Regular Second Appeal No. 2539 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2539 of 2008 Date of decision: 16.07.2009 Pawan Kumar s/o Ajaib Singh r/o H. No. 712 Sain Dass Colony, Rohtak. ..... Appellant. Versus State of Haryana through Secretary to Government of Haryana Transport Department, Chandigarh. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Jitender Dhanda, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 19.10.2005, rendered by the Court of Civil Judge (Junior Division), Rohtak, vide which it dismissed the suit, for declaration and the judgment and decree dated 28.03.2008,rendered by the Court of Additional District Judge,(Adhoc) Fast Track Court, Rohtak, vide which, the appeal was dismissed. Regular Second Appeal No. 2539 of 2008 2 2. Shorn off unnecessary details, the facts relevant for the decision of the case, are that the plaintiff was employed as Clerk w.e.f. 23.10.1973 under the supervision of the defendant/respondent. It was stated that, in the year 1989, when the plaintiff (now appellant) was posted at Faridabad, he fell ill and, therefore, could not attend his duties w.e.f. 29.08.1989. It was further stated that the plaintiff (now appellant) submitted leave application to the General Manager. Charge-sheet dated 23.06.1990 for absence, from duty, was served upon the plaintiff. It was further stated that reply to the same, was filed by the plaintiff. It was further stated that the General Manager, Haryana Roadways, Faridabad, was appointed as Enquiry Officer, to conduct the regular enquiry. The plaintiff (now appellant) appeared before the Enquiry Officer on 30.10.1990 and his statement was recorded on the same day. Thereafter, the plaintiff received a show cause notice dated 11.01.1995. He submitted reply to the same on 07.02.1997. It was further stated that the order dated 23.04.1997 was passed by the Regular Second Appeal No. 2539 of 2008 3 Commissioner, Transport and the penalty of stoppage of three increments with cumulative effect, was imposed. It was further stated that an appeal was preferred by the appellant, before the Administrative Authority, but nothing was heard by him. Accordingly, the order dated 23.04.1997, referred to above, was challenged by the plaintiff, being illegal, arbitrary, oppressive, and violative of the service rules. It was further stated that the defendant was requested so many times, to withdraw the illegal order, but to no avail. Left with no alternative, a suit for declaration was filed. 3. The defendant/respondent put in appearance, and contested the suit, by way of filing written statement, wherein, it was averred that the suit was not maintainable; that the plaintiff had not come to the Court with clean hands; that the plaintiff had neither cause of action, nor locus standi to file the suit and that the suit was bad for want of service of notice under Section 80 of the Code of Civil Procedure. It was stated that the plaintiff remained absent from duty w.e.f. 29.08.1989 willfully. The Regular Second Appeal No. 2539 of 2008 4 plaintiff was directed by the General Manager, Haryana Roadways, Faridabad, telegraphically on 19.09.1989 to attend the office immediately. It was further stated that a letter was also sent to the plaintiff on 23.10.1989, but he neither joined his duty, nor submitted any reply to the said letter. It was further stated that since he remained absent from duty, a charge sheet was served upon him and ultimately, an enquiry was conducted. It was further submitted that the plaintiff (now appellant) was given full opportunity to defend his case during the enquiry proceedings. It was further stated that the order impugned, being legal and valid, is liable to be upheld. 4. From the pleadings of the parties, the following issues were framed by the trial Court:- “1- Whether the punishment order dated 23.04.1997 passed by the defendant is arbitrary, illegal and not binding upon the plaintiff as alleged ?OPP 2- If issue no.1 is proved, whether the plaintiff is entitled to all increments and other consequential benefits as alleged ?OPP Regular Second Appeal No. 2539 of 2008 5 3- Whether the suit is not maintainable in present form, as alleged ?OPD 4- Whether the plaintiff has not come in the Court with clean hands and has suppressed the material facts from the Court?OPD 5- Whether the plaintiff has no cause of action to file the present suit ?OPD 6- Whether the suit is bad for want of notice under Section 80 of the Code of Civil Procedure ?OPD 7- Whether the plaintiff has no locus standi to file the present suit?OPD 8- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, dismissed the suit. 6. Feeling aggrieved against the judgment and decree dated 19.10.2005, rendered by the trial Court, the appellant filed an appeal before the Appellate Court, at Rohtak, which vide its judgment and decree dated 28.03.2008 dismissed the same. Regular Second Appeal No. 2539 of 2008 6 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant submitted that the plaintiff (now appellant) was not granted opportunity to defend his case, during the course of enquiry. He further submitted that even the enquiry file was not produced and, as such, the defence of the appellant was prejudiced. He further submitted that the absence of the appellant was not intentional, as he sent the medical certificate. He further submitted that the order passed by the Competent Authority, imposing penalty of stoppage of three increments with cumulative effect, being illegal, was liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. It is Regular Second Appeal No. 2539 of 2008 7 evident from the judgment of the First Appellate Court, that the appellant, remained absent from duty from 29.09.1989 to 04.04.1991 and joined his duties on 05.04.1991. The enquiry file could not be produced, on account of non-availability of the same. Even efforts were made by writing a letter to the Head Office for sending the enquiry file, but the same could not be traced. No doubt, it was a case of the plaintiff/appellant that he was ill and had sent a telegram and medical certificate, but he did not produce any evidence, to prove the same. Under these circumstances, the concurrent findings of fact, recorded by the Courts below, that the plaintiff/appellant wilfully absented from the duty from 29.09.1989 to 4.4.1991; that a regular enquiry was held in accordance with the provisions of law, wherein full opportunity of defending his case was afforded to the plaintiff; and the order impugned, was legal and valid, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and, as such, warrant no interference. The judgments and decrees, of the Courts below, are liable to be upheld. The Regular Second Appeal No. 2539 of 2008 8 submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. In view of the above, finding no merit in the appeal, the same stands dismissed with costs. ( Sham Sunder ) July 16, 2009 Judge dinesh