IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2700 of 2005 Date of Decision: 18.5.2009 Ashok Kumar Gautam ....... Appellant through Shri H.K.Aurora, Advocate. Versus Punjab State Electricity Board, Patiala and others. ....... Respondent nos. 1 to 3 through Shri Jaswinder Singh, Advocate. Respondent no.4 through nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. By way of this Regular Second Appeal, the plaintiff-appellant has impugned judgments and decrees dated 15.12.2003 and 25.11.2004 passed respectively by the Additional Civil Judge (Senior Division), Patiala (hereinafter referred to as `the trial Court') and the Additional District Judge, Patiala (described hereinafter as `the First Appellate Court') whereby his suit and the appeal have been dismissed. The appellant filed a suit for declaration and permanent injunction against the respondents. It was his pleaded case that the order of his dismissal from service was erroneous. R.S.A.No.2700 of 2005 -2- .... A charge sheet was issued to the appellant on 23.4.1993 alleging that he had furnished a forged certificate of his having passed middle class examination to obtain the promotion on the post of Assistant Machine Attendant. He had submitted reply to the said charge sheet and the enquiry officer, who went into the allegations and submitted a report, which was stated to be given under pressure. It was pleaded that Shri Amrik Singh, Superintending Engineer, who is arrayed as respondent no.2, was against the appellant and Boota Singh, respondent no.4, was also inimical to him and respondent no.2 was assisted by respondent no.4 in getting him dismissed from service. The appellant had alleged that respondent no.4 was involved in a theft case of oil and that wife of respondent no.4 was from the village of respondent no.2, who had relations with her. The enquiry officer was stated to be under the influence of respondent no.2. It was the case of the appellant that the entire enquiry is against law and consequently, the order of dismissal suffered from infirmities. Upon notice, respondent nos. 1 to 3 appeared and filed their written statement contesting the suit. It was pleaded that the enquiry was fair and proper and the dismissal order of the appellant did not suffer from any infirmity or illegality. It was denied that the enquiry officer had acted unde the influence of respondent no.2. The suit was stated to be not maintainable in the present form. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP R.S.A.No.2700 of 2005 -3- .... 2. Whether the plaintiff is entitled to the decree of injunction as prayed for?OPP 3. Whether the suit is premature?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff has no cause of action?OPD 6. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the appellant had submitted a forged certificate and that the enquiry conducted against him was fair and proper and so was the dismissal order. Accordingly, the suit of the appellant was dismissed with costs. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Assailing the findings of the Courts below, learned counsel for the appellant contended that pursuant to the circular dated 26.12.1990, the appellant was given promotion as Assistant Machine Attendant and he joined on that post on 1.1.1991. He further contended that the said circular was silent about the qualifications and there was no requirement that a person should be middle pass. He, thus, submitted that the appellant never submitted a forged certificate. It was further submitted that in fact, the certificate which the appellant had submitted is on record as Exhibit-PC which shows that he had abandoned the middle class before completing the same. Learned counsel for the appellant argued that Exhibit P5 which is on record and upon which reliance was placed by both the Courts below to R.S.A.No.2700 of 2005 -4- .... hold the same was forged, was never submitted by the appellant and was submitted by respondent no.4, who was inimical to him. It was further argued that since no minimum educational qualifications were prescribed in circular dated 26.12.1990, the appellant was unaware of educational qualifications and in any case, there being no requirement, the certificate was not required to be given at all. He next contended that since the appellant had submitted certificate Exhibit PD and despite this, the promotion was given to him for which he cannot be penalized. He further contended that it was a case of promotion and not a case of appointment and no application was made by the appellant for the same. On the other hand, learned counsel for respondent nos. 1 to 3 contended that Exhibit P5 is clearly a forged document and that has been determined by the Courts below. He further contended that the appellant has been convicted in criminal proceedings on the same charge of forgery etc. The judgments passed by the Courts below were sought to be justified on the ground that any person, who gets public employment on the strength of forged certificate cannot be permitted to continue in service and, therefore, the findings recorded therein are perfectly in order. Learned counsel for respondent nos. 1 to 3 also urged that the relevant service rules prescribe the educational qualifications for the post of Assistant Machine Attendant, accordingly to which a person, who seeks to be appointed on that post, has to be a middle class pass. I have thoughtfully considered the rival contentions/ submissions/ arguments and have also perused the impugned judgments, as R.S.A.No.2700 of 2005 -5- .... also the record. If the contentions of the learned counsel for the appellant are to be evaluated, then a perusal of Exhibit P2, i.e., circular dated 26.12.1990 issued by respondent nos. 1 to 3, and on the basis of which the appellant had got promotion as Assistant Machine Attendant, reveals that the following requirements, were necessary to be met before a person could be appointed on the posts enumerated therein. The circular is in Gurumukhi and the English translation of the relevant portion thereof reads as under:-:- 1. In proof of your educational qualifications, the original certificate which you are having, then you should submit it along with two spare certified copies thereof. 2. You should not have been dismissed from the government/ board service or you have not undergone imprisonment for an offence of moral turpitude. 3. You should not have more than one living wife and you have not been married with such a person who is having living wife, in any case. 4. Your age should not be less than 18 years at the time of joining the services of the Board. 