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2022 DIGILAW 129 (JK)

J&K Dharmarth Trust Council v. Tara Chand

2022-03-25

TASHI RABSTAN

body2022
JUDGMENT : Tashi Rabstan, J.-This Civil Second Appeal is directed against the judgment and decree dated 24.04.2004 passed by the learned Second Additional District Judge, Jammu in File No.59/Appeal, whereby the appeal filed by the J&K Dharmarth Trust came to be dismissed observing that the trial court has not committed any illegality while decreeing the suit of plaintiff-Tara Chand. The appellant-J&K Dharmarth Trust is also seeking to set aside the judgment and decree dated 02.02.2001 passed by the learned Sub Registrar/Munsiff, Jammu in File No.193/Civil, whereby the plaintiff-J&K Dharmarth Trust was directed to settle the claim of plaintiff with regard to payment of pension and gratuity payable to him as per applicable rules. 2. The facts-in-brief, as gathered from the file, are that Tara Chand, respondent herein, was appointed as a Pujari on 17.04.1947 in the premises of Reghunath Ji Temple owned and managed by the J&K Dharmarth Trust, appellant herein. It is averred that he came to be promoted as Kotwal in 1968 and Girdawar-cum-Kotwal in the year 1971 and he was to retire in the year 1995 at the age of 65 years. However, in 1993 he requested for voluntary premature retirement and for grant of due pension and emoluments as Girdawar-cum-Kotwal. It is claimed although appellant-J&K Dharmarth Trust admitted the claim of respondent-Tara Chand to pay salary equivalent to 2 ½ times the pay of pujaries and to pension, but declined to accept his request for pre-mature retirement. Again, in 1994 and 1995, respondent-Tara Chand requested to retire him as he had already attained the age of 65 years, but the appellant-J&K Dharmarth Trust did not accede his request on the ground that his services were needed by the appellant. However, on 31.07.1998 respondent-Tara Chand came to be retired from service at the age of 68 years when he was getting Rs.1670/- inclusive of salary and allowances. 3. However, on 31.07.1998 respondent-Tara Chand came to be retired from service at the age of 68 years when he was getting Rs.1670/- inclusive of salary and allowances. 3. The grievance of respondent-Tara Chand is that (i) he had not been given the salary as eligible to him as Girdawar from 1971 to till July 1998 as the salary of Girdawar was 2½ times the pay of a Pujari; (ii) that he had not been given the salary of Kotwal from 1968 to 1971 and also allowance for additional charge as Kotwal from 1971 to 1998; and (iii) that he is also entitled to pension and gratuity as he had been working in the grade of Girdawar-cum-Kotwal from 1971 to till July 1998. 4. It is averred that the respondent-Tara Chand time and again requested the appellant-J&K Dharmarth Trust to settle his claims, but when the appellant did not pay any heed to his requests, he filed a suit before the Sub-Registrar, Munsiff, Jammu on 27.10.1998. The learned trial Court after going through the pleadings of the case, partly allowed the suit thereby directing the appellant-J&K Dharmarth Trust herein to settle the claim of plaintiff with regard to payment of pension and gratuity payable to him as per applicable rules. Feeling aggrieved, appellant-J&K Dharmarth Trust filed an appeal before the 2nd Additional District Judge, Jammu. However, the appellate Court too dismissed the appeal of appellant herein observing that the trial court has not committed any illegality while decreeing the suit of plaintiff-Tara Chand. Hence, the present Civil Second Appeal. 5. Learned senior counsel appearing for appellant-Trust argued that the Government order dated 27.05.1932, whereby the Pension Rules, applicable to Government servants, had been made applicable to the employees of appellant-Trust, is mere a recommendation of the Revenue Minister, as such have no force of law. He further argued that the trial Court has failed to appreciate that respondent-Tara Chand was only a Pujari and was not, in any event, entitled to the benefit of pension, even if the pension rules applicable to Government servants were made applicable by any device, as such the judgment and decree of learned trial Court has no factual or legal foundation, as the same is contrary to facts and law. Learned counsel also argued that there is absolutely no evidence or material to show that respondent-Tara Chand was appointed to any post other than that of Pujari, in as much as the onus of proof of the issue as regards his status was on respondent-Tara Chand, no evidence was led by him to discharge his burden. He, thus, pleaded that the findings of the trial Court as well as the First Appellate Court on all the issues are incorrect. 6. I have heard learned senior counsel appearing for parties, considered their rival contentions and also perused the file as well as record of trial court. 