IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2065 of 1987 Date of decision: September 13, 2011 Fateh Singh …Appellant Versus State of Haryana and others …Respondents CORAM : HON'BLE MR. JUSTICE MOHINDER PAL Present:- Mr.R.S.Sahota, Senior Advocate with Mr.B.R.Rana, Advocate for the appellant Mr.Gaurav Verma, Assistant Advocate General, Haryana *** MOHINDER PAL, J. This regular second appeal is directed by the plaintiff- appellant against the judgment and decree dated 17.03.1987 passed by learned District Judge, Narnaul, whereby the judgment and decree passed by the trial Court was set aside. Consequently, the suit of the plaintiff was dismissed. The brief facts of the case are that, the plaintiff had been appointed as Assistant Black Smith on 19.01.1977 by the General Manager, Haryana Roadways, Rewari on ad-hoc basis for a period of six months. He was granted extension for three months and then for two months. He continued to serve the department upto 02.05.1978 for a period of 350 days. His services were terminated vide impugned order dated 14.04.1978. The plaintiff challenged the order of termination through civil suit for declaration claiming that he had not RSA No.2065 of 1987 -2- been given any charge sheet or notice before termination. Even, no enquiry was held. Thus, the order passed by the department is void and illegal. The defendants admitted the appointment of the plaintiff on ad-hoc basis and the alleged extension but denied that the plaintiff had served regularly for a period of 350 days. The pleadings of the parties culminated into trial on the basis of the following issues:- 1. Whether the work of plaintiff as Asstt. Blacksmith has not been satisfactory as alleged?(Onus on parties). 2. If issue No.1 is proved in favour of the defendants, whether the provisions of article 311 of the constitution of India have been complied with by the defendants?OPD. 3. If issue No.2 is not proved in favour of the defendants, whether the order of termination of the services of the plaintiff passed by the General Manager on dated 14.4.1978 is legal and tenable in law?OPD. 4. Relief. The trial Court decided all the issues in favour of the plaintiff and against the defendants. The impugned order dated 14.4.1978 passed by General Manager, Haryana Roadways, Rewari, discontinuing the services of the plaintiff was held to be legal. The suit of the plaintiff was decreed. Against the decision of the trial Court, the defendants filed the appeal before the First Appellate Court, which was accepted. Dissatisfied with the decision of the First Appellate Court, the plaintiff has come up in this appeal. RSA No.2065 of 1987 -3- I have heard Mr.R.S.Sahota, Senior Advocate with Mr.B.R.Rana, Advocate for the appellant and Mr.Gaurav Verma, Assistant Advocate General, Haryana and have gone through the records of the case. For the disposal of this appeal, the following substantial questions of law were framed:- 1. Whether the First Appellate Court has acted illegally while deciding the controversy on the basis that the burden of proof to prove the issues raised in the suit, was on the plaintiff, burden to prove issues No.1 and 2 was put, ?OPD-onus on parties” 2. Whether the burden of proof with respect to order of termination by respondents management, being illegal, can be shifted on the appellant? 3. Whether the First Appellate Court has misread and misappreciated the evidence with respect to the length of service performed by the Appellant? 4. Whether the provision of Section 3 of the Limitation Act, 1963 has been wrongly invoked, by the First Appellant Court, i.e. whether the suo moto powers by the Appellate Court can be exercised to find out the maintainability of the appeal within limited or the suit? The learned counsel for the appellant has submitted that it has been duly proved by the plaintiff-appellant that he has worked for more than 240 days and deserves regularisation. The observations of the learned First Appellate Court that the services of the plaintiff- appellant were rightly terminated are not based on sound reasoning. According the learned counsel, the defendants who were in possession of best evidence with regard to service record of the plaintiff failed to produce the same in the Court. He has prayed that the judgment of RSA No.2065 of 1987 -4- the learned First Appellate Court be set aside and that of the trial Court be set aside. On the other hand, learned State counsel has argued that the plaintiff had not served continuously for a period of 240 days, which entitle him for regularisation of his services. After considering the rival contentions of both the parties, I am of the view that the present appeal has no force and deserves to be dismissed. In order to appreciate the controversy between the parties with regard to the plaintiff having served continuously for a period of 240 days, it is necessary to refer to the statement of DW1 Jagdish Parsad-official of the department, who has stated that he has brought the summoned record as well as attendance register from January 1977 to 1978. The appointment of the plaintiff was made on 19.1.1977. He has stated that on 26.1.1977 he was marked absent. The plaintiff remained absent on various dated i.e. 23.02.1977, 06.02.1977, 08.03.1977, 23.04.1977, 23.05.1977 to 31.05.1977, 01.06.1977 to 06.06.1977, 28.06.1977 to 30.06.1977, 29.07.1977 to 31.07.1977. The name of the plaintiff does not find figure in the attendance register for the months of August, September, October and November, 1977. However, the name of the plaintiff on 18.12.1977 was incorporated in the attendance register. Again he has stated that the name of the plaintiff does not appear in the attendance register in February 1978. It was recorded against in the register on 01.03.1978 but he remained absent on 12th, 14th and 17th of March, 1978. The plaintiff had been marked present on 14th April, 1978, on which date his services were terminated. It is evident that no explanation with regard to absence of the plaintiff for the aforesaid period is forthcoming. Had the plaintiff ever served during the aforesaid period, RSA No.2065 of 1987 -5- he should have summoned the relevant record to prove that he was given salary for the said period but he did not make any effort in this regard. Mere grant of extension of the plaintiff to work for certain period did not indicate that his services were regular without any break. In view of the aforesaid position, it cannot be said that the plaintiff had worked continuously for 240 days entitling him to claim regularisation in view of the instructions contained in letter Ex.PA. It has been clearly mentioned in appointment letter that the services of the plaintiff can be terminated at any time without any prior notice. So, in view of the conditions mentioned in the appointment letter of the plaintiff, he cannot claim that prior to his termination he was not served with any prior notice or he was not being heard. So far as the contention of the plaintiff that the defendants have not produced best evidence available with them is not tenable as DW1 official witness has given his statement on the basis of the record maintained in the office qua the plaintiff. In these circumstances, the judgment of the First Appellate Court which is based on sound reasoning is maintained and that of the trial Court is set aside. Accordingly, substantial questions of law nos. 1 to 3 involved in this case stands decided against the plaintiff-appellant. So far as question no.4 with regard to limitation is concerned, it is pertinent to mention here that the impugned order was passed on 14.04.1978 and the plaintiff had claimed declaration with regard to declaring the order as illegal in the year 1983 after a period of five years. It has come on record that prior to filing of the civil suit he had filed representation before the Labour Officer, which had not been decided, so the suit filed by the plaintiff on the relevant date was quite within limitation. Question no.4 stands decided accordingly. RSA No.2065 of 1987 -6- In view of the above discussion, the present appeal being without merit is hereby dismissed. Resultantly, the suit of the plaintiff stands dismissed. The judgment of the learned First Appellate Court is upheld and that of the trial Court is set aside. (MOHINDER PAL) JUDGE September 13, 2011 p.singh