Regular Second Appeal No.3711 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 07, 2010 Mohinder Singh Appellant VERSUS The State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pankaj Jain, Advocate, for the appellant. ***** RANJIT SINGH, J. The appellant, working as a Conductor with Haryana Roadways, Gurgaon Depot, has filed this Regular Second Appeal to impugn the judgment and decree passed by the Ist Appellate Court reversing the judgment and decree passed in favour of the appellant. The appellant absented from duties on 1.10.2000 without any intimation to the respondents. He was accordingly charge sheeted Regular Second Appeal No.3711 of 2009 (O&M) : 2 : under Section 7 of the Haryana Civil Services (Punishment & Appeal) Rules, 1987. The charge sheet was despatched to the appellant, but the appellant did not file any response. Enquiry Officer thereafter was appointed to conduct regular departmental enquiry. Despite repeated notices, the appellant did not appear before the Enquiry Officer. Accordingly, ex-parte enquiry was concluded against the appellant and he was found guilty of the charges levelled against him. The appellant thereafter was served a show cause notice on 14.5.2002 to show cause as to why he be not dismissed from service for being continuously absent since 1.10.2000. Copy of the enquiry report was also sent to him alongwith the show cause notice. Still, there was no response to the show cause notice from the appellant. Impugned order dismissing the appellant from service was, thus, passed on 5.7.2002. The appellant still did not make any move against the impugned order and ultimately filed a suit in the year 2005 to challenge the order of punishment made on 5.7.2002. Thus, he waited for almost three years to impugn the order of termination. This order obviously had been served upon him as he has challenged the same. The grievance of the appellant is that he was not served the charge sheet or the show cause notice before ordering his termination. The suit seeking declaration to the effect that the punishment order is illegal and not binding on him was, thus, filed. This suit was decreed by the trial court primarily on the ground that the respondents could not show the receipt of the charge sheet and notice by the appellant. The respondent-department Regular Second Appeal No.3711 of 2009 (O&M) : 3 : thereafter filed an appeal before the District Judge, Gurgaon, who has reversed the findings returned by the trial court and has held that the appellant could not get any benefit as he remained absent for a prolonged period of two years and thereafter had not made any move even to challenge the order of termination for almost three years. The evidence on the record would show that Enquiry Officer had sent ten notices to the appellant at his home address for appearance, but he did not join the enquiry proceedings. Enquiry Officer was appointed immediately on 11.2.2000, who started the enquiry proceedings. The enquiry proceedings remained pending for sixteen months. It is accordingly observed by the Lower Appellate Court that there was no haste shown by the Enquiry Officer to conclude the proceedings and he waited for sufficiently long period to inform the appellant to appear. It is also noticed that the Enquiry Officer made efforts to procure the presence of the appellant. It is only when he did not turn up despite repeated notices that he proceeded against him ex-parte. The evidence on record would also show that the charge sheet and the enquiry report were sent at the home address of the appellant through a registered post. The respondent-department was non-suited merely on the ground that it could not show any receipt proving that charge sheet and other documents were received by the appellant. Once a notice issued was shown to be despatched by registered post and is not received back undelivered, it may give rise to a presumption that the same was received. By this evidence, the respondents proved that the notices had been duly despatched by registered post. The fact that the notice or the charge sheet were not received by the appellant Regular Second Appeal No.3711 of 2009 (O&M) : 4 : was in the personal knowledge of the appellant. It was for the appellant to show that though the notices and the charge sheet were sent to him but were not received by him. As per Section 103 of the Indian Evidence Act, burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. The fact of receipt or non-receipt of the notice would be in the personal knowledge of the appellant. Accordingly, the burden to prove the same would shift to the appellant. He was to show that the charge sheet or notice allegedly despatched have not been received by him. He failed to discharge this burden which fact has not been properly appreciated by the trial court. Though not appreciated in this context but the finding by the Appellate Court would not call for any interference in view of this legal position. Otherwise also, no substantial question of law would arise to call for interference in the judgment and decree passed by the lower Appellate Court. The appeal is accordingly dismissed in limine. January 07, 2010 ( RANJIT SINGH ) ramesh JUDGE