R.S.A NO. 4202 OF 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO. 4202 OF 2009 (O & M) DECIDED ON : 10.12.2009 Punjab State and another ...Appellants versus Gurcharan Singh ...Respondent CORAM : HON'BLE MRS. JUSTICE SABINA Present : Mr. J. S. Sandhu, AAG, Punjab. SABINA, J. (ORAL) Plaintiff-respondent filed a suit for declaration against the defendants which was decreed by the Additional Civil Judge (Senior Division), Amritsar, vide judgment and decree dated 31.05.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Amritsar vide judgment and decree dated 04.08.2009. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the Appellate Court in paras No.2 to 4 of its judgment, are as under : “2. Brief facts of the case of the plaintiff are that he was serving as Warder in the Jail department which is owned and controlled by the Punjab Government, being its employee and that vide order bearing No. 79 bearing further endorsement No.5276-78/PB. Dated R.S.A NO. 4202 OF 2009 (O & M) -2- 25.6.2003 passed by the Superintendent, his five years service has been permanently forfeited and even wages withheld during the suspension period i.e w.e.f 5.8.2002 till date, had also been forfeited and that the said order is illegal and unwarranted and even punishment awarded to him is beyond the scope of Rule 5 of Punjab Civil Services (Punishment & Appeal) and as such the same is inoperative against him. It is further averred that he was put under suspension on 5.8.2002 and thereafter he was served with memorandum of charge under the rules and was charged to the effect that on 4.8.2002 while he was on Panja Gast duty he had allegedly handed over something to one convict namely Gurpreet Singh with a further direction to hand over to another convict Harjit Singh and when the convict Gurpreet Singh was again checked in the presence of Asst. Superintendent Baldev Singh and Deputy Superintendent Iqbaljit Singh, from his inner pocket 19 gms smack was found and thereby the plaintiff has violated the provisions of Jail Manual and other relevant rules. The plaintiff was discharged by Special Judge vide order dated 7.5.2003 in case lodged under FIR No. 335/2002. The plaintiff filed reply to the charge sheet but no opportunity was afforded to defend under the rules nor he was provided R.S.A NO. 4202 OF 2009 (O & M) -3- an opportunity to inspect the relevant material on the basis of which the department had proposed to sustain the allegations and even evidence favourable to the plaintiff during enquiry was discarded and as such the enquiry officer did not act in an judicious manner. It is further averred that a show cause notice was served upon him and reply filed by the plaintiff was not considered and the impugned order dated 25.06.2003 was passed which is totally null and void and is not binding upon the plaintiff. The plaintiff is entitled to benefits attached to his post and hence the present suit. 3. Upon notice, the defendants filed written statement raising preliminary objections that the suit is not maintainable and denied the legality and validity of notice under section 80 of CPC. On merits, the plaintiff being employee of defendants and impugned order issued by Superintendent Head Quarter Jail is admitted. It is submitted that on 4.8.2002 when the plaintiff was on duty of 'Panja Gast', he had handed over something to one of the prisoner Gurpreet Singh with a direction to give the same to under trial Harjit Singh and on the basis of suspension, prisoner Gurpeet Singh was searched in the presence of the officials and he was found in possession of 19 grams of smack R.S.A NO. 4202 OF 2009 (O & M) -4- and as such the plaintiff has violated the provision of Punjab Jail Manual etc. It is further submitted that the plaintiff was afforded opportunity during the enquiry and the impugned order is legal. Rest of the allegations contained in plaint are denied and dismissal of the suit is prayed for. On the pleadings of the parties, following issues were framed by the trial Court : 1. Whether the plaintiff is entitled for declaration as prayed for ? OPP 2. Whether the suit of the plaintiff is bad for want of legal and valid notice ? OPD 3. Whether suit is not maintainable in the present form ? OPD 4. Relief. After hearing learned State counsel, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for declaration that the impugned order vide which his five years service had been forfeited and also his remaining wages were forfeited beyond the amount paid during the suspension period, was illegal. Plaintiff was put under suspension on 05.08.2002 as he has handed over something to a convict while he was on duty. R.S.A NO. 4202 OF 2009 (O & M) -5- When the convict was checked, it was found that he had 19 gms of smack in his pocket. The plaintiff challenged the impugned order, inter-alia on the ground that under the Rules forfeiture of service whether temporarily or with permanent effect had not been provided as a punishment. Learned trial Court after appreciating the evidence led on record, held that the departmental authorities were not only prejudiced against the plaintiff, but also adopted procedure contrary to the Rules, while imposing upon him the punishment vide impugned order and plaintiff had also been denied opportunity of fair hearing. The impugned order was set aside by the trial Court and the suit of the plaintiff was decreed. However, in appeal filed by the State, the learned Additional District Judge has modified the decree passed by the trial court and has granted liberty to the State to pass a fresh order on the point of punishment in the inquiry by the Inquiry Officer, after giving opportunity of hearing to the plaintiff. Thus, substantial justice has been done between the parties. The State has been left with the liberty to pass a fresh order, in accordance with law. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. DECEMBER 10, 2009 (SABINA) shalini JUDGE