. 3 to 8, the trial court observed that in case, the suit will be decreed against the defendants nos. - 7 - 1 and 2- State of Rajasthan and the Director, Education Department of the Government of Rajasthan then the court may also determine the liability of any of the defendants nos. 3 to 8. Therefore, the suit remained against the defendants nos. 1 and 2 -State of Rajasthan and the Director, Primary and Secondary Education, Bikaner. The trial court framed the issues and the plaintiff gave her statement and produced witness PW-2 Laxmi Sharma, PW-3 OP Shani, PW-4 Dr. DK Ranley and closed the evidence without reserving any right to lead evidence in rebuttal. On behalf of the defendants, witness DW-1 Nathulal Verma, the then District Education Officer (Primary), Jodhpur was examined. The plaintiff in her evidence produced as many as 127 documents whereas the defendants produced 5 documents in support of their case. The trial court in the impugned judgment held that the plaintiff failed to prove that she was not officer incharge in civil original suit no.21/85 and other officer – District Education Officer (Girls), Jodhpur was appointed as officer incharge. The trial court observed that - 8 - it cannot be believed that the plaintiff went as witness in the said suit and not as officer incharge. The trial court also rejected the plaintiff's contention that since she was directed to give statement in said suit, therefore, she appeared as witness in the suit filed against the State and merely because she appeared as witness in the said suit she cannot be treated to be officer incharge. The trial court also held that in said civil suit, the plaintiff was appointed as officer incharge by virtue of her post. The defendants also produced Ex.A/1 by which she was authorized to take part for assisting in the court cases. The trial court also held that in view of the order Ex.A/3,the plaintiff was officer incharge in said case. For holding as above, the trial court considered the preponderance of probabilities also. On the basis of the above finding, the trial court held that there was reasonable reason for giving charge-sheet to the plaintiff by the respondents and, therefore, the plaintiff is not entitled to any decree for damages, may she has been exonerated from the said charge. - 9 - The trial court rejected the appellant's claim for each and individual item under which she claimed damages. Ultimately, the suit of the plaintiff was dismissed vide judgment and decree dated 8th Dec., 2003,hence, this appeal. Learned counsel for the appellant vehemently submitted that the trial court committed serious error of law in holding the plaintiff to be officer incharge in the said suit. The finding runs contrary to the documentary as well as oral evidence and further contrary to the trustworthy documentary evidence of the defendants themselves. Learned counsel for the appellant vehemently submitted that when defendants' witnesses gave total false statement in court then plaintiff sought permission to lead evidence in rebuttal and that was denied by the trial court vide order dated 19th April, 2002. Said order deprived appellant from rebutting the evidence of the defendants, which according to the appellant-plaintiff is nothing, but a total lie. The appellant also submitted an application under Order 18 Rule 17 and 17A CPC on 17th May, 202 and prayed that the defendants' witness DW-1 Nathulal Verma gave - 10 - vague statement and to clear the ambiguity, the witness may be recalled. The trial court rejected the plaintiff's said application after observing that after going through the statement of the witness DW-1 Nathulal Verma, the court finds no ambiguity in the statement, which requires further clarification or further cross- examination. The trial court also held that so far as how much statement of DW-1 is to be relied upon can be decided at the time of final decision only. Learned counsel for the appellant vehemently submitted that the trial court should have allowed further cross- examination of defendants' witness DW-1 Nathulal Verma and the order of the trial court dated 14th Oct., 2003 is liable to be set aside. Learned counsel for the appellant also submitted that the appellant-plaintiff submitted an affidavit in the trial court on 20th Oct., 2003, but that affidavit was not considered by the trial court anywhere nor defendants were called upon to give reply to the affidavit of the plaintiff and the trial court without considering said affidavit and without rebuttal of that affidavit, heard the final arguments in - 11 - the case and dismissed the suit of the plaintiff. According to learned counsel for the appellant, the trial court should not have ignored the affidavit of the plaintiff nor could have refused to call upon the defendants to explain all facts and issues which have been raised by the plaintiff in her affidavit dated 20th Oct., 2003. So far as merits is concerned, learned counsel for the appellant relied upon the office order Ex.1 dated 31st Dec., 1990 by which the appellant-plaintiff was transferred to the post of Senior Special Divisional Education Officer (Girls) and order Ex.13 passed by the Addl. Director (Admn.) Primary and Secondary Education, Bikaner dated 24th July, 1993 by which she was exonerated from the charge of not handling the civil original suit no.21/85 properly on behalf of the State after accepting the appellant's-plaintiff's plea that she was never officer incharge in the civil original suit no.21/85. For the same purpose, the appellant relied upon her letter Ex.37 by which she conveyed to the District Education Officer that she has not received any order appointing - 12 - her to be the officer incharge in the case. She appeared in the court in above case in compliance of the direction issued by the District Education Officer to appear in said case for giving evidence. The appellant