R.S.A. No. 2273 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2273 of 2008 Date of Decision: 24.3.2009 Dharamvir Sharma ....Appellant versus Chief Administrator, HUDA and others ....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr. Anil Shukla, Advocate for the appellant. AJAY KUMAR MITTAL, J. The plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 14.11.2007 passed by the District Judge, Faridabad, whereby that of the Civil Judge (Junior Division), Faridabad dated 28.7.2007 decreeing the suit of the plaintiff for declaration, permanent injunction and mandatory injunction was modified and the defendants were directed to pass a fresh order after giving an opportunity of hearing to the appellant. Shorn off the unnecessary details, the facts of the case are that the plaintiff filed a suit for a decree for declaration to the effect that he was entitled to work as a Head Mali with all service benefits w.e.f. 1.1.1981 and as a consequential relief, he had sought a decree for permanent injunction restraining the defendants from de-regularizing R.S.A. No. 2273 of 2008 -2- the services of the plaintiff by withdrawing the regularization order dated 27.1.1998. The plaintiff had also sought a decree for mandatory injunction directing the defendants to regularize his services with all service benefits w.e.f. 1.1.1981. It was pleaded that the plaintiff was appointed as Mali on 1.1.1981 and was presently working as a Head Mali in the Haryana Urban Development Authority (for short “the HUDA”) Nursery, Sector-17, Faridabad. His services were terminated by the defendants w.e.f. 9.1.1985 and when an industrial dispute was raised by him, the same came to be decided by the Presiding Officer, Industrial Tribunal-cum-Labour Commissioner-II, Faridabad in his favour vide award dated 15.1.1987 whereby he was granted the benefit of reinstatement in service with the continuity of service and full back wages. In view of the said award, the plaintiff was taken back into service. It was further pleaded that vide appointment letter dated 9.2.1993, the plaintiff was appointed as Work Charged Head Mali and his services were regularized as a Mali w.e.f. 1.1.1981 vide letter dated 27.1.1998. The defendants had also re-fixed the pay of the plaintiff as a Mali on completion of 8 years service as per the instructions issued by the Financial Department vide letter dated 7.8.1992. Defendant No.3 in compliance of letter dated 15.7.1999 granted all the benefits to the plaintiff as a Head Mali w.e.f. 1.1.1981. According to the plaintiff, he had apprehension that his services would be de-regularized, he filed a suit but since the defendants promised that his services would remain as it is, the said suit was not pursued by him. The defendants were now trying to de-regularize his services which gave rise to the filing of the suit, as mentioned above. R.S.A. No. 2273 of 2008 -3- To resist the claim of the plaintiff, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that the plaintiff was engaged as a daily wages worker on 1.7.1982 and his services were terminated on 9.1.1985. The award dated 15.1.1987 was passed by the Labour Court, Faridabad in favour of the plaintiff and in pursuance thereto, the Superintending Engineer, HUDA Circle, Faridabad directed the Executive Engineer, Faridabad to issue an appointment letter in favour of the plaintiff posting him as a Head Mali on work charge basis and the letter was issued. Thereafter, the Deputy District Attorney, Office of Administrator, HUDA, Faridabad, vide letter dated 19.1.1988 directed the Superintending Engineer, HUDA to regularize the services of the plaintiff as a Head Mali w.e.f. 1.1.1981 in accordance with the award and, therefore, the services of the plaintiff were regularized. It was further pleaded that defendant No.2 wrote a letter dated 6.4.1998 to defendant No.3 to withdraw the order of regularization of services of the plaintiff and accordingly, vide order dated 27.1.1998, the said order was withdrawn. It was next pleaded that as per the instructions of the Government of Haryana dated 25.9.1993 regarding regularization of services of the workers, the plaintiff was eligible to be regularized but the regularization of service of the plaintiff as Mali prior to 3.8.1993 was in violation and, therefore, regularization of service of plaintiff w.e.f. 1.1.1981 was withdrawn and his services were regularized w.e.f. 3.8.1993. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. R.S.A. No. 2273 of 2008 -4- From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiff is entitled to work as a Head Mali with all service benefits w.e.f. 01.01.1981?OPP 2. If, issue No.1 is proved in favour of the plaintiff whether the plaintiff is entitled to the injunction as prayed for? OPP 3. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Relief.” The trial Court took issues No.1 and 2 together being interconnected and on appreciation of the oral as well as the documentary evidence led by the parties decided the same in favour of the plaintiff holding that no order to his disadvantage could be passed without giving an opportunity of hearing to the plaintiff even if it was a case of mistake. Issues No.3 and 4 were taken together being interconnected and were decided against the defendants and in favour of the plaintiff. Accordingly, the trial court vide judgment and decree dated 28.7.2007 decreed the suit of the plaintiff and the impugned office order dated 26.8.1999, Ex.P7, deregularizing the services of the plaintiff, was declared illegal, null and void. Further, the defendants were directed to give benefits to the plaintiff arising out of his regularization orders dated 27.1.1998, Ex.P1, and dated 30.3.1999, R.S.A. No. 2273 of 2008 -5- Ex.P6. Feeling aggrieved, the matter was taken up in appeal by the defendants and the lower appellate court vide judgment and decree dated 14.11.2007 though maintained the setting aside of the impugned order dated 26.8.1999, Ex.P7, but by way of modification gave liberty to the defendants to pass a fresh order after giving an opportunity of hearing to the plaintiff. I have heard learned counsel for the appellant and have perused the impugned judgments with his assistance. The lower appellate court has held that the impugned order withdrawing the benefit was passed without giving an opportunity of hearing to the plaintiff which was in violation of the principles of natural justice and Articles 14 and 16 of the Constitution of India. Accordingly, the lower appellate court rightly maintained the setting aside of the impugned order, Ex.P7, but at the same time granted liberty to the defendants to pass a fresh order after giving an opportunity of hearing to the plaintiff. No illegality or perversity could be pointed out in the findings recorded by the lower appellate court warranting interference by this Court in the regular second appeal. No question of law much less the substantial question of law arises in this appeal for consideration of this Court. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. March 24, 2009 (AJAY KUMAR MITTAL) gbs JUDGE