LUCKY SHARMA Vs. BABU RAM

JUDGEMENT

(1.) The plaintiff instituted, a, suit bearing Civil Suit No. 96 of 2011, before the learned trial Court, and, therein, he claimed rendition of a decree for declaration, besides, renditions of decrees of permanent prohibitory injunction, as well as, of, mandatory injunction, for setting aside memo, of, 26.7.2011, bearing No. EDNHMR(Elem)G-1/Building/CMREF/2010-11-7811-13, (i) and, therethrough, a sum of Rs. 13,500.00, was, ordered to be recovered from the salary of the plaintiff. The suit of the plaintiff was decreed by the learned trial Judge, and, hence the afore memo stood quashed, and, also the defendants were restrained, from recovering the amount borne a sum of Rs. 13,500.00, from the salary, of the plaintiff, whereas, the, aforesaid espoused decree for mandatory injunction rather directing the defendants, to return the afore amount, vis-a-vis the plaintiff along with interest, at, the rate of Rs. 9% per annum, rather, stood declined.

(2.) The State of Himachal Pradesh, being aggrieved therefrom, instituted Civil Appeal No. 41 of 2016, before the learned first appellate Court, and, also one Babu Ram, being aggrieved therefrom, also filed thereagainst, Civil Appeal bearing No. 42 of 2016, before the learned first appellate Court. Both the afore civil appeals were decided, under, a common verdict, and, therethrough, hence Civil Appeal No. 41 of 2016, titled State of H.P. & others vs. Lucky Sharma, and, Civil Appeal No. 42 of 2016, titled Babu Ram vs. Lucky Sharma & others, were partly allowed, with, costs, and, the suit of the plaintiff stood dismissed. However, the amount recoverable by the defendants, from the salary, of the plaintiff, was, restricted in a sum of Rs. 10,000.00. The plaintiff is aggrieved by the judgment and decree, rendered, by the learned first appellate Court, hence has motioned this Court, through, his constituting the extant appeal herebefore.

(3.) Briefly stated the facts of the case are that the plaintiff has filed a suit for declaration and permanent prohibitory as well as mandatory injunction against the defendants with averments that the plaintiff on 20.2.2010 during the period he remained Headmaster of Government Middle School Khaggal, Tehsil and District Hamirpur entered into an agreement with defendant Babu Ram to construct Headmaster room in the school which was duly signed by contracting parties and the witnesses. As per same, the contract of construction was given for Rs. 62,000.00 with a stipulation to complete the work by 30.4.2010 and in case of default, the contractor shall be liable to pay double the amount of the contract. In pursuance to said agreement defendant Babu Ram started digging and collecting material to raise construction and on various dates at request received Rs. 32,000.00 in total. When the expiry period of the agreement was approaching, the plaintiff as well as management of the school issued a letter as well as made numerous calls on the mobile No. 94188-54299 of defendant Babu Ram to complete the work but he did not turn up which created unusual situation which forced in the interest and welfare of the institution to hand over the work to another contractor under separate writing. The defendant Babu Ram not only acted against letter and spirit of the agreement but also caused loss to the institution. But in order to avoid recovery or to prepare a defence, defendant Babu Ram served a legal notice dated 31.5.2010 for releasing second installment of Rs. 20,000/- which was contrary to the facts and accordingly notice was duly replied through counsel. The defendant Babu Ram in order to harass the plaintiff lodged a complaint with District Collector, Hamirpur who sent the same to defendant No.2 to inquiry which was assigned to defendant No.3 Deputy D.E.O. Smt. Neera Mahajan. At that time plaintiff was posted in Government Middle School Bhatera, District Hamirpur and as such along with Headmaster Government Middle School Khaggal was called for inquiry with record on 3.7.2010 but defendant No.3 did not conduct the inquiry as per established procedure under CSS (CCA) Rules 1965. Neither any show cause notice was issued nor memorandum of charges was prepared nor was read over and explained to him. Neither statement of the members of the staff who were present at the time of payment made to defendant Babu Ram recorded nor any opportunity was afforded to him to lead the evidence. Thus, the inquiry was arbitrary, unjust and improper. Also defendant Babu Ram nowhere had claimed amount Rs. 13,500.00 as he had pointed out different figures in his claims. The plaintiff in pursuance to said illegal and arbitrary inquiry has been served with a memo dated 20.7.2011 directing to make payment of Rs. 13,500.00 or otherwise the amount will be deducted from his salary. In these facts and circumstances, prayed for a decree of declaration that the inquiry conducted is wrong and illegal and resultantly memo dated 26.7.2011 is also wrong and illegal along with a decree of permanent prohibitory injunction for restraining the defendants from recovering Rs. 13,500.00 from the plaintiff and in case during the pendency of the suit succeeded in recovery then by way of a mandatory injunction be directed to return the same along with interest.