R.S.A. No. 864 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 864 of 2008 Date of Decision : 17.2.2009 Constable Harish Chander .......... Appellant Versus Punjab State & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms. R.K. Thind, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 9.3.2006 and 12.1.2008 passed by the learned Courts below vide which suit filed by the plaintiff/appellant for declaration to challenge the order of punishment of forfeiture of one year approved service with permanent effect stands dismissed. The plaintiff/appellant also challenged the order passed by the D.I.G. of Police, Ferozepur rejecting the appeal of the plaintiff/appellant. The case set up by the plaintiff/appellant was that he joined the police department on 3.12.1991 as permanent and regular member of the force. He was charged for misconduct, and departmental enquiry was held on the allegations that when the plaintiff/appellant was posted at Police Station, City Jalalabad he had a brawl with one Constable Ved Parkash in R.S.A. No. 864 of 2008 2 front of the police station. When the MHC came to know about it, he was directed to appear before the SHO but instead of appearing before the SHO the plaintiff/appellant got himself admitted in Civil Hospital, Jalalabad. The plaintiff/appellant thereafter was not found in the hospital and it transpired that plaintiff left the hospital on 29.7.1999. The plaintiff/appellant was also marked absent on account of non-appearance on 30.7.1999. On account of the misconduct of the plaintiff/appellant, SHO police Station City Jalalabad recommended the suspension of plaintiff/appellant on 13.8.1999. The plaintiff/appellant only came back on 7.8.2000 after remaining absent for 6 months and 9 days. In the enquiry the appellant was found guilty of unauthorized absence. In view of charges having been proved against the plaintiff/appellant, he was awarded the punishment of forfeiture of his one year service with permanent effect towards increment and the period of absence was treated as non duty period. The appeal against the impugned order was dismissed by the appellate authority on 7.12.2001. The order passed by the Punishing and Appellate Authority was challenged on the plea that the orders are illegal, null and void and not operative on the rights of the plaintiff. It was also the plea that the procedure as prescribed under Rule 16.24 of the Punjab Police Rules was not followed. The plaintiff/appellant also denied having remained absent from duty. It was the case of the plaintiff/appellant that due to injuries suffered by him he was admitted in Civil Hospital and his medicolegal R.S.A. No. 864 of 2008 3 report was sent to the police station. The plaintiff/appellant was advised rest for 4 days initially and lateron was extended for more period. The plaintiff claimed that while availing rest, he appeared for duty in the police station but MHC refused to mark his presence. He was told that as proposal for his suspension was sent to the SSP, Ferozepur, so he would not mark his presence. The plaintiff claimed that his defence was not considered by the Enquiry Officer and no opportunity of personal hearing as required under Rule 16.24 of Punjab Police Rules was granted to him before awarding the punishment to him. The plaintiff claimed that he had filed a writ of mandamus in the Hon'ble High Court and thereafter allowed to join duty. It was also the case of the plaintiff that medical record was produced by him before the Enquiry Officer, which was not taken into consideration. It was also the case of the plaintiff that charge of absence from duty was wrongly framed against him.The case of the appellant/plaintiff was that the suspension period was considered as period of absence and subsistence allowance was not paid during the enquiry to the plaintiff. He claimed consequential relief of arrears of pay and seniority etc. The notice was issued wherein an objection was raised to the maintainability of suit on the plea that plaintiff/appellant had not exhausted all the departmental remedies available to him. On merits, it was pleaded that the plaintiff joined the department on 3.12.1991 as Constable with a probation period of three R.S.A. No. 864 of 2008 4 years. It was also the defence that proper and valid departmental proceedings were conducted against the appellant/plaintiff for remaining willfully and intentionally absent from his duty w.e.f. 28.7.1999. It was also pleaded that when he was directed to appear before the SHO, instead of appearing before him he got himself admitted in Civil Hospital, Jalalabad and did not join back on duty after leaving the hospital on 29.7.1999, so he was marked absent on 30.7.1999. It was also the case of the State that after remaining willfully absented for the period of six months 9 days he reported back on 7.8.2000. It was the case of the defendants/respondents that after thorough examination of findings of the enquiry and after giving full opportunity to plaintiff, he was awarded punishment of forfeiture of one year's approved service with permanent effect by the punishing authority by taking a lenient view. It was, however, admitted that the appeal filed by the plaintiff/appellant was dismissed on 25.4.2001. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff is entitled to the declaration as prayed for ? 2. Whether the plaintiff is entitled to the arrears, if so, with interest at what rate and what amount ? 