R.S.A No.3218 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3218 of 2007 Date of decision: September 09, 2009 Harnek Singh …..APPELLANT Versus State of Punjab and another …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr H.S.Saggu, Advocate for the appellant. T.P.S.MANN, J. Suit filed by the plaintiff-appellant for declaration and mandatory injunction was dismissed by Additional Civil Judge (Sr Division), Sangrur on 21.4.2005. Aggrieved of the same, the appellant filed the first appeal, which was dismissed by Additional District Judge (Adhoc), Fast Track Court, Sangrur on 8.6.2007. Still not satisfied, he is before this court by way of second appeal. According to the plaintiff-appellant, he joined the services of Punjab State during August 1961 and promoted as Social Studies Master (S.S.Master) in September 1968. He was working as S.S.Master in Government High School, Jitwal Kalan, when he proceeded on sanctioned earned leave from 10.2.1987 to 9.8.1987. After the expiry of the said leave, he personally applied for extension of leave from 10.8.1987 to 9.8.1989. His request was never rejected by the Department R.S.A No.3218 of 2007 -2- nor he was asked to join his duties. Despite the same, the D.P.I. (Schools), Punjab, who was his appointing authority passed an order dated 16.4.1989, terminating his services without conducting any departmental enquiry. While passing the said order, it was stated that the plaintiff remained absent from duty from 10.8.1987 to 9.8.1989, although during the said period, he remained on un-sanctioned leave. After 10.8.1989, the plaintiff was not allowed to join his duties. He challenged his termination by filing a civil suit on 29.10.1990, but the same was dismissed by the trial Court. He then filed an appeal which was accepted by learned District Judge, Sangrur on 26.11.1996. The order of termination was declared illegal, null and void. However, as he had already attained the age of superannuation on 31.7.1993, he was not held entitled to continuation in service. He was, however, held entitled to apply to the concerned authorities for seeking the benefit of setting aside of the order of his termination. Accordingly, he made a detailed representation, but the same was rejected by the D.P.I (Schools), Punjab on 7.9.2001 on the ground that he remained absent from duty from 10.8.1989 to 31.7.1993 and the said period stood declared as sine die. The order passed by the D.P.I. (Schools) was illegal, unconstitutional and passed in gross violation of the rules. He had applied for leave from 10.8.1987 to 9.8.1989 and he was also willing and ready to perform his duty after 9.8.1989, but he was not allowed to join his duties and instead, disciplinary proceedings under regulation 8 were initiated against him. The service benefits of the plaintiff for the period of about four years stood forfeited vide order dated 7.9.2001, causing recurring loss of pay, increments, pension and other service benefits and the same R.S.A No.3218 of 2007 -3- amounted to major penalty. Such a penalty could not be imposed without conducting departmental enquiry. No such departmental enquiry was ever held and as there was no allegation of loss/ fraud against him during the service period, the termination orders were void and illegal and he was, therefore, entitled to all service benefits, including full salary. Accordingly, he prayed for declaration that the office order dated 7.9.2001 passed by the D.P.I. (Schools), Punjab was illegal, null and void and not binding upon him. He also sought the relief of mandatory injunction, directing the defendants to pay the salary, including salary for the leave period and revised pensionary benefits from 10.8.1987 to 31.7.1993. Suit was opposed by the defendants by pleading that the leave applied for by the plaintiff from 11.2.1987 to 9.8.1987 was duly sanctioned. For the period 10.8.1987 to 9.8.1989, the plaintiff never got his leave sanctioned from the competent authority. The plaintiff remained absent from duty for the period he was out of India i.e. in Canada, as was reported on the undelivered letters. In view of his continuous absence from the job, the department passed an order on 16.4.1989, terminating the services of the plaintiff. He challenged the said order by filing a civil suit, which was dismissed by the trial Court on 26.8.1995. However, while deciding the appeal on 26.11.1996, the first appellate Court directed the plaintiff to file representation to the department and liberty was also granted to the department to initiate proceedings, if it so wished. The plaintiff then moved a representation dated 30.1.1988 to the D.P.I (Schools), Punjab for treating the period with effect from 10.8.1987 to 31.7.1993 as a duty period. This representation was submitted by the R.S.A No.3218 of 2007 -4- plaintiff through his attorney and not by him in person. Despite the same, the department made all the due payments to the plaintiff. Moreover, an enquiry was held by the department regarding continuous absence of the plaintiff and he was held guilty on the said charge. The department then passed the speaking order dated 7.9.2001, treating the period from 10.8.1987 to 9.8.1989 as without pay and 10.8.1989 to 31.7.1993 as dies-non. However, it was admitted that mentioning of dies non under rule 13.9 (1) was a clerical mistake and the same was under process for rectification. The