CANTONMENT BOARDFEROZEPUR CANTT Vs. BAJRANG SINGH

JUDGEMENT

(1.) This is a second appeal by the Cantonment Board, Ferozepore, against the appellate decree of Shri Anand Dev Kaushal, Additional District Judge, Ferozepore, dated the 31st May 1960, confirming that of the learned trial Judge, dated the 31st December, 1959 passing a decree for a declaration to the effect that the order of the Executive Officer, Cantonment Board, Ferozepore, dated the 29th September, 1955, dismissing Bajrang Singh plaintiff from the post of Pump Driver under the Cantonment Board, Ferozepore, was void and ultra vires and that the plaintiff continues to be in service of the said Board. Bajrang Singh plaintiff was employed by the Cantonment Board Ferozepore as a Pump Driver. On the 28th June 1955 he was charge-sheeted for certain malpractices and an enquiry was held into the said charges. On receipt of the enquiry report, requisite notice to show cause why he should not be dismissed from service was given to the plaintiff and he was later dismissed from service on the 29th September 1955 under the orders of the Executive Officer of the Cantonment Board, He filed an appeal to the Board which was dismissed on the 9th December 1955. He then filed a second appeal against the said order to the General Officer Commanding who dismissed the same on the 3rd January 1957. The suit giving rise to this appeal was then brought by him on the 2nd December 1958 for a declaration that the order of his dismissal was inoperative and illegal and that he continues to be in the service of the Board despite the said order. He alleged that he had not been given a reasonable opportunity to defend himself inasmuch as -- (1) that the enquiry officer had imported his personal knowledge into the matter without subjecting himself to cross-examination in respect of the same, and (2) that the list of documents and witnesses supplied to the plaintiff did not mention as to which of the documents or witnesses were to be produced in support of which particular charge against him. The suit was contested by the Cantonment Board on various grounds. They alleged that the suit was not maintainable, that it was barred by time, and that the enquiry and the order of dismissal were perfectly in order. It was denied that the plaintiff had not been given adequate opportunity to defend himself or to show cause against his dismissal. It was admitted that the list of documents and witnesses supplied to the plaintiff did not mention as to which of the documents and witnesses were to be produced in support of which particular charge against him, but it was alleged that it was not necessary to do so and that the list supplied to him substantially complied with the requirements of the rules. It was denied that the Executive Officer had imported his personal knowledge in coming to any particular findings. The plea which had been taken by the plaintiff that he had not been supplied with a copy of the findings of the enquiry officer and the grounds therefor was also denied.

(2.) On the pleadings of the parties the trial Court framed the following three issues:- 1. Whether the suit is not maintainable? 2. Whether the suit is barred by time? 3. Whether the order dated 29-9-1955 of the Executive Officer, Cantonment Board Ferozepore, dismissing the plaintiff from the post of Pump Driver Cantonment Board, Ferozepore, is illegal, void, ultra vires, unjust, mala fide, arbitrary, capricious and inoperative? After recording evidence of the parties the learned trial Judge decided all the three issues in favour of the plaintiff and, in the result, passed a decree as prayed for by him. The learned Additional District Judge, in appeal, affirmed the findings of the trial Court on issues Nos. 2 and 3 and upheld the decree passed by the said Court. It was observed in paragraph 7 of his judgment that findings on issues Nos. 2 and 3 alone were challenged before him which evidently means that the findings on issue No. 1 were not challenged in that Court.

(3.) In this second appeal Mr. D. N. Aggarwal, appearing on behalf of the Cantonment Board, challenges the findings of the learned Additional District Judge on issues Nos. 2 and 3 and also wishes to challenge the findings of the trial Court on issue No. 1. Regarding issue No. 1 he urges that the findings of the trial Court on the said issue were in fact challenged before the learned District Judge, but as a result of some forgetful-ness On his part he has observed in his judgment that the findings on issues Nos. 2 and 3 were only challenged and not those on issue No. 1. He has filed an affidavit of Mr. Krishan Lal Saxana, Advocate, Ferozepore, who had appeared on behalf of the Cantonment Board, and in this affidavit it is stated that the findings of the trial Court on issue No. 1 were also challenged before the lower appellate Court. It is, however, pertinent to note that this affidavit was not filed at the time of the filing of the appeal in September 1960 and even a ground was not taken in the memorandum of appeal that the findings of the trial Court on issue No. 1 had been challenged before the learned Additional District Judge but no findings had been recorded on the same. An application for permission to urge this point in this Court was filed on the 7th January 1961 but the affidavit of Mr. Saxana was not filed along with that. This affidavit was filed only a week before the actual hearing of the appeal but a copy of it was not supplied to the plaintiff-respondent with the result that it has not been possible for him to file any counter affidavit, and I cannot, therefore, allow the appellant to rely on this affidavit. The observations of the learned Additional District Judge on this point are contained in paragraph 7 of his judgment and are in the following words:- "Before me the findings of the lower Court on issues Nos. 2 and 3 alone have been challenged. In the circumstances, I am wholly unable to accept the contention of the appellant that the findings of the trial Court on issue No. 1 were actually challenged before the learned Additional District Judge, and I, therefore, refuse to entertain the arguments on this point. Even if such an argument had to be entertained, there does not appear to be any merit in the same. If the allegations of the plaintiff are correct that he was not given an adequate opportunity to defend himself and that the order of dismissal is inoperative and void, I do not See why his suit of the present kind should not be maintainable in a civil Court.