3. Whether the suit is not maintainable in the present form ?OPD 4. Whether no valid and legal notice U/s 80CPC was not served upon the defendants before the filing of the present suit ? OPD R.S.A. No. 864 of 2008 5 5. Relief.” Issues No.1 & 2 were taken up together and on appreciation of evidence the learned trial Court decided issues No.1 & 2 against the plaintiff/appellant. Whereas issues No. 3 & 4 were decided in favour of the plaintiff and against the defendant-respondent as these were not pressed at the time of hearing. The suit was consequently, dismissed. The plaintiff/appellant preferred an appeal against the judgment and decree passed by the learned trial Court. The appeal also stands dismissed by holding as under :- “10. I have considered the above submissions made on behalf of the parties and gone through the evidence on record very carefully. 11. The appellant-plaintiff remained absent from duty w.e.f. 28.7.99. He was having a brawl with his colleague and thereafter he remained admitted in the hospital. After leaving the hospital, he did not join his duties and remained absent for over six months. He was served with a charge sheet and an enquiry was conducted. He was found guilty and ultimately, he was awarded punishment of forfeiture of one year approved service with permanent effect. I find no merit in the contention of the learned counsel for the appellant-plaintiff that the charge sheet severed upon him is not clear and as such the enquiry report conducted on this charge sheet cannot be relied upon. I have R.S.A. No. 864 of 2008 6 perused the copy of the charge sheet placed on the record which shows that the appellant- plaintiff was charged for remaining absent from duty without intimation. The evidence adduced before the Enquiry Officer was to the effect that the appellant-plaintiff remained absent from duty for a period of six months and 9 days. In view of this, the contention of the learned counsel for the appellant-plaintiff has no force. I have perused the record. Full opportunity was given to the appellant-plaintiff to plead and prove his case before the Enquiry Officer. It does not made any difference if in the charge sheet the period of absence is not mentioned. The authorities relied upon by the learned counsel for the appellant-plaintiff on this point are not applicable to the facts of the present case. The Enquiry file also shows that after considering the evidence led by the respective parties, the enquiry report was given by the Enquiry Officer and on the basis of Enquiry report, the punishing Authority awarded the punishment by passing the impugned order. The Enquiry Officer as such as complied with the relevant rule i.e. 16.24 of the Punjab Police Rules while conducting the enquiry. I do not find any merit in the contention of the learned counsel for the appellant-plaintiff that the Enquiry Officer has not considered the evidence properly. The evidence was properly considered by the Enquiry Officer.” The plea of the plaintiff/appellant that charge-sheet was not R.S.A. No. 864 of 2008 7 clear and, therefore, the enquiry report deserved to be ignored was rejected by observing that the plaintiff/appellant was charged for remaining absent from duty without intimation. The learned Courts also held that full opportunity was given to the plaintiff/appellant to plead and prove his case before the Enquiry Officer. The learned Courts also held that the finding were recorded by the Enquiry Officer after considering the evidence led by the parties. Rule 16.24 of the Punjab Police Rules was duly complied while holding enquiry. The learned counsel appearing on behalf of the appellant states that this appeal raises the following substantial questions of law :- 1. Whether the Courts below over- looked the important evidence led by the appellant which clearly shows that the appellant tried his level best to join his duty but was not allowed and, therefore, the findings recorded by the learned Courts below are perverse and, thus, not sustainable in law ? 2. Whether in view of the admissions made by the witnesses of the State that the appellant was not allowed to join duty which resulted in his long absence was relevant piece of evidence which has been ignored by both the Courts below ? In support of the questions of law, the learned counsel for the appellant contends that the learned Courts below failed to notice, that there was ample evidence produced by the plaintiff/appellant to show, that he was R.S.A. No. 864 of 2008 8 not willfully absent from duty, but was rather under treatment due to the injuries sustained in a brawl with constable Ved Parkash. The contention of the learned counsel for the appellant that evidence on record was produced to show that he was in fact not allowed to join duty, therefore, could not be treated to be absent from duty cannot be accepted. Rather the plaintiff/appellant was allowed to join duty during the pendency of the writ petition filed to seek writ of mandamus. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellant. The learned Courts below have recorded a concurrent finding of fact that proper procedure was followed by the department in the departmental proceedings where the plaintiff/appellant was given full opportunity. It is well settled law that the Civil Court cannot sit in appeal over the findings in the departmental proceedings so as to reappreciate the evidence. Once it was proved on record that punishment awarded was after following due procedure of law it was not open to the Civil Court to have gone into details of the evidence led by the parties before the Enquiry Officer. The Courts, therefore, were right in holding that the declaration prayed for could not be granted to the appellant. The substantial questions of law framed do not arise for consideration in this appeal. No merit. Dismissed in limine. 17.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE