REGULAR SECOND APPEAL NO.172 OF 1992 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 27, 2010 Food Corporation of India and others .....Appellants VERSUS Sudagar Singh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajesh Garg, Advocate, for the appellants. Mr. D. D. Bansal, Advocate, for the respondents. **** RANJIT SINGH, J. This Regular Second Appeal was allowed by this Court on April 4, 2002. The judgment and decree passed by learned Additional District Judge dated May 2, 1991 was set-aside and the judgment of the Sub Judge Ist Class was restored. The respondent herein filed a Special Leave Petition against the order passed by this Court primarily on the ground that REGULAR SECOND APPEAL NO.172 OF 1992 :{ 2 }: none had appeared on behalf of the respondent when the case was finally decided against the respondent. The Hon'ble Supreme Court, therefore, was pleased to set-aside the judgment passed by this Court and remanded the case back to this Court for deciding it afresh after affording opportunity of hearing to the respondent. That is how the case has now again come up for hearing. The counsel for the parties have been heard. As already noticed in the judgment earlier passed by this court, the respondent-plaintiff was an employee of the appellant- Food Corporation of India, having been appointed as Watchman in the year 1972. Allegation against the respondent-plaintiff was that he had manhandled his superior officer, named, Hirdey Ram. This led to proceedings under Sections 107 and 151 C.P.C. The case ultimately was compromised and the respondent-plaintiff was taken on duty. A criminal case had also been registered against him under Sections 353, 186 and 506 IPC, in which the respondent-plaintiff was acquitted by the Court of Chief Judicial Magistrate, Bathinda. Simultaneously, the respondent-plaintiff was also charge sheeted for his alleged misconduct against his superior. After service of charge sheet to him, an Enquiry Officer was appointed who submitted his report, Ex.P7 holding him guilty of gross misconduct. Senior Regional Manager of the Corporation thereafter passed an order, dismissing the respondent-plaintiff from service. Appeal filed by him was dismissed on March 20,1987. The respondent-plaintiff had then filed the present suit, challenging the order of his dismissal as well as the other orders through which his departmental appeal was dismissed. Sub Judge, Bathinda, dismissed the suit on April 30,1990. REGULAR SECOND APPEAL NO.172 OF 1992 :{ 3 }: Against this, the respondent-plaintiff filed an appeal, when the Additional District Judge, Bathinda, allowed this appeal and set-aside the judgment an decree passed by the Trial Court. The first Appellate Court viewed that it was a case of no evidence and, thus, the order of dismissal was held to be wholly illegal. Aggrieved against this order, the appellant Corporation has filed this Regular Second Appeal. Learned counsel for the appellants submits that the view taken by the first Appellate Court that this is a case of no evidence apparently is misplaced as there is sufficient and ample evidence on record to prove the misconduct alleged against the respondent- plaintiff. As per the counsel for the appellants, the substantial questions of law, which are arising in this case had already been noted by this Court while deciding the appeal earlier and these were as follow:- “1. Whether the Civil Court can re-appraise the findings arrived at by the Inquiry Officer and substitute its own opinion? 2. Whether despite acquittal of an employee in a criminal case, can the employer arrive at a different finding than the one arrived at by the Criminal Court?” The submission by the counsel is that the court can not re-apprise or re-appreciate the evidence and could have interfered only if it was a case of no evidence. The first Appellate Court, as per the counsel, had observed that it is a case of no evidence but in fact had re-appreciated the evidence. The counsel contends that this case can not be termed as a case of no evidence and hence, the REGULAR SECOND APPEAL NO.172 OF 1992 :{ 4 }: impugned judgment passed by the first Appellate Court can not be sustained. To substantiate his plea, counsel for the appellants has not only referred to the finding returned by the first Appellate Court but has made an extensive reference to the evidence on record and so also the enquiry report to show that there was sufficient evidence and material on record to prove the misconduct alleged against the respondent-plaintiff. The first Appellate Court had made reference to Paras 7 and 8 of the enquiry report to hold that the findings in this case were based on no evidence. In fact, these paragraphs