7. Present Civil Second Appeal came to be filed on 23.07.2004 and this Court vide order dated 25.11.2004 framed the following substantial questions of law for decision: “1. Whether in the absence of any positive evidence contrary to the provisions of the Dharmarth Trust Employees (Conditions of Service) Rules 1972, the court could reach any conclusion as to the plaintiff’s entitlement to pension, gratuity and other retiral benefits? 2. Whether the plaintiff could be permitted to lead any evidence contrary to 1972 Rules? And; 3. Whether finding of the courts below holding the plaintiff entitled to pension, gratuity and other retiral benefits is in accordance with law?” 8. Admittedly, the trial Court decreed the suit in favour of plaintiff, respondent herein, and the First Appellate Court too rejected the Civil First Appeal of defendant, appellant herein. Now, before deciding the first two questions framed by this Court, I would like to decide the third question first, i.e., whether the findings of the courts below holding the plaintiff entitled to pension, gratuity and other retiral benefits is in accordance with law? 9. It is to be seen here that the trial Court vide order dated 23.09.1999 framed the following issues: “1. Whether the suit of the plaintiff is not maintainable, if so how? OPD 2. Whether the suit has been under valued and proper court fee has not been paid? OPD 3. Whether the plaintiff was appointed as Pujari of temple Shri Raghunath Ji on 17.4.47 by the defendant? OPP 4. Whether plaintiff continuously worked as Pujari since 17.4.47 to 1968? OPP 5. Whether the plaintiff worked as a Girdawar Pujarian-cum-Kotwal from 1971 to 31.7.98? OPP 6. Whether the plaintiff’s claim has not been settled by the defendant? OPP 7. Relief.” 10. Whether the plaintiff was appointed as Pujari of temple Shri Raghunath Ji on 17.4.47 by the defendant? OPP 4. Whether plaintiff continuously worked as Pujari since 17.4.47 to 1968? OPP 5. Whether the plaintiff worked as a Girdawar Pujarian-cum-Kotwal from 1971 to 31.7.98? OPP 6. Whether the plaintiff’s claim has not been settled by the defendant? OPP 7. Relief.” 10. Accordingly, both the parties before the trial Court were directed to lead evidence in support of their respective case. Although respondent-Tara Chand in support of his case, besides examining himself as a witness, also examined one PW Hans Raj Magotra as a witness, however, appellant-Trust had failed to lead any evidence in rebuttal nor the appellant-Trust at any point of time produced the relevant record to counter the claim of respondent-Tara Chand, in absence of which the appellant-Trust is debarred from questioning the findings of the trial Court as well as of appellate Court. 11. A perusal of the file as well as the record of trial court reveals that although the appellant-Trust has admitted that respondent-Tara Chand had been working as a Girdawar-cum-Pujari of Raghunath Ji Temple, yet the appellant has denied the promotion of respondent-Tara Chand as Kotwal and Girdawar for want of necessary records. Appellant-Trust has also admitted that respondent-Tara Chand had applied for voluntary premature retirement and that he worked as Girdawar-cum-Pujari till July, 1998; meaning thereby the appellant-Trust has admitted that respondent-Tara Chand had been serving as Girdawar-cum-Pujari, yet he was not being paid the salary commensurate to his status nor any additional allowance. Admittedly, the onus to prove the issue “whether the plaintiff worked as a Girdawar Pujarian-cum-Kotwal from 1971 to 31.7.98” was on respondent-Tara Chand; he, accordingly, in order to prove the said issue, filed an application before the trial Court on 14.12.1999 seeking a direction to appellant-Trust to produce his service file. Learned counsel for appellant-Trust appearing therein also accorded no objection in allowing the said application. Accordingly, the trial Court vide order dated 11.05.2000, while allowing the said application, directed the record keeper of appellant-Trust to produce the relevant record on the next date of hearing. However, the appellant-Trust did not produce the relevant record despite the order of trial Court, which admittedly had been passed with the consent of learned counsel for appellant-Trust. Accordingly, the trial Court vide order dated 11.05.2000, while allowing the said application, directed the record keeper of appellant-Trust to produce the relevant record on the next date of hearing. However, the appellant-Trust did not produce the relevant record despite the order of trial Court, which admittedly had been passed with the consent of learned counsel for appellant-Trust. Again, respondent-Tara Chand filed an application dated 02.06.2000 seeking a direction to appellant-Trust to produce