Regular Second Appeal No.3889 of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3889 of 1998 Date of Order: 01.10.2008 A.M.T. Chief Engineer, Punjab State Electricity Board, Patiala and others. ...Appellant Versus Ajaib singh ...Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. M.K.Garg, Advocate for the appellants. Mr. Ishwar Lal, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The appellants-Punjab State Electricity Board challenges the judgment and decree, passed by the Additional District Judge, Patiala, dated 22.04.1998 reversing the judgment and decree passed by the Additional Senior Sub Judge, Rajpura, and as a consequence, decreeing the suit filed by the respondent. Ajaib Singh respondent-plaintiff filed a suit for declaration to the effect that he was entitled to be promoted as a Special Foreman and to get special service benefits for the said post from the year 1976. According to his seniority he was legally entitled to be promoted to the post of Special Foreman but instead the appellants promoted his juniors namely Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh pursuant to order No.382 dated 12.10.1976. In response to the suit, the appellants denied the correctness of the averments in the plaint and by specific averments in paragraphs 5 and Regular Second Appeal No.3889 of 1998 -2- 6 of the written statement denied that they had promoted Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh as Special Foreman vide order dated 382 dated 12.10.1976. It was further clarified that the said order relates to a policy decision and does not promote any employee. It was specifically denied that any juniors had been promoted. On the basis of the pleadings, the trial court framed the following issues:- 1. Whether the plaintiff is entitled to be promoted as Special Foreman? OPP 2. Whether the plaintiff is entitled to declaration prayed for? OPP 3. Whether the suit is bad for non joinder of necessary parties ?OPD 4. Relief. After considering the case in its entirety, the learned trial Court held that as Ajaib singh has failed to adduce any material evidence that his juniors had been promoted to the post of Special Foreman, the suit was without merit and, therefore, dismissed the suit. Aggrieved by the said judgment and decree, the respondent filed an appeal. The first appellate Court reversed the trial Court's judgment and decreed the suit. Counsel for the appellants submits that the first appellate court, committed an error in reversing the well reasoned judgment passed by the trial Court. The first appellate Court, misread paragraphs 5 and 6 of the written statement and as a result proceeded to draw an inference that the appellants had not denied that the respondent’s juniors were promoted. It is submitted that a perusal of paragraphs 5 and 6 of the written statement reveals a clear and categoric denial that the respondent’s juniors were promoted. It is further submitted that first appellate Court misread the statement of DW1 as being evasive and an Regular Second Appeal No.3889 of 1998 -3- attempt to withhold the record. DW1 deposed, while under cross examination that Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh were not promoted pursuant to order No.382 dated 12.10.1976. The first appellate court, therefore, had no jurisdiction to draw an inference against the appellants and accept the appeal. It is further argued that as per his case, the respondent raised a specific plea that his juniors had been promoted. A perusal of the evidence adduced by the respondent discloses a failure on his part to produce any evidence to suggest any promotion to any junior much less promotions to Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh. It is, therefore, prayed that as the impugned judgment suffers from grave errors of jurisdiction, the judgment and decree passed by the first appellate court be set aside and that passed by the trial Court be restored. Counsel for the respondent, however, submits that pursuant to letter No.380 dated 12.10.1976, Ex. P2 Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh were promoted. This fact is not denied in the written statement. The deposition of DW1 was evasive on the said point. The first appellate Court, therefore, rightly drew an adverse inference against the appellants and proceeded to accept the appeal and decree the suit. It is argued that as the appellants did not specifically deny the grant of promotion to Bhawani Dutt etc., the respondent who is admittedly senior, was entitled to seniority from the date of his juniors promotion. It is, therefore, prayed that the findings of fact recorded by the first appellate Court be affirmed and the appeal be dismissed. I have heard counsel for the parties and perused the impugned judgments. Counsel for the appellants has framed the following questions of law:- 1. “Whether the judgment and decree passed by the first Regular Second Appeal No.3889 of 1998 -4- appellate Court is illegal as it failed to correctly consider the averments in paragraphs 5 and 6 of the written statement and misread the statement of DW1?” 