RSA No.589 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 589 of 2008 (O&M) Date of Decision:November 13, 2009 The State of Punjab and others ...........Appellants Versus Ashok Kumar Ex.ASI No.1077/GSP. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.J.S.Sandhu,AAG Punjab for the appellants. Mr.B.R. Mahajan,Advocate for the respondent No.1 . ** Sabina, J. Plaintiff filed a suit for declaration. The suit of the plaintiff was decreed by the Additional Civil Judge (Senior Division) Gurdaspur vide judgment and decree dated 22.10.2005. Aggrieved by the same, defendants preferred an appeal and vide judgment and decree dated 16.10.2007, learned District Judge Gurdaspur dismissed the same. Hence, the present appeal by the defendant-State. The case of the parties, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment reads as under:- “2.Case of the plaintiff/respondent before the trial Court was that he was a civil servant and was serving in Gurdaspur district. He was dealt with departmentally on the allegations of absence from RSA No.589 of 2008 2 duty and consequently was dismissed from service w.e.f 29.11.2000 (A.N.) and the period of absence was treated as non- duty by Senior Superintendent of Police, Gurdaspur vide impugned order No.859-65/ST-P dated 29.11.2000. The allegations against the plaintiff were that while he was deputed for temporary security duty with Chief Minister, Punjab he proceeded on three days' casual leave on 27.10.1999 as per DDR recorded in the Roznamcha of 4th Commando Battalion, Mohali. The plaintiff was due to return from leave on 31.10.1999 (F.N) but he did not report back and his absence was recorded on 31.10.1999 vide DDR No. 15. The plaintiff reported back for duty on 3.4.2000 vide DDR No.22 after absenting for 155 days 1 hour and 5 minutes. Against the order of dismissal plaintiff filed an appeal before DIG, Border Range, Amritsar, but the same was also rejected vide order no. 416/BR-PA dated 4.3.2003. The allegations of absence levelled against the plaintiff were quite baseless, erroneous and misconceived. In fact, plaintiff had proceeded on three days' casual leave on 27.10.1999 while deployed for temporary duty with Chief Minster, Punjab and he was to report back on duty on 31.10.1999. The plaintiff could not report back on duty after expiry of leave due to illness of his wife and in this regard the plaintiff duly informed the department twice on 31.10.1999 and 10.11.1999 through telegrams addressed to Commandant 4th Commando Battalion, Mohali. Wife of the plaintiff remained admitted in Civil Hospital, Pathankot w.e.f. 28.10.1999 to 27.11.1999 and after her discharge from the RSA No.589 of 2008 3 hospital,she was advised complete bed rest and the doctor concerned had asked the plaintiff to loo after his wife round the clock and to give medicines in times. Thus, the plaintiff had to remain present by the side of his wife during the above period. Again wife of the plaintiff remained admitted in the hospital w.e.f. 28.12.1999 to 15.1.2000 as indoor patient and was discharged from the Civil Hospital, Pathankot on 16.1.2000. During this period, the plaintiff had been informing the department through his relatives time and again about the illness of his wife. The wife of the plaintiff was again admitted as indoor patient at Civil hospital, Pathankot from 18.2.2000 to 27.3.2000. When the wife of the plaintiff recovered from the illness, he reported for duty on 3.4.2000. The plaintiff had assailed the impugned order of dismissal as illegal, invalid, null and void on the following grounds:- a) that the punishing authority failed to take into consideration the fact regarding serious illness of his wife; b) that no opportunity of personal hearing was afforded to the plaintiff by the punishing authority before passing the impugned order of dismissal; c) that the plaintiff had got more than 28 years of service at his credit but the punishing authority had failed to take into consideration the claim of the plaintiff for pension in utter disregard of the mandatory provisions of rule 16.2 of Punjab Police Rules, 1934; d)that the punishing authority had not specifically recorded that RSA No.589 of 2008 4 the alleged act of misconduct of the plaintiff was the gravest act of misconduct demanding an order of dismissal; e) that the punishment of dismissal did not commensurate with the gravity of misconduct and the punishment was too harsh and disproportionate. The plaintiff also served a notice u/s 80 CPC upon the defendants for recalling the impugned order of dismissal. 3. A prayer for setting aside the impugned order of dismissal dated 29.11.2000 and for reinstating the plaintiff back in service was made by the plaintiff. 4. The plea was opposed by the defendants/appellants by taking preliminary objections in the written statement to the effect that suit was not maintainable; that the plaintiff had no locus standi to file the present suit; and that the suit is barred by res-judicata as the earlier suit filed by the plaintiff on the same cause of action was withdrawn by him on 12.11.2002 from the court of Sh.G.S.Bakshi, Civil Judge (Senior Division), Gurdaspur but no permission was granted to the plaintiff to file the fresh suit. On merits it was submitted that the plaintiff was a habitual absentee and previously also he remained absent from duty on so many occasions. The order of dismissal was passed in accordance with the provisions of Punjab Police Rules. The appeal filed by the plaintiff before the appellate authority was also rightly rejected. The plaintiff willfully and intentinally remained absent from duty for 155 days 1 hour and 5 minutes. The plaintiff had not produced any medical evidence regarding the illness of his wife. RSA No.589 of 2008 5 Plaintiff was afforded full opportunity to defend himself during the course of enquiry but he intentionally did not join the enquiry proceedings. Then exparte enquiry was conducted against the plaintiff and the plaintiff was found guilty. Then show cause notice alongwith copy of finding of enquiry report was issued to the plaintiff to which the plaintiff filed his reply. After considering the reply of the plaintiff, legal and valid order was passed as per law. The plaintiff had not given any information to the department regarding illness of his wife either through telegram or his relative. It was further pleaded that the plaintiff was afforded personal hearing before passing the impugned order of dismissal and the punishing authority had considered all the facts of the case. The act of the plaintiff was gravest misconduct in disciplined force. 