Regular Second Appeal No. 528 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 528 of 2009 Date of decision: 29.01.2010 Romesh Chander ...appellant Versus The State of Punjab ...respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Vipin Mahajan, Advocate for the petitioner. Mr. N.D.S. Mann, Addl.A.G, Punjab for the State. ***** RANJIT SINGH J. The grievance in the suit is on behalf of Ex-Constable, Romesh Chander. He joined the Police Department in January, 1977. During the course of employment, he suffered from disease of unsoundness of mind. He was dismissed from service on 19.08.1982. The allegation was that he had remained willfully absent. Bhagwan Dass, his father filed a suit pleading that the impugned order was not maintainable as his son Romesh Chander had developed a disease during his employment and he was entitled to treatment rather than removal from service. His appeal and revision-cum-mercy petition was also dismissed by DIG and Inspector General of Police respectively, whereupon he filed a suit. The suit filed by Bhagwan Dass on behalf of his son was dismissed, Regular Second Appeal No. 528 of 2009 2 against which he filed an appeal. The appeal, however, was allowed, against which the State filed Regular Second Appeal before this Court. The finding by the First Appellate Court upon framing additional issue was that since Romesh Chander, Constable had become mental sick after he had joined the police service as Constable, it was required to be proved that whether he continued to be of unsound mind, for which he could file a suit through next of his kin. The finding was that the order of dismissal passed by the Superintendent of Police, Gurdaspur was held to be illegal and void. In the appeal filed by the State, this Court passed the following order:- “Therefore, the appeal is accepted. The judgment and decree of First Appellate Court stand set aside and the case is remanded back to the First Appellate Court to decide whether Bhagwan Dass was competent to file suit on behalf of Romesh Chander. The plaintiff is at liberty to file application for amendment of title. The parties are directed to appear before the First Appellate Court on 01.04.2008.” The counsel for the appellant would submit that now the appeal filed by him has been dismissed. Though complying with the order passed by this Court, he has amended the title of the suit to say that Romesh Chander was the plaintiff filing suit through his father, Bhagwan Dass. Another fact which is pointed out is that Bhagwan Dass has died and even before this Court, Romesh Chander was impleaded as party much earlier on 10.11.1993. The appellate Court in my view has not appreciated this aspect in right Regular Second Appeal No. 528 of 2009 3 perspective. The appeal has been dismissed merely on the ground that the amended title was not filed, as per the observation made by the appellate Court earlier. In view of the changed situated, the suit to raise a grievance by a person, Romesh Chander, who was the aggrieved party could not be said to be not maintainable. The First Appellate Court was required to appreciate that Romesh Chander in fact was an aggrieved person and could competently challenge this order. The earlier suit was filed by his father only because of his unsoundness of his mind. This was valid ground to entitle his father to file suit being next of kind or next friend. But once he himself has impleaded as a party and statedly is not suffering from any infirmity now, the suit could not have been dismissed on the ground that there was defect in the memo of parties. The earlier order passed by this Court is in the light of facts available at that stage. In any case, once the aggrieved person was before the Court as a party, the appeal was required to be decided on merit, rather than dismissing the same only on the technical ground as has been done. Even necessary correction, if any, could have been allowed. The substantial question of law thus would arise to the effect that, “whether the appeal filed by the appellant could have been dismissed on the technical ground of it having not been filed by competent person, whereas the competent and aggrieved person indeed was before the court?”. The present appeal is accordingly allowed. The judgment and decree passed by the First Appellate Court is set aside. The case is remanded back to the First Appellate Court to decide the same on merit, without taking into consideration the technical plea of Regular Second Appeal No. 528 of 2009 4 it having been filed by some person, who was not competent. The papers be transmitted back to the First Appellate Court for deciding the issues accordingly. January 29, 2010 ( RANJIT SINGH ) rts JUDGE