R.S.A. No. 3548 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3548 of 2008 (O&M) Date of decision: 28.04.2009 Surjit Singh ....Appellant Versus The State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.K. Arya, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 4394-C of 2009 For the reasons stated in the application, order dated 4.3.2009 is recalled and the appeal is restored to its original number. C.M. stands allowed. C.M. No. 10583-C of 2008 Allowed as prayed for. CMs No. 10582-C, 105840C of 2008 and R.S.A. No. 3548 of 2008 This regular second appeal is directed against the judgment and decree dated 24.8.2007 passed by the learned Courts below, vide R.S.A. No. 3548 of 2008 (O&M) -2- which the suit filed by the plaintiff/appellant, seeking declaration to challenge the order of his dismissal from service, on account of absence from duty, has been ordered to be dismissed. The plaintiff/appellant was a constable in police. He absented himself from duty for a period of 29 days 21 hours. After he reported back to duty, he was charge sheeted for the mis-conduct of absence from duty. The Inquiry Officer found the appellant guilty of charges levelled against him. After issuance of show cause notice, he was ordered to be dismissed from service. The plaintiff/appellant chose not to avail his statutory remedy of appeal and challenged the order passed by the punishing authority by invoking jurisdiction of the civil Court. The plaintiff/appellant challenged the order of dismissal primarily on the ground that there was violation of statutory rules and, thus, the order was null and void. The plea raised was that along with show cause notice, copy of inquiry report was not sent, therefore, the order could not be sustained, as it prejudiced his right to file reply to the show cause notice. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that, in fact, the inquiry report was attached along with the show cause notice. The plaintiff/appellant had failed to lead any evidence to show that, in fact, the inquiry report was not attached with the show cause notice. The suit and the appeal stand dismissed. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the R.S.A. No. 3548 of 2008 (O&M) -3- learned Courts below is outcome of mis-reading of evidence, thus, perverse? 2. Whether the punishment awarded is harsh and not sustainable in law?" In support of the substantial questions of law, the learned counsel for the appellant contends that the appellant was only charge sheeted for absence of 29 days and 21 hours, and the other absence referred to by the learned civil Court was not put to the plaintiff/appellant and, thus, the learned civil Court mis-read the evidence, to record a finding, that no ground was made out to interfere with the order of punishing authority. It is also the contention of the learned counsel for the appellant that under the Punjab Police Rules, a person can be dismissed from service only for the gravest of grave acts and not on any mis-conduct, therefore, the order passed cannot be sustained in law, as the punishment awarded is disproportionate to prove the mis-conduct. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The civil Court cannot sit in appeal against order passed by the disciplinary authority, it can only interfere in case the order is held to be prima facie bad in law or perverse. The order of punishment on the basis of proved mis-conduct could not be said to be perverse nor anything was pointed out to prove that there was violation of statutory provisions, which could entitle the civil Court to interfere with the punishment awarded. The contention of the learned counsel for the appellant, that punishment awarded is disproportionate, also cannot be accepted, as the absence from duty by a member of disciplined force is a gravest of grave R.S.A. No. 3548 of 2008 (O&M) -4- mis-conduct, for which punishment of dismissal cannot be said to be disproportionate. No ground, therefore, is made out to interfere with the judgment and decree passed by the learned Courts below. The appeal is accompanied by an application under Section 5 of the Limitation Act for condoning the delay of 75 days in filing the present appeal. The only ground taken is that the appellant could not file the appeal for want of funds to engage counsel. The averments made in the application read as under: - "That the appellant/applicant is poor person, who could not arrange sufficient fund for engaged the counsel for filing above said appeal, therefore, a delay of 75 days in filing the appeal was took place." A reading of the above shows that the averments made are very vague, and do not make out, sufficient cause, for condoning the delay of 75 days in filing the appeal. There is another application under Section 151 of the Code of Civil Procedure Code for condoning the delay of 154 days in refiling the appeal. The ground taken reads as under: - "That after removing the above said objection the counsel for the appellant handed over the brief of the case to the Clerk to the undersigned and the same was attached (bundle) with another case and therefore, the same was untraceable. Thereafter a thorough search was made in the office and the mistake of having attached the case file of this case with another case came to light and therefore, R.S.A. No. 3548 of 2008 (O&M) -5- the delay of 154 days in refiling the appeal." The ground taken cannot be accepted for condoning the delay in refiling of appeal, in view of the law laid down by this Court in Krishan Dev Dhiman Vs. Mahesh Bhatia and others, 2008(4) P.L.R. 23. For the reasons stated above, the appeal is ordered to be dismissed on merits as well as on the ground of limitation. (Vinod K. Sharma) Judge April 28, 2009 R.S.