R.S.A. No.1434 of 1988 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... R.S.A. No.1434 of 1988 Date of Decision: September 12, 2011 The Secretary, Food and Supplies Department, Punjab, Chandigarh and others ... Appellants VERSUS Nasib Singh son of Jagat Singh @ Jagta, Inspector Food and Supplies at present working under the District Food and Supplies Controller, Ludhiana, deceased, through L.Rs. and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.Ranvir Singh Chauhan, Deputy Advocate General, Punjab for the State-appellant. Mr.D.V.Sharma, Senior Advocate with Ms.Shivani Sharma, Advocate. -.- MOHINDER PAL, J. This is the regular second appeal against the order dated 14.01.1988 of the learned Additional District Judge, Ropar vide which the judgment of the trial Court has been reversed and the suit of the plaintiff Nasib Singh (respondent herein represented by his legal representatives) for declaration has been decreed. As per facts of this case, plaintiff Nasib Singh filed a suit for declaration to the effect that the order dated 06.04.1977 passed by the Director, Food and Supplies, Punjab by which his two increments with R.S.A. No.1434 of 1988 2 cumulative effect were stopped and the order of the Secretary, Food Supplies Department, Punjab rejecting his appeal was illegal, null and void and hence inoperative. Plaintiff Nasib Singh was posted as Inspector, Food and Supplies at Kurali in the State of Punjab. In the month of June, 1974 the procurement of wheat crop was on the peak and shortage of wheat in the godown was being noticed. It is the case of the plaintiff that the District Food and Supplies Controller, Rupnagar was annoyed with him, who made a false complaint against the plaintiff and on the basis of which Director Food and Civil Supplies, Punjab came to conduct physical verification of the godown falling under the plaintiff. On physical verification of one of such godowns, 175 bags of wheat were found short. The plaintiff requested for grant of some time to find the reasons for shortness and 2-3 days after this incident the plaintiff himself counted the wheat bags and found that there was one bag in excess in the stock and this fact was telephonically informed to the higher officials. It is further the case of the plaintiff that an inqury was conducted illegally without issuance of any charge sheet and not afforded full opportunity to lead evidence and cross-examine. Further, the punishment imposed by defendant No.2 was not according to the charge sheet, which was illegally framed against him. After notice, the defendants (appellants herein) contested the suit and took up preliminary objections regarding amendment and maintainability with averments that 8264 wheat bags were given to Ware Housing Corporation whereas the plaintiff produced a receipt of only 8170 bags and hence there was shortage of 94 bags plus 81 bags of wheat in the godown under the control of the plaintiff. It was further pleaded that the plaintiff was given full opportunity to defend his case and so inquiry as well as punishment was commensurating to the R.S.A. No.1434 of 1988 3 charges framed against him. The pleadings of the parties culminated into framing of following issues: 1. Whether the impugned order dated 6.4.77 passed by defendant No.2 is illegal null and void and is an order of punishment and whether the order dated 30.06.1981 passed by defendant No.3 by which he had rejected the appeal of the plaintiff is illegal null and void and unconstitutional, in-operative and against the principles of natural justice and malafide as alleged? 2. Whether the order dated 30.11.1981 and 18.10.82 are also illegal and alleged? 3. Relief.” Learned trial Court decided issue No.1 against the plaintiff by holding that shortage of 175 bags was very well established in favour of the inquiry report and other documents available on file. It is further held that the argument regarding not affording full opportunity during the inquiry stage was also meaningless in view of own admission by the plaintiff and further the recovery of ` 4,528.94 P. was also valid and legal in absence of any evidence from the plaintiff side. Aggrieved from the decision of the trial Court, defendant Nasib Singh preferred an appeal before the First Appellate Court which reversed the findings of the trial Court on the ground that there was no shortage found rather one bag was found in excess after 2-3 days when the respondent made the calculation by counting the bags lying in other godown and further that there was no necessity of leading any evidence as the order by which the appellant was exonerated from the allegations of shortage of rice was already on record and looked into by the trial Court. Aggrieved from the judgment of reversal by the Appellate Court, the State has come in the present appeal. R.S.A. No.1434 of 1988 4 I have heard the learned counsel for the parties and have gone through the record of the case. While arguing before me, learned State counsel has submitted that re-counting by the respondent after a gap of 2-3 days was meaningless in view of the raid conducted by the Assistant Director Shri Lal Singh, who has found the shortage of wheat in the godown under the control of respondent. However, while arguing on behalf of the respondent, it has been submitted that the shortage can always be made good and explained by the respondent as some of the wheat bags were lying in another godown and on physical verification by the respondent himself one wheat bag in excess was found in the premises where Assistant Director alleged to have conducted the raid. After appreciating the arguments addressed by both the sides, I am of the considered opinion that there are merits in the contention of the learned counsel for the appellant side. It is not disputed that respondent Nasib Singh was posted as Inspector, Food and Supplies at Kurali on the relevant date. The godown where raid has been conducted was under his charge and he was custodian of the State property. After raid, respondent Nasib Singh has himself suffered a statement wherein it has been admitted that 175 bags of wheat were short in the godown and he has made a request to the Assistant Director to give him 2-3 days' time for the purposes of physical verification. He has further admitted that after this verification, he has found one bag in excess in his possession in that godown. So from the own admission of the respondent, it is abundantly clear that on the relevant date and at the relevant time, there was shortage of 175 bags. Later on, personal verification by the respondent is meaningless once the shortage is found when Assistant Director, Food and Supplies R.S.A. No.1434 of 1988 5 checked the godown. It is not difficult to understand that shortage can always be made good if accused is given 2-3 days' time to explain the same. It is case of the respondent that he made a request to the Assistant Director to give him time. Whether such permission has been allowed is a moot question and further the subsequent verification by the respondent himself is meaningless. The argument of the learned State counsel regarding imposition of penalty of `4,528.94 P. requires appreciation in view of the fact that the penalty has been challenged but no evidence in this regard has been led by the respondent. Rather in the amendment of the plaint, it has been submitted that the respondent was not required to lead any evidence to dispute the penalty. For the aforesaid reasons, the judgment under appeal is liable to be reversed by upholding the decision of the trial Court. Resultantly, the present appeal succeeds and the decision of the Additional District Judge is set aside. September 12, 2011 ( MOHINDER PAL ) jt JUDGE