2. “Whether the first appellate Court, in view of the pleadings in paragraphs 5 and 6 of the written statement could have drawn an adverse inference against the appellants that they had promoted the respondent's juniors?” As noticed herein above, the plaintiff-respondent filed a suit claiming seniority as his juniors had been promoted pursuant to letter No.382 dated 12.10.1976, Ex. P2. At the very outset, it would be necessary to mention here that the letter Ex.P2 does not grant promotion to any employee much less to the respondent's juniors. The letter relates to a policy decision with respect to the change of cadre of Cable Jointer to that of Foreman Cable Jointer and also their prospects with respect to promotion. It would also be necessary to mention here and as has been held by trial Court that there is no evidence on record, whether in the shape of any letter or order to evidence the fact that juniors to the respondent, more particularly Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh, were promoted to the post of Special Foreman. In the absence of any evidence to substantiate the respondent's primary assertion, the suit was rightly dismissed as should have been the appeal. The first appellate Court, however, by a convoluted process of reasoning and by a misreading of the averments in paragraphs 5 and 6 of the written statement and the statement of DW1, held that as the appellants had failed to traverse the pleadings in paragraphs 5 and 6 of the plaint by a specific denial an adverse inference would be drawn that the appellants have admitted that the respondent's juniors were promoted. Regular Second Appeal No.3889 of 1998 -5- The above findings are factually and legally incorrect. Paragraphs 5 and 6 of the written statement read as follows:- “5. That para No.5 of the plaint is wrong and denied. It is wrong that the defendants have promoted Sh. Bhawani Dutt, Attar Singh, Gurnam singh and Dhian Singh as Special Foreman vide order No.382 dated 12.10.1976. Moreover, the office Order No.382 dated 12.10.1976 is not a promotion order but it is a policy order and the benefit of the said order has been given to the plaintiff. The plaintiff is not entitled any benefit as he is still junior and is at Serial No.5 in the seniority list. 6. That para no.6 of the plaint is wrong and denied. It is wrong that the plaintiff has not been given the benefit as per Order No.382 dated 12.10.1976. The benefits have been given to the plaintiff of the abovesaid order. It is wrong that any juniors have been promoted. The plaintiff is not entitled to any promotion as per his seniority as he is at Serial No.5 in the seniority list.” A perusal of paragraphs 5 and 6, leaves no manner of doubt that the appellants, traversed the pleadings and specifically denied that they had promoted Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh or any juniors. In paragraph 6 of the written statement, the appellants specifically pleaded that it is wrong that any juniors have been promoted. It is, therefore, apparent that the averments in the plaint, alleging promotion to juniors, were specifically traversed and denied. As a result the first appellate Court committed an error as it misread the averments in the written statement and wrongly proceeded to raise a presumption under Order 8 Rule 5 of the CPC. As regards the adverse Regular Second Appeal No.3889 of 1998 -6- inference drawn from the statement of DW1-Hari Ram, suffice it to say that the first appellate Court not only misread the statement but also read into the statement words that were not spoken. DW1 while deposing as a departmental witness, did not make any attempt to withhold any record and to pointed questions as to the promotion granted to juniors, denied that Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh had been promoted pursuant to the order dated 12.10.1976. The first appellate Court held that an adverse inference would have to be drawn that the appellants were trying to conceal the record as the names of the aforementioned employees were missing from the seniority lists Ex. D1 and D2. The simple case set up by the respondent was that by ignoring his seniority his juniors had been promoted. The onus, therefore, to establish by clear and cogent evidence that his juniors had indeed been promoted lay upon the plaintiff-respondent. A perusal of the evidence on record, reveals an abject failure on the part of the respondent to produce any evidence in support of his assertion that any junior was promoted over and above his right to be promoted. In the absence of any evidence on record to substantiate that juniors were promoted the first appellate court had no jurisdiction to raise an inference against the appellants and direct the appellants to promote the respondent from the date his juniors were promoted. The seniority lists Ex.D1 and D2 show the respondent at Sr. No.5. The absence of the names of the Bhawani Dutt etc. could not have lead to an inference that the appellants were trying to conceal the promotions granted to juniors. In view of what has been stated herein above, it is held that the first appellate Court, committed an error of jurisdiction by misreading paragraphs 5 and 6 of the written statement, misreading the statement of DW1 and, as a result committed an error in holding that the appellants had promoted Bhawani Dutt, Attar Singh, Gurnam Singh and Dhian Singh, the Regular Second Appeal No.3889 of 1998 -7- respondent's juniors. As a result, the appeal is allowed, the judgment and decree passed by the first appellate court is set aside and that of the trial Court is restored. October 01, 2008 (RAJIVE BHALLA) nt JUDGE