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2015 DIGILAW 1422 (PNJ)

State of Punjab v. Gurmeet Singh

2015-08-07

HEMANT GUPTA, RAJ RAHUL GARG

body2015
JUDGMENT Mr. Hemant Gupta, J.: (Oral) - Present letters patent appeal under Clause X of the Letters Patent is directed against an order passed by a learned Single Bench of this Court on 1.2.2013, whereby the charge sheet dated 18.6.2010 was quashed. 2. In an departmental inquiry, the Commissioner passed an order exonerating the respondent, writ petitioner. However, the learned Financial Commissioner, in its order on revision, passed an order on 8.2.2008 differing with the findings of the inquiry officer and directed that the charges shall be formulated afresh and disciplinary proceedings to be conducted by appointing a new inquiry officer. It was observed inter-alia to the following effect:- “... To comply with the directions of the Hon’ble High Court, it is essential that the charges shall be formulated afresh and disciplinary enquiry be held by appointing new Enquiry Officer. A direction is given to the Commissioner, Jalandhar Division, Jalandhar to formulate charge sheet and send the same to Government for approval within 15 days.” 3. The writ petitioner challenged the action of the respondents in a writ petition No.5003 of 2009 but withdrew the same on 19.5.2010. Thereafter, on 7.6.2010, the State Government reviewed its earlier order and remitted the matter to the Commissioner, Jalandhar Division to reconsider the earlier finding and pass a fresh order. It was ordered as under:- “5. Therefore in view of the above position the case is remitted to Commissioner, Jalandhar Division under Rule 21(c) of the rules ibid to reconsider his earlier findings and pass a fresh order after appreciating the facts and circumstances of the case.” 4. It is soon thereafter that the charge sheet was served upon the petitioner on 18.6.2010. The learned Single Bench has found that once the State Government has remitted the matter to the Commissioner, fresh charge sheet should not have been served as contemplated in the earlier order dated 8.2.2008. 5. We do not find any error with the order passed by the learned Single Bench. Once the State Government has reviewed its earlier decision dated 8.2.2008 and remitted the matter to the Commissioner to reconsider its earlier finding and pass a fresh order, the Commissioner could not issue a fresh charge sheet. As a matter of fact, the evidence recorded in the departmental proceedings cannot be wished away even if the revisional authority is to disagree with the findings recorded by the inquiry officer. As a matter of fact, the evidence recorded in the departmental proceedings cannot be wished away even if the revisional authority is to disagree with the findings recorded by the inquiry officer. Once any finding has been recorded, it is open to the competent disciplinary authority to ask for further evidence but the evidence already recorded cannot be ignored from consideration. 6. In view of above, we do not find any error in the order passed by the learned Single Bench, which may warrant interference in this letters patent appeal. However, the competent disciplinary authority, i.e., the Commissioner shall be entitled to consider the evidence already recorded or such other evidence as the parties may wish to adduce before him in respect of which, the petitioner was earlier exonerated. Dismissed. ———————— 2015(4) Law Herald (P&H) 3437 : 2015 LawHerald.Org 1802 IN THE HIGH COURT OF PUNJAB AND HARYANA Before The Hon’ble Mr. Justice Raj Mohan Singh SAO No.73 of 2014 (O&M) M/s Rathi TMT Sariya Pvt. Ltd. v. JSL Limited {Decided on 04/09/2015} For the Appellants: Mr. Hemant Bassi, Advocate. For the Respondent: Mr. Rose Gupta, Advocate. (A) Civil Procedure Code, 1908, O.41 R.23--Remand of Case--Remand cannot be ordered in routine merely because reasoning of the trial Court were considered to be wrong--When material was available before the lower appellate Court, the Court should have decided the case on merits either to accept the appeal or to reject the same. (Para 6) (B) Civil Procedure Code, 1908, O.41 R.23--Remand of Case--Filing of appeal against the judgment and decree of the trial Court after being proceeded against ex parte by the trial Court cannot be termed to be joining of proceedings of the suit in any manner--Judgment and decree was based on merits on the basis of ex parte evidence of the plaintiff not to be remanded without assigning reasons. (Paras 11 & 12) CASES CITED: 1. Ashwinkumar K. Patel v. Upendra J. Patel, 1992(2) RCR (Civil) 256. (Para 6) 2. Kattukandi Edathil Krishan & Anr. v. Kattukandi Edathil Valsan & Ors., 2006(9) SCC 166 . (Para 9) 3. JSL Limited v. M/s Rathee TMT Sariya Private Limited, Civil Suit No.453-C of 2009. (Para 13) JUDGMENT Mr. Raj Mohan Singh, J.:- Appellant has assailed judgment dated 23.08.2014 passed by Additional District Judge, Hisar vide which appeal against judgment and decree dated 23.04.2012 passed by Civil Judge (Sr. (Para 9) 3. JSL Limited v. M/s Rathee TMT Sariya Private Limited, Civil Suit No.453-C of 2009. (Para 13) JUDGMENT Mr. Raj Mohan Singh, J.:- Appellant has assailed judgment dated 23.08.2014 passed by Additional District Judge, Hisar vide which appeal against judgment and decree dated 23.04.2012 passed by Civil Judge (Sr. Divn.) Hisar has been accepted and the case has been remanded back to the trial Court for fresh decision after affording opportunity to both the parties to lead evidence. 2. The suit for recovery of Rs.25,51,700/- along with interest was filed by plaintiff/respondent-JSL Limted against the appellant. In the suit, defendant -appellant was proceeded ex parte vide order dated 23.10.2010. Plaintiff/respondent examined one Sh. R.P. Jindal as PW-1 by tendering his affidavit in examination-in-chief and getting the documents exhibited Exs.P-1 to P-10. On the basis of aforesaid ex parte evidence, the suit of the plaintiff/respondent was decreed along with cost. Decree for recovery of Rs.25,51,700/- along with interest @ 6% per annum from the date of filing of the suit till actual realisation was passed vide judgment and decree dated 23.04.2012. 