IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.223 of 2002 Judgment reserved on: 14.9.2009 Date of decision: 06.10.2009. State of H.P. and others ….. Appellants. Vs. Des Raj Sharma …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. A.K.Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. Advocate General. For the Respondent : Mr. Sanjeev Bhushan, Advocate. Kuldip Singh, Judge. The defendants have suffered a decree of Rs.1,00,000/- along with interest at the rate of 6% per annum from the date of decree in Civil Suit NO. 2-S/1 of 2002/1996 decided by the learned Additional District Judge, Shimla on 26.8.2002. Therefore, they have come in appeal in this Court for setting-aside the impugned judgment, decree. 2. The respondent had filed a suit for recovery of Rs. 6,00,000/- along with interest at the rate of 18% per annum and also for mandatory injunction directing the appellants to publish apology Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… in all leading newspapers regarding the wrongful action against the respondent. The further case of the respondent is that he joined as selection grade Constable in the Punjab Police in the year 1958, he got promotions and in the year 1962 he was Sub Inspector of Police. On re-organisation of the States, the respondent was allocated to State of Himachal Pradesh as Sub Inspector of Police w.e.f. 1.11.1966. In State of Himachal Pradesh also the respondent got promotions, in the year 1991 he was Additional Superintendent of Police. The respondent was an outstanding sportsman of national and international standing having participated at National and International level. He participated in All India Police Games, National Volleyball Championship and represented the National Team in the IV Asian Games held at Jakarta and in pre-Olympic games at Delhi. The Indian team was awarded Silver medal at Asian Games Jakarta and Bronze medal in pre-Olympic World Cup in Leningard. The respondent has been awarded various citations, awards, medals etc. for outstanding participation in sports. The respondent was assigned the duties of security of VIPs on their visit to the State of Himachal Pradesh. The respondent had solved several criminal cases. The Inspector General of Police recommended the name of the respondent for award of Police medal, but due to malafide act on the part of the Government the award could not be given to the respondent. 3. The respondent before his promotion as Additional Superintendent of Police was posted as Police Welfare Officer at headquarter at Shimla. The respondent relinquished his charge as …3… Police Welfare Officer and availed joining period but he fell ill and was treated at Deen Dayal Upadhaya Hospital. The respondent initially applied for 10 days leave along with the recommendation of the Medical Officer. The leave application of the respondent was received by appellant No.4 and the application was marked to Head Clerk for necessary action on 31.12.1994. The respondent No.4 conveyed distorted report to the Home Department that respondent was not joining his duties at Junga and his whereabouts were not known. A show cause notice dated 24.3.1995 was served on respondent on 28.3.1995 asking the respondent to join the duties. The respondent submitted his joining report on 31.3.1995 along with medical certificate justifying his absence from duty from 24.12.1994 to 30.3.1995. The respondent filed reply to show cause notice. The respondent without justifiable cause was placed under suspension which was deliberately pre-dated and endorsed to respondent on 6.5.1995. The respondent was charge-sheeted on 2.6.1995 for willful absence from duty. The respondent during suspension started suffering from high blood pressure and other ailments. The respondent vide communication dated 25.12.1994 informed regarding his ailment and inability to join duties. The factum of suspension of respondent was published in newspapers and an impression was given that respondent is a person whose integrity was doubtful and was not serious about discharging his duties and guilty of gross indiscipline as well as insubordination. 4. In the charge-sheet served on the respondent there were allegations that he was transferred from Police Welfare Office …4… to the 1st Battalion Armed Police Junga but his whereabouts were not known upto 31.3.1995. The charge-sheet was deliberately manipulated by the appellants to harass the respondent. The reply filed by the respondent was not taken into consideration. 