Regular Second Appeal No. 722 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 722 of 2008. (O&M) Date of Decision: 30.3.2009 *** Harphool Singh. .. Appellant VS. The General Manager, Haryana Roadways, Kurukshetra & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. R.K. Moudgil, Advocate for the appellant. Mr. Ajay Gulati, AAG Haryana. *** ARVIND KUMAR, J. CM No. 1842-C of 2009 Heard. For the reasons mentioned in the application, the same is allowed and order dated January 30,2009, dismissing the appeal due to non-prosecution, is recalled and the appeal is ordered to be restored to its original number. Appeal is taken on Board for hearing today itself, as requested by counsel for the parties. There is delay of 351 days in filing the instant appeal. Heard. For the cause mentioned in the application, the aforesaid delay stands condoned. Through the instant appeal, the plaintiff-appellant is questioning the legality and impropriety of judgment and decree dated 29.8.2006 passed by the learned First Appellate Court below by dint of Regular Second Appeal No. 722 of 2008(O&M) 2 which the appeal filed by respondent-defendants has been accepted and the judgment and decree dated 27.2.2006 passed by the learned trial court, decreeing the suit, has been set aside. The plaintiff, working as Driver with the respondent- Department was served with a charge-sheet dated 15.9.1997 with the allegations that due to his negligent driving one person lost his life. He submitted reply to the charge-sheet which was found unsatisfactory and after issuing him a show cause notice dated 18.3.2002 punishment of stoppage of two increments permanently was imposed upon him vide order dated 28.10.2003. Thereafter, the plaintiff preferred an appeal which was dismissed by the competent authority on 21.7.2004, leading to the institution of the suit for declaring the charge-sheet dated 15.9.1997 as well as orders dated 28.10.2003 and 21.7.2004 as illegal. After contest the learned trial court decreed the suit and directed the respondent-Department to restore the increments of the plaintiff and the arrears thereof along with interest @ 9%, with a liberty to the Department to conduct enquiry afresh against the plaintiff, to be completed within 3 months. The respondent-Department then filed the appeal against the said judgment and decree of the learned trial court, which, as said above, has been upsetted by the appellate Court below, resulting into dismissal of the suit of the plaintiff. Hence this second appeal by the plaintiff. I have heard learned counsel for the parties and have gone through the paper-book carefully. A perusal of judgment passed by the learned trial court, it is emphatically clear that the trial court itself found that at each and every stage of enquiry as well as before imposing the punishment upon the delinquent, he was given opportunity of hearing as also to defend his case. But what impressed the learned trial court to hold the enquiry vitiated is the fact that the enquiry officer himself cross-examined the delinquent and his witnesses and thus, while relying upon the cases of Dhan Pal Vs. Union of India 1993(6) SLR 284 and N.K. Varadarejan Vs. Senior Deputy Director General 1991(1) SLR 667, held that the cross examination by the Enquiry Officer is prohibited and thus, held that the order dated 28.10.2003 imposing punishment upon the plaintiff is illegal and it accordingly set Regular Second Appeal No. 722 of 2008(O&M) 3 aside the same. In the case of Vishwa Nath (dead) through LRs Vs. Punjab State through Collector and another 2005(2) Service Cases Today 54, this Court has an occasion to discuss the scope and impact of cross examination of witness by the enquiry officer and it has been held in para No.7 as under:- “7. As far as the question that the Inquiry Officer himself has cross-examined the witnesses is concerned, the Inquiry Officer appointed to find out the truth on the basis of the statements of the witnesses produced by the parties. It may be noticed that no Presenting Officer was appointed and, therefore, if the Inquiry Officer has asked the questions to the witnesses produced by the parties to elucidate the truth, it cannot be said that there is any illegality which vitiate the inquiry proceedings..... “ Thus, while applying the ratio of law laid down in Vishwa Nath's case (supra), the learned first appellate Court below rightly held that the cross examination of witnesses by the Enquiry Officer, since there was no Presenting Officer and department witnesses were already examined, does not vitiate the enquiry proceedings and rightly set aside the findings of the learned trial court to that extent, which were returned on the basis of judicial pronouncements, having no applicability in the case in hand and rightly distinguished by the appellate Court below. The other ground on which the said punishment has been assailed is that the trial in the criminal case has culminated into acquittal of the plaintiff and thus, the report of the enquiry officer cannot be relied upon while holding the plaintiff guilty. There is no merits in the said contention. The Departmental proceedings as well as criminal trial are two different and distinguished proceedings and standard of proof in the departmental proceedings is not the same as in the criminal court, since in criminal cases it is essential to prove a charge beyond all reasonable doubts whereas in the departmental proceedings preponderance of probabilities would serve the purpose. Even otherwise it is apt to mention here that the acquittal of Regular Second Appeal No. 722 of 2008(O&M) 4 plaintiff in the criminal case was on technicalities as the eye-witness was not examined since he expired during the trial. Therefore, there is no hesitation in saying that the proposition canvassed by the learned counsel for the appellant is not sustainable and is liable to be rejected summarily. Thus, in the facts and circumstances of the case, it cannot be said that the approach of the learned Appellate Court below in dismissing the suit of the plaintiff is either illegal or perverse. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed. (ARVIND KUMAR) JUDGE March 30,2009 Jiten