RSA No.780 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.780 of 2010 (O&M) Date of decision : 3.8.2011 ... State of Punjab and another ................Appellants vs. Hari Ram .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ajaib Singh, Additional Advocate General, Punjab for the appellants. Sh. O.P. Batra, Advocate for the respondent. ... K.C. Puri, J. Challenge in this regular second appeal is to the judgment and decree dated 4.6.2009 passed by Sh. Kewal Krishan Garg, District Judge, Chandigarh, vide which the appeal preferred by the defendant-appellants, against the judgment and decree dated 1.8.2007, passed by Sh Sumeet Ghai, PCS, Civil Judge (Junior Division), Chandigarh, was partly accepted. Briefly stated, Hari Ram, Conductor, of Punjab Roadways, Chandigarh, filed suit for declaration to the effect that order dated 5.12.2002 and order dated 13.8.2003 are illegal, void, arbitrary, against the rules and also against the principles of natural justice. RSA No.780 of 2010 -2- Mandatory injunction was also sought to release the amount alongwith interest @ 18% per annum. It is alleged that the above said two orders dated 5.12.2002 and 13.8.2003, are illegal, void, arbitrary and against the rules, whereby pay of the plaintiff for suspension period about the subsistence allowance was denied. The plaintiff claimed the release of said amount alongwith interest. It is pleaded that he was suspended vide order dated 21.8.2000 and subsequently, he was charge sheeted. Plaintiff filed reply to the charge sheet. Departmental enquiry was ordered, which was not conducted as per rules and as per order dated 5.12.2002, punishment order was passed, which was upheld vide order dated 13.8.2003. Charge sheet was vague and based on false allegations and even no statement of passengers was recorded during the enquiry. On put to notice, defendants filed written statement, taking preliminary objections that suit is bad for non-joinder of necessary parties. It is pleaded that no legal notice under Section 80 CPC was served. However, it is admitted that plaintiff was charge sheeted on 30.8.2000 where allegations of fraud were leveled against the plaintiff. It is pleaded that order dated 5.12.2002 and order dated 13.8.2003 were legal and valid and have been passed by the competent authority in accordance with law, after affording full opportunity to the plaintiff. Replication was not filed. From the pleadings of the parties, following issues were framed:- (i)Whether plaintiff is entitled to decree for declaration as prayed for ? OPP RSA No.780 of 2010 -3- (ii)Whether plaintiff is entitled to seek decree for mandatory injunction as prayed for ? OPP (iii)Whether suit is bad for non-joinder of necessary parties, if so, to what effect? OPD (iv)Whether suit is bad for want of legal notice u/s 80 CPC? OPD (v)Relief. In order to prove his case, the plaintiff himself appeared as PW-1 and closed the evidence. In rebuttal, defendants examined Dilbagh Singh as DW-1 and closed the evidence. Learned trial Court has taken issues No. 1 and 2 together and returned the finding on both these issues in favour of the plaintiff. Issues no. 3 and 4 were also decided in favour of the plaintiff and against the defendants. In view of the findings on all the issues, the suit of the plaintiff was decreed and it was held that plaintiff is entitled to all the consequential benefits for the suspension period over and above the subsistence allowance by treating the said period of suspension on duty and State was directed to pay the arrears alongwith interest @ 6% per annum. Feeling dissatisfied with the above said judgment, the defendant – appellants preferred the Ist appeal. The said appeal was dismissed, except in respect of interest part. It was held that plaintiff is not entitled to interest. Feeling dissatisfied with the judgment and decree dated 4.6.2009 passed by Sh. Kewal Krishan Garg, District Judge, RSA No.780 of 2010 -4- Chandigarh and judgment and decree dated 1.8.2007, passed by Sh. Sumeet Ghai, PCS, Civil Judge (Junior Division), Chandigarh, the defendant-appellants have preferred the present regular second appeal. The defendant-appellants in paragraph No. 8 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal:- (i)Whether the executive instructions can over ride the statutory Rules which govern the service of the employees? (ii)Whether the appellate Court has gone wrong while granting the relief on the basis of the instructions which stands already withdrawn on 14.11.1990? (iii)Whether lower appellate court has wrongly governed the Rule 7.3 (3) of Punjab Civil Services Rules to grant benefits? (iv)Whether the appellate Court has misinterpreted and misconstrued the material on record? (v)Whether the civil court has jurisdiction to upset findings which are based upon fact finding enquiry which was held after following the proper procedure? Learned counsel for the appellants has submitted that relief has been granted to the plaintiff on the basis of instructions dated 26.3.1990, which has already been withdrawn vide instructions dated 14.11.1990. It is contended that in the later instructions dated 14.11.1990, it has been mentioned that since there are Rules governing the payment of subsistence allowance during the period of RSA No.780 of 2010 -5- suspension as envisaged in Rule 7.3 (3) of the Punjab Civil Services Rules and as such the same will over ride the statutory instructions dated 26.3.1990. So far as argument to that extent is concerned, that carries weight and has to be accepted. The instructions dated 26.3.1990 have been withdrawn vide instructions dated 14.11.1990. Otherwise also, when there is specific Rule 7.3(3) of the Punjab Civil Services Rules, governing the period of suspension, the executive instructions will not prevail. However, in the present case, the punishment awarded to plaintiff/respondent is warning only. In CWP No. 21304 of 2008 titled as Dr. M.L. Kamra and others vs. State of Haryana and others decided on 14.7.2009, this Court has held that where the punishment awarded was only warning, in that case, government employee should be entitled to the full pay and the order of punishment withholding the pay during the suspension period in case of warning only cannot be upheld. It is not disputed during the course of arguments that plaintiff has since retired. It is not on account of instructions dated 26.3.1990 alone that the suit of the plaintiff has been decreed. The Appellate Court has disallowed the interest to the plaintiff. So, it cannot be said that Rule 7.3 (3) of the Punjab Civil Services Rules, has been wrongly interpreted by the Ist Appellate Court. There is nothing on the file that Appellate Court has mis-interpreted or mis- construed the material on record. Learned counsel for the appellants could not convince the Court as to how the Civil Court has no jurisdiction. The finding of the RSA No.780 of 2010 -6- Enquiry Officer has not been set aside in the present case. The appellants have themselves awarded punishment of warning. So, in these circumstances, withholding the pay of the plaintiff for about a period of 3 years, above the subsistence allowance, has rightly been held invalid by both the Courts below. So, in view of above discussion, points No. 1 and 2 raised by the appellants stand determined in favour of the appellants, whereas points No. 3 to 5 stand determined against the appellants. In view of findings on the above points, the appeal is without any merit and the same stands dismissed. In view of peculiar circumstances of the case, parties are left to bear their own costs. A copy of the judgment be sent to the trial Court for strict compliance. ( K.C. Puri ) 3.8.2011 Judge chugh