Regular Second Appeal No.572 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-8.7.2010 The State of Haryana and others ...Appellants Versus Attar Singh, Van Daroga ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Ajay Singh Ghangas, Addl. AG Haryana for the appellants. Nemo for the respondent. M ehinder S ingh S ullar , J. (Oral) Having lost in the Courts below, the State of Haryana and its officers appellant-defendants have directed the present appeal against the impugned judgment and decree dated 24.12.2008, whereby, the trial Court has decreed the suit of Attar Singh (since retired), respondent-plaintiff (hereinafter to be referred as “the plaintiff”) and the impugned judgment and decree dated 25.11.2009, vide which, the first Appellate Court has dismissed their appeal as well. 2. The plaintiff was working as Forest Guard (Van Daroga) in the Haryana Forest Department. After successfully completed the period of service, he retired on 31.3.2003. There was a decrement of 212 logs from the bulk of logs, logged in the headquarters. The matter was stated to have been enquired into and the plaintiff was exonerated in first enquiry, but another enquiry was conducted at his back by the Forest Guard Beer Singh, in which, he was found responsible alongwith other persons, vide enquiry reports dated 7.8.2000 and 18.3.2002. On the basis of these reports, the plaintiff was held to be liable for the loss of Rs.20284/- and the amount was ordered to be recovered from him, vide impugned order dated 21.11.2002. The plaintiff challenged this order, being null and void, inter-alia, on the following grounds:- (i) that the enquiry reports dated 7.8.2000 and 18.3.2002 are biased, one sided and conducted at the back of the Regular Second Appeal No.572 of 2010 2 plaintiff, (ii) that the plaintiff was not afforded any opportunity of being heard, (iii) that no copy of charge sheet was ever supplied to the plaintiff, (iv) that the enquiries are self contradictory, (v) that the plaintiff was on sick leave, (vi) that the order dated 21.11.2002 (wrongly noted 2.11.2002) and other connected orders have been passed in sheer contraventions of the instructions No.A-IX- 142/24533-613 dated 30.10.2001 of the Principal Chief Conservator of Haryana, (vii) that the act of decrement of logs was committed with the high handedness of Ranger, Deputy Rangers of Bawal and Mahendergarh and Shri Uma Dutt, Forest Guard of the Garhi Bolani beat, (viii) that the plaintiff has been falsely impleaded and made liable thereto. 3. Levelling a variety of allegations, in all, according to the plaintiff, the entire enquiry proceedings, the reports and the impugned order dated 21.11.2002 are illegal, null, void and are not binding on his rights, for the reasons detailed in the plaint. That being so, the plaintiff filed the suit for decree of declaration challenging the action and mandatory injunction directing the defendants to pay all the consequential benefits, in the manner indicated here-in- above. 4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi of the plaintiff and notice under section 80 CPC etc. On merits, it was admitted that the plaintiff served as Forest Guard under the Deputy Conservator of Forest, Mahendergarh and has retired. It was admitted that the plaintiff was on leave from 22.1.1999 to 26.1.1999, but his application for leave was not sanctioned for the subsequent period from 27.1.1999 to 11.4.1999. According to the defendants, proper opportunities of hearing were granted to the plaintiff and Regular Second Appeal No.572 of 2010 3 the enquiries were conducted after following the punishment rules. The fact that the plaintiff was exonerated in the first enquiry in this respect, was not denied. It was claimed that on the asking of the Deputy Ranger, who was not satisfied with the first enquiry report, another Enquiry Officer was appointed and the shortage of 212 logs was found. The entire enquiry proceedings, the reports and the order dated 21.11.2002, were stated to have been rightly passed. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the order dated 21.11.2002 and other orders and enquiry reports connected as mentioned in the prayer of the plaint are illegal, null, void and not effective on the rights of the plaintiff?OPP 2. Whether the suit of the plaintiff is not maintainable, plaintiff has no cause of action to file the present suit, suit is time barred and not valued for the purpose of court fee?OPD 3. Whether the suit of the plaintiff is bad for want of notice under Section 80 CPC?OPD 4. Relief. 6. The parties produced on record the oral as well as documentary evidence, in order to substantiate their respective stands. 7. The trial court, after taking into consideration the evidence on record, decreed the suit of the plaintiff and set aside the orders dated 28.8.2002 (Ex.D5) and 21.11.2002 (Ex.D6), qua the plaintiff and held that these orders shall not put any restraint on his retiral benefits, in any manner, vide impugned judgment and decree dated 24.12.2008. 8. Aggrieved by the impugned judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was also dismissed by the Ist Appellate Court, vide impugned judgment and decree dated 25.11.2009. Regular Second Appeal No.572 of 2010 4 9. The appellant-defendants still did not feel satisfied with the impugned judgments and decrees of the Courts below and filed the present appeal. 10. Having heard the learned counsel for the appellant-defendants, having gone through the record of the case with his valuable assistance and after considering the matter deeply, to my mind, there is no merit in this appeal. 11. The main argument of the learned State counsel that since the plaintiff alongwith Uma Dutt, Forest Guard and Sher Singh, Deputy Ranger, was found guilty of loss of 212 logs and caused a loss to government exchequer, so, the recovery was rightly ordered against him, vide order dated 21.11.2002 (Ex.D6), is not only devoid of merit but misplaced as well. It is not a matter of dispute that the plaintiff was on leave at the relevant time. He was exonerated by the Enquiry Officer in the first enquiry, but no cogent evidence is forth coming on record to show the circumstances, under which, the second enquiry was ordered and by whom (competent authority), without setting aside the first enquiry report, in which, the plaintiff was exonerated. No proper procedure was followed by the Enquiry Officer, while conducting the second enquiry. Even no such enquiry report, on the basis of which, the department has imposed the penalty, was ever supplied to the plaintiff. 12. The trial Court, having scanned the relevant evidence on record, has recorded a finding of fact that effective and reasonable opportunity was not given to the plaintiff to participate in the second enquiry conduced by Bhagwan Singh. Neither any show cause notice was issued to afford opportunity to the plaintiff to file the reply to the proposed punishment, nor the enquiry report (Ex.D4) was supplied to him. It means, the defendants have violated the statutory provisions of Punjab Civil Service (Punishment and Appeal) Rules, 1952 and principal of natural justice. The finding based on the evidence recorded by the trial Court was further upheld by the Ist Appellate Court. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while Regular Second Appeal No.572 of 2010 5 exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard. 13. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC in the obtaining circumstances of the instant case. 14. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 15. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 8.7.2010 Judge AS