Regular Second Appeal No. 227 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 227 of 2008 (O&M) Date of decision: May 19, 2010 State of Haryana and others ...Appellants Versus Balbir Singh ...Respondent 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. Sunil Nehra, Sr. DAG, Haryana for the appellants. Mr. Jagjeet Beniwal, Advocate for the respondent. RANJIT SINGH J. Respondent-plaintiff has filed this suit for claiming first higher standard pay scale of Rs. 5000/- on completion of 10 years service, which according to him he satisfactorily completed. The respondent-plaintiff had joined as adhoc employee on 11.09.1985. He accordingly claimed that he had completed 10 years regular satisfactory service on 01.01.1994 but was not granted promotional scale/higher scale in the selection grade. With this grievance he instituted the suit on 14.08.2003 seeking decree and declaration to this effect. The suit was contested by the appellant. It was pleaded that the respondent-plaintiff did not fulfill the requirement in terms of Regular Second Appeal No. 227 of 2008 2 the instructions quoted in letter dated 08.02.1994. He was in regular service w.e.f. 10.03.1988 and as such had completed 10 years of regular service on 09.03.1998 and thus was entitled to higher standard scale w.e.f. 01.03.1998. It is also pointed out that as per the instructions, the respondent-plaintiff was required to possess 70% of satisfactory ACRs for the relevant period extending from 1985-86 to 1997-98. The case of the respondent-plaintiff was stated to be under consideration. The trial proceeded on the following issues:- 1. Whether the plaintiff is entitled to higher standard scale after completion of 10 years regular satisfactory service along with all the arrears accrues due to changes in grade of pay as alleged? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 5. Relief. The trial Court decreed the suit and the plea raised by the State that respondent-plaintiff had earned average report in the ACRs for the years 1987-88, 1988-89, 1990-91, 1992-93, 1997-98 and the ACRs for the years 1989-90 and 1993-94 being below average could not be treated satisfactory was ignored on the ground that the said ACRs were not produced by the appellant-State for the reasons best known to them. The appellate Court also noticed that Regular Second Appeal No. 227 of 2008 3 the witness produced by the appellate-State admitted during his cross examination that he could not say that the adverse entries in the years 1988 to 1998 were ever conveyed to the respondent- plaintiff. Accordingly, the prayer made in the suit was allowed and direction was issued to grant higher standard pay scale on completion of 10 years service w.e.f. 01.03.1998. Aggrieved against the same, the State has filed this Regular Second Appeal. During the hearing of the case, the State has moved the Civil Misc. Application for seeking permission to place on record the Annual Confidential Reports of the respondent-plaintiff by way of additional evidence. Another fact which was brought to the notice of the court was that the higher pay scale has already been allowed to the respondent-plaintiff w.e.f. 2002 though the claim in the suit is to grant the same w.e.f. 1998. The submission is that the respondent- plaintiff did not have 70% of the satisfactory ACR and as such he could rightly be declined the standard pay scale w.e.f. 09.03.1988. Since the relevant ACRs are not placed on record, the prayer was made to lead these by way of additional evidence through C.M. No. 4734-C of 2009. Notice of the application was given to the counsel for the respondent-plaintiff, who has filed the reply. Before taking up the case on merit, the prayer made in the application would need consideration. Perusal of the application would show that the reason for leading the ACRs as additional evidence is on the basis of averment made in para 3 of the application. It is stated that despite best efforts by the department, the ACRs could not be traced out and produced in evidence. It is averred that now these have been traced Regular Second Appeal No. 227 of 2008 4 out and being relevant for better adjudication of the issue involved, prayer is made for seeking permission to lead the ACRs by way of additional evidence. This prayer is strongly opposed by the counsel for the respondent-plaintiff. The State counsel would draw my attention to the case of North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (D) by Lrs 2008 (3) R.C.R. (Civil) 165 to say that the additional evidence can be allowed at the second appellate stage. As is observed by the Hon'ble Supreme Court in this case, that the appellate Court has power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. It was further observed that the Court would consider the question looking into the documents, sought to be filed as additional evidence to see if these would be necessary to pronounce judgment in a more satisfactory manner. On the other hand, the learned counsel for the respondent-plaintiff has invited my attention to the