IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 876 of 1987 Date of Order: 25.9.2009 Ajmer Singh and his LRs ...Appellant Versus State of Punjab and another .... Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Arun Jain, Senior Advocate, with Mr. Vishal Goel, Advocate, for the appellant. Ms. Sudeepti Sharma, DAG, Punjab, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of two cross appeals filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’), namely, RSA No. 876 of 1987, which has been filed by the plaintiff and RSA No. 1372 of 1987, which has been filed by the defendant-State of Punjab, challenging judgment and decree dated 10.12.1986, passed by the learned Additional District Judge, Bhatinda. The only question of law raised in both the appeals is whether issuance of notice under Section 80 of the Code to the State RSA No. 876 of 1987 before filing of suit, was mandatory or not. The aforesaid question is well settled by an authoritative judgment of Hon’ble the Supreme Court in the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424. The issuance of notice under Section 80 of the Code is mandatory. The aforesaid view has been repeatedly followed by Hon’ble the Supreme Court. In that regard reference may be made to the judgments of Hon’ble the Supreme Court rendered in the case of State of Maharashtra v. Chander Kant, AIR 1977 SC 148 and Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551. 2. The aforesaid question has arisen in the following facts and circumstances: 3. The plaintiff-Shri Ajmer Singh had been working as a Senior Clerk in the Department of Welfare, Punjab and at the relevant time posted as such in the office of the Tehsil Welfare Officer, Talwandi Sabo. The Director, Scheduled Castes and Backward Classes, Welfare Department, Punjab, passed an order dated 5.2.1984 censuring the plaintiff. The said order was challenged by filing a civil suit for declaration, mandatory injunction and permanent injunction alleging that he was not afforded an opportunity of being heard nor any notice was issued. It is appropriate to notice that the plaintiff was originally appointed on the post of Social Worker and later on his designation was changed to that of Clerk/Senior Clerk etc. For the purpose of promotion to the post of Tehsil Welfare Officer a common seniority list was prepared. The plaintiff filed the suit alleging that his case was not being considered on account of the order of censure, dated 5.2.1984 and that such a punishment could not 2 RSA No. 876 of 1987 stand in his way for promotion. He also pleaded that persons junior to him were considered and his superior claim has been ignored. A prayer was also made for dispensing with serving of notice under Section 80 of the Code. 4. The defendant-State of Punjab raised objection that the suit was not maintainable for want of notice under Section 80 of the Code. On merit also the suit was contested by defending the order dated 5.2.1984 by asserting that the same is legal, valid and binding on the plaintiff. The plaintiff did not send his option for promotion to the post of Tehsil Welfare Officer and had not completed five years service. It is the case of the defendant State his case was considered for the post of Assistant but he was ignored on account of bad record. 5. The Trial Court framed five issues, which are as follows:- “1. Whether the order dated 5.2.84 censuring the conduct of the plaintiff is illegal, void, arbitrary and against the principles of natural justice? OPP. 2. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD. 3. Whether the suit is liable to be dismissed as no notice has been served? OPD 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff is entitled to the declaration and injunction prayed for? OPP. 6. Relief.” 6. On issue Nos. 1, 2 and 5, the Trial Court held in favour 3 RSA No. 876 of 1987 of the plaintiff by observing as under:- “6. I have given careful consideration to the evidence on the file and the arguments of the Ld. GP and the counsel for the plaintiff. The enquiry officer in this case has not been examined, even if he would have been examined, has (his?) statement would not have made any improvement as the enquiry file has not been proved to show as to what were the actual proceedings that took place during the enquiry. Only the result and the findings in the enquiry has been placed on the file and it show that the plaintiff was not found guilty of the charges leveled against him. In such a case it would be highly illegal to pass the order of censure on the basis of such finding. As the impugned order reads that as the plaintiff was found absent from duty without leave, so he was censured. But the findings of the enquiry officer say that he considered the plaintiff on duty and not absent. There may be some dissenting note of the punishing authority; but neither the enquiry file nor the enquiry officer has been produced to prove and justify the order. If (It?) may have been done in connivance with the plaintiff. But the fact remains that the plaintiff was exonerated in the enquiry but the impugned order proceeds on the assumption that the plaintiff was found guilty of the charges. Such an order is illegal and cannot be allowed to sustain. Further the plaintiff is not proved 4 RSA No. 876 of 1987 to have opted for promotion as Asstt. The letter Ex. P4 shows that even if the plaintiff had not given any option, his name was to be considered for the promotion to the post of Tehsil Welfare Officer. As such the plaintiff is not estopped by his act and conduct from filing the suit. And it is held that the plaintiff is entitled to the declaration and the injunction. These issues are, therefore, decided in favour of the plaintiff and against the defendants.” 