IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3199 of 1999 Date of decision: November 25th, 2011 State of Punjab and another …Appellant Versus Gurnam Singh …Respondent CORAM : HON'BLE MR. JUSTICE MOHINDER PAL Present:- Mr.Ranvir S.Chauhan, Deputy Advocate General, Punjab for the State-appellant Mr.Dalip Singh Brar, Advocate for the respondent *** MOHINDER PAL, J. This appeal is directed against the judgment and decree passed by Additional District Judge, Ferozepur dated 26.04.1999. Gurnam Singh plaintiff filed a suit for declaration challenging the orders dated 03.05.1994 passed by The Commandant, 82th Btn. dismissing him from service read with order dated 23.05.1995 passed by Deputy Inspector General of Police, whereby he dismissed the appeal. Order passed by Additional Director General, PAP, Jalandhar Cantt for rejecting the mercy petition of the plaintiff was also challenged in the suit. The plaintiff was enlisted as constable in police department on 14.10.1981 while he was on deputation to Vigilance Bureau, Ferozepur. He absented wilfully from duty on 17.8.1992 without any leave or prior permission of the competent authority. He reported back for duty on 5.10.1992 after remaining absent for 48 days. Thereafter, he was repatriated to his parent department and departmental i.e. 82nd Bn. PAP on 5.10.1992. Instead of reporting at the Battalion Headquarter he again absented. 1 RSA No.3199 of 1999 -2- Departmental enquiry was initiated in this regard which led to his dismissal from service. The plaintiff claims that the enquiry was not properly conducted as per rules. In the written statement the defendants-appellants claimed that the all the impugned orders are legal and valid. Proper procedure was followed in the departmental enquiry and the plaintiff was rightly dismissed on account of his wilful absence. On the pleadings of the parties the following issues were framed:- 1. Whether the order dated 3.5.1994 read with order dated 23.5.1995 is null and void? OPP. 2. Whether the notice U/s 80 of the C.P.C. is legal and valid? OPD. 3. Whether the suit is maintainable? OPP. 4. Whether the plaintiff has no cause of action? OPD 5. Relief. Both the parties led evidence in support of their respective claims. The trial Court after scrutinising the evidence available on the file decreed the suit of the plaintiff by holding the orders dated 3.5.1994 read with order dated 23.5.1995 as null and void. The defendants were directed to reinstate the plaintiff in service and his arrears, if any be paid with interest at the rate of 6% per annum. Against this decision, the defendants-appellants preferred an appeal which was dismissed but department was given liberty to pass fresh orders including that of ordering fresh enquiry and punishment order in future will be passed after affording full opportunity of personal hearing to the plaintiff/respondent. Dissatisfied with the judgment of First Appellate Court, the defendant-appellants filed the regular second appeal and has prayed that the judgments and decrees passed by 2 RSA No.3199 of 1999 -3- both the Courts below be set aside and suit of the plaintiff be dismissed with costs throughout. The following substantial questions of law are involved in the present appeal:- 1. Whether the order dated 03.05.1994 and 23.05.1994 passed by the appellants are sustainable in the eyes of law? 2. Whether the judgment and decree passed by both the Courts below are sustainable in the eyes of law? I have heard learned counsel for both the parties and have gone through the record very carefully. Before dealing with the aforesaid substantial question of law, it is pertinent to mention here that State of Punjab has filed Civil Misc. application no.4972-C of 2000 under Order 41 Rule 4 & 5 read with Section 151 of the Civil Procedure Code for staying the operation of the judgment and decree of Civil Judge, Junior Division. Vide order dated 27.7.2000 the execution of the judgment and decree of the trial Court was stayed. It is evident that both the trial Court and First Appellate Court held that the enquiry conducted against plaintiff-respondent by the authorities is not in accordance with law. It is an admitted fact that plaintiff remained absent from duty for 48 days. No finding was recorded by the punishing authority that the act of absence is gravest act of misconduct or that respondent is incorrigible. Perusal of the impugned order does not depict that service record of the plaintiff was taken into consideration while ordering dismissal of the respondent from service. It is noticed that the impugned order has been passed without taking into consideration the fact as to whether the act of 3 RSA No.3199 of 1999 -4- absence of respondent is gravest act of misconduct or not and also without ascertaining as to whether the respondent is incorrigible or not. Thus , the enquiry was not conducted by following the procedure laid down in Rule 16.2.of the Punjab Police Rules. Under these circumstances, the impugned orders were held to be not valid or legal. Both the substantial question of law are answered in favour of the plaintiff- respondent I do not find any fault in the findings arrived at by the trial court and affirmed by the First Appellate Court which calls for any interference by this Court. That being so, I have no option but to maintain the judgment of both the Courts below. First Appellate Court had given liberty to the department to pass fresh orders including that of ordering fresh enquiry and punishment order in future will be passed after affording full opportunity of personal hearing to the plaintiff-respondent. Learned State counsel has submitted that the department could not pass fresh order on the basis of fresh enquiry on account of stay of the execution of the judgment and decree by this Court. Accordingly, the stay granted by this Court vide order dated 27.7.2000 stands vacated. It is ordered that the department will hold fresh enquiry after affording full opportunity to the plaintiff-respondent including hearing him personally and strictly in accordance with the procedure laid down under Punjab Police Rules and pass appropriate order deem it proper in facts and circumstances of the case as per directions contained in judgment of the first appellate court. With these observations, the present appeal stands disposed of. (MOHINDER PAL) JUDGE November 23, 2011 p.singh 4