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Manjit Singh v. The Joint Secretary, Co-operation (Appea - CWP-11164-1999 [2006] RD-P&H 2689 (27 April 2006)



DATE OF DECISION: April 27, 2006.

Parties Name

Manjit Singh



The Joint Secretary, Co-operation (Appeals), Punjab and others ...RESPONDENTS

PRESENT: Mr. D.V.Sharma, Advocate, for the petitioner.

Mr. P.S.Chhina, Addl. A.G., Punjab;

Mr. M.S. Bedi, Advocate, for respondent No. 5 JUDGMENT:

Petitioner, by filing this writ petition, has laid challenge to the orders dated April 29, 1993, January 20, 1997 and March 5, 1999, copies Annexures P-7, P-11 and P-13, respectively. It is apparent from the records that vide order Annexure P-7, surcharge to the extent of Rs.

1,78,558.54 paise was imposed upon the petitioner and respondent No. 6 for causing loss to respondent No. 5. Records reveal that before September 26, 1984, respondents No. 6 and 7 were in joint custody of the godowns, where wheat was stored. Vide letter dated September 26, 1984 (Annexure P-1), petitioner was asked to take charge of the godowns from respondent No. 7, who was also directed to remain present at the spot for handing over charge to the petitioner. In that letter, it was mentioned that the charge was to be given only by counting the number of bags and the weight was to be ascertained at the time of lifting of the wheat and if any shortage was detected, then respondent No. 7 was to be held liable.

It is necessary to mention here that before the petitioner took charge of the godowns, the same were in joint custody of respondents No. 6 and 7, under 'double lock system'. Same system was adopted thereafter so far as petitioner and respondent No. 6 are concerned. Wheat remained in joint custody of both of them. Shortage was detected when wheat was lifted.

Departmental proceedings were initiated against the petitioner and respondent No. 6 and show cause notice was issued to them for major penalty and also for recovery of the loss. After enquiry, vide order Annexure P-4, it was found that the shortage was caused due to deterioration in quality and delay in prompt movement of the stocks.

By taking a lenient view, punishment of with-holding of three increments with cumulative effect was imposed upon the petitioner and respondent No. 6. However, no recovery was ordered to be effected from them.

That order has become final. Thereafter on the basis of an office note, order Annexure P-7 was passed, (which is under challenge), vide which surcharge was imposed upon the petitioner and respondent No. 6 and they were ordered to pay an amount of Rs. 1,78,558.54 paise. It is the case of the petitioner that the said order was never communicated to him and that is why he filed the appeal at a belated stage on December 13,

1994. Similarly, respondent No. 6 also filed an appeal against the order Annexure P-7 on November 15, 1994. Appeal, filed by respondent No.

6, was allowed on December 15, 1995, vide order Annexure P-10, whereas appeal, filed by the petitioner, was dismissed vide order Annexure P-11 being time-barred. He also lost in revision.

Learned counsel for the petitioner has argued that there is no proof of the fact that the petitioner was ever served before passing the order Annexure P-7. Under these circumstances, when he came to know about the order passed, he immediately filed the appeal, after getting copy of that order. On account of similar reasons, respondent No. 6 also filed appeal beyond the period of limitation, i.e., on November 15, 1994, (about one month prior to the date, when appeal was filed by the petitioner). His appeal was allowed, whereas in a very arbitrary manner, appeal, filed by the petitioner, was dismissed. Counsel, by referring to averments made and documents on record, categorically states that before passing the order Annexure P-7, petitioner was not served and order was never communicated to him. While dismissing his appeal being time-barred, a grave injustice has been caused to him, as on the same set of allegations, respondent No. 6, who was in joint custody of the wheat with the petitioner, has been exonerated vide order Annexure P-10. This Court is of the opinion that in view of facts of this case, it appears that a too technical view has been taken by the authorities while passing order Annexure P-11. Once appeal, filed by respondent No. 6, which was also time-barred, had been entertained and he was exonerated, it was incumbent for the concerned authority to take a lenient view in case of the petitioner also. This Court feels that Rules and procedure are handmaid of justice, to support its cause and not to scuttle it. Their Lordships of the Supreme Court in Sardar Amarjit Singh Kalra (dead) by L.Rs. and others v. Parmod Gupta (Smt.) (dead by L.Rs. and others, (2003) 3 S.C.C. 272, in para 26 of the judgment had opined as under:- "Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws.

Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

View extracted above, was reiterated by their Lordships of the Supreme Court in N. Balajit v. Virender Singh and others, (2004) 8 Supreme Court Cases 312, wherein after noting ratio of the judgment, referred to above, in para 10 of the judgment, it was observed that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.

Contention of counsel for the petitioner is that in view of order Annexure P-4, whereby after issuing show cause notice, no recovery was ordered to be effected from the petitioner, it was not open to the Registrar to initiate surcharge proceedings, that too on the basis of a note put up by some official of the Department, also needs consideration. This Court feels that it is not necessary at this stage to give any finding in that regard. In this case, ends of justice will be met if the appellate and the revisional orders are set aside and limitation in filing the appeal is condoned and competent authority is directed to hear appeal of the petitioner afresh.

Accordingly, this writ petition is allowed and orders annexures P-11 and P-12 are set aside. Matter is remitted to the Registrar, Co-operative Societies, Punjab, who may hear the same or may transfer it to any other competent officer. It is further directed that while passing the order, ample opportunity of hearing be given to the petitioner to explain his case and notice be also taken of the order Annexure P-4 and order passed in appeal in the case of respondent No. 6.

Parties are directed to appear before the Registrar, Co- operative Societies, on May 23, 2006.

April 27, 2006. ( Jasbir Singh )

DKC Judge


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