Regular Second Appeal No. 1396 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1396 of 1987 Date of decision: May 12, 2010 The State of Punjab ...Appellant Versus Baldev Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. None for the respondent. RANJIT SINGH J. The respondent-plaintiff was serving as Poultry Inspector. He had applied for leave from 7.4.1981 to 09.04.1981. He again applied for leave for another 2 months up to 11.6.1981. As per the pleadings, the leave was duly sanctioned but was subsequently cancelled on 18.5.1981. Thereafter, the respondent-plaintiff was marked absent from duty. Dr. Kehar Singh, Director served a memo of charges to the respondent-plaintiff. Thereafter, Amrik Singh, Deputy Director of the Department was appointed as inquiry officer to go into the aforesaid charges. The respondent-plaintiff pleaded that he did not accept any fair treatment as Dr. Amrik Singh was allegedly doing everything at the instance of Dr. Kehar Singh being his subordinate on the ground that the respondent-plaintiff had filed a complaint against said Dr. Kehar Singh. Despite objection, the inquiry was Regular Second Appeal No. 1396 of 1987 2 proceeded and conducted behind the back of the respondent-plaintiff without affording him any chance of putting forth his case. Thereafter, the impugned order of dismissal was passed. The respondent- plaintiff had accordingly filed the suit to challenge the order. In the written statement filed, the allegations made in the plaint were controverted. It is stated that despite cancellation of leave, the respondent-plaintiff deliberately remained absent and thereafter did not comply with the orders. The allegation of animosity against Dr. Kehar Singh was denied and accordingly it is stated that the inquiry was conducted fairly and not with any biased mind as is alleged. It is pointed out that the date and time of inquiry was intimated to the respondent-plaintiff, who was also given full opportunity to put forth his case. The respondent-plaintiff had rather abruptly stopped participating in the inquiry and so was proceeded against the exparte and thereafter the impugned order was passed. On the basis of the pleading, following issues were framed:- 1. Whether the impugned order dated 7.1.1983 passed by the Director is wrong, illegal, arbitrary, unconstitutional and without jurisdiction? OPP 2. Whether the notice u/s 80 CPC served by the plaintiff is not valid an legally? OPD. 3. Relief. The trial Court dismissed the suit filed by the respondent- plaintiff against which he filed an appeal. The appeal was allowed and aggrieved against this order, the State has filed this Regular Second Appeal. Regular Second Appeal No. 1396 of 1987 3 What primarily weighed with the First Appellate Court was that no probe whatsoever is held against the respondent-plaintiff and thus there was no basis or premise for punishing the respondent- plaintiff. These observations apparently have been made and are contradictory which can even be noticed from the impugned judgment. Though it is stated that no probe whatsoever was held against the respondent-plaintiff but the Court itself has subsequently observed that the inquiry officer was appointed who had issued 4 notices Ex. D1 to D4 to the respondent-plaintiff. It is also noticed that the respondent-plaintiff thereafter, attended the inquiry proceedings, and made written submissions Ex. P8 to P10 and Ex.P11, a fact which is noticed in the judgment. The respondent-plaintiff had even asserted through these three exhibits that he was not prepared to submit to the inquiry which was being held under the direction of Dr. Kehar Singh. The Court had then noticed that thereafter there was no order indicating that the respondent-plaintiff was proceeded exparte. Proceeding ahead, the First Appellate Court had also observed that the action was taken against the respondent-plaintiff on the basis of the report of the inquiry officer but that has not been made part of the record. It was also observed that there was nothing on file to suggest even remotely that it (inquiry report) had ever seen a light of day at any stage or at any point of time. Thus, primarily the judgment passed by the trial Court was reversed on the ground that no inquiry whatsoever was held and no inquiry report was prepared or submitted. Accordingly, it was held that there was absolutely nothing before the punishing authority which could have warranted any action against the respondent-plaintiff. Regular Second Appeal No. 1396 of 1987 4 The above observations as made by the First Appellate Court are totally against the record. The pleadings have been perused. The observations made by the First Appellate Court are rather against the pleadings made in the suit by the respondent- plaintiff, who himself had pleaded in the suit that on account of non- grant of his genuine request, the plaintiff was left with no alternative but not to attend the inquiry, as the inquiry officer being subordinate to Director was biased against him. In para 10 of the plaint, it is specifically averred that on the basis of inquiry, a show cause notice was issued to which the respondent-plaintiff had submitted a reply, which was detailed and exhaustive one, meeting all the points raised in the said show cause notice, which were stated to have been proved in the inquiry report. In this background, the observation by the First Appellate Court that there was no inquiry held or that there was no inquiry report submitted or that no inquiry report saw the light of the day cannot be countenanced. These observations have apparently been made while totally ignoring the pleading in the case and are rather against the pleadings filed by the respondent-plaintiff himself. Once the inquiry was concededly held and the inquiry report was prepared, which was served to the respondent-plaintiff alongwith the show cause notice, it cannot possibly said that no inquiry report was prepared even if it is assumed that the inquiry report was not placed on record. It would be inconsequential, as copy of the inquiry report had been supplied to the respondent-plaintiff and he had not made any grievance in this regard that no inquiry was held or that Regular Second Appeal No. 1396 of 1987 5 inquiry report had not been prepared in the suit filed by him. Accordingly, the finding returned by the First Appellate Court cannot be sustained and the same would call for interference. The substantial question of law in regard to misreading the evidence to come to the conclusions as assured, thus would arise. At this stage, learned counsel for the respondent-plaintiff submits that the punishment of dismissal awarded to the respondent- plaintiff was highly disproportionate, considering the allegation of absence. As per the counsel, the allegation may be viewed in the background that the leave had infact been sanctioned to the respondent-plaintiff, but the same was cancelled. The respondent- plaintiff has not come forward to challenge any finding or sentence. No doubt, it is true that the order of the First Appellate Court was in his favour and for this reasons he had no cause to challenge any finding. At this stage, it would not be appropriate to hold that the punishment awarded to the respondent-plaintiff was either disproportionate or harsh. Except for stating that the punishment is disproportionate, no submission is made to substantiate the same. I am thus not inclined to interfere on this count. The Regular Second Appeal is allowed. The judgment and decree passed by the First Appellate Court is set aside and one passed by the trial Court is restored. There shall be no order as to costs. May 12, 2010 ( RANJIT SINGH ) rts JUDGE