RSA No.1196 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1196 of 2009 (O&M) Date of Decision: August 28, 2009 Tejinder Singh ...........Appellant Versus State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep Jasuja, Advocate for the appellant. ** Sabina, J. Plaintiff filed a suit for declaration to the effect that the impugned order No. 1243-48/Steno dated 12.6.2001 passed by SSP Tarn Taran (Defendant No.2) by virtue of which the plaintiff was dismissed from service is illegal invalid, against the principles of natural justice and the plaintiff be reinstated in service from the date of dismissal, the period during which he remained out of service be treated as duty period and is entitled to get full pay and allowances with interest thereupon and is also entitled to all other benefits and privileges of service including seniority etc. as if the impugned order had never been passed. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Gurdaspur vide judgment and decree dated 23.8.2004. Aggrieved by the same, the plaintiff filed an appeal which was dismissed by the Additional District Judge, Gurdaspur vide judgment and decree dated 27.5..2008. Hence, the present appeal by the plaintiff-Tejinder Singh The facts of the case, as noticed by the Additional District Judge in paras 2 to 8 of its judgment, read as under:- RSA No.1196 of 2009 (O&M) 2 “ 2. Brief facts of the case of the plaintiff are that he filed suit for declaration to the effect that the impugned order No.1243- 48/Steno dated 12.6.2001 passed by SSP, Tarn Taran (defendant No.2) by virtue of which he was dismissed from service is illegal, invalid against the principles of natural justice unconstitutional etc., as fully detailed in the head-note of the plaint. It is further alleged that plaintiff was a public servant and was appointed as a constable on permanent basis and he had performed his official duties to the entire satisfaction of his superiors. While serving in the Police district Tarn Taran, he was dealt with departmentally and consequently he was dismissed from police force by SSP Taran Taran vide impugned order no.1243-48/Steno dated 12.6.2001. The allegations against the plaintiff were that he was transferred from police line Tarn Taran to police post, mano- Chahal and his departure was recorded on 19.2.98 vide DDR No. 24 but allegedly he did not report at his new place of posting and absented without leave/permission. He reported in police station Jhabal on 13.4.99 vide DDR No.10 after absenting for one year, one month 24 days 20 hours and 20 minutes. He did not appear before the Inquiry Officer to face departmental proceedings, and ex parte departmental proceedings were initiated against him. After conducting ex parte departmental proceedings, a show cause notice No.104/Steno dated 1.12.2001 proposing dismissal from service was issued to him but he never appeared before the SSP Tarn Taran nor submitted the reply to the show cause notice. The impugned order of dismissal of the plaintiff is illegal, null and RSA No.1196 of 2009 (O&M) 3 void but he did not prefer an appeal because he was having no hope of justice from the department. The impugned order of dismissal is illegal, invalid and unjustified and against the principle of natural justice on the grounds that he had not absented during the period from 19.2.98 to 13.4.99 but he actually remained ill during the abovesaid period and got himself medically treated. Fact of the matter is that the departure of the plaintiff on transfer to the police post Mano Chahal was recorded on 19.2.98. The plaintiff had to bring some utensils, clothes etc.and,therefore, he had gone to his home place to bring these articles but unluckily he fell ill and could not report for duty at the new place of posting. The Inquiry Officer grossly erred that the plaintiff intentionally did not the departmental inquiry. Reply to the notice was sent by the plaintiff but ex parte proceedings were unfairly and illegally initiated against him. The Disciplinary authority had erroneously held that no reply was given by the plaintiff to the show cause notice and even no personal hearing was given to the plaintiff. The Punishing Authority had failed to take into consideration the reply to the show cause notice submitted by the plaintiff nor the Punishing Authority considered the circumstances regarding illnes of plaintiff. It was also recorded in the finding by the Punishing authority that the act complained of was the gravest misconduct. The Punishing Authority had not taken into consideration the length of service of the plaintiff and even punishment of dismissal from service is not commensurate with the gravity of misconduct and this punishment RSA No.1196 of 2009 (O&M) 4 of dismissal from service was harsh and disproportionate to the gravity of misconduct and is in violation of Art. 14 of the Constitution. The order of dismissal was delivered to the plaintiff at village Virk Teh. & Distt. Gurdaspur and as such the court at Gurdaspur has got jurisdiction to entertain and try the suit. Plaintiff also served notice under Section 80 CPC before filing the present suit but to effect. Hence, this suit. 3. Upon notice, the defendant appeared and contested the suit. Preliminary