also relied upon her statement recorded in the said civil suit on 6.2.1992. In this appeal after arguments, the appellant submitted an application under Order 41 Rule 27 CPC on 13th Dec., 2007 and prayed that additional evidence may be taken on record, which includes the copy of the Civil First Appeal filed against the judgment and decree of the trial court passed in the above civil original suit no.21/85 and applications filed in the said appeal and the affidavits, which were filed by the other officer incharge on behalf of the State and prayed that the above documents came in her possession during or at the end of trial of the suit and some of the documents came in her possession in March, 2007 only. According to learned counsel for the appellant from these documents it is clear that appeal was preferred by the District Education Officer (Girls), Education Department, Jodhpur to - 13 - challenge the judgment and decree of the trial court passed in the civil original suit no.21/85 dated 25th April, 1992. In the affidavit submitted alongwith the application filed under Section 5 of the Limitation Act as well as under every sign of said District Education Officer (Girls), Jodhpur it is clearly mentioned that the said District Education Officer (Girls) was the officer incharge not only in the appeal, but was officer incharge in the civil original suit no.21/85. In view of the above additional evidence also, it is clear that the finding of the trial court holding the appellant to be officer incharge in the suit is absolutely illegal. According to learned counsel for the appellant, the appellant herself approached her higher authorities for holding an inquiry against some officers for their inaction and for their corruption and particularly, in the matter, which was involved in the suit itself then her bonafides cannot be doubted and she would not have approached the higher authorities for inquiry against the other officers had she been the officer incharge in the suit on behalf - 14 - of the respondent -State and was negligent. In the brief appeal, the appellant raised the ground that the learned trial judge has erred in not exercising his jurisdiction to order ex- parte proceedings against the respondents- defendants nos. 3 to 8. when they did not appear in court inspite of service of summons on them and the trial court committed error of law by rejecting the plaintiff's application filed under Order 6 Rule 5 CPC, which would have shortened the litigation. The appellant was not given opportunity to rebut the evidence of the defendant inspite of fact that appellant- plaintiff pointed out to the trial court that the evidence given by the defendants is false and vague and contains lot of inconsistencies and mis-statements, which could be clarified by the appellant-plaintiff only. The appellant also assailed the observation of the trial court on evidence of the witness PW-4, the doctor who gave evidence about the plaintiff's sickness. It is also challenged in the memo of appeal that the trial court did not frame the proper issue and that was whether the plaintiff was officer incharge of the case or not. It is also - 15 - assailed that observation of the trial judge that disciplinary authority did not hold any inquiry on the issue whether the plaintiff was officer incharge in the case or not. Learned counsel for the respondents supported the judgment of the trial court and submitted that the appellant was officer incharge by virtue of her post and she herself appeared in the court in the said case and she also contacted the Government Advocate. Learned counsel for the respondents relied upon the order of the District Education Officer (Girls) dated 29th June, 1991 whereby the appellant was directed to submit report about the various pending cases of the department, copy of which is placed on record as Annex.A/1. The office order Ex.A/3 whereby the Senior Dy. District Education Officer (Girls), Jodhpur was appointed as officer incharge to conduct the case filed by Ram Singh S/o Bajrang Singh (the case in question). This appointment was not by name but was by post and the appellant was holding the said post as appellant herself admitted that she was holding the post of Senior Dy. District Education Officer (Girls), Jodhpur ( वरष उप ज ल - 16 - श क अशक  (छ त ), प ). Copy of the said order is Ex.A/3. Another letter relied upon by learned counsel for the respondents is Ex.A/4 whereby the appellant was conveyed that from earlier time, Senior Dy. District Education Officer (Girls) is the officer incharge and, therefore, she was directed to appear in the said case for evidence. In view of the above documentary evidence, the appellant was officer incharge in the said case and departmental inquiry was conducted against her because of the valid reasons in view of the decision of the court given in the civil original suit no.21/85 wherein the department was of the view that the officer incharge did not conduct the case properly. It is submitted that in inquiry under Rule 17 of the CCA Rules, the appellant- plaintiff may have been exonerated, but the scope and ambit of the said inquiry is entirely different and it cannot be said that the initiation of the inquiry itself was malafide on the part of any of the officers. It is also submitted that otherwise also, the appellant was not entitled to any relief in the suit because of the reason that none of the act of the - 17 - respondents or its officers gave actionable cause to the appellant-plaintiff for claiming damages even if there was any error of judgment of any officer in holding the appellant to be the officer incharge in the civil original suit no.21/85 and taking a decision to initiate inquiry. Learned counsel for the respondents also contested all the legal issues raised by the appellant in this appeal. I considered the submissions of learned counsel for the parties