RSA No.3077 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on : 12.05.2011 RSA No.3077 of 2009 (O&M) State of Haryana & others ... Appellants Versus Dina Nath ... Respondent RSA No.4552 of 2009 (O&M) Dina Nath ... Appellant versus State of Haryana & others ... Respondents CORAM : HON'BLE MR. JUSTICE L.N.MITTAL Present : Mr. Amit Goel, AAG, Haryana for the appellants in RSA No.3077 of 2009 & for the respondents in RSA No.4552 of 2009. Mr. P.K.Sachdeva, Advocate for the respondent in RSA No.3077 of 2009 & for the appellant in RSA No.4552 of 2009. **** L.N.Mittal, J.(Oral) By this common judgment, I am disposing of two appeals i.e. RSA No.3077 of 2009 titled as State of Haryana & others versus Dina Nath and RSA No.4552 of 2009 titled as Dina Nath versus State of Haryana & others because these appeals have arisen out of a single suit. RSA No.3077 of 2009 has been filed by defendants whereas RSA No.4552 of 2009 has been filed by plaintiff. Plaintiff was employee of Haryana Roadways, Gurgaon and posted in Delhi at the relevant time. Plaintiff's case is that he RSA No.3077 of 2009 (O&M) -2- had proceeded on leave on 01.10.1978 on account of illness of his mother after getting leave sanctioned. 02.10.1978 was gazetted holiday. Thereafter, plaintiff continued to apply for leave on account of illness of his mother. Later on mother of the plaintiff expired. The plaintiff got shock and became mental. His family members continued to apply for leave and it was presumed that the leave applications have been sanctioned. After regaining health, plaintiff went to the office at Delhi to resume his duties on 03.03.1980 but was not allowed to do so in spite of number of requests. However, when the plaintiff served demand notice under Section 2-A of the Industrial Disputes Act, 1947, conciliation proceedings were held and the plaintiff was allowed to resume his duties only on 17.11.1987. Thereafter, plaintiff was served with a charge sheet for his absence during the preceding period. After the plaintiff submitted his reply to the charge sheet, the charge sheet was dropped. In the meantime, he was transferred to Karnal. However, after 10 years chargesheet was again served on the plaintiff and an inquiry was held. Defendant No.3 vide order dated 28.03.2001 imposed the punishment of stoppage of one annual increment of the plaintiff with cumulative effect and also treated the period from 01.10.1978 to 15.11.1987 as leave without pay. Plaintiff's departmental appeal had been dismissed by defendant No.2 vide order 18.11.2003. In the suit, the plaintiff challenged the aforesaid order dated 28.03.2001 and 18.11.2003 alleging the same to be illegal, null and void etc. Defendants broadly denied the plaint allegations. It was RSA No.3077 of 2009 (O&M) -3- pleaded that plaintiff remained absent without leave and intimation since 1978 onwards. The plaintiff never submitted any joining report after remaining absent from duty and the plaintiff was taken on duty on 16.11.1987 pursuant to his demand notice dated 04.09.1987. Chargesheet dated 07.01.1988 was served on the plaintiff under Rule 7 of Punjab Civil Services (Punishment and Appeal) Rules, 1952 (in short ' Rules of 1952') and the plaintiff submitted reply on 22.02.1988 to the chargesheet. However, since Haryana Civil Services (Punishment and Appeal) Rules 1987 (in short 'Rules of 1987') had come into force and Rules of 1952 stood repealed, the previous chargesheet dated 07.01.1988 was withdrawn on 04.08.1988. However, the said order dated 04.08.1988 was withdrawn vide order dated 01.05.1998 and modification was made in the chargesheet dated 07.01.1988 to treat it as chargesheet under the Rules of 1987 instead of Rules of 1952. Thereafter, regular inquiry was held and the plaintiff was held absent and the charges against the plaintiff were held proved. The impugned punishment order was rightly passed by defendant No.3. Plaintiff's appeal was rightly dismissed by defendant No.2 vide order dated 18.11.2003. Learned Civil Judge (Senior Division), Chandigarh vide judgment and decree dated 13.11.2006 dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been partly allowed by learned District Judge, Chandigarh vide judgment and decree dated 25.03.2009 and thereby punishment of stoppage of one annual increment with cumulative effect has been set aside. RSA No.3077 of 2009 (O&M) -4- Feeling aggrieved, the defendants have preferred RSA No.3077 of 2009 whereas plaintiff has preferred RSA No.4552 of 2009. I have heard learned counsel for the parties and perused the case file. Lower Appellate Court has set aside the punishment on the ground that period of absence has been treated as leave without pay and therefore, the plaintiff could not be punished for the same when the period of absence has been regularized. Learned counsel for defendants, however, contended that punishment could not be set aside on this ground because period of absence was treated as leave without pay, because such consequential order was essential to avoid the break in service of the plaintiff and therefore, punishment of stoppage of one annual increment with cumulative effect cannot be set aside on this ground. In support of this contention, reliance has been placed on judgment of Hon'ble Supreme Court