R.S.A.No.1501 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1501 of 2009 (O&M) Date of Decision : 15.5.2009 The State of Punjab and others ....Appellants Versus Warder Manohar Singh ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.N.S.Virk, Addl.Advocate General, Punjab for the appellants. ... MAHESH GROVER, J. This is defendants' second appeal directed against the judgments of the learned trial Court dated 4.1.2008 and that of the first appellate Court dated 7.8.2008. The plaintiff/respondent filed a suit by pleading that while he was working as a Warder in the Punjab Jail Department, his two increments were stopped with cumulative effect vide orders dated 29.5.2003 on the allegations that on the night of 15/16.6.2001 when he was on guard duty in Central Jail, Gurdaspur, he consumed alcohol and was having something concealed looking like a revolver. He pleaded that such allegations against him are false and baseless, but the Inquiry Officer held him guilty without any cogent evidence and R.S.A.No.1501 of 2009 (O&M) -2- the report was based on conjectures and surmises. He was served with a show cause notice which was duly replied to by him but the same was not considered while passing the order of punishment against him. He further pleaded that the impugned order of punishment was wrong and liable to be set aside. He also pleaded that proper procedure was not followed during the course of inquiry. The appellants contested the suit and denied the averments made in the plaint. They pleaded that the suit was not maintainable and the plaintiff had no cause of action as he came on duty in drunken condition on the night intervening 15/16.6.2001 and was guilty of gravest act of misconduct and therefore the stoppage of two increments with cumulative effect vide order dated 29.5.2003 was perfectly valid. It was averred that proper inquiry was conducted and the principles of natural justice were complied with and after considering the reply to the charge-sheet, show cause notice was given and reply thereto was also considered before passing the impugned order. The learned trial Court framed the following issues on the pleadings of the parties :- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable?OPD 4. Relief. Both the Courts came to the conclusion that the suit of the R.S.A.No.1501 of 2009 (O&M) -3- plaintiff/respondent deserved to be decreed and that there was no material on record to show that the respondent/plaintiff was drunk. The aforesaid findings have been assailed by way of present regular second appeal in which learned counsel for the appellants contended that the findings recorded by the Courts below are erroneous and liable to be set aside. To a pointed question as to whether there was any material to show that the plaintiff/respondent was in a drunken state on the night intervening 15/16.6.2001, learned counsel for the appellants referred to the inquiry report which has been placed on record by way of Civil Misc.No.5869-C of 2009, which has been allowed separately. A perusal of the inquiry report shows that there is no such material on record on the basis of which a finding can be recorded by the inquiry officer that the plaintiff/respondent was drunk. No medical examination of the respondent was got done which could have established that he was under the influence of liquor. Mere examination of three official witnesses in the shape of Assistant Superintendent, Warder and Head Warder would not substantiate the case of the appellants for the reason that Head Warder Bir Singh is said to have stated that the respondent was medico-legally examined by the Medical Officer and his breath was found to smell of liquor. If that was so, then the report of the Medical Officer should have been on record. The inquiry report shows that the witnesses have repeatedly said that SMO, Civil Hospital, Gurdaspur examined the respondent/plaintiff and remarked that an odor smell of liquor was felt from his mouth and in the R.S.A.No.1501 of 2009 (O&M) -4- medical examination the M.O. had written that warder Manohar Singh was asked to give the samples of his blood and urine, which he refused. However, to prove such a charge and the document, it was incumbent upon the appellants to have examined the S.M.O. Civil Hospital, Gurdaspur especially when the plaintiff/respondent has taken up a plea that no such demand of blood and urine sample was made from him. In any eventuality, the report and its author was not subjected to cross-examination by the plaintiff/respondent as the S.M.O. was not produced at all before the Inquiry Officer. Therefore, there was no cogent material on record from where it can be inferred that the plaintiff was under the influence of liquor on the said date which is the charge against him. In this view of the matter, the findings recorded cannot be termed to be erroneous so as to warrant any interference in the regular second appeal. The substantial question of law, which, according to the learned counsel for the appellants, arises in the present appeal is “whether an order awarding punishment can be set aside even though the entire procedure has been followed or not?” is answered against the appellants for the reasons which have been recorded above, it is to be noticed that the appellants have failed to substantiate the guilt of the plaintiff/respondent by producing the most material witness i.e. the S.M.O.,Civil Hospital, Gurdaspur who could have substantiated the charge of his being drunk on the said date which was the only charge against the plaintiff/respondent, and, therefore, even if the it is held that the procedure has been followed, the impugned order has been passed on the report of the Inquiry R.S.A.No.1501 of 2009 (O&M) -5- Officer, which lacked material evidence against the plaintiff/respondent. That apart, the appeal is barred by an inordinate delay of 136 days which has not been explained satisfactorily. Consequently, the appeal is devoid of any merit and is dismissed. 15.5.2009 (MAHESH GROVER) JUDGE dss