and perused the record also. The facts in nut shell are only that a civil suit was pending against the State having no.21/85. In that suit, the plaintiff while holding the post in Education Department, on some occasions appeared and also gave her statement. Because of some observations made in the judgment of the civil original suit no.21/85 against the State, the respondent-State's department was of the view that departmental inquiry against the appellant-plaintiff be conducted and for which explanation was sought for from the appellant by defendant no.4 by issuing letter dated 12th Oct., 1992. The - 18 - plaintiff replied to this letter. The appellant's contention is that she apprehended that she may be suspended and, therefore, she suffered mental torture. When plaintiff did not receive any communication of further departmental inquiry, then she gave a letter on 20th Dec., 1992 to the defendant no.2 and requested for holding an independent inquiry against the guilty persons, but on 10.2.1993, the charge-sheet was given to the appellant- plaintiff. The appellant-plaintiff submitted her representation against the charges and submitted that she was never officer incharge in the civil original suit no.21/85. The plaintiff also gave more letters for dropping the proceedings against her and initiating proceedings against other guilty persons and also vide registered letter dated 12th April, 1993 requested the defendant no.2 to exonerate her from the charges and ultimately, the appellant was given full opportunity of hearing on 22nd July, 1993 and she was exonerated in the inquiry conducted under Rule 17 of the CCA Rules vide order dated 24th July, 1993. Therefore, the entire period of departmental inquiry was from - 19 - 10.2.1993 to 24.7.1993. The appellant also submitted writ petitions being SBCWP Nos.5931/1993 and 5462/1993 as well as preferred appeal before the Rajasthan Civil Services Appellate Tribunal for various reliefs. The appellant had full knowledge of the civil original suit no.21/85 and had knowledge of the appeal preferred against the judgment and decree passed in civil original suit no.21/85. After the decision of the trial court on 8th Dec., 2003, the appellant preferred appeal before this Court on 5th July, 2004 and submitted an application under Order 41 Rule 27 CPC after the arguments and when the case was reserved for pronouncement of judgment. The application of the appellant for taking on record the above documentary evidence can be rejected only on the ground that there is no reason given by the appellant for not filing the above documents in the trial court or alongwith this appeal and on earlier occasion before hearing of the arguments. Further, it appears from the above documents that these all documents are certified copies of the memo of appeal and the applications and affidavits submitted before the - 20 - appellate court in appeal preferred against the decision of the civil original suit no.21/85, which was decided on 25th April, 1992. This Court is of the view that root question is that if it is held that plaintiff was not officer incharge in the civil original suit no.21/85 on behalf of the State and even if the respondents decided to hold an inquiry against the appellant treating her to be officer incharge in civil original suit no.21/85 and departmental inquiry continued for the period from 10.2.1993 to 24.7.1993 whether, can it be said to be a malafide action of the respondents and respondents' officers so as to give actionable cause of action to the plaintiff. The above is the core issue and goes to the root of the matter. The civil wrongs may be of two types, one is of wrong simplicitor giving no actionable cause to the victim and another is civil wrong giving actionable cause to the victim. To find out whether any actionable cause accrued to the party, all relevant facts and circumstances are required to be considered, which includes the relationship between the parties. In the present case, the appellant was officer of the - 21 - respondent State and was holding the post of responsibility. The respondent department's officers before initiating departmental inquiry against her, issued a notice to the appellant and sought her explanation for which they were entitled to as per the service rules applicable to the plaintiff-appellant. After obtaining the explanation if the department and the department's officers decided to hold an inquiry with respect to the conduct under the provisions of relevant rules governing the service conditions of the appellant-plaintiff, they could have done so. If the action is malafide from the beginning or became malafide subsequently because of any reason to cause harm to the appellant and has been caused loss to aggrieved party may it be mental torture or humiliation or monetary loss, the aggrieved could have sought relief from the civil court by filing suit for damages against the guilty persons. The malafides may be malafide in law and malafide in fact. In the present case, the plaintiff-appellant has alleged that the fact was in the knowledge of the respondents and that fact was that plaintiff-appellant was not - 22 - officer incharge in the civil original suit no.21/85, still they proceeded against the appellant. There is no pleading in the plaint that before initiation of any action against the plaintiff-appellant any officer had malafide intention to cause harm to the appellant, therefore, appellant had drawn inference from the act of the respondents of serving notice upon the appellant and calling upon explanation from the appellant about her conduct in the civil original suit no.21/85, which according to the appellant was uncalled for. From above facts, it appears that the allegation of the appellant against the respondents was not allegation of malafides in fact but malafides in law only. For claiming damages in such situation, one