R.S.A.No. 4929 of 2010(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4929 of 2010(O&M) Date of decision: 23.5.2011 Balbir Singh ......Appellant Versus Union of India and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Manoj Chahal, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for declaration challenging the orders dated 5.1.2002 and 27.1.2003. The case of the plaintiff, in brief, was that he had joined as a Cook with Border Security Force ('BSF' for short) on 17.7.1991 at Gauhati. The plaintiff was allowed to proceed on 30 days' earned leave w.e.f. 4.8.2001 to 2.9.2001. The plaintiff fell seriously ill during the said period and hence, was declared fit to resume his duty after 2.1.2002. A show cause notice dated 2.12.2001 was issued by defendant No.3 to the plaintiff proposing his dismissal from service. Since the plaintiff did not receive the show cause notice in time, he R.S.A.No. 4929 of 2010(O&M) 2 could not submit his reply within the stipulated time period of 30 days. Services of the plaintiff were terminated vide order dated 5.1.2002. Plaintiff submitted the representation and the same was rejected vide order dated 11.2.2002. The order, whereby services of the plaintiff were terminated, was illegal, null and void as the plaintiff had not been afforded due opportunity to present his case. Defendants, in their written statement, averred that the plaintiff had been asked to report for duty vide letters dated 7.9.2001, 20.9.2001 and 1.10.2001. However, the plaintiff had failed to report for duty and an enquiry was ordered to be held against the plaintiff vide order dated 11.10.2001. The enquiry officer opined that the plaintiff had absented from duty. A show cause notice was issued to the plaintiff on 2.12.2001. Since no reply was received from the plaintiff, the impugned order was passed. The plaintiff was a habitual absentee as detailed below:- “i) Absented himself without leave for 16 days w.e.f. 5.7.1996 to 20.7.1996 without due authority for which he was tried summarily under Section 19 (1) of BSF Act and awarded 14 days RI in Force Custody on 31.7.1996. ii) He had proceeded on 60 days EL w.e.f. 5.5.1997 to 3.7.1997 and joined duty on 17.7.1997 after OSL for a period of 13 days for which he was tried summarily and awarded 7 days RI in Force Custody on 4.9.1997. iii) He had proceeded on 42 days EL w.e.f. 18.4.1994 to 29.5.1994 and 18 days HPL w.e.f. 30.5.1994 to 16.6.1994 but the plaintiff joined duty on 5.7.1994 after OSL for 19 days. 19 days OSL period was R.S.A.No. 4929 of 2010(O&M) 3 regularised by granting 19 days HPL. iv) He had proceeded on 60 days EL w.e.f. 24.4.1995 to 22.6.1995 and joined duty on 29.6.1995 after OSL for 7 days. OSL period was regularised by granting 7 days EL. v) He had proceeded on 60 days EL w.e.f. 4.3.1996 to 2.5.1996 and joined duty on 5.5.1996 after OSL for 3 days. 3 days OSL period was regularised by granting 3 days HPL. vi) He had proceeded on 15 days paternity leave w.e.f. 29.12.1999 to 12.1.2000 and joined duty on 2.2.2000 after OSL for 18 days. 18 days OSL period was regularised by granting 18 days EL. vii) He had proceeded on 60 days EL w.e.f. 9.11.2000 to 8.12.2000 and joined duty on 22.1.2001 after OSL for 45 days. 45 days OSL period was regularised by granting 45 days EL.” The representation submitted by the plaintiff was considered and the medical certificate furnished by the plaintiff was got verified. The Civil Surgeon, Rewari reported that the name of the plaintiff did not appear in the OPD register. The plea taken by the plaintiff that his wife was not feeling well was also false as the wife of the plaintiff was residing separately and was getting half share out of his salary. The plaintiff was not looking after his wife. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Order No. Estt./134/22/BN/2002/153-293/52 R.S.A.No. 4929 of 2010(O&M) 4 dated 5.1.2002 passed by defendant No.3 and further struck off from the strength of the unit w.e.f. 5.1.2002 (A/N) and further declining the representation of the plaintiff for reinstatement in service vide memo No.1GA/44/2003/29239-5L dated 27.11.2003 issued by the office of defendant No.4 are illegal, null and void and without giving opportunity to the plaintiff ? OPP 2. Whether plaintiff is also entitled for arrears of his pay along with interest @ 18% per annum from 5.1.2002 till payment ? OPP 3.Whether plaintiff is entitled for re-instatement of his service along with full arrears with interest w.e.f. 5.1.2002? OPP. 4.Whether present suit is barred under the provisions of Central Administrative Tribunal Act ? OPD 5. Whether Civil Court has no jurisdiction to try and decide the present suit ? OPD 6. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 17.3.2008. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 29.3.2010 passed by the District Judge. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, due notices were issued to the R.S.A.No. 4929 of 2010(O&M) 5 plaintiff to report for duty but he failed to join his duty. An enquiry was conducted against the plaintiff and the enquiry officer gave the opinion that the plaintiff had intentionally absented from duty and be declared a deserter. A show cause notice was served on the plaintiff but the plaintiff failed to submit his reply to the said notice nor bothered to join his duty. In these circumstances, the defendants were left with no other alternative but to dismiss the plaintiff from service. In his representation against the order of dismissal, the plaintiff took up the plea that he could not join his duty due to his illness and in support of his plea, he placed on record a medical certificate dated 2.1.2002. However, when the said certificate was got verified from Civil Surgeon, Rewari, it transpired that the name of the plaintiff was not mentioned in the OPD Register. In another representation submitted by the plaintiff before defendant No.4, he took up the plea that his wife was suffering from a chronic disease and therefore, he had become mentally upset. Thus, the plaintiff himself took up two different versions. Moreover, it transpired on record that the wife of the plaintiff was living separately and his half pay was being given to her. In the facts and circumstances of the case, the Courts below have rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 23, 2011 anita