objections regarding the suit being not maintainable in the present form, the plaintiff has no cause of action to file the suit have been taken. On merits, it is alleged that the work and conduct of the plaintiff was not satisfactory. He remained absent willfully from 19.2.98 to 13.4.99 i.e. for period of one year, one month 24 days and 20 hours and 20 minutes. The plaintiff did not report for duty when he was transferred from Tear Gas Police Lines Tarn Taran to Police post Mano Chahal vide order dated 12.11.1978. He absented from duty intentionally without any leave or permission from the competent authority. Proper opportunity was given to the plaintiff by the Inquiry Officer as well as by the Punishing Authority. Plaintiff was charge-sheeted for remaining absent from duties and charge sheet was approved by the Punishing Authority. Copy of the same alongwith summary of allegations and list of witnesses was supplied to the plaintiff which he received under proper signatures. Departmental Inquiry was initiated. The plaintiff did not join the inquiry proceedings and exparte proceedings were initiated against him RSA No.1196 of 2009 (O&M) 5 after approval from the competent authority. The same was delivered to plaintiff by the Inquiry Officer under proper signatures of the plaintiff. The departmental Inquiry was finalized by the Inquiry Officer and he found the plaintiff guilty. Thereafter, show cause notice No.1041/Steno dated 1.2.2001 was prepared and issued to the plaintiff which was received by him on 21.2.01. After that plaintiff did not appear before the Punishing Authority and he was dismissed from service vide order dated 12.6.01. As such, the order of the competent authority is legal and valid. The plaintiff never filed any reply to the show cause notice served upon him. Receipt of notice under Section 80 CPC was admitted but its legality and validity was challenged by the defendants. Rest of the allegations of the plaintiff have been denied and prayer for dismissal of the suit was made by the defendant. 4. Plaintiff filed the replication wherein the allegations as alleged in the plaint have been reiterated and controverted those as contained in the written statement filed by the defendants. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the suit is not maintainable?OPD 3. Whether the plaintiff has no cause of action to file the present suit?OPD 4. Relief.” RSA No.1196 of 2009 (O&M) 6 After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff was working as a Constable with the respondent. He was dismissed from service vide order dated 12.6.2001 on the allegations that he had absented without leave/permission. It has been observed by the learned Additional District Judge that the plaintiff had admitted in his cross-examination that the charge-sheet was issued to him and summary of allegations and list of witnesses were supplied to him. He was also given an opportunity to file reply to the show cause notice. Plaintiff had remained absent from duty for more than a year. Departmental inquiry was initiated against the plaintiff. However, despite receipt of notice, plaintiff did not join the inquiry proceedings and consequentially, ex-parte inquiry proceedings were conducted against the plaintiff and thereafter, a show cause notice was issued to the plaintiff. Despite receipt of show cause notice, plaintiff did not appear before the Punishing Authority and consequentially, dismissal order was passed. The scope of judicial review regarding interference with punishment order is very limited. The jurisdiction of the Civil Court is only to see the method/manner of awarding punishment. The Court is only concerned with the procedure adopted by the Punishing Authority. If the procedure adopted by the Punishing Authority is according to rules and natural justice, then no interference with the punishment order is called for. The Civil Court cannot go into the merits of the case. In case, the finding of the Inquiry Officer is based on some evidence, then the Court cannot re- appreicate the evidence or weigh the same like the Appellate Authority. So long as there is some evidence in support of the conclusion arrived at by the RSA No.1196 of 2009 (O&M) 7 departmental authority, the same has to be sustained. Some defects in the inquiry has to be pointed out before the Civil Court can interfere with the punishment order. Further more, if defect is pointed out then the delinquent employee has to show as to what prejudice has caused to him on account of the said defect. The Court exercising jurisdiction of judicial review is not to interfere with the finding of the fact arrived at in a departmental inquiry excepting in a case of mala fide or perversity. The finding recorded by the disciplinary authority is immune from interference within the limited scope of power of judicial review applicable to the Court. Plaintiff was working in the disciplined force and remained absent for a long period. He was dismissed from service after following the due procedure. In these circumstances, both the Courts below had rightly dismissed the suit of the plaintiff as he had failed to make out a case for interference by this Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge August 28, 2009 arya