Kurdia Ram Sharma vs State of Haryana and Others

Ranjit Singh, J.—The appellant had filed this suit to challenge two orders directing of recovery of Rs. 59,847/- and Rs. 1,31,928/- passed separately on the ground that these were illegal and void. The appellant had also prayed for refund of the aforesaid amount with interest as a consequential relief after setting-aside of these orders.

The appellant was appointed as Junior Engineer on 27.7.1971. He was charge sheeted on 19.6.1984, to which he submitted his reply. Enquiry Officer was then appointed to give his report. On the basis of this report, a show cause notice was issued to him and then recovery of Rs. 1,31,928/- was directed.

The appellant was removed from service on 7.8.2001, against which he filed an appeal. The appeal was dismissed.

Prior to that, on 28.5.1985, another charge sheet was served upon the appellant and after holding enquiry, a sum of Rs. 59,847/- was ordered to be recovered from him. Against this order also, he filed an appeal which was dismissed on 25.10.2002.

In the written statement filed on behalf of the respondent-defendants, a preliminary objection was raised that the appellant was appointed as Junior Engineer and was issued charge sheet leading to the recoveries of the amounts as mentioned. It is also stated that the order dated 7.8.2001 was rightly passed against which the appellant had filed a Civil Writ Petition No. 15332 of 2002, but later got the same dismissed as withdrawn.

On the basis of pleadings, the trial Court framed the following issues:

Whether the order dated 7.8.01 passed by defendant No. 2 is illegal, null and void and liable to be set aside on the grounds as alleged? OPP

Whether the plaintiff is liable to be restrained in his services alongwith service benefit? OPP

Whether plaintiff is entitled for refund of the amount of Rs. 59847/- alongwith interest. If so to what effect? OPP.

Whether the suit of the plaintiff is time barred? OPD

Whether the suit filed by the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff has no locus standi and has no cause of action to file the present suit? OPD

Whether the suit is bad for non-service of notice u/s 80 CPC? OPD

Relief.

The suit was dismissed by the Trial Court against which the appellant filed an appeal, which has also been dismissed.

The counsel for the appellant has restricted his submission only in regard to the quantum of punishment awarded to the appellant and has not made any submission to challenge the impugned orders on merits. The challenge to the order of dismissal was rejected on the ground that the suit was barred by limitation as the order dated 7.8.2001 was challenged by him only on 5.2.2007.

The record reveals that the appellant had earlier filed a Civil Writ Petition before this Court to impugn the same order, which was got dismissed as withdrawn in the year 2002. When confronted with this fact, the counsel for the appellant submits that permission was sought to file the suit to impugn the same order, though there is no material on record placed in this regard. Even if it be so, the suit in this case was filed only on 5.2.2007. There is no explanation forthcoming for filing this suit after a lapse of nearly five years even from the date when the writ petition was got dismissed as withdrawn. Whether the suit was maintainable, once the challenge raised in the writ petition was got dismissed as withdrawn is an issue which would also require consideration. In any case, the suit was liable to be dismissed only on the ground of delay and laches and was rightly so dismissed by the Trial Court, which finding has also been upheld by the first Appellate Court. In this background, I am not inclined to consider the only limb of submission pressed into service before me regarding the quantum of punishment by saying that the same is harsh and disproportionate to the nature of allegations made. Such plea could have been raised in the writ petition and if not raised may not now be open to be raised before this Court in Regular Second Appeal. No such submission was apparently made either before the Trial Court or before the first Appellate Court. I am, thus, not inclined to go into this aspect as there are no basis provided in the pleadings, if the authorities had taken into account any matter, which it ought not to have taken into account or conversely it has refused to take into account matter, which ought to take into account. Simply because the sentence is stated to be harsh and disproportionate would not be enough to call for interference.

The Regular Second Appeal is accordingly dismissed.