Regular Second Appeal No.114 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.114 of 2008 Date of Order: 09.09.2008 Municipal Corporation, Faridabad ...Appellant Versus Mahinder Singh ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Sanjeev Kaushik, Advocate for the appellant. Mr. Rohit Ahuja, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The Municipal Corporation, Faridabad, challenges the judgment and decree dated 28.04.2001 passed by Civil Judge (Junior Division), Faridabad decreeing the suit filed by the respondent-plaintiff and the judgment and decree dated 25.04.2007, passed by Additional District Judge, Faridabad, dismissing the appeal filed by the appellant- Corporation. The respondent-plaintiff filed a suit for declaration praying that the order dated 24.12.1998, awarding punishment for absence from duty be declared illegal and void. A consequential relief of mandatory injunction was also sought to direct the Municipal Corporation to repay the amount of salary illegally deducted from his salary along with interest @ 18% p.a. etc. The appellant opposed these prayers. On the basis of averments and the written statement, the learned trial court framed the following issues:- Regular Second Appeal No.114 of 2008 -2- i) Whether the order dated 24.12.98 is illegal, null and void and liable to be struck down?OPP ii) Whether the plaintiff is entitled to get the arrears of pay for suspension period along with 18% per annum interest?OPP iii) Whether the plaintiff has no cause of action to file the present suit?OPD iv) Whether the plaintiff has no locus standi to file present suit?OPD v) Whether the plaintiff is estopped by his own acts and conducts to file the present suit?OPD vi) Whether the suit is bared for want of legal notice as required under the provisions of M.C.F. Act?OPD vi a) Whether the suit of the plaintiff without exhausting the appropriate remedy is not maintainable?OPD vii) Relief. After appraisal of the pleading and evidence adduced and the arguments addressed, the trial Court decreed the suit and set aside the order of punishment by holding that as a charge-sheet was served for a major penalty, the punishing authority had no jurisdiction to impose a minor punishment without following the procedure prescribed for imposing a minor punishment. Aggrieved by this judgment, the appellant filed an appeal. The first appellate Court, dismissed the appeal and affirmed the findings recorded by the trial Court by placing reliance upon a Full Bench judgment in Dr. K.G.TiwariU v. State of Haryana and others, 2002(4) SLR 329. Counsel for the appellant submits that in reply to the charge- sheet, the respondent-Mahinder Singh a Tubewell Driver admitted that he Regular Second Appeal No.114 of 2008 -3- was absent without leave for a few hours. The appellant was, therefore, justified in dropping the proceeding for imposing a major punishment and imposing a minor punishment instead. It is submitted that in view of the admission of his guilt by the respondent, the appellant was not required to follow the procedure prescribed for imposing a minor punishment. Counsel for the respondent, however, states that where the charge-sheet served proposes to impose a major punishment, but the punishing authority subsequently proposes to impose a minor punishment, it would have to follow the procedure prescribed for imposing a minor punishment. The respondent was served with a charge-sheet for imposing a major punishment. The courts below, therefore, rightly held that the minor punishment imposed, without following procedure prescribed for imposing a minor punishment was illegal. For the above arguments, reliance is placed on Dr. K.G.TiwariU v. State of Haryana and others, 2002(4) SLR 329, I have heard counsel for the parties and find no reason factual or legal to interfere with the concurrent findings of law and facts recorded by the courts below. Admittedly, the respondent was served a charge-sheet vide order dated 10.07.1997, proposing to impose a major punishment for absence from duty on 20.04.1997 at 3.50 AM. In reply to the charge-sheet, the respondent admitted his absence but stated that he had gone to answer the call of nature, but the tubewell was in working order during his absence. The appellant appointed a enquiry officer, but without waiting for the outcome of the report passed an order dated 24.12.1998 imposing a minor punishment. In Dr. K.G.TiwariU v. State of Haryana and others, 2002 (4) SLR 329, a Full Bench of this Court held that where after issuing a charge-sheet under Rule 7 of Haryana Civil Services (Punishment and Appeal) Rules, 1987 for imposition of a major penalty, the punishing Regular Second Appeal No.114 of 2008 -4- authority upon examination of the reply to the charge-sheet decides to inflict a minor punishment. It can only do so by following the procedure prescribed for imposing a minor penalty. Both the courts below i.e. the trial Court and the first appellate Court after placing reliance upon the aforementioned judgment held while setting aside the order of punishment that by not following the procedure for imposing a minor punishment, the punishing authority committed an error. The conclusions recorded, are in no manner illegal and do not suffer from any error of law as would give raise to a substantial question of law. Liberty has already been granted to the appellant to procee afresh in accordance with law. No merit, dismissed. September 9, 2008 (RAJIVE BHALLA) nt JUDGE