Regular Second Appeal No.315 of 1998. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.315 of 1998. Date of decision:17-3-2008 Paraplegic Home Society and another. ...Appellants. Versus Lt. Col. Dharam Vir. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Shri S. K. Pipat, Senior Advocate with Mr. Ramanjit Singh Advocate for the appellant. Shri K.M.S. Bedi Advocate for the respondent. ... K. C. Puri, J. Judgment. This appeal has arisen out of judgment and decree dated 8.10.1997 passed by Shri Balbir Singh, the then Additional District Judge, Rupnagar whereby he accepted the appeal directed against the judgment and decree dated 21.4.1993 passed by Shri H.S.Madaan, the then Sub Judge IInd Class, Kharar and decreed the suit of the plaintiff for a declaration to the effect that the orders dated 31.1.1989 and Regular Second Appeal No.315 of 1998. -2- 28.2.1999 were illegal, null and void, with consequential relief to the effect that the plaintiff was entitled to all the service benefits including pay and allowances accruing to him for his continuance in service from 1.3.1989 to 26.10.1990. The facts of the case, as divulged from the judgment of the trial Court, are that plaintiff Lt. Col. Dharamvir, a retired officer from the armed forces was appointed as Medical Superintendent in Paraplegic Home Society (North), Mohali, a charitable society registered under the Societies Registration Act No.XXI of 1860, on 25.10.1983 for a period of five years. On expiry of the said term, period of employment of the plaintiff was extended by two years with effect from 26.10.1988 vide order of Chairman of Paraplegic Home Society (North), Mohali dated 9.3.1988. As such, he was to remain in service till 25.10.1990. The Chairman of Paraplegic Home Society, defendant No.1 vide impugned order dated 18.1.1989, directed Station Commander, Station Headquarter, Chandi Mandir, who happened to be a member of the Society, to detail a suitable officer to take over the charge from the plaintiff as Medical Superintendent and in compliance with that order, defendant No.2 directed Lt. Col. M.S.Khurana, defendant No.3 to take over the charge from the plaintiff as Medical Superintendent. As per case of the plaintiff, this order is illegal, null and void. The plaintiff was also dis-satisfied with the order dated 31.1.1989, according to which his services were to be terminated by Regular Second Appeal No.315 of 1998. -3- 15.2.1989, after payment of three months' salary besides termination order dated 28.2.1989, which was not served upon him. The plaintiff pleaded that these orders were in gross contravention of the rules of natural justice, procedural law, inasmuch as neither any show cause, notice/ charge sheet was served upon him nor any opportunity was afforded to him to present his case and he was removed without giving him a chance to clarify his position. As such, the impugned orders were illegal, null and void, passed with an ulterior motive in order to help defendant No.3. Accordingly, the plaintiff sought a declaration that the impugned orders dated 31.1.1989 and 15.2.1989, passed by defendant No.1, were illegal, null and void and he was entitled to all the benefits of service accruing to him since 1.3.1989 up to 26.10.1990. The defendants resisted the suit. In the written statement, they raised preliminary objections that the suit was liable to be dismissed for non-service of statutory notice under Section 80 CPC upon defendant Nos.1 and 2, who were public officers and members of the Managing Committee of Paraplegic Home (North), Mohali in the ex-officio capacity; that the suit was pre-mature; that the Paraplegic Home (North), Mohali was a charitable institution run by the army and was not a Government organization. The same was managed by the Managing Committee according to the standing orders and the plaintiff was not a permanent Government employee. The plaintiff retired from active military service and was earning handsome pensionary benefits. Regular Second Appeal No.315 of 1998. -4- The plaintiff was employed on contract basis and his services could be terminated at any time by giving three months' notice by either side without assigning any reason or on payment of sum equivalent to notice period or the un-expiring portion thereof. The suit was bad for non-joinder of necessary parties,inasmuch as the Union of India, was not arrayed as a party in the suit. On merits, the defendant No.1 being a charitable society, registered under the Societies Act, was admitted. It was also admitted that the plaintiff was employed on 25.10.1983 for initial term of five years and thereafter the employment was extended by two years with effect from 26.10.1990. As