of the enquiry report were reproduced in the impugned judgment. To say that the finding in this case was based on no evidence would stand negatived even from what is noticed in these paragraphs. No doubt, it was recorded by the Enquiry Officer that the prosecution has not given name and time of the place of the assault of Hirdey Ram but at the same time, it was noticed that Hirdey Ram was examined as PW and he had stated that he was assaulted at 9.30 A.M at F.S.T Bathinda. It is, thus, not possible to say that there was no time or place of assault disclosed by the prosecution. In support of the assault, the complainant, who was also the victim, was examined and he gave clear evidence of the assault. The prosecution side had exhibited two documents, which was the resolution by the staff condemning the action. The observation by the first Appellate Court that none of the persons who had participated in passing the resolution were cited would not mean much. These persons were indeed named by the complainant in his statement. Merely because they were not examined, when the resolution duly signed by them REGULAR SECOND APPEAL NO.172 OF 1992 :{ 5 }: had been proved would not make this case to be a case of lack of evidence. Interfering on this ground that such persons were not examined as witness to corroborate the version of the complainant would mean that the first Appellate Court had entered into the realm of appreciating the evidence. Once the evidence of complainant was produced and was available on record, it is not possible to say that it was a case of no evidence. It was certainly a case where there was some evidence available. The sufficiency of the evidence would be beyond the scope of examination by the Civil Court. The first Appellate Court, thus, had gone beyond its powers to interfere in the impugned order. It is observed by the Court that it was physically impossible for C.O. to be present at F.S.T., Bhatinda at 9.30 A.M. This is nothing but appreciation of the evidence and would show that evidence was there. The learned counsel for the respondent-plaintiff could not substantiate his plea that this was a case of no evidence as was the finding returned by the first Appellate Court. He then would submit that the copy of the enquiry report had not been supplied to the respondent-plaintiff before passing the order of punishment and as such, the order was in violation of principles of natural justice. The counsel for the appellants, however, would respond by saying that no such plea was ever raised in the plaint or subsequently before the Court for the appellants to answer the same in any effective manner. The counsel for the appellants would submit that this was not something which was innocent as there is no provision in the regulation of the Food Corporation of India, where such requirement of providing a copy of the enquiry report is laid down. The counsel is REGULAR SECOND APPEAL NO.172 OF 1992 :{ 6 }: justified in further submitting that the necessity to provide the copy of the enquiry report arose only due to the law laid down by the Hon'ble Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, AIR 1991 Supreme Court 471, where it is held that the delinquent' s right to be entitled to get the copy of report is not lost even after 42nd amendment as the Rules of natural justice applicable to disciplinary enquiry would so require. The counsel contends that the ratio of law laid down in Mohd. Ramzan Khan's case (supra), would apply prospectively. The impugned order in this case was passed on 3.5.1986 and the appellate order on 20.3.1987 whereas Mohd. Ramzan's case (supra) was decided on 20.11.1990. In any case, when no such plea was raised and was not considered or adjudicated by the Courts below, it would not be fair to allow this to be raised for the first time before this Court in the background that such requirement was not in operation either as per the statute or by the judge made law. The submission that acquittal in a criminal case would stand in the way of the appellants to take departmental action, was considered and negatived by this Court by making reference to the case of K.K.Raghvan Vs. Industrial Tribunal, Ernakulam, AIR 1959 Kerala 62. The counsel for the respondent-plaintiff could not say much in this regard as well. There are, thus, merit in the submissions made by counsel for the appellants and the impugned judgment can not be sustained. The present Regular Second Appeal is accordingly allowed and the judgment passed by the then Additional District Judge dated 2.5.1991 is set-aside and that of the Trial Court shall REGULAR SECOND APPEAL NO.172 OF 1992 :{ 7 }: stand restored. May 27, 2010 ( RANJIT SINGH ) khurmi JUDGE