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2002 DIGILAW 245 (HP)

THE SECRETARY, PUNJAB SEB. v. O. P. CHAWLA

2002-09-02

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 30.8.1993 passed by the learned Additional District Judge, Mandi, whereby the appeal of the appellants/defendants (hereafter referred to as the defendants or Dl and D2 as the case may be) against the judgment and decree dated 17.11.1987 passed by the learned Sub Judge 1st Class, Jogindernagar, decreeing the suit of the respondent/plaintiff (hereafter referred to as the plaintiff) has been dismissed. 2. Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for declaration that the Office Order No. 836 dated 21.8.1984 passed by D-2 stopping the increment of the plaintiff is illegal, null and void and not binding on the plaintiff with the consequential relief of injunction directing the defendants to release the annual increment of the plaintiff with retrospective effect and pay all the arrears of pay arising therefrom to him. The case of the plaintiff as made out in the plaint is that at the material time he was working as Electrical Engineer in Shanan Power House at Jogindernagar. The petty jealousies prevailing in the department led to chargesheeting the plaintiff departmentally for demanding/taking bribe and releasing tubewell connections to a few persons with ulterior motive. After broad based inquiry on the charges against the plaintiff, he was exonerated of the charges against him. However, actuated with mala fide intention D-2 by the Order No. 836 dated 21.8.1984 stopped the annual increment of the plaintiff with future effect on the ground that the plaintiff had deliberately harassed the consumers. The said order is perverse and fraud with malice and is in contravention of the rules and regulations. Hence the suit. 3. The defendants contested the suit. In their joint written statement, they raised the preliminary objections that the suit is not maintainable, plaintiff has no cause of action and locus-standi to file the suit and the plaintiff is guilty of supresso veri and has not approached the court with clean hands. On merits, while admitting serving of chargesheet on the plaintiff and the consequential departmental inquiry, it is denied that the charges as enumerated in the chargesheet against the plaintiff on inquiry were found false. On merits, while admitting serving of chargesheet on the plaintiff and the consequential departmental inquiry, it is denied that the charges as enumerated in the chargesheet against the plaintiff on inquiry were found false. Only charge regarding bribe could not be proved against the plaintiff but it was specifically concluded by the Inquiry Officer that the plaintiff was found guilty of unnecessarily harassing the consumers for releasing tubewell connections to them. Therefore, the competent authority had ordered to stop one increment of the plaintiff with future effect vide order under reference. Hence the claim of the plaintiff has been denied. 4. Plaintiff filed replication wherein the grounds of defence as taken in the written statement were denied and the claim as made out in the plaint was reaffirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues : 1. Whether the order dated 23.8.1984 passed by defendant No. 2 is illegal, null and void. If so its effect? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Relief. 6. After considering the evidence led by the parties, the learned trial Judge vide his judgment dated 17.11.1987 decided issue No. 1 in favour of the plaintiff whereas the defendants did not press for issue No. 2 and as a consequence, the suit of the plaintiff was decreed. 7. Being aggrieved, the defendants preferred an appeal against the judgment and decree passed by the learned trial Judge which was heard and dismissed by the learned Additional District Judge, Mandi by the impugned judgment and decree, hence this appeal. 8. I have heard the learned Counsel for the defendants but could not have the advantage of hearing anyone for the plaintiff as none has put in appearance for him and have also gone through the records. 9. This appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the decision of suit or appeal could be arrived at by the Court without there being anything in the pleadings of party or without there being any issue in that behalf? 2. Whether the disciplinary authority has power to differ from the opinion as arrived at by the Enquiry Officer? 3. Whether the judgment and decree of the Appellate Court below is vitiated by non-consideration of evidence on record? 4. 2. Whether the disciplinary authority has power to differ from the opinion as arrived at by the Enquiry Officer? 3. Whether the judgment and decree of the Appellate Court below is vitiated by non-consideration of evidence on record? 4. Whether the judgment and decree of the Court below is vitiated by misreading of evidence in a right perspective or manner? Substantial Question No. 1 : 10. It has been pleaded in the plaint in detail that there was no charge against the plaintiff regarding alleged unnecessarily harassment to the consumers but he was charged for having demanded and accepted bribe and for releasing tubewell connections in favour of certain persons with ulterior motive and he was exonerated of such charges. The competent authority, however, imposed the penalty of stoppage of one annual increment with future effect on the alleged conclusion that the plaintiff was guilty of harassing the consumers. Therefore, he has been punished by the impugned order for such alleged lapses for which he was never chargesheeted. These averments as made in the plaint have been denied by the defendants and as a consequence issue No.l had been framed by the trial Court. Therefore, it cannot be said that concurrent decisions rendered by the Courts below are based on such facts which were neither pleaded nor there was any issue in this regard. Evidently this question does not arise in this appeal. Substantial Question No. 2 : 11. There cannot be any dispute that the disciplinary authority can differ with the findings arrived at by the Inquiry Officer. However, such power is only with regard to the findings recorded by the Inquiry Officer on the charges framed against the delinquent official. He cannot make out a new case against the delinquent and punish him for the alleged misconduct for which the delinquent was never chargesheeted. In the case in hand, the disciplinary authority (D-2) has in fact not differed with the findings of the Inquiry Officer on the heads of charges subject matter of inquiry but has formed an opinion about the commission of such mis-conduct by the plaintiff for which he was never served with a chargesheet and which was not a subject matter of inquiry. The concurrent conclusions arrived at by the Courts below in this regard are supportable on the basis of the material on record and cannot be said to be unreasonable or perverse for the simple reason that a perusal of Ext. PB, that is, the inquiry report reveals that there was no charge against the plaintiff that he had harassed the consumers in any manner other than demanding/accepting the bribe and releasing connections with ulterior motive which allegations have been found as having not been substantiated and the plain tiff was, therefore, exonerated. D2 imposed penalty on the plaintiff for the alleged misconduct for which he was not chargesheeted and, therefore, could not be held guilty by a mere process of forming an opinion without chargesheet and inquiry. Substantial Question No. 3 : 12. This question primarily is too vague not indicating as to which evidence has not been considered by the Courts below. Even at the time of arguments no such evidence was pointed out which might have not been considered by the Courts below or might have escaped from their notice. Substantial Question No. 4 : 13. At the time of arguments nothing has been pointed out in the judgments of the Courts below to indicate any misreading of evidence by them. Both the Courts below have rightly and properly appreciated the evidence on record and it is not a case of misreading of evidence and thereby arriving at unreasonable and perverse conclusion. 14. In view of the above discussion and the conclusions, there is no merit and substance in the present appeal. 15. As a result, this appeal is dismissed. Since the plaintiff has not put in appearance, therefore, there is no order as to cost.