REGULAR SECOND APPEAL No.2916 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.2916 OF 2010 DATE OF DECISION: JANUARY 4, 2011 Post Office, Hisar Division, Hisar through its Superintendent and another .... Appellants Versus Amir Chand .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Namit Kumar, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) CM No.8701-C of 2010 For reasons mentioned in the application, which is accompanied by affidavit, delay of 63 days in filing the appeal is condoned. CM No.8702-C of 2010 Allowed as prayed for. Main Case Defendants (Post Office through its Superintendent and Union of India) having remained unsuccessful in both the courts below have filed the instant second appeal. Respondent-plaintiff Amir Chand filed suit against the appellants. The plaintiff retired as Assistant Post Master on 31.10.2002. The plaintiff was posted as Sub-Post Master in Hisar in the year 1989. At that time, he issued National Saving Certificate (NSC) of 6th issue for Rs.20,000/- to Head Master of High School on 29.03.1989. Maturity date thereof was 29.03.1995. On maturity, V. K. Shelly (depositor) requested defendant No.1 (Post Office through Superintendent) for paying the maturity value of the NSC. Defendant No.1 refused to make the payment REGULAR SECOND APPEAL No.2916 OF 2010 -2- on the ground that NSC 2nd issue could be issued to an institution and NSC 6th issue could not be issue to institution. Here it may be mentioned that NSC 6th issue carried higher rate of interest as compared to rate of interest for NSC 2nd issue. However, the depositor agreed to conversion of NSC 6th issue in to NSC 2nd issue and made written request to defendant No.1 for doing so and for making payment as per NSC 2nd issue. In spite thereof, payment was not made by defendants to the depositor. The depositor filed complaint before the District Consumer Disputes Redressal Forum (Consumer Forum) alleging negligence and deficiency in service on the part of defendants in not making payment of NSC. The Consumer Forum awarded compensation of Rs.3,000/- to the depositor on account of mental agony and also directed plaintiffs to pay double of NSC amount of Rs.20,000/- with interest thereon @ 12% per annum. Thereupon defendant No.1 issued impugned notice dated 18.12.2003 to the plaintiff requiring him to pay Rs.40,259/- on account of alleged loss suffered by defendants due to fault of the plaintiff in issuing NSC 6th issue instead of NSC 2nd issue. The plaintiff in the suit challenged the aforesaid demand notice dated 18.12.2003 alleging that he had inadvertently issued NSC 6th issue instead of NSC 2nd issue, but the depositor gave consent for conversion of NSC 6th issue into NSC 2nd issue, but in spite thereof, the defendants themselves failed to make payment to the depositor. There was thus no negligence on the part of the plaintiff and rather the defendants were negligent in not converting NSC 6th issue into NSC 2nd issue and in not making payment even as per interest rate of NSC 2nd issue. There was no negligence or deficiency in service on the part of the plaintiff. Defendants were negligent and deficient in service. Moreover, impugned demand notice has been issued without any enquiry and without affording opportunity of hearing to the plaintiff. Accordingly, the plaintiff sought injunction restraining the defendants from recovering the suit amount mentioned in the notice along with interest, because the said demand notice is illegal and null and void. REGULAR SECOND APPEAL No.2916 OF 2010 -3- Defendants inter alia pleaded that plaintiff committed irregularity in issuing NSC 6th issue instead of NSC 2nd issue and on account of said irregularity, defendants suffered loss of Rs.58,279/-, whereas the plaintiff was required to pay Rs.40,279/- only against the said loss. The said demand is justified because the loss occurred on account of fault of the plaintiff. The irregularity committed by the plaintiff could not be regularized at lower level of the defendants. The palintiff is liable to make good the loss as per impugned demand notice. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 02.08.2008 decreed the plaintiff's suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 06.08.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Admittedly no inquiry was held before making impugned demand from the plaintiff. Even no show cause notice was issued to the plaintiff before making the impugned demand. No opportunity of hearing was either given to the plaintiff before making the demand. It is thus manifest that the impugned demand made by the defendants/appellants is patently illegal and null and void being in violation of principles of natural justice as well as service jurisprudence. The plaintiff could not be penalized with the suit amount without issuing him show cause notice or without holding inquiry or without even granting opportunity of hearing to the plaintiff to explain his case. Consequently, there is no escape from the conclusion that the impugned demand made by the defendants/appellants completely unsustainable being null and void. In addition to the aforesaid, even on merits, the impugned demand cannot be sustained. The plaintiff's fault was that he issued NSC 6th issue instead of NSC 2nd issue. However, no loss was caused to the defendants on account of said REGULAR SECOND APPEAL No.2916 OF 2010 -4- fault of plaintiff, because the depositor agreed and consented to conversion of NSC 6th issue into NSC 2nd issue. However, the depositor had to approach the Consumer Forum because inspite of consent given by the depositor, the defendants failed to make payment to the depositor even as per entitlement of NSC 2nd issue. Loss if any occurred to the defendants not on account of fault of the plaintiff but on account of fault of other officials/officers who failed to make payment to the depositor even as per maturity value of NSC 2nd issue in spite of consent given by the depositor for the same. Negligence and deficiency in the service on the part of the defendants for which the depositor remained successful in the Consumer Forum was on account of failure of defendants to make payment of even maturity value of NSC 2nd issue. If the defendants had made payment of amount of NSC 2nd issue to the depositor, there would have been no question of any loss being caused to the defendants on account of initial fault of the plaintiff in issuing NSC 6th issue instead of NSC 2nd issue. The said fault of the plaintiff did not result in to any loss to the defendants because the depositor consented to rectification of the said fault. Thus the plaintiff is sought to be penalized illegally and erroneously for no fault of his. The impugned demand could not have been made from the plaintiff if he had been given an opportunity of hearing before making the demand. This is the reason why principles of natural justice require opportunity of hearing being given to a person before taking any adverse action against him. Learned counsel for the appellants vehemently contended that jurisdiction of Civil Court is barred by Section 14 of the Administrative Tribunals Act 1985 (in short the Act) because under the said provision, jurisdiction to deal with service matter is vested with Administrative Tribunal. The contention cannot be accepted. Firstly, no such objection was raised by the defendants in the written statement. If any such objection had been raised by the plaintiffs at the initial stage, the plaintiff would have got option to withdraw the suit and to approach the Central Administrative Tribunal (in short CAT). Now for the first time in second appeal, this REGULAR SECOND APPEAL No.2916 OF 2010 -5- objection, therefore, can not be allowed to be raised to compel the plaintiff to start de novo trial of the case by approaching the CAT. Secondly, it cannot be said that the suit pertains to service matter of the plaintiff as defined in the Act, because no disciplinary action was initiated against the plaintiff nor any disciplinary or punishment order has been passed against the plaintiff nor the dispute relate to service conditions of the plaintiff. If disciplinary action had been initiated for imposing minor or major penalty, then the matter would have come within the purview of CAT under the Act. But in the instant case, disciplinary action has not been taken against the plaintiff for imposing any punishment (minor or major penalty). On the other hand, straightaway illegal demand has been made from the plaintiff and, therefore, the lis would not fall within the purview of CAT under the Act. Both the courts below have rightly decreed the suit of the plaintiff- respondent. The instant second appeal is completely frivolous and meritless and in fact should not have been instituted by the Union of India. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 04.01.2011 'raj'