R.S.A.NO.4818 OF 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 9027-C of 2009 and Regular Second Appeal No. 4818 OF 1999 Date of decision: 10th November, 2009 The Punjab State through Secretary, Health and Family Planning Department, Punjab, Chandigarh and another ......Appellants Versus Sudhir Luthra .......Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. S.K.Bhanot, Senior DAG, Punjab for the appellants. Mr. Arun Chandra, Advocate for the respondent. Rajive Bhalla, J.(Oral) The appellants challenge judgments and decrees dated 31.05.1997 and 10.08.1999, passed by the Civil Judge (Junior Division), Samana and the Additional District Judge, Patiala, decreeing the suit filed by the respondent and dismissing their appeal. The plaintiff/respondent filed a suit for mandatory injunction, to direct the appellants to release his salary and his general provident fund along with interest @ 12% per annum w.e.f. 1.01.1994. On merits, the respondent pleaded that he joined the P.C.M.S. Cadre on 28.06.1983 and as he subscribed to the general provident fund account, he was allotted account no. P.B.MED/26020. The respondent was selected for the M.S. Course in Opthalmology at Medical College, Amritsar, in August 1987 and completed the course in R.S.A.NO.4818 OF 1999 -2- December 1989. He was thereafter, posted at Civil Hospital, Ferozepur and then transferred to Shergarh Rural Dispensary. He remained on leave upto 15.10.1991, but could not rejoin service thereafter. As he had furnished a service bond for Rs. 50,000/-, requiring him to serve the appellants, he was asked to pay Rs.50,000/-. The respondent paid Rs.50,000/- to the Tehsildar, Moga, by way of a demand draft drawn in the name of the Director, Health and Family Welfare Department, Punjab, Chandigarh and submitted his resignation. Despite this, an enquiry was initiated for his absence, though, he had resigned. As the appellants have withheld the provident fund amount and should therefore, be directed to pay this amount to the respondent. In response, the appellants filed a reply, stating that as the respondent remained absent from duty, without leave, violated the terms and conditions of his service bond and as departmental proceedings are pending, the provident fund cannot be released to the respondent. It was further averred that resignation has been rejected and therefore, the respondent is still deemed to be in service. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the plaintiff is entitled to the relief of mandatory injunction on the grounds mentioned in the plaint?OPP 2. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of the defendants?OPD 3. Whether the suit is not maintainable in the present form?OPD. 4. Whether the notice served upon R.S.A.NO.4818 OF 1999 -3- defendants before institution of the suit was legal and valid?OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that the appellants could not retain the amount deposited in the general provident fund and therefore, directed the appellants to refund the general provident fund amount and salary due to the respondent with interest @12% per annum. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 10.08.1999, the Additional District Judge, Patiala, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that as the respondent violated the terms and conditions of his service bond, exploited his employment with the State of Punjab to undergo a M.S.Course, the courts below could not have directed refund of the provident fund. Counsel for the respondent, on the other hand, submits that whatever, be the nature of the respondent's misconduct, the appellants have no right, in law to retain the provident fund, as even otherwise, the respondent has paid the amount under the service bond. I have heard counsel for the parties, perused the impugned judgments and decrees and do not find any reason to hold that the impugned judgments and decrees in any manner are incorrect or give rise to any question of law, much less a substantial question of law. Admittedly, the appellants have retained the provident R.S.A.NO.4818 OF 1999 -4- fund payable to the respondent on the plea that he was absent without leave. The trial court and the first appellate court are concurrent in their opinion, that the appellants have no right, in law to retain the provident fund, particularly, when the respondent has already resigned from service, as per letter of resignation Ex.P-8 and the registered cover and posting receipt Ex.P-9. The courts below have also taken note of the fact that the respondent has deposited the bond amount of Rs. 50,000/- In view of what has been stated hereinabove, as no substantial question of law, much less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 10th November, 2009 Shivani Kaushik