RSA No.2859 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.2859 of 2009 (O&M) Date of Decision: December 09, 2009 State of Haryana and others .........Appellants Versus Manohar Lal ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Ms. Maloo Chahal,Deputy Advocate General, Haryana Mr.S.K.Hooda, Advocate for the respondents ** Sabina, J. Plaintiff filed a suit for declaration and mandatory injunction. The said suit of the plaintiff was partly decreed by the Additional Civil Judge (Senior Division) Rohtak vide judgment and decree dated 24.12.2003. Aggrieved by the same, the defendants filed an appeal and the same was dismissed by the Additional District Judge Fast Track Court, Rohtak vide judgment and decree dated 30.5.2009. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Brief facts of the case of the plaintiff are;that he is an Ex/serviceman; that he peformed meritorious service in the army; RSA No.2859 of 2009 (O&M) 2 that he joined as a driver with defendant No.2 in August, 1977 and performed his duties sincerely; that one Kapoor Singh Incharge of Transport Department of defendant No.2 used to commit various illegal acts with regard to use and maintainenance of vehciles and he used to pressurise the plaintiff to dance on his tunes, that earned leave of the plaintiff for the period from 7.1.1988 to 30.3.1988 were treated as without pay; that he was assured for pay of the above said leave period which was not paid to him to which he was also legally entitled; that he was directed to seek repair of vehicle bearing registration no.HYO-2977 from Sanghi Motors New Delhi for which plaintiff stayed three days but no TA/DA was paid to him despite repeated requests and demands; that plaintiff was transferred to CHC Chiri malfidely by the officers who was not competent to pass that order; that defendant No.2 contrary to the Govt. instructions recorded adverse remarks in his Annual Confidential Reports(For short `ACR') for the year 1991-92 which were conveyed to him on 8.10.1992, to which he made representation but no reply was sent to him; that leave of the plaintiff from 13.1.93 to 30.4.93 were refused and he was marked absent at the behest of Sh, Kapoor Singh; that adverse remarks in the ACRs of the plaitniff for the year 1981-82, 1983-84 and 1985-86 were recorded but were conveyed to him vide vide memo No.5435 to 5439 dated 10.11.1993 after lapse of 10 to 12 years assessing him as average; that plaintiff suffered final shock on receipt of order dated 30.11.1993 vide memo No.5045 to 5050 dated 14.12.1993 for his RSA No.2859 of 2009 (O&M) 3 compulsory retirement w.e.f 30.4.1993 on the plea that as per Govt. instructions dated 16.8.1983, 70% ACRs of the plaintiff were not good which is illegal, unconstitutional and not binding upon the rights of the plaintiff; that no notice of three months was served upon him before his retirement and that no opportunity was ever been given to him; that three months pay in lieu of notice was also not paid to him; that plaintiff filed an appeal before the defendant No.3 but the same was declined in a cryptic manner. 3.The suit was contested by the defendants by filing the joint written statement taking preliminary objections regarding maintainability; locus standi; estoppel; inadequate court fees and that the suit is bad for want of notice u/s 80 CPC. It has been pleaded that performance of the plaintiff throughout the service period was either average or below average. He was never harassed nor forced to act according to the wishes of Transport Incharge. Being a habitual absentee, his leave was rightly sanctioned as without pay from 7.3.1988 to 30.3.1988; that plaintiff without applying for sanction for journey beyond jurisdiction went to Delhi to get repair of the vehicle done from Sanghi Motors, thus he was not paid TA/DA. Even otherwise, plaintiff did not submit the TA/DA bill upto September,1990 that he was transferred to PHC Chiri on administrative ground; that plaintiff did not apply for earned leave and for this he was separately charge-sheeted and Enquiry Offier punished him by stopping his one increment without commulative effect, against RSA No.2859 of 2009 (O&M) 4 which plaintiff filed an appeal which was dismissed; that adverse remarks were conveyed to the plaintiff but he did not sent any representation. The explanation of the plaintiff was called regarding willful absence from the duty and the action taken by the Enquiry Officer was even approved by the Competent Authority on 25.3.1994; that the plaintiff was retired from Govt. service w.e.f. 30.4.1993 on the basis of average/below average reports as per Govt. instructions. All other allegations were denied.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the order dated 30.11.93 and 19.4.94 are illegal, null and void and are liable to be set aside on the grounds mentioned in the plaint, if so to what effect?OPP 1A.Whether order dated 3.4.1992 and letters No.447, 499,450 dated 18.4.88, treating leave without pay to plaintiff and order dated 10.1.94 under challenge rejecting appeal of plaintiff are illegal?OPP 1B If above issues are proved,whether plaintiff is entitled to re- instatement with full back wages and also full pay from 7.3.88 to 30.3.88, 13.3.90 to 30.11.90, 13.1.93 to 30.4.93 and also TA/DA for Delhi on the grounds mentioned in the plaint along with interest at the rate of 12% PA against defendants?OPP 2. Whether suit is not maintainable in the present form?OPD 3.Whether plaintiff has no locus standi to file the present suit?OPD RSA No.2859 of 2009 (O&M) 5 4.Whether plaintiff is estopped by his own act and conduct from filing the present suit?OPD 5. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed. Plaintiff had filed a suit for declaration that the impugned orders whereby the plaintiff had been compulsorily retired were liable to be set aside. The decree for mandatory injunction was also sought that the defendants should reinstate the plaintiff as a driver with all consequential benefits. The case of the defendants was that the plaintiff was liable to be compulsorily retired as he did not have 70% good annual confidential reports. Reliance was placed on instructions dated 16.8.1983 Exhibit D24. Both the Courts below have taken note of the fact that the said instructions have been set aside by this Court. It was held that the word `average' in the annual confidential report could not be taken as adverse. Moreover, the report on the basis of which plaintiff was being compulsorily retired had never been communicated to the plaintiff in time so that the plaintiff could have represented against the same. Moreover, some of the adverse annual confidential reports were never conveyed to the plaintiff and, hence, no action could be taken on the basis of the said reports. The learned trial Court in the judgment has observed that the disputed ACRs were conveyed to the plaintiff, as per the admitted case of the defendants, in November '93 while that of the years 1987-88, 1989-90 were never conveyed to the plaintiff. Thus, the ACRs in question had never been conveyed to the plaintiff promptly which denied the plaintiff an opportunity to represent RSA No.2859 of 2009 (O&M) 6 against the same. Moreover, the impugned order had been passed with retrospective effect. Now the usual complete term of service of the plaintiff already stands expired and, in these circumstances, the Courts below rightly granted the consequential necessary service benefits to the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 09, 2009 arya