the relevant record as directed earlier, but the position remained the same. On one hand the appellant-Trust denied the claim of respondent-Tara Chand and, on the other hand, never produced the relevant record to disapprove the claim of respondent-Tara Chand. The appellant-Trust cannot have its cake and eat it too. Since it was the appellant-Trust who is the custodian of records, as such the onus to disapprove the claim of respondent-Tara Chand lies on the appellant-Trust by producing the relevant records. In paragraph-8 of the suit it was the specific stand of respondent-Tara Chand that he was promoted as Girdawar in 1971 and worked as such upto July, 1998. In response to said paragraph, the appellant-Trust in paragraph-8 of the written statement had specifically admitted before the trial Court that respondent-Tara Chand worked as Girdawar-cum-Pujari upto July, 1998. Since the appellant-Trust has failed to produce the relevant record, rather it has admitted that respondent-Tara Chand had been doing the job of Girdawar-cum-Pujari upto the year July, 1998, as such respondent-Tara Chand cannot be made to suffer for no fault of him. He has been hankering for release of his genuine claims for the last about 26 years and one can easily understand the plight of respondent-Tara Chand when now he must have been at age of 92 years. 12. Further, it is the specific case of respondent-Tara Chand that in the year 1971 he was promoted as Girdawar-cum-Kotwal on retirement of one Pt. Raja Ram. The appellant-Trust has not denied this fact that Pt. Raja Ram had been getting the pension after he retired as a Girdawar in the year 1971. Appellant-Trust has also failed to disclose that if respondent-Tara Chand had not been promoted to the post of Girdawar in the year 1971 after the retirement of Pt. Raja Ram, then who was manning the post of Girdawar from the year 1971 to July, 1998. Appellant-Trust has also failed to disclose that if respondent-Tara Chand had not been promoted to the post of Girdawar in the year 1971 after the retirement of Pt. Raja Ram, then who was manning the post of Girdawar from the year 1971 to July, 1998. Obviously, it was respondent-Tara Chand, who was doing the job of Girdawar-cum-Kotwal for all these years, which fact has also been admitted by the appellant-Trust though the stand of Trust is that respondent-Tara Chand had never been promoted against the said post, but it has failed to produce the relevant service record of respondent-Tara Chand. 13. A perusal of the file reveals that PW Hans Raj Magotra had deposed that from June, 1992 to 31.03.1994 he was Secretary of appellant-J&K Dharmarth Trust. He had specifically deposed that respondent-Tara Chand used to work as Girdawar-cum-Kotwal and also used to work as Pujari, as such he was entitled to 2½ times more salary. He also deposed that respondent-Tara Chand was entitled to gratuity and pension because other Girdawars, who had retired before him, were also getting the pension. Not only this, PW Hans Raj had also deposed that he had written to the sole trustee on two occasions specifically recommending the case of respondent-Tara Chand for pension and gratuity. It is to be seen here that appellant-Trust at no stage ever denied that the earlier Girdawars, who had retired before respondent-Tara Chand, were not getting pension or were not paid gratuity. Similarly, the appellant-Trust has also not denied the veracity of letters written to the sole trusty of appellant-Trust by the then Secretary of Dharmarth Trust recommending the case of respondent-Tara Chand for payment of gratuity and pension; meaning thereby if respondent-Tara Chand had played the same role as was played by similarly circumstanced persons and the same has not been denied by the appellant-Trust, then he too was entitled for the same treatment and the same could not have been denied by the appellant-Trust on lame excuses. Denying equal protection without there being any reasonable basis is unconstitutional, illegal, irrational, unfair, arbitrary and colourable exercise of powers, which has resulted in discrimination and hostile treatment to respondent-Tara Chand, as there has been violation of the prescribed norms and the criterion. The rule has to be applied objectively and uniformly and not on the basis of liking or disliking of the authorities concerned. The rule has to be applied objectively and uniformly and not on the basis of liking or disliking of the authorities concerned. The action of appellant-Trust in applying double standards and different yardsticks for the same class of employees facing similar circumstances cannot be appreciated as the same is violative of Articles 14 and 16 of the Constitution of India. Otherwise too, a similar treatment cannot be denied to respondent-Tara Chand in law nor can he be debarred from claiming parity with other similarly situated persons who have been granted gratuity and pension. 