5. You will produce the medical certificate about your health and age from Principal Medical officer, B.B.M.B.Hospital, Talwara at your own cost,which is required for first entry into the Board/ government service.” A reading of Office Order No.47/ENG-28(7)L dated 8.6.1989, a R.S.A.No.2700 of 2005 -6- .... copy of which has been proved on record as Exhibit P1 and which was issued by the Punjab State Electricity Board when it decided to regularise the services of Work Charge Staff working Mukerian Hydel Project, shows that the following qualifications and experience were required to be fulfilled before the posts of Assistant Machine Attendants were filled up from the workcharged staff:- i) Middle Pass having minimum experience of 4 years on Electrical/ Mechanical side. Or ii) Matriculate having atleast 3 years experience on Electrical/ Mechanical side. Or iii) Holders of I.T.I. Certificate of Electrical/ Mechanical trades having atleast experience of one year on Electrical/ Mechanical side. In view of the above, it is hard to stomach the contention of the learned counsel for the appellant that the minimum educational qualifications were not prescribed for the post of Assistant Machine Attendant. Moreover, a clear requirement of producing certificate of educational qualification is reflected in Exhibit P2. It is the conceded case of the parties that the appellant was working as Fitter prior to his promotion as Assistant Machine Attendant. Respondent nos. 1 to 3 had pleaded that the appellant had produced certificate Exhibit P5 which was a forged document, whereas this certificate has been vehemently denied by the learned counsel for the appellant to contend that it was given by respondent no.4, who is inimical to the R.S.A.No.2700 of 2005 -7- .... appellant. This plea of the learned counsel for the appellant has to be rejected outrightly for the simple reason that this fact had not been pleaded in the plaint. The appellant had simply stated that respondent no.4 was inimical to him and respondent no.3 was acting at the former's behest. A fact which has not been specifically pleaded, cannot be taken into consideration and no evidence can be looked into for that purpose. It is also difficult to believe that Exhibit P5 would not have been furnished by the appellant as it is he only, who is to get the benefit out of the same and no body else would stand to gain by submitting such a document. Even if the Court was not to comment on the veracity of this document and the fact whether it was furnished by the appellant or not, the undeniable situation is that the appellant could not have got promotion as Assistant Machine Attendant in view of the circular, Exhibit P1, which required a person to be possessing minimum educational qualification of middle pass for such promotion. Learned counsel for the appellant has candidly admitted that the relevant service rules requires this qualification. He has, however, emphasized that circular, Exhibit P2 does not prescribe such a qualification. Even if it is to be accepted that circular, Exhibit P2, is silent on this issue, yet, in view of the fact that the relevant service rules, as well as, Exhibit P1, prescribe such a qualification, the natural corollary which would flow therefrom is that any person who seeks employment on a post would naturally be expected to possess qualifications which are prescribed for the same. R.S.A.No.2700 of 2005 -8- .... Learned counsel for the appellant has also raised an argum ent that since the appellant was an uneducated person, therefore, he was ignorant about the rules and regulations. I am afraid, such a plea cannot be accepted. A person, who seeks employment on a post, whether ignorant of the relevant service rules governing that post or not, has necessarily to fall within the parameters of those rules. Looking at it from any angle, since the appellant was not qualified, he could not have been permitted to continue on the post of Assistant Machine Attendant. In any eventuality, as observed earlier, the appellant had clearly submitted a certificate which was not authentic and, therefore, respondent nos. 1 to 3 were very well within their right to pass an order terminating the services of the appellant as any public employment obtained on the basis of fraud and misrepresentation, cannot be allowed to continue. The questions of law formulated by the learned counsel for the appellant in paragraph 10 of the grounds of appeal are reproduced hereunder:- 1. Whether the courts below have not committed grave and manifest illegality in ignoring the documentary evidence in the shape of office letter no.75 dated 4.8.1993, whereby it was reported to the departmental authority that there was no application/ option made by the appellant for appointment to the post of Assistant Machine Attendant as alleged by the R.S.A.No.2700 of 2005 -9- .... department and no application/ option was produced on record by the department in spite of the specific denial by the appellant? 2. Whether the courts below have not committed grave and patent error in ignoring the evidence to the effect that the appellant joined as Assistant Machine Attendant on 1.1.1991 vide Ex-PX on the asking of the Department vide Ex.P-2 whereas the middle certificate alleged to be forged bore the date 6.2.1991 (Ex.P5)? 3. Whether the courts below have not ignored the fact that the action against the appellant was a result of malafide on the part of the defendant-respondent no.2 and defendant- respondent no.4 and whereas the defendant no.4-Buta Singh was proceeded ex parte, the defendant no.2 Amrik Singh did not date to step into the witness box to rebut the plea taken by the appellant? In addition to the above questions of law, the following question of law was framed for consideration by this Court on 21.9.2006 while admitting the appeal:- “Whether the proceedings in the departmental inquiry against the appellant were fair and in accordance with the principles of natural justice?” The learned counsel for the appellant could not point out to any violation of the principles of natural justice. R.S.A.No.2700 of 2005 -10- .... For the reasons stated above, the questions of law as posed by the learned counsel for the appellant as well as the one framed by this Court are answered to say that the departmental enquiry against the appellant was fair and proper; that no documentary evidence was ignored by the Courts below and the order of dismissal was validly passed. Consequently, this appeal is dismissed being devoid of any merit. May 18,2009 ( Mahesh Grover ) “SCM” Judge