3. Defendant/appellant went in appeal against the aforesaid judgment and decree of the trial Court. In appeal it has been found that the affidavit Ex.PW-1/A tendered by Sh. R.P. Jindal as PW-1 was not even signed by the executant/deponent. During pendency of appeal an effort was made by the plaintiff/respondent to seek permission for signing the affidavit Ex.PW-1/A by Sh. R.P. Jindal. In this way the facts narrated in the affidavit Ex.Ex.PW-1/A could not be proved by the plaintiff in its evidence. The affidavit was shown to have been attested by Oath Commissioner without there being any signature of the deponent. 4. Permission was not accorded by the lower appellate Court. The Court set aside the judgment and decree of the trial Court dated 23.04.2012 being unsustainable in law. At the same time the lower appellate Court instead of dismissing the suit, remanded the case back to the trial Court for deciding the same afresh after inviting written statement from defendant/appellant and after affording adequate opportunities to both the sides to lead evidence. The defendant-appellant has come in the present appeal against remand of the case to the trial Court for fresh decision. 5. The defendant-appellant has come in the present appeal against remand of the case to the trial Court for fresh decision. 5. Learned counsel for the appellant states that there was no occasion for the lower appellate Court to remand this case as there was no evidence before the trial Court much less even examination in- chief of PW-1 Sh. R.P. Jindal because affidavit submitted on record remained unexecuted for want of signature of the deponent. Therefore, all the documents tendered on the basis of such affidavit have no evidentiary value in the eyes of law, rather they cannot be presumed to be tendered in evidence at all. 6. Learned counsel relied upon Ashwinkumar K. Patel v. Upendra J. Patel, 1992(2) RCR (Civil) 256 to contend that remand cannot be ordered in routine under Order 41 Rule 23 CPC, merely because reasoning of the trial Court were considered to be wrong. Remand orders lead to unnecessary delay and prejudice to the parties. When material was available before the lower appellate Court, the Court should have decided the case on merits either to accept the appeal or to reject the same. 7. It is a settled principle of law that plaintiff has to stand on its own legs even if defendant was proceeded ex parte. Plaintiff was well within its competence and jurisdiction to lead evidence. In the event of failure on the part of the plaintiff to lead evidence, the suit has to be dismissed even if there is no opposition on the part of the defendant. 8. In the instant case, the only evidence led by the plaintiff was in the form of affidavit of PW-1 (Ex.PW-1/A) which remained unexecuted for want of signature of the deponent. The documents got exhibited in such examination-in-chief have no evidentiary value as they cannot be treated to be led in evidence. In the absence of affidavit Ex.PW-1/A, case of the plaintiff will be of no evidence and only irresistible conclusion is that the suit is bound to be dismissed. It is relevant to state here that evidence of the plaintiff was closed 23.11.2010 on the basis of his own statement. 9. In the absence of affidavit Ex.PW-1/A, case of the plaintiff will be of no evidence and only irresistible conclusion is that the suit is bound to be dismissed. It is relevant to state here that evidence of the plaintiff was closed 23.11.2010 on the basis of his own statement. 9. In 2006(9) SCC 166 , Kattukandi Edathil Krishan & another v. Kattukandi Edathil Valsan & others, the Apex Court held that the appellate Court should have considered the available evidence on record by disposal of the appeal either after confirmation of the trial Court decree or reversal there from. 10. Tendering of unsigned affidavit Ex.PW-1/A by PW-1 in examination-in-chief which was even duly attested by the Oath Commissioner is a fraudulent act. Fraud vitiates all solemn acts. Such an act should be treated to be nullity and a person whose plea is based on falsehood has to be thrown out summarily at any stage of litigation. Plaintiff by tendering unsigned affidavit of deponent virtually gained advantage on the basis of trial Court decree. Such an act amounts to fraud on the Court as well as on the appellant and cannot be endorsed by the Court at any stage of litigation. 11. Lower appellate Court by ordering remand of the case to trial Court has virtually filled lacuna in the plaintiff’s case. Once the decree of the trial Court was set aside there was no occasion for the lower appellate Court to observe that appeal is a continuation of original proceedings and the defendant has joined the proceedings of the case. Filing of appeal against the judgment and decree of the trial Court after being proceeded against ex parte by the trial Court cannot be termed to be joining of proceedings of the suit in any manner. No other reason has been given by the lower appellate Court for making the remand of the case. 12. It is not a case of decision by the trial Court on a preliminary issue, rather the trial Court judgment and decree was based on merits on the basis of ex parte evidence of the plaintiff. Giving of reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice. 12. It is not a case of decision by the trial Court on a preliminary issue, rather the trial Court judgment and decree was based on merits on the basis of ex parte evidence of the plaintiff. Giving of reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice. The emphasis on recording reasons is that if the decision reveals “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Therefore, giving of sound reasoning is an indispensable part of the judicial system. Affected party must know why the decision has gone against him. Therefore, one of the salutary requirement is that the reasons should be spelled out adequately and in speaking manner. 13. In view of the reasons as mentioned above, I am of the considered view that the lower appellate Court has acceded its jurisdiction in ordering remand of the case. Therefore, this appeal is accepted. Impugned judgment dated 23.08.2014 passed by Additional District Judge, Hisar is set aside. Consequently, the civil suit No.453-C of 2009 titled JSL Limited v. M/s Rathee TMT Sariya Private Limited is dismissed. —————————