5. The respondent filed Original Application No.1743 of 1995 in the erstwhile Himachal Pradesh Administrative Tribunal. It was found that an application was submitted by the respondent in the office of appellant No.4 for grant of leave. The Original Application was disposed of by the erstwhile Tribunal and suspension of the respondent was revoked and the inquiry against the respondent was withdrawn. The period of suspension was treated as duty with full pay. 6. The respondent due to wrong and manipulated action of appellants had suffered physical and mental agony. The respondent had to go for medical treatment for various ailments. The respondent was to retire from service on 31.5.1997 but because of harassment and humiliation of appellants, the respondent sought pre- mature retirement on 1.2.1996. The appellants have ruined the career of the respondent. The period from the date of suspension of respondent has been one of extreme anguish and nightmare for respondent as well as his family members. The appellants had suspended the respondent by suppressing facts and distorting material on account of malice and deliberately caused calculated damage to the reputation of the respondent and his family members. The same was without any authority of law and any justification. The respondent in para 19 of the plaint has claimed Rs. 32,30,000/- as …5… damages under various heads but restricted his claim to Rs. 6,00,000/-. 7. The suit was contested by appellants. The appellants No.1 and 2 had filed joint written statement. They have taken the plea that service record of respondent cannot be termed as exemplary as he was adversely reported in his ACRs for the period w.e.f. 12.10.1987 to 31.10.1988. It has been admitted that respondent was a good sportsman. The respondent was transferred from the post of Police Welfare Officer to the post of Additional Superintendent of Police, 1st H.P.A.P. Battalion, Junga on 19.11.1994, he relinquished the charge of the post of Police Welfare Officer on 14.12.1994 but he did not assume the charge at Junga till 31.3.1995. The respondent on 25.12.1994 intimated the Commandant, H.P.Armed Police 1st Battalion, Junga that he has been advised 10 days rest and he would submit his leave application after joining his duty after recovery from illness. The respondent did not supply any leave address. The respondent did not join at Junga after availing medical rest of 10 days nor he applied for extension of leave. In these circumstances, appellant No.2 directed the Commandant to send the joining report of respondent to appellant No.1. On 4.1.1995 a registered letter was sent to respondent which was received undelivered. The absence from duty of respondent amounts to gross misconduct. The respondent was placed under suspension on 27.3.1995. On 31.3.1995 respondent joined his duty. …6… 8. It has been denied that the appellant No.4 had conveyed distorted report against respondent. The appellant No.2 on 9.2.1995 informed that respondent had not joined his duty at Junga. In these circumstances, the respondent was rightly placed under suspension. It has been denied that on account of suspension the respondent has suffered various ailments. It has been denied that suspension order of respondent was publicized by appellants No.1 and 2. 9. The filing of O.A. No. 884/1995 by respondent in the Himachal Pradesh Administrative Tribunal was admitted. The Original Application No. 884/1995 was treated as representation which was rejected on the basis of information supplied by appellant No.4. The respondent again filed Original Application No. 1743/1995 in the Himachal Pradesh Administrative Tribunal. It was noticed that respondent had intimated appellant No.4 for 10 days rest on medical grounds. 10. The appellant No.3 filed separate reply and took preliminary objections of mis-joinder of respondent No.3, suit is abuse of process of law, suit is barred by limitation and suit is without any cause of action and is not legally maintainable. The appellant No.3 regarding rest of the case has taken more or less the same pleas as taken by appellants No.1 and 2. 11. The appellant No.4 had also filed separate written statement. It has been denied that respondent had rendered outstanding service. It has been pleaded that respondent had sent application dated 25.12.1994 prior to his joining at Junga to Commandant Junga which was received on 29.12.1994 for the grant …7… of 10 days medical leave along with a photocopy of medical prescription slip. The respondent had not given his leave address in the application. On 31.1.1995 letter dated 28.1.1995 was received from the office of Director General of Police, Himachal Pradesh by Commandant at Junga who was asked to intimate the whereabouts of the respondent. It has been denied that the appellant No.4 had manipulated and suppressed any facts resulting in suspension of respondent. It has been denied that respondent had suffered any mental or physical agony. The remaining defence of appellant No.4 is more or less the same as raised by appellants No. 1 to 3. 12. The respondent had filed replications and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is within time ? ..OPP. 2. Whether the defendants are guilty of defamation/slander, as alleged? ..OPP. 3. If issue No. 2 is proved, to what extent of damages if any, is the plaintiff entitled and if so from whom and to what extent? ..OPP 4. Whether the suit is bad for misjoinder of defendants Nos. 3 and 4, as alleged? ..OPD 3-4. 