R.S.A NO.3457 OF 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO.3457 OF 2010 (O & M) DECIDED ON : 26.08.2010 Divisional Forest Officer and others ...Appellants versus Ram Pal ...Respondent CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ajay Gulati, DAG, Haryana, for the appellant. K. C. PURI, J. (ORAL) This is regular second appeal preferred by State of Haryana against the judgment dated 23.02.2010 passed by Shri R.C.Godara, District Judge, Kurukshetra vide which appeal preferred by the defendant-appellant against the judgment dated 27.11.2008 passed by Shri Pardeep Kumar, Civil Judge(Senior Division), Kurukshetra, was dismissed. Ram Pal, Forest Guard, filed a suit for declaration with consequential relief of permanent injunction seeking a decree of declaration to the effect that notice dated 16.08.1994 and order dated 15.01.2001 and subsequent recovery effected from him is illegal, null and void and not binding upon the rights of the plaintiff. R.S.A NO.3457 OF 2010 (O & M) -2- In brief, the facts of the case are that plaintiff was posted as Forest Guard at Kurukshetra, Production Division No.1 in theyear 1992 and was again posted as Forest Guard, Sarsa Production Range. A Show Cause Notice dated 16.08.1994 was issued to the plaintiff to the effect that plaintiff had a deficit of 5995 cubic meter of timber and 101 cubic meter of wood. The plaintiff sent reply to the said Show Cause Notice. The Deputy Conservator of Forest Production Division, Fatehabad passed order dated 25.04.1996 imposing recovery of Rs.11,203/- upon the plaintiff. The plaintiff challenged the said order in civil Court at Kurukshetra and the Court of Shri Ajay Aggarwal, Civil Judge, Kurukshetra passed the judgment and decree dated 31.07.2000 setting aside the above said imposition of recovery. The defendants filed appeal against the said order before District Judge, Kurukshetra and during the pendency of the said appeal, defendant No.3 passed order dated 15.01.2001 bearing No.36, whereby the order passed by Deputy Conservator of Forest Production Division, Fatehabad was withdrawn and fresh order was passed imposing the same penalty of Rs.11,208/-. The above referred appeal was also withdrawn by the defendants. Notice under Section 80 CPC was served. Order No.36 dated 15.01.2001 is illegal, void and nonest. No notice was issued nor any inquiry was conducted before passing the order dated 15.01.2001. R.S.A NO.3457 OF 2010 (O & M) -3- Upon notice, defendants appeared and filed written statement taking preliminary objections that the plaintiff has no cause of action or locus-standi to file the present suit. On merits, it was pleaded that plaintiff has already deposited the said amount of Rs.11,208/-. The office order no.5 dated 24.04.1995 issued by the Deputy Conservator of Forest, Fatehabad was set aside by the learned court on 31.07.2000 in civil suit No.72/98. On the directions of Chief Conservator of Forest, Production Haryana, Panchkula vide letter No.1734 dated 01.12.2000 and in accordance with instructions issued vide letter No.17913 dated 12.12.1972 by the Chief Conservator of Forest, Haryana, Chandigarh, fresh office order No.36 dated 15.01.2001 was passed. Replication was not filed. From the pleadings of the parties, the following issues were framed by the learned trial Court : 1) Whether the notice dated 16.08.1994 and order dated 15.01.2001 are illegal, void, nonest, inoperative, ineffective and not binding on the rights of the plaintiff as alleged ? OPP 2) Whether the plaintiff has got no cause of action and locus-standi to file the present suit ? OPD 3) Whether the suit is bad for mis-joinder and non- joinder of necessary parties ? OPD R.S.A NO.3457 OF 2010 (O & M) -4- 4) Whether the suit is bad for want of ad valorem court fee ? OPD 5) Whether the present suit is not maintainable in its present form ? OPD 6) Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD 7) Whether the plaintiff has not come to the Court with clean hands ? OPD 8) Relief. The plaintiff himself appeared as PW-1 and closed the evidence after tendering certain documents. On the other hand, defendants examined Virender Singh Gill as DW-1, Raj Kumar as DW-2 and Om Parkash as DW-3 and their evidence was closed by order. The learned trial Court, after appraisal of the evidence on record, returned the findings on Issue No.1, 2, 5, 6 and 7 in favour of the plaintiff and against the defendants. Issues No.3 and 4 were not pressed at the time of arguments. Consequently, in view of the findings returned on all the issues, the suit of the plaintiff was decreed. Feeling dissatisfied with the above said judgment dated 27.11.2008, the defendants preferred first appeal which was dismissed vide judgment dated 23.02.2010 passed by District Judge, Kurukshetra. R.S.A NO.3457 OF 2010 (O & M) -5- Feeling dissatisfied with the judgment dated 23.02.2010 passed by the District Judge, Kurukshetra and judgment dated 27.11.2008 passed by Civil Judge(Senior Division), Kurukshetra, the defendants-appellants have preferred the present regular second appeal. The appellants in para no.8 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal : 1) Whether the judgment/decree passed by both the learned Courts below is contrary to the facts and law ? 2) Whether the learned Courts below were justified in setting aside the order dated 15.01.2010 despite the fact that plaintiff caused loss to the State Government and which led to passing of such order ? 3) Whether the order dated 15.01.2001 is illegal, null and void despite the fact that the same was passed on the basis of report of Inquiry Officer which was conducted in fair and legal manner ? 4) Whether the evidence has been properly appreciated by the learned Courts below ? 5) Whether the judgments/decrees passed by both the ld.Courts below are based on perverse findings ? Learned State counsel has submitted that previous order of recovery was set aside by the civil Court on the ground that the same has not been passed by the competent authority. R.S.A NO.3457 OF 2010 (O & M) -6- Thereafter, the impugned order dated 15.01.2001 was issued and that order is perfectly legal and valid. The amount has already been recovered. So, both the Courts below have committed error in decreeing the suit of plaintiff. I have heard learned State counsel and have gone through the records of the case. There is finding of fact recorded by both the Courts below that copy of the inquiry report was not supplied to the plaintiff. This Court in authority “Sadhu Ram vs. State of Punjab” 2005 (2) SLR 255 and Division Bench judgment in case “Jitender Singh vs. State of Haryana and others” 2006 (3) Labour and Services Judicial Reports, 136, has held that order of punishment without furnishing inquiry report, is invalid. That being a finding of fact, cannot be interfered in the regular second appeal. In fact, no substantial question of law has arisen in the present case. So, in these circumstances, the appeal is without any merit and the same stands dismissed with costs. AUGUST 26, 2010 (K. C. PURI) shalini JUDGE