14. The next argument of learned senior counsel is that the learned trial Court as well as appellate Court neither properly considered nor properly dealt with the issues framed with regard to production of appointment order of respondent-Tara Chand as a Girdawar. He further argued that in the event of non-production of record, the procedure was to file an application before the Court seeking a direction to produce the record and also to seek permission under Section 65 of the evidence Act to lead secondary evidence; whereas, in the instant case, neither respondent-Tara Chand moved any application for production of record, particularly with regard to his appointment as a Girdawar nor pressed for Section 65 of the Evidence Act. 15. As discussed above, respondent-Tara Chand had moved an application on 14.12.1999 for production of record by the appellant-Trust before the trial Court. However, despite the direction from the trial Court the appellant-Trust did not produce the record. Further, the appellant-Trust in paragraph-8 of the written statement had specifically admitted before the trial Court that respondent-Tara Chand worked as a Girdawar-cum-Pujari upto July, 1998. Therefore, in terms of Section 58 of the Evidence Act, facts once admitted need not to be proved. Otherwise too, respondent-Tara Chand, besides examining himself, also examined one PW Hans Raj Magotra, the then Secretary of appellant-J&K Dharmarth Trust from June-1992 to 31.03.1994, who had specifically deposed that respondent-Tara Chand used to work as Girdawar-cum-Kotwal and also used to work as Pujari, as such was entitled to gratuity and pension on the lines of other Girdawars who had retired before him, which otherwise satisfies the requirement of Section 65 of the Evidence Act. 16. 16. Therefore, I do not find any force in the argument of learned senior counsel for appellant-Trust that the learned trial Court as well as appellate Court did not properly consider or deal with the issues framed with regard to production of appointment order of respondent-Tara Chand as a Girdawar. The judgments, as such, referred to by the learned counsel for appellant-Trust has no applicability to the case in hand. I have minutely gone through the findings of the courts below and I am of the considered view that the courts below, more particularly, the trial Court had dealt with each and every issue in accordance with law and rightly acknowledged and allowed the claim of plaintiff, respondent herein, while holding him entitled to pension, gratuity and other retiral benefits. 17. As regards the first question framed by this Court “whether in the absence of any positive evidence contrary to the provisions of the Dharmarth Trust Employees (Conditions of Service) Rules 1972, the court could reach any conclusion as to the plaintiff’s entitlement to pension, gratuity and other retiral benefits”, it is to be seen here that the plaintiff has examined himself as well as one PW Hans Raj Magotra his witness, who had clearly supported the claim of plaintiff, respondent herein, whereas the defendant, appellant herein, for obvious reasons never intended to produce any record or document or evidence despite being ordered by the trial Court on more than one occasion, which clearly shows that the claim of plaintiff-respondent was never rebutted by the defendant-appellant in any manner whatsoever either through documentary evidence or oral evidence, hence merely raising objections will not support the cause of appellant herein. The claims of respondent herein are fully justified and legal. Otherwise too, in terms of Rules 21 and 27 of the Dharmarth Trust Employees (Conditions of Service) Rules, 1972, respondent-Tara Chand being the permanent employee of the Trust was entitled to pension and gratuity. 18. Further, as regards the second question framed by this Court “whether the plaintiff could be permitted to lead any evidence contrary to 1972 Rules”, it is submitted here that a perusal of the rules reveals that the claim of plaintiff-respondent herein is totally within the framework of rules and he has produced evidence in consonance with the rules and not against it. Otherwise too, there was no specific denial on the part of defendant-appellant herein, rather it has impliedly admitted everything. 19. Lastly, this Court is of the opinion that the substantial questions of law as framed are essentially questions of facts. Thus, in this second appeal, no substantial question of law involved. Accordingly, the Civil Second Appeal is not liable to succeed. Consequently, the same is hereby dismissed along with connected IA. Interim direction(s) shall stand vacated forthwith. Registry to send back the record of trial Court against proper receipt.