5. Whether the plaintiff is entitled to interest on the damages, if so, at what rate? ..OPP. 6. Whether the plaintiff is entitled to the mandatory injunction prayed for? ..OPP. 7. Relief. The learned Additional District Judge answered issues No.1, 2 in affirmative, under issue No.3 it has been held that plaintiff is entitled to Rs.1,00,000/-, issues No.4 and 6 were answered in negative and under issue No.5 interest at the rate of 6% has been awarded. …8… 13. Heard and perused the record. The learned Additional Advocate General has submitted that the learned Additional District Judge has not properly appreciated the pleadings and evidence on record. The respondent was suspended as he failed to join at Junga after availing joining time. The respondent did not supply leave address to the authorities. The whereabouts of the respondent were not known and therefore, the respondent was suspended. It has been submitted that lateron suspension was revoked and due amounts of respondent were paid to him. In the facts and circumstances of the case, it cannot be said that suspension of respondent was without any cause. In any case the suspension of the respondent was not publicized by appellants. The respondent has not suffered any physical and mental agony due to the acts of the appellants. The respondent is not entitled to any damages. In any case the damages awarded to respondent are on the higher side. The suit of the respondent is barred by limitation. The interest has been wrongly allowed. 14. The learned counsel for the respondent has supported the impugned judgment, decree. He has submitted that appellants took consistent false stand regarding the absence of respondent from duty. The consistency of the falsehood was maintained by the appellants even in the reply filed by them in O.A. No. 1743 / 1995. The appellants could not support their false stand from the record and therefore, ultimately the appellants revoked the suspension of the respondent but by that time the appellants had already caused damage to the reputation of the respondent. The suit filed by …9… respondent is within limitation. The learned Additional District Judge has awarded less amount but since respondent has not filed any appeal or cross-objections, therefore, submission was made to maintain the judgment, decree passed by the learned Additional District Judge. 15. On the basis of submissions made on either side, the following points emerge for determination :- (i) Whether the suit is within limitation ? (ii) Whether the respondent / plaintiff is entitled to damages on account of defamation, if so, to what extent and interest thereon ? 16. The suit was filed on 6.9.1996 in the High Court but was transferred to the Court of learned District Judge, Shimla on 9.11.2001 by this Court on account of increase of pecuniary jurisdiction of the subordinate courts. On 6.12.2001 the learned District Judge assigned the suit to learned Additional District Judge, Shimla. Ex.PW-2/B dated 24.3.1995 is the letter from Commissioner-cum-Secretary (Home) to Director General of Police observing therein that respondent was transferred as Additional Superintendent of Police 1st AP HP Battalion, Junga and had relinquished the charge of the post of Police Welfare Office on 14.12.1994 but has not taken up his new assignment at Junga nor his whereabouts were known to the Government. In view of this position, a show cause notice was required to be served upon the officer for dis-obeying Government orders and show cause notice was enclosed with the letter. …10… 17. Ex. PW-2/D dated 27.3.1994 is the suspension order of respondent in view of contemplated disciplinary proceedings against the respondent. Ex.PW-2/E is the representation of respondent with reference to suspension order dated 27.3.1994. Ex.PW-2/F is the charge sheet dated 2.6.1995 served on respondent. Ex.PW-2/G is the reply of respondent to charge sheet dated 2.6.1995. Ex.PW-2/O is the communication dated 7.8.1995 from Commissioner-cum- Secretary (Home) to respondent informing him that his representation in pursuance of order dated 9.5.1995 in O.A. No. 884 of 1995 has been rejected. Ex.PW-15/A is the reply dated 6.10.1995 of appellants in O.A. No. 1743 of 1995 in which it has been reiterated that respondent was rightly placed under suspension and action as warranted under the Rules has been taken. Ex.PW-15/B is the application supported by an affidavit Ex.PW-15/C dated 10.11.1995 filed by appellants in O.A. No.1743 of 1995 seeking permission to withdraw the reply dated 6.10.1995. Ex.PW-2/L is the order dated 12.12.1995 ordering re-instatement of respondent and Ex.PW-2/M dated 19.1.1996 is the notification issued in pursuance of decision dated 15.12.1995 in O.A. No.1743/1995 and the Government decided to treat the suspension period of respondent on duty for all intents and purposes w.e.f. 27.3.1995 to 12.12.1995. 