per para 204 of the Standing Orders of the Paraplegic Home (North), Mohali, the services of the plaintiff could be terminated by the authorities specified in para 230 at any time by giving three months' notice or on payment of sum equivalent of notice period without assigning any reason. It is further pleaded that a mass complaint from the inmates of Paraplegic Home (North), Mohali regarding mis-management and ill-treatment at the hands of plaintiff and Shri D.P.Joshi, Store Keeper was received which was enquired into by the Committee headed by Brig. C.M.Goswamy, Deputy GOC, PH & HP Area and it was decided in that meeting on 10.1.1989 that the services of the plaintiff be terminated. In pursuance with the said decision, GOC, Headquarter PH & HP vide his letter dated 18.1.989 directed the Commander Station Headquarter, Chandi Mandir to detail a suitable officer to take over charge from the plaintiff Regular Second Appeal No.315 of 1998. -5- and report was sought by 31.1.1989. On that, Station Headquarter, issued order dated 25.1.1989 directing the plaintiff to hand over the charge to Lt.Col. M.S.Khurana. It was denied that the impugned orders were illegal and null and void. Rather, it was contended that the same were perfectly legal and valid and the services of the plaintiff were terminated as per terms and conditions of the contract and the Standing Orders. From the pleadings of the parties, the trial Court framed the following issues:- 1.Whether order dated 31.1.1989 is illegal, null and void as alleged?OPP. 2.Whether plaintiff is entitled to declaration claimed?OPP. 3.Whether plaintiff is entitled to the injunction claimed?OPP. 4.Whether suit is pre-mature?OPP 5.Whether dispute is not justiciable ?OPD. 6.Whether suit is bad for non-joinder of Union of India?OPD. 7.Relief. From the amended pleadings, the following additional issues were framed:- 6-A.Whether the order dated 28.2.1989 is illegal, null and void, as alleged?OPP. Regular Second Appeal No.315 of 1998. -6- 6-B.Whether the plaintiff is entitled to all benefits of service, salary etc., as alleged?OPP. As a result of findings given on different issues, the learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 21.4.1993. Feeling aggrieved, the plaintiff filed an appeal which was accepted, as noticed above. Being dis-satisfied, the defendants have filed the instant appeal in this Court. I have heard arguments of counsel for the parties and have gone through the record of the case. The counsel for the appellants has submitted that the following substantial questions of law are involved in the present appeal:- 1.Whether the plaintiff was entitled to any show cause notice or departmental enquiry when his appointment was contractual and his services were terminated in accordance with the terms and conditions in his appointment letter? 2.Whether the tender of three months' salary in lieu of notice was illegal especially when the plaintiff had gone underground and the notice of termination was served upon him by affixation. 3.Whether the orders of termination were illegal and invalid Regular Second Appeal No.315 of 1998. -7- especially when the appointment was contractual and the same have been passed in accordance with terms of appointment? 4.Whether the suit for injunction is maintainable and the plaintiff is entitled to any relief keeping in view his acts and conduct before and after the termination of service especially when he has been avoiding service of termination order and sending applications for leave? 5.Whether the plaintiff could take advantage of his own wrong? 6.Whether the lower Appellate Court has mis-led and mis- construed the oral as well as documentary evidence and his judgment and decree setting aside that of trial court are sustainable in the eyes of law? The learned counsel for the appellants has submitted that the plaintiff was appointed as a Medical Superintendent for a period of five years vide order, Exhibit P-2. His term of re-employment term as Medical Superintendent was extended by two years with effect from 26.10.1988, in view of letter dated 9.3.1988, Exhibit P-3. From the perusal of Exhibit P-2, it is clear that according to clause 3(b), appointment can be terminated at any time on three months' notice given by either side without assigning any reasons whatsoever or on payment of a sum equivalent of the notice period or the unexpired Regular Second Appeal No.315 of 1998. -8- portion thereof. The services of the plaintiff were terminated in terms of that clause. The plaintiff, at the most, is entitled to three months' pay in lieu of notice. The defendants/appellants, vide letter dated 31.1.1989, terminated the services of the