R.S.A. No.2784 of 1987 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2784 of 1987 Date of decision:01.07.2010. The State of Punjab and others ...Appellants Versus Karnail Singh ...Respondent CORAM: HON’BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sandeep Moudgil, DAG, Punjab. Mr. H.S.Gill, Senior Advocate, with Mr. Manuj Nagrath, Advocate, for the respondent. ***** S.D.ANAND, J. In a chord of concurrence, the learned Trial Court and the learned First Appellate Court have upheld the plea raised by the plaintiff – respondent that he would be deemed to have retired w.e.f. 15.12.1978 i.e. the date on which the order to that effect came to be granted by the Competent Authority and not w.e.f. 06.05.1977. The plaintiff – respondent, a Pharmacist posted at a rural dispensary, had applied for the premature retirement on account of his ill health. A plea to that effect was made in or about October 1976. The Civil Surgeon, Bathinda, directed him to appear before him on 17.09.1976 for medical examination. However, the result of that medical examination did not satisfy the Civil Surgeon, R.S.A. No.2784 of 1987 -2- ****** who directed him to appear at the Rajindra Hospital, Patiala, for a medical check up. There too, the plaintiff – respondent was declared unfit. That report was not accepted by the Director, Health and Family Welfare, Punjab, who directed the plaintiff – respondent to appear before a Medical Board for examination. The plaintiff – respondent appeared before the Board on 15.12.1978. The Board also declared him unfit. Thus, all the 3 medical examinations were supportive of the averment made by the plaintiff – respondent for premature retirement on account of his being unfit for continuity in service. However, the Director, Health and Family Welfare, Punjab, vide the impugned order, directed the retirement of the plaintiff – respondent from service w.e.f. 06.05.1977, i.e. the date on which the plaintiff – respondent was medically examined for the first time. The learned Trial Court and also the learned First Appellate Court recorded a finding that the retirement of the plaintiff – respondent with retrospective effect, i.e. w.e.f. 06.05.1977, was void and that he would be deemed to have retired w.e.f. 15.12.1978. The learned State counsel, at the very outset, informs that the appellants are willing to count the period of service rendered by the respondent – plaintiff up to 15.12.1978 towards pensionary benefits. The learned State counsel restricts the challenge in this Regular Second Appeal to the grant of the salary (for the period from 06.05.1977 to 15.12.1978). In advocating that challenge, the learned State counsel relies upon the finding of fact R.S.A. No.2784 of 1987 -3- ****** recorded by the learned First Appellate Authority in para 15 of the judgment to the effect that the plaintiff – respondent had been able to prove that he remained on duty up to 20.10.1977. In the absence of any further evidence to prove that he remained on duty for the post 20.10.1977 period, the learned State counsel proceeds to argue, the wages for the relevant period could not have been awarded to him. The learned Senior counsel, appearing on behalf of the plaintiff – respondent, resists the plea by arguing that the precise averment made by the plaintiff – respondent in the pleadings about his having continued on duty till 15.12.1978 had not been denied in the corresponding para of the written statement. The plea raised thereby is that the appellants – State cannot, thus, be heard to deny the entitlement of the plaintiff – respondent to the wages up to 15.12.1978. It is in the course of para 5 of the plaint that the plaintiff – respondent made the relevant averment regarding his having continued on duty up to 15.12.1978. Para 5 of the plaint is extracted hereunder: - “5. That it is added that the plaintiff was working as Pharmacist in Rural Dispensary in village Raiya with effect from July 1975 till 7.12.79, so the question of retirement with effect from 6.5.77 does not arise. Hence, the plaintiff is entitled to salary, G.P. Fund, R.S.A. No.2784 of 1987 -4- ****** Pension and interest thereon and all other benefits what the civil servant is entitled in the State of Punjab.” In the corresponding para of the written statement, the defendants – appellants averred that the contents of the relevant para were denied for the reasons recorded in the preceding para 4 of the written statement. Para 4 of the written statement is extracted hereunder: - “4. That as per provision contained under Rule 5.19 (2) of Punjab Civil Services Rules Volume II, the Civil Surgeon is a competent authority to issue medical Certificate to Government employees declaring medically unfit for Government Service to those employees whose basic pay is up to Rs.500/- P.M. In the case of Plaintiff he was drawing less than 500/- P.M. and as such he was correctly and legally invalided out from Government service and granted invalid Pension w.e.f. 6.5.77 i.e. the date on which he was declared medically incapacitated for any kind of Government service by the Civil Surgeon, Bathinda.” It would be apparent from a comparative perusal of the above quoted pleadings of the parties that the precise averment made by the plaintiff – respondent in the context had not been denied in the written statement. In that view of things, the defendants – appellants cannot be heard to successfully raise a R.S.A. No.2784 of 1987 -5- ****** plea for denial of the wages to the plaintiff – respondent for the period from 06.05.1977 to 15.12.1978. The plaintiff – respondent did adduce documentary evidence to the effect that he was on duty up to 20.10.1977. The relevant service record was obviously available with the defendants – appellants. That record could have been produced at the trial to prove that the plaintiff – respondent ceased to be on duty during the post – 20.10.1977. The present is, thus, a case where the defendants – appellants have not been able to invite the attention of this Court to any substantial question of law which may arise for adjudication in this Regular Second Appeal. The appeal is, even otherwise, denuded of merit. The appeal shall stand negatived. Disposed of accordingly. July 01, 2010 (S.D.ANAND) vinod* JUDGE