RSA No.2621 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2621 of 2009 (O & M) Date of Decision: 10.03.2011 Raj Sehgal ……Appellant Versus State of Haryana and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ashish Aggarwal, Advocate for the appellant. Mr. Amit Goel, AAG, Haryana for the respondents. L.N. MITTAL, J (ORAL) Plaintiff-Raj Sehgal having failed in both the Courts below, has come up by way of instant second appeal. Plaintiff was in service of the defendants. She remained absent from duty since 01.04.1986 till 10.03.1988, since 03.07.1989 till 06.07.1989 and since 17.07.1989 till 05.10.1999 (in all for more than 12 years). Defendants ultimately vide order dated 12.04.2004 sanctioned leave for the period from 01.04.1986 to 10.03.1988 as follows i.e 84 days earned leave, 160 days half pay leave and 466 days as extraordinary leave without pay. For the period from 17.07.1989 till 05.10.1999, extraordinary leave without pay was sanctioned. It was also ordered that extraordinary leave aforesaid shall not count for any purpose i.e. for the purpose of pension, increment etc. The plaintiff in the suit has challenged this part of the said order. It is alleged that plaintiff had to take leave from 01.04.1986 to 10.03.1988 on account of chronic illness of her daughter and for the RSA No.2621 of 2009 (O & M) - 2 - remaining period, on account of her own nervous breakdown disease. It was accordingly contended that the plaintiff is entitled to count the entire leave period for all purposes including pension, increment, promotion etc. Defendants controverted the plaintiff’s claim. It was alleged that the plaintiff willfully remained absent from duty, but taking lenient view, leave was sanctioned as aforesaid. It was pleaded that the plaintiff was declared fit to resume duty with effect from 07.06.1990, but she resumed duty with effect from 07.10.1999. Thus she willfully remained absent for 12 years. Various other pleas were also raised. Learned Civil Judge (Senior Division), Kaithal vide judgment and decree dated 16.05.2008 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Kaithal vide judgment and decree dated 17.12.2008. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant at the outset submitted that in the instant appeal, the plaintiff-appellant confines her claim to