plaintiff with effect from 15.2.1989 and payment of three months' salary has been sent to the plaintiff, in lieu of notice period. So, in these circumstances, the services of the plaintiff have been rightly terminated. The learned trial Court has dismissed the suit of the plaintiff but the first Appellate Court accepted the appeal on the ground that no regular enquiry was conducted. In fact, preliminary enquiry was conducted against the plaintiff and charges were stated to be proved against the plaintiff. The plaintiff was duly associated in that enquiry. Regular enquiry was not conducted as the services of the plaintiff were terminated without any stigma upon him and as such the finding of the first Appellate Court to the effect that the services of the plaintiff have been wrongly terminated is against facts and law. The learned first Appellate Court has mis-interpreted and mis-read the evidence on the file to set aside the judgment of the trial Court. The learned counsel for the respondent has supported the judgment of the trial Court and submitted that from the perusal of Exhibit P-6, it is clear that it is order of dismissal and without regular enquiry, the order of dismissal cannot be passed. Admittedly, in this case, regular enquiry was not conducted. Although, the learned counsel for the appellants has Regular Second Appeal No.315 of 1998. -9- submitted that the above noted substantial questions of law should be formulated but from the perusal of record, it is revealed that only two substantial questions of law can be formulated. 1.Whether the first Appellate Court has mis-interpreted and mis-construed the oral and documentary evidence on the file? 2.Whether the order of termination of contract/dismissal can be passed without regular enquiry? No other substantial question of law has arisen as submitted by the counsel for the appellants. So far as the first substantial question of law is concerned, counsel for the appellants has not pointed out anything on the record that the first Appellate Court has mis-interpreted and mis-construed oral and documentary evidence on the file. The learned first Appellate Court has given a categoric finding that order of termination passed by the appellants is a stigmatic order and the same cannot be passed without conducting a regular enquiry. It is not disputed, during the course of arguments, by the counsel for the appellants that no regular enquiry has been conducted, in the present case. From the perusal of Exhibit P-6, it can be safely inferred that the said order is stigmatic as in the subject, dismissal of Superintendent has been mentioned. So, the said order cannot be said to be innocuous order. The appellants conducted preliminary enquiry and in the same, the respondent was Regular Second Appeal No.315 of 1998. -10- found guilty. In case the appellants wanted to terminate the contract on the basis of preliminary enquiry, in that case, the plaintiff should have been given full opportunity by conducting a regular departmental enquiry. The learned Appellate Court has decreed the suit in respect of un-expired period of contract. Therefore, no ground for interference in the appeal is made out. Authority reported as State of Uttar Pradesh Versus Dinanath Rai, 1969 S.L.R 646 (SC) and Bachi Ram Vs. Union of India and others, 1986(2) Services Law Reporter 102 (SC) are remotely connected to the facts of the present case. In those cases, it has been laid down that payment of salary in lieu of notice simultaneously with the order of termination is not necessary. Here, in this case, the dispute is whether the termination order is stigmatic or not. The first Appellate Court has returned a finding that said order is stigmatic. That being a finding of fact cannot be interfered with in the Regular Second Appeal. Authority reported as Rakesh Kumar Singh Versus The Committee of Management, Raibrali, 1996(3) Service Cases Today 436 (SC), relied upon the counsel for the appellants, relates to termination of services of an employee on probation. In the present case, the plaintiff was working on contract basis and not a probationer. So, the said authority is distinguishable. Authority reported as State of U.P and others Versus Adya Prasad Pandey, 1995(7) Services Law Reporter 55 (SC) is also not helpful to the Regular Second Appeal No.315 of 1998. -11- appellants as in that case also, there was no dispute whether the order of termination was stigmatic or not. So, in view of above discussion, both the questions of law stand determined against the appellants and consequently the Regular Second Appeal is without any merit and the same stands dismissed. March 17 ,2008. ( K. C. Puri ) Jaggi Judge .