RSA No. 2320 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 2320 of 2010 (O&M) Date of decision : 2.8.2011 ... Pardeep Singh ................Appellant vs. State of Punjab and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ashok Giri, Advocate for the appellant. ... K.C. Puri, J. This is an appeal directed by plaintiff-appellant against the judgment and decree dated 18.2.2010 passed by Ms. Rupinderjit Chahal, Additional District Judge, Patiala, vide which the appeal preferred by the plaintiff against the judgment dated 23.1.2006 passed by Dr. Rajneesh, Civil Judge (Junior Division), Patiala, was dismissed. Plaintiff filed suit for declaration challenging his dismissal as IInd Commando, Phase II, Mohali. As per case of the plaintiff, he was posted as Constable in 2nd Battalian, Phase II, Mohali. Vide Daily Diary entry No.8, he proceeded on leave on 5.6.1996 till 8.6.1996 before noon. He failed to report back and he was marked absent on 8.6.1996. Vide DDR No.7, he was shown absent from duty for 33 RSA No. 2320 of 2010 -2- days, 1 hour and 10 minutes. Enquiry was conducted by Inspector, 2nd Commando Battalian, which was against the plaintiff. His findings in respect of guilt of the plaintiff were wrong. He was served with a dismissal order dated 31.10.1996. No opportunity was offered to the plaintiff. He fell sick and on that account he could not report for duty after completing his leave on 8.6.1996. The length of service of the plaintiff and claim of the plaintiff for pension was not considered. It is pleaded that order of dismissal is bad in the eyes of law. Plaintiff further pleaded that he filed appeal before the Deputy Inspector General on 13.3.1997 and revision before the Inspector General of Police on 23.7.1997, but both were dismissed. Upon put to notice, defendants filed written statement taking preliminary objections of maintainability, cause of action and jurisdiction. The legality and validity of notice under Section 80 of the Code of Civil Procedure, was challenged. It is pleaded that plaintiff proceeded on leave for 3 days on 5.6.1996, but returned back on duty only on 11.7.1996. He willfully remained absent from duty for a period of 33 days. Enquiry was conducted, which is in accordance with rules. During the course of enquiry proceedings, plaintiff has admitted his fault about his absence and requested for closing of the departmental enquiry. No medical certificate regarding his illness was produced. His service record is bad and unsatisfactory. He was recruited on 10.8.1992 and earned 9 censure/written warnings and 3 year forfeiture of service on permanent basis. The period of his earlier absence has been mentioned in the written statement. RSA No. 2320 of 2010 -3- Replication was filed, denying the contents of the written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- i) Whether the office order of dismissal passed by 2nd Commando, Phase II, Mohali is illegal? OPP ii)Whether the plaintiff is entitled to declaration as prayed for? OPP iii)Whether the plaintiff is entitled to emoluments and further promotion and arrears of pay as prayed for? OPP iv)Whether the suit is within jurisdiction of present Court? OPP v) Whether the notice U/s 80 CPC is invalid? OPD vi)Whether plaintiff has no cause of action to file the present suit? OPD vii)Whether the suit is not maintainable in the present form?OPD viii)Relief. Plaintiff appeared as PW-1 and examined PW-2 Dr. Nirwair Singh, Medical Officer, Primary Health Centre Ramdas, District Amritsar and closed the evidence. Defendants examined SI Pawan Kumar as DW-1 and closed the evidence. Learned trial Court returned the finding on issues No. 1 to 3 against the plaintiff. Issues No. 4 and 5 were decided against the defendants, whereas issues No. 6 and 7 were decided against the plaintiff and in favour of the defendants. In view of the above RSA No. 2320 of 2010 -4- findings, suit of the plaintiff was dismissed. Feeling dissatisfied with the judgment dated 23.1.2006 passed by Dr. Rajneesh, Civil Judge (Junior Division), Patiala, the plaintiff preferred the Ist Appeal. The said appeal was dismissed vide judgment dated 18.2.2010 passed by Ms. Rupinderjit Chahal, Additional District Judge, Patiala. Feeling dissatisfied with both these judgments and decree dated 23.1.2006 and 18.2.2010, referred to above, plaintiff-appellant has preferred the present regular second appeal. Plaintiff-appellant in paragraph No. 17 of the grounds of appeal has mentioned that following substantial questions of law have arisen:- a) Whether the findings of the learned Courts below are against the evidence on record? b) Whether the learned Courts were justified in upholding dismissal order only on the basis of past record of the plaintiff without adverting to the fact that the absence of the plaintiff for which he was dismissed, was not intentional, but due to medical ailment? c) Whether the Enquiry Report is sustainable in the eyes of law, wherein the Enquiry Officer has himself acted as a Prosecutor as well as a Judge, by himself conducting the cross examination of the witnesses in the absence of any Presenting Officer? d) Whether the learned Courts had adverted from the moot question which was as to whether the absence of the plaintiff RSA No. 2320 of 2010 -5- was willful or due to medical ailment? Learned counsel for the appellant has submitted that both the Courts below have dismissed the suit of the plaintiff ignoring the authority reported as Satpal Singh (dead) through his LRs Savitri Devi and others vs. State of Haryana and others 1999(3) RSJ 18. In the said authority, it has been held that in case enquiry officer considered his earlier absence for which he has already been punished, that amount to double jeopardy and he has already been punished for the earlier absence. So, the enquiry report is liable to be rejected on the grounds mentioned above. I have carefully considered the said submission, but do not find any force in that submission. Authority Satpal Singh's case (Supra) is distinguishable to the facts of the present case. In that case, Satpal Singh Constable joined the duty in the police department in 1974 and he was promoted in the year 1988 as Head Constable. He absented in the year 1990 as he suffered from kidney disease. So, the facts of the case are totally distinguishable. The said constable also died during the pendency of the case. In the present case, the appellant has service of only about 4 years and he was punished so many times as per record. His 3 years service has also been forfeited permanently. There is concurrent finding of fact recorded by both the Courts below that his absence was willful and he was unable to prove his illness. That being the finding of fact, cannot be interfered in the regular second appeal. The police department is a disciplinary force and an employee of police department should not remain absent for a number of days without any reasoning. The service record has rightly RSA No. 2320 of 2010 -6- been taken into account in the present case. The authority Satpal Singh's case (Supra) is distinguishable as mentioned above. So, in view of the above discussion, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 2.8.2011 Judge chugh