plaintiff had been held guilty in the departmental enquiry. Vide order dated 7.2.2001, all the dues had been disbursed to him, though the plaintiff never cooperated with the department in getting his retiral benefits, yet the defendants got the necessary documents from the plaintiff through the Court in order to release the due benefits. The department has already satisfied the executing Court regarding the disbursement of the due benefits. The absence period of the plaintiff from 10.8.1987 to 31.7.1993 has been treated as without pay. It could not be treated as duty period. Therefore, he could not be given any benefit for the period of absence. Both the learned Courts below concurrently held that the office order dated 7.9.2001 passed by the D.P.I (Schools) Punjab was a valid order and therefore, the plaintiff was not entitled to the relief of declaration and mandatory injunction, as prayed for. On 5.8.2009, when learned counsel for the plaintiff- appellant argued the matter for the first time, as before that date, he had been repeatedly seeking adjournments, he submitted that the plaintiff remained in India during the period from 10.9.1987 to 31.3.1993 and R.S.A No.3218 of 2007 -5- never went abroad, though the defendants claimed so. This Court noted the said submission made on behalf of the plaintiff-appellant and while adjourning the hearing for 31.8.2009, directed him to produce his passport in original. On 31.8.2009, learned counsel for the plaintiff- appellant did not appear as he had submitted a written request for adjournment. The request was accepted and the hearing was adjourned for today. Before submitting anything on merits, learned counsel for the appellant stated that though he had instructed the appellant to come present with the passport, yet he has not done so. The plaintiff had initially applied for leave from 10.2.1987 to 9.8.1987, which was duly sanctioned by the Head Master of the Government High School, Jitwal Kalan. On the expiry of the said period, he once again applied for extension of leave from 10.8.1987 to 9.8.1989. Before the said leave could be sanctioned, the plaintiff went abroad. On that count, the charge sheet was sent to the plaintiff vide letter dated 15.10.1988 at his given address, which was received back un-delivered. On 16.4.1989, a notice was got published by the D.P.I (Schools), Punjab in 'the Tribune' to the effect that the services of the plaintiff stood terminated with immediate effect. The plaintiff challenged the termination of his services by filing a civil suit, which was dismissed by the trial Court. However, his appeal was accepted by the learned first appellate Court on 26.11.1996 vide order Ex.D-1 and the termination order was held illegal, null and void. However, as the plaintiff had by then attained the age of superannuation on 31.7.1993, he was not held entitled to continuation in service, but was given an option to apply to the concerned authorities for seeking any benefit. The authorities were R.S.A No.3218 of 2007 -6- required to consider the representation of the plaintiff in accordance with law and rules/regulations. The department was also given liberty to initiate the proceedings for any enquiry against the plaintiff under the relevant rules for the period of his absence. Pursuant thereto, an enquiry was ordered. The plaintiff was called upon to participate in the enquiry on 26.7.2000. Instead of appearing in person, the plaintiff sent his attorney, namely, Beant Singh, who appeared before the Enquiry Officer. He was specifically asked about his status to represent the plaintiff, to which he replied that he was appearing as attorney. When further asked as to why the plaintiff had not appeared, his attorney replied that he had given power of attorney to him to appear. However, the attorney failed to tell as to why the plaintiff was not coming in person. To a question as to where the plaintiff was residing, his reply was that power of attorney had been given to him. However, the plaintiff had told him that he was going to Uttar Pradesh and directed him to appear in the enquiry. Despite the same, it was not clear as to what prevented the plaintiff from appearing in the enquiry. Ultimately, vide detailed enquiry report Ex.D- 3, it was held that the plaintiff had not given his correct address for correspondence and was mis-guiding the department by intentionally absenting from duty since 10.8.1987. On the basis of the said enquiry report, the order dated 7.9.2001, terminating the services of the plaintiff was passed. The plaintiff had not been able to show that during the period in question, he was not dependent upon others or obtained any service or monetary benefit. As he remained absent from duty, the department rightly declined the relief while passing the order dated 7.9.2001. R.S.A No.3218 of 2007 -7- The concurrent findings of facts arrived at by the learned Courts below are based on correct appreciation of the material evidence available on the file. These findings cannot be termed as either perverse or suffering from any illegality or infirmity. Therefore, they cannot be challenged and that too, in a second appeal. No substantial question of law, much-less the point of law, as claimed by the appellant in his grounds of appeal arises for determination. The appeal is meritless and therefore, dismissed in limine. September 09, 2009. (T.P.S.MANN) Pds. JUDGE