5. A prayer for the dismissal of the suit was made.” On the pleadings of the parties, the following issues were framed by the trial Court :- “1.Whether the orders dated 29.11.2000 passed by SSP,Gurdaspur and dated 4.3.2003 are illegal, null and void, if so its effect? OPP 2.Whether the plaintiff is entitled for decree of declaration as prayed for?OPP 3.Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the plaintiff has no cause of action to file the present suit?OPD RSA No.589 of 2008 6 5. Whether the suit is barred by res-judicata?OPD 6. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit. Plaintiff filed a suit for declaration challenging the order whereby he was dismissed from service. Now, admittedly, plaintiff has retired from service. Plaintiff was dismissed from service as he had remained absent from duty. Admittedly, plaintiff had 28 years of service to his credit. The case of the plaintiff was that his absence was not intentional but due to the fact that the wife of the plaintiff was sick and due to this reason, he could not attend his duty. He had sent the telegrams to the higher authorities for extension of leave. The learned District Judge in the judgment has observed as under:- "16. It is un-disputed position of law that order of dismissal of a government servant cannot be passed by an authority lower in rank or subordinate to the appointing authority. To put it otherwise, order passed by an authority lower in rank to the appointing authority of the plaintiff has to be termed as nonest and void ab inito, being without jurisdiction. 17. Ex.P1 is the order dated 29.11.2000 passed by Senior Superintendent of Police, Gurdaspur whereby the plaintiff- respondent has been dismissed from service. Ex.P2 is the order of appointment of the plaintiff-respondent as constable in Punjab Police. This order admittedly has been passed by Superintendent of Police, Gurdaspur. Ex.P3 is the order dated 26.9.1995 passed by Senior Superintendent of Police, Gurdaspur wherein it has RSA No.589 of 2008 7 been specifically recorded that the plaintiff-respondent had been "approved for promotion to the rank of officiating Assistant Sub Inspector, by the Inspector General of Police, Borer Range, Amritsar vie his office order No.1620-21/BR-1 dated 31.8.1995 w.e.f. 18.7.1995". It would be apposite to stress here that in the order Ex.P3 itself, it has been recorded that the promotion of the plaintiff-respondent to the rank of Assistant Sub Inspector was ordered by the Inspector General of Police, Border Range, Amritsar and vide order Ex.P3 this factum was only communicated to him. In this view of the matter submissions put up on behalf of the appellant-State to the effect that the competent authority to dismiss the plaintiff-respondent from service was Senior Superintendent of Police cannot be countenanced and is liable to be rejected. 18. As regards taking into consideration previous misconduct of the plaintiff-respondent, if any, suffice it to say that in the order Ex.P3 itself it has been recorded that no departmental enquiry/vigilance enquiry/criminal case was pending against the plaintiff-respondent at the time of his promotion as aforesaid and as is evident from order Ex.P1 the previous misconduct, if any, of the plaintiff-respondent was not the subject matter of the enquiry and the charge-sheet served upon the plaintiff-respondent and that being so previous misconduct, if any, of the plaintiff-respondent cannot be taken into consideration as relying upon such conduct of the plaintiff-respondent without affording him an opportunity would amount to violation of the principles of natural justice. RSA No.589 of 2008 8 Even otherwise, punishing the plaintiff-respondent for such misconduct would amount to double jeopardy in so far as he, as stated by the learned Govt. Pleader himself, has already been punished for such misconduct. 19. It also needs to be pointed out that on the day of passing of impugned order Ex.P1 plaintiff-respondent had to his credit service spanning over 28 years and his absence from duty cannot be said to be willful or intentional in so far as it was necessitated on account of illness of his wife and it is also borne out from the record that the plaintiff-respondent continued making requests to the authorities concerned for extension of his leave by way of telegrams etc. While appearing as PW1 plaintiff-respondent has stated on solemn affirmation that he proceeded on leave for three days on 27.10.1999 and was to return to his duty on 31.10.1999 but his wife suddenly fell ill and was hospitalized on 28.10.1999. She was treated in Civil Hospital, Pathankot as an indoor patient from 28.10.1989 to 27.11.1999 and was discharged on 27.11.1999, but was advised complete bed rest by the doctors. He was asked by the doctors to take care of his wife round the clock. It has further been stated by him that on 28.12.1999 his wife was again hospitalized and remained there as indoor patient till 15.1.2000. According to him during the aforestated period he had been sending the telegrams to the departmental authorities for extension of his leave and copies of the postal receipts in this respect were appended by him with his reply submitted during the course of departmental enquiry. Some of the postal receipts have RSA No.589 of 2008 9 been proved by him as Ex.P8 to P11 and Ex.P.12 to Ex.P13. In view of these circumstances, even absence of the plaintiff- respondent does not qualify for the definition of gravest misconduct warranting dismissal from service." In view of the facts and circumstances of the present case both the Courts had,thus, rightly decreed the suit of the plaintiff. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 13, 2009 arya