7. However, on issue No. 3, concerning the want of service of notice under Section 80 of the Code, the Trial Court held that the Court had allowed the plaintiff to file the suit without complying with the necessity of notice under Section 80 of the Code and it was not liable to be dismissed for want of notice. Issue No. 4 was also decided in favour of the plaintiff. Accordingly, the order of censure, dated 5.2.1984 was declared illegal and void and a direction was issued to the defendants to consider the plaintiff for promotion on the post of Tehsil Welfare Officer on the basis of seniority-cum-merit. 8. On appeal filed by the defendant-State of Punjab, the learned Lower Appellate Court reversed the finding of the Trial Court on the issue of serving of notice under Section 80 of the Code. The learned Lower Appellate Court held that on the basis of interlocutory orders on the file no permission was granted by the Trial Court to file the suit after dispensing with the provisions of Section 80 of the Code. It was also found that no application was ever filed by the plaintiff for allowing him to file the suit without notice under Section 5 RSA No. 876 of 1987 80 of the Code nor any written order was passed on the file which shows that the Court had not granted any such permission. Mere registration of the suit did not result into automatic grant of permission to file the suit without compliance of the provisions of Section 80 of the Code. In that regard the learned Lower Appellate Court has discussed the procedure by observing that an application for leave of the Court under Section 80 of the Code along with plaint is required to be filed. The Court is to keep the plaint un-numbered and order notice in the application under Section 80 of the Code. After hearing the parties, the Court is to pass order dispensing with the service of notice under Section 80(1) in which case the plaint is admitted or it refuse to grant leave. In case of refusal, the plaint is returned for presentation after complying with the provisions of Section 80 of the Code. In the present case, since there was no application filed under Section 80 of the Code for grant of permission by the Court to file the suit by dispensing with notice under Section 80(2), no order could have been made. Accordingly, the objection raised by the defendant-State of Punjab in the first appeal was upheld, the suit was dismissed and it was ordered that the plaint be returned to the plaintiff for presentation after compliance of the provisions of Section 80(1) of the Code. The learned Lower Appellate Court, however, affirmed the findings of the Trial Court on issue Nos. 1 and 2. 9. Against the judgment and decree, dated 10.12.1986, passed by the learned Additional District Judge, Bhatinda, the plaintiff has filed RSA No. 876 of 1987 seeking the relief that the 6 RSA No. 876 of 1987 provisions of Section 80 of the Code were not mandatory and in any case on account of urgency the suit could have been pursued without issuing notice under Section 80. The defendant-State of Punjab has filed the other appeal bearing RSA No. 1372 of 1987 because the learned Lower Appellate Court though dismissed the suit but affirmed the findings of the learned Trial Court on issue Nos. 1 and 2. 10. The question as to whether the service of notice under Section 80 of the Code is mandatory, has to be answered against the plaintiff and in favour of the defendant-State of Punjab, as has been held by Hon’ble the Supreme Court in the case of Amar Nath Dogra’s case (supra) and other judgments to which reference has been made in the first para of this judgment. Consequently, the second appeal filed by the plaintiff is liable to be dismissed on this short ground. The suit filed by he plaintiff is also liable to be dismissed. 11. The defendant State has impugned the findings on the issue Nos. 1, 2 and 5. On merit both the Courts below have held that the plaintiff was exonerated in the enquiry and the allegation of absence from duty could not be proved. The enquiry officer has considered him present. The punishing authority yet by treating him absent from duty has censured him by order dated 5.2.1984. It has also been found that the plaintiff was required to be considered for promotion as Tehsil Welfare Officer even in the absence of exercise of option by him. There was no estoppel by his conduct. Therefore, the concurrent findings recorded by both the Courts below are hereby affirmed. 12. In view of the position of law on issue No. 3 the suit filed 7 RSA No. 876 of 1987 by the plaintiff has to fail. His appeal is dismissed. As the findings on issue Nos. 1, 2 and 5 have been affirmed even the State appeal fails and is dismissed. (M.M. KUMAR) September 25, 2009 JUDGE Pkapoor 8