case of respondent-plaintiff Surjit Singh and others versus Varinder Singh and others 2009 (5) R.C.R. (Civil) 669 and Seth Mehta Pvt. Ltd. v. Standard Chartered Bank 2005 (3) ICC 193. In Surjit Singh's case (supra) it is held that even if the evidence sought to be produced as additional evidence was well within the knowledge of the applicant, the same cannot be allowed to be led by way of additional evidence merely because certain evidence was brought on record before the criminal court after closing of the evidence in the civil Court. Order 41 Rule 27 also makes a provision for permitting Regular Second Appeal No. 227 of 2008 5 the additional evidence to be taken on record when after exercise of due diligence, the same could not be produced at the time when the decree against the appeal was passed. Under Order 41 Rule 27, there are eventualities when additional evidence whether oral or documents can be allowed at the appellate stage though the parties normally are not entitled to produce additional evidence at that stage. These are:- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. Thus the additional evidence can be allowed, when the same could not be produced being not within the knowledge or this could not be so produced after exercise of due diligence. The reasons given in the application seeking additional evidence are that Regular Second Appeal No. 227 of 2008 6 these ACRs could not be traced despite due diligence and hence could not be produced. In this context, it can be said that this evidence though in the knowledge of the appellant but could not be produced as these could not be traced despite due diligence. The question then would arise whether there was any reason for the appellant to not to do so. There cannot be any scope of fabricating the report at this stage. These are the Annual Confidential Reports, which were in existence. There is no scope of fabricating this record. The documents are essential for proper consideration and adjudication of the lis in this regard. The observation made by the Hon'ble Supreme Court in North Eastern Railway Administration's case would be relevant. It is held by the Hon'ble Supreme Court that the Court would consider this question whether looking into the documents sought to be filed as additional evidence, would be necessary to pronounce the judgment in a more satisfactory manner. In my considered opinion looking into the document i.e. ACR would not only be necessary for passing the judgment in a satisfactory manner but would be the main issue requiring consideration and adjudication. Accordingly, the case is made out for allowing this prayer made by the State and the application is accordingly allowed and the documents are permitted to be taken on record by way of additional evidence. Coming back to the appeal, the additional evidence now allowed would show that a reason which weighed with the Court to allow the relief, is no more in existence. The learned counsel for the respondent-plaintiff at this stage would point out that the Annual Confidential Reports where he Regular Second Appeal No. 227 of 2008 7 was assessed as below average were not communicated to him at all. This is contradicted by the State counsel as he would point out to Annexure A-6 of the application, which would indicate that this below average remarks were indeed communicated to the respondent. The counsel then contends that these were communicated late. In the reply to specific query by the Court, the counsel concedes that the respondent-plaintiff never represented against the Annual Confidential Report even when these were communicated to him. Still in support, the counsel refers to State of Haryana versus Prem Parkash Gupta 1997 (1) Recent Services Judgment 742 and Jagdish Singh Dahiya versus State of Haryana 96 (1) RSJ 357, to urge that the reports which were not communicated could not be taken into consideration to deny the relief to the respondent-plaintiff. The case in hand relates to the situation where the respondent-plaintiff was to have 70% of good Annual Confidential Report to pass the test of the satisfactory service record to enable him to earn the higher standard pay scale. This would be the bench mark. Majority of ACRs were average which cannot be said good. Since the respondent-plaintiff was not having this bench mark, the claim to grant of higher standard pay scale w.e.f. 09.03.1998 cannot be sustained. The only reason for which this relief was granted to the respondent-plaintiff was that these reports were not produced on record. Since the reports are now available on record and have been produced, the view expressed by the courts below cannot be sustained. Regular Second Appeal No. 227 of 2008 8 The Regular Second Appeal is accordingly allowed. The substantial question of law regarding the satisfactory service for grant of standard pay scale would arise in this case and it is decided accordingly. Needless to mention that the respondent-plaintiff had already been granted this relief w.e.f. 2002. May 19, 2010 ( RANJIT SINGH ) rts JUDGE