in State of Punjab versus Dr. P.L.Singla, 2008 (8) Supreme Court Cases 469. There is considerable force in the contention. Punishment of stoppage of one annual increment was imposed because the plaintiff remained absent without leave and intimation. The absence period was treated as leave without pay so as to regularise the said period to avoid break in service for the plaintiff. Consequently, punishment order is not vitiated merely because by the same order absence period was treated as leave of the kind leave. Judgment in the case of Dr.P.L.Singla(supra) is fully applicable to substantiate the aforesaid contention of counsel for the RSA No.3077 of 2009 (O&M) -5- defendants. However, learned counsel for the plaintiff contended that chargesheet dated 07.01.1988 had been dropped vide order dated 04.08.1988 and therefore, after almost 10 years, the said chargesheet could not be revived vide order dated 01.05.1998. On the other hand, learned counsel for the defendants has contended that chargesheet was erroneously withdrawn and the same was revived later on under the new Rules of 1987 instead of the old Rules of 1952 under which the said chargesheet was initially issued. I have carefully considered the rival contentions. While withdrawing the chargesheet dated 07.01.1988 vide order dated 04.08.1988, neither it was stipulated that it was withdrawn being under the old Rules of 1952 whereas new Rules of 1987 had come in force nor it was stipulated that fresh chargesheet was to be issued under new Rules of 1987. On the other hand, chargesheet dated 07.01.1988 was withdrawn unconditionally vide letter dated 04.08.1988 after plaintiff had submitted his reply to the said chargesheet. In these circumstances, there was no occasion for the defendants to revive the said chargesheet after almost 10 years vide order dated 01.05.1998. Consequently, all proceedings starting from revival of chargesheet culminating in the punishment order are vitiated. For this reason, the defendants cannot succeed in their appeal. As regards the appeal preferred by the plaintiff, learned counsel for the plaintiff-appellant contended that period from 01.10.1978 to 15.11.1987 should be treated as leave of the kind RSA No.3077 of 2009 (O&M) -6- due. There is considerable force in this submission. If the plaintiff is ready and willing for treating the said period as leave of the kind due, the defendants should have no objection to the same. However, if the plaintiff did not have sufficient period of accumulated leave, the balance period should be treated as leave without pay, but in view of request of the plaintiff himself, the period for which some kind of leave was due to him can certainly be treated as leave of the kind due. The plaintiff has since retired. If leave encashment has been granted to him on his retirement, the same shall be taken into consideration while treating the period of absence as leave of the kind due. Learned counsel for the plaintiff also contended that as per defendants' own documents, plaintiff had submitted his joining report Ex.PW2/1 on 12.02.1986 and also sent reminder dated 19.07.1986 Ex.PW2/2, but the plaintiff was taken on duty on 16.11.1987 only after demand notice dated 04.09.1987 was served and therefore, the plaintiff should be treated on duty since 12.02.1986 onwards. There is considerable force in this contention. The plaintiff examined defendants' official Karam Chand, Clerk PW2 with relevant record and he proved the aforesaid two documents depicting that plaintiff had submitted his joining report dated 12.02.1986 and had also issued reminder dated 19.07.1986 for taking him on duty, but the plaintiff was not taken on duty and he had to serve demand notice dated 04.09.1987 and only thereupon he was taken on duty since 16.11.1987 as per defendants' own version. Consequently, plaintiff was not at fault for being away from RSA No.3077 of 2009 (O&M) -7- duty since 12.02.1986 till 15.11.1987 and it was the fault of defendants who did not permit him to join the duty during the said period. Consequently, the plaintiff is entitled to be treated on duty during the said period and impugned order of the defendants treating the said period as leave without pay is illegal, perverse and unsustainable in the eyes of law. For the reasons aforesaid, RSA No.3077 of 2009 filed by the defendants is dismissed although for reasons different than those recorded by the lower appellate court. RSA No.4552 of 2009 preferred by the plaintiff is allowed partly. Judgments and decrees of the courts below are modified. In addition to the relief granted by the lower appellate court, it is further ordered that plaintiff shall be treated to be on duty since 12.02.1986 till 15.11.1987 and shall be paid all the consequential monetary benefits. Besides it, the period of plaintiff's absence since 01.10.1978 till 11.02.1986 shall be treated as leave of the kind due including leave without pay for the period for which no leave is due. For determining the same, leave encashment, if any, granted to the plaintiff consequent on his voluntary retirement shall also be kept in view. The plaintiff shall be entitled to consequential pecuniary benefits. The suit stands decreed to the aforesaid extent. May 12, 2011 (L.N.Mittal) sonia Judge