18. The appellants till 6.10.1995 had justified the suspension of the respondent. The appellants vide Ex.PW-15/B sought the permission of the Tribunal to withdraw their reply Ex. PW-15/A dated 6.10.1995 and ultimately, the suspension was revoked vide Ex. PW-2/L dated 12.12.1995 The suspension period of respondent w.e.f. …11… 27.3.1995 to 12.12.1995 was treated on duty vide notification Ex.PW-2/M dated 19.1.1996. The suit was filed on 6.9.1996 within one year when appellants lastly justified the suspension of respondent on 6.10.1995 vide Ex.PW-15/A. Thus, the suit is within limitation. Therefore, point No.1 is answered in favour of the respondent. 19. The appellants initially took the stand that despite transfer of the respondent from the post of Police Welfare Officer on 14.12.1994 to 1st HPAP Battalion, Junga, the respondent did not take up the new assignment nor his whereabouts were known to the Government. The respondent was placed under suspension on 27.3.1995 vide Ex.PW-2/D in contemplation of disciplinary proceedings and respondent was charge-sheeted on 2.6.1995 vide Ex.PW-2/F. The respondent took the stand that he had fallen ill and had informed the authorities but the appellants took the stand that respondent did not inform the authorities nor he took any leave. The respondent filed O.A. No. 884/1995 seeking to quash suspension order dated 27.3.1995 and his re-instatement. The Tribunal on 9.5.1995 directed the Secretary (Home) to the Government of Himachal Pradesh to treat the Original Application of the respondent as representation and consider the case of the respondent on merits in accordance with law and decide the same. The representation of the respondent was rejected on 7.8.1995 vide Ex.PW-2/O. Thereafter, the respondent had filed O.A. No. 1743 of 1995 for quashing order dated 6.4.1995 fixing the headquarter of respondent at Junga and also the chargesheet dated 2.6.1995. The Tribunal …12… summoned the record from Commandant, HP AP 1st Battalion, Junga and has passed the following order on 15.12.1995: “The applicant has assailed his suspension order (Annexure A-11) dated March 23, 1995 and subsequent chargesheet consequently framed against him for his willful absence as detailed in Annexures A-14 to A-18 dated June 2, 1995. At the material time the applicant was posted as Addl. Superintendent of Police, H.P.Armed Police Battalion Junga, District Shimla. On account of his illness he had moved an application seeking ten days medical leave to the Commandant 1st Battalion Junga on December 25, 1994 (Annexure A-5). However, for certain reasons detailed in the pleadings of the parties, the same was not processed. Rather the case pleaded by the respondents that no such application has been filed by the applicant. However, on account of certain notes in the margin of the application we summoned the Commandant 1st Battalion, Junga to appear in person. He admitted his signature pertaining to the receipt of the application for the grant of medical leave. This fact having come to the knowledge of the respondents, they moved another application for amendment of the reply but it remained pending decision. However, in the meantime the respondents have been considered the entire facts in the light of the above said admission of the Commandant 1st Battalion, Junga which entailed passing of penultimate order of reinstatement of the applicant. Thereby the respondents have withdrawn orders of suspension Annexure A-11 as also the chargesheet Annexure A-14 to A-18 so framed before and now reinstatement order has been made. In other words the reliefs sought for by the applicant have automatically been met with by the ultimate decision of the respondents and nothing survives for decision by this forum. The reinstatement of the applicant so ordered impliedly mean the undertaking of the payment of all the arrears of salary etc. by the respondents which are admissible and due to him till the date of passing of such order and taking the applicant into their employment as before. In that view of the matter we direct the respondents to release/pay all the arrears of pay and allowances etc. to the applicant on or before January 31, 1996. In light of above the application stands disposed of with no order as to costs”. …13… 20. The above order indicates that the respondent had applied for leave but his leave application was not considered at the appropriate level, rather it was projected that the respondent had absented without informing the authorities and obtaining leave which resulted his suspension and charge-sheet. The suspension and charge-sheet were lateron withdrawn, the respondent was re-instated and the period from 27.3.1995 to 12.12.1995 was treated on duty vide Ex.PW-2/M. It is thus clear that appellants had taken wrong stand that respondent had not applied for leave and his whereabouts were not known. The respondent was wrongly suspended and charge-sheeted. 21. PW-21 Des Raj Sharma respondent-plaintiff has supported his case. He has stated that he joined Pepsu State Police as selection grade Constable in the year 1958. He was promoted from time to time. He was allocated to the State of Himachal Pradesh as Sub Inspector on 1.11.1966. He was promoted as Additional Superintendent of Police in the year 1991. In the year 1954-55 he had represented Delhi State in Volleyball. He represented India in Volleyball game held at Srilanka in the year 1959. In the year 1960 he had played test matches of Volleyball against Russia. He represented India in the Asian Games held at Jakarta in the year 1962 and his team won one silver medal in Volleyball. He was declared best all rounder in such game. In the year 1963 he again represented India in the World Cup held at Leningard. He was a player of volleyball team in the pre-Olympic game held at New Delhi in the year 1964 and won bronze medal. He was captain of Punjab …14… Volleyball team as well as Himachal Pradesh team. As member of Police force he has passed the gurilla warfares officer training and VIP security training . He remained as a Personal Security Officer to various VVIPs such as President, Prime Minister and other Hon’ble Judges of Supreme Court and High Courts. He was granted merit certificates of Class-I, Class-II and Class-III. In 1965 war he was posted in border areas of Uri, Naushahra and R.S. Pura Sectors in J & K. State. He was involved in an ambush with Dharam Singh, Ajit Singh who were killed along with three Pakistanis. This ambush was given publicity in the newspapers. A bus robbery case on Himachal Punjab border in Una District in the year 1980 was investigated by him and he apprehended the culprits who after trial were convicted. A case for the grant of gallantry award was recommended in his favour but was not awarded to him and he filed writ petition in the High Court. He was suspended and his suspension was published in Ex.PW-18/A and Ex.PW-19/A. As a result of wrongful suspension and newspaper reports in various newspapers he suffered his reputation amongst his friends, relatives and acquaintances. He suffered mental tension. After revocation of his suspension, he suspected bonafides of the Department and sought pre-mature retirement w.e.f. 1.1.1996 against his age of superannuation 22.5.1997. 22. PW-18 Dhananjay Sharma has proved the news item in Him Darshan section of Dainik Tribune dated 7.8.1995 Ex.PW-18/A. PW-19 Sushil Kumar Sharma has proved Ex.PW-19/A news item appeared in Jansatta on 7.8.1995. PW-14 Dr. R.L. Lakhanpal has …15… stated that certificate Ex.PW-13/B was issued by him after examining the patient. PW-20 Sudesh Thakur, on the basis of OPD Register of Rippon Hospital known as Deen Dayal Upadhaya Hospital, Shimla has proved entry dated 24.4.1994 Ex.PW-20/A of Des Raj. 23. PW-12 Ms. Bhuvneshwari, Senior Assistant in the office of Director General of Police, H.P. has proved citation Ex.PW-12/A of Inspector General of Police, H.P. in favour of plaintiff-respondent. She has also placed on record correspondence Ex.PW-12/B to Ex.PW-12/G. PW-11 C.L. Negi, Joint Director (Education) has stated that he knew plaintiff since 1955, he had played Volleyball with him from 1955 to 1960. The plaintiff had been a top class volleyball player. PW-10 Om Parkash Bhota has stated that plaintiff was awarded certificate of honour by sports Department and a cash award of Rs.5000/-. The factum of award of certificate was published in Ex.PW-10/A. PW-7 J.K.Jain, Administrative Officer, Director General of Police has stated that the then Director General of Police had recommended the grant of citation to the plaintiff vide Ex.PW-7/A. PW-5 Dr. I.D. Nehru has proved prescription slip Ex.PW-5/A dated 10.7.1995 of plaintiff. 24. D1W1 Pratap Singh has stated that plaintiff was transferred from the office of Police Headquarter, Shimla to 1st Battalion, Junga on 19.11.1994. He was relieved from the office of Police Headquarter, Shimla in the after noon of 14.12.1994. The plaintiff joined in the 1st Battalion, AP HP, Junga on 31.3.1995 after application for sick leave received on 29.12.1994, till the plaintiff joined at Junga no further communication was received from plaintiff. …16… The plaintiff was placed under suspension on 27.3.1995. In cross- examination, he has stated that application for medical leave Ex.PW- 9/A dated 25.12.1994 was received in office on 29.12.1994. D1W2 Pritam Singh has stated that period of absence from duty in the case of plaintiff was regularized by the State on 21.3.1996. D4W1 Sanjeev Ranjan Ojha has stated that he remained posted as Commandant 1st Battalion, Junga w.e.f. 1st April, 1994 to September, 1994. The plaintiff was posted as Police Welfare Officer, Police Headquarter, Shimla and was transferred to 1st Battalion as Additional Superintendent of Police on 19.11.1994 vide order Ex.DX. The plaintiff joined at Junga on 31.3.1995. The plaintiff had sent an application Ex.PW-9/A for medical leave for 10 days which was received