Regular Second Appeal No. 2299 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2299 of 1985 Date of Decision : 04.02.2010 Smt. Sanjokta Rani ...appellant Versus Managing Committed Bhai Asa Singh Girls College, Bathinda and others ..respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Ms. Binayjeet Sheoran, Advocate for the appellant. Mr. Amit Chaudhary, AAG, Punjab for the State. ***** RANJIT SINGH, J. The respondent had filed a suit challenging the order passed by the Director Public Instructions (defendant No.2) and confirmed by Additional District Judge, Bathinda whereby the order passed by respondent No. 1 was set aside on the ground that said orders are null and void, without jurisdiction and not binding on the the plaintiffs. Smt. Sanjokta Rani (defendant No. 1) was appointed as Lecturer in English on 25.8.1975 on probation for a period of one year. No order of confirmation was passed till 3.9.1979 when she was informed that her services are no longer required. Defendant Regular Second Appeal No. 2299 of 1985 2 No. 1 took this to be an order of termination of services and filed a representation before defendant No. 2, Director of Public Instruction (College) who while acting under Section 3 of the Punjab Affiliated Colleges (Security of services of Teacher) Act, 1974 (hereinafter referred to as an 'Act') set aside the said order dated 3.1.1979 and held that defendant No. 1 shall continue to be in service. This order was, accordingly, challenged by way of appeal and ultimately by filing the civil suit by the respondent-Management. On a notice being issued defendants No. 2 and 3 have been served but did not put in appearance before the Court. The suit, however, was contested by defendant No. 1. She raised certain preliminary objection relating to the jurisdiction of the civil Court to try the suit. She also pleaded that the suit is barred due to principle of res judicata. On merit, the allegation made in the plaint was contested and it was stated that as per the calender of the Panjab University Rules, services of the probationers would deemed to be confirmed, if the probation period is not extended. The plea accordingly was that after expiry of period of 2 years, she stood automatically confirmed and thus the order of termination, which was wrongly passed was rightly set aside by the DPI and upheld by Additional District Judge, Bathinda. The trial Court tried the suit on following issues: 1. Whether the order dated 3.1.1979 of the DPA and 2.9.81 of the Ld. Addl. Distt. Judge, Bhatinda are null and void for the reasons stated in the plaint?OPP 2. Whether the plaintiffs are entitled for the declaration prayed for? OPP. Regular Second Appeal No. 2299 of 1985 3 3. Whether this court has no jurisdiction to try this suit?OPD. 4. Whether the suit is barred by res judicata?OPD. 5. Whether the suit is complete w/s notice U/s 80 CPC? OPP. 6. Relief. The trial Court came to conclude that action of the respondent-plaintiff in terminating the services of defendant No. 1 was against the provisions of the Act. The respondent-plaintiff was accordingly held entitled to declaration as was sought. The issue concerning the jurisdiction of the civil Court was not pressed by defendant No. 1 and was accordingly decided as not pressed. The plea raised by defendant No. 1 that suit would be barred by principle of res judicata was negated on the ground that the suit was for declaration and so the order passed by the Additional District Judge, Bathinda was going into the validity of the DPI order and hence the plea of res judicata would not be made out. The respondent-plaintiff filed appeal against the same before the Additional District Judge, Bathinda who vide its order dated 17.4.1985 has reversed the finding given by the trial Court. It has been viewed by the First Appellate Court that the main question which fell for determination was whether the Director Public Instructions (defendants No.2) could competently entertain the representation made by the appellant against the so called order of termination. Reference is then made to the provisions of Section 4 of the Act, which regulates those cases where the procedure for penalty Regular Second Appeal No. 2299 of 1985 4 for imposing dismissal from service is required to be followed. It is viewed by the Court that proposal to inflict punishment on an employee alone can be referred to adjudication to DPI but once the order is passed and some penalty is imposed, it would not be maintainable before the DPI. It was viewed that the DPI had entertained the representation of the appellant, when the order of termination had already been passed and conveyed. Accordingly, it was viewed that the application was not maintainable. While dealing with the plea raised by the appellant that she would deem to be automatically confirmed once no order was passed on the expiry of 2 years and she was allowed to work, it is observed that the suit was filed by the Management-respondent and hence no relief could be claimed in the reply filed to the suit. Thus this finding given by the trial Court was held not sustainable on this ground. The appeal was accordingly allowed and the judgment and decree passed by the trial Court was set aside. The appellant is now in appeal before this Court. The primary ground of attack by the appellant is that the order of termination could have been passed only after following the procedure prescribed in the Act. Accordingly, the counsel contends that the appellant was justified in moving an application before the DPI and hence the view that this application was not maintainable cannot be said to be a sound view of law. The learned counsel also pleads that the aspect of jurisdiction of a civil Court would also be an issue and would contend that the civil suit filed by the respondent was not competent in view of the provisions of Section 8 of the Act, which provides that jurisdiction Regular Second Appeal No. 2299 of 1985 5 of the civil Court is barred. Since this issue was not pressed before the trial Court and was accordingly decided, at this stage the appellant cannot be permitted to press the same issue in the Regular Second Appeal when no challenge was made against this part of the finding before the First Appellate Court. Otherwise also, the whole basis of the submissions made by the learned counsel for the appellant flows from the fact that the order was either of a removal or termination. Infact, the First Appellate Court has also taken this order as an order of termination or removal. The order which was taken before the DPI by the appellant has been perused and it show that it is simply recorded therein that services of the appellant are not required and hence she was advised to hand over the charge. Section 4 of the Act deals with the situation and prescribes the procedure which is required to be observed before passing an order of termination or removal. The order as reproduced above through which the services of the appellant were dispensed with cannot be read as an order of dismissal or removal. It was simply a case of not confirming the probation of the appellant. The submission by the counsel for the appellant that she would deem to be confirmed once no order was passed after expiry of 2 years is not a proper manner to make this approach. It is required to be appreciated that the suit was filed by the Management. The appellant never raised any grievance that she would be taken to be confirmed employee. The appellant, who was respondent before the First Appellate Court could not ask for relief by filing a written statement. For relief a person has to approach an appropriate Forum. Regular Second Appeal No. 2299 of 1985 6 Accordingly, in my view no substantial question of law arises in this case, which would require determination to call for any interference in the view taken by the First Appellate Court. The Regular Second Appeal is accordingly dismissed. February 04, 2010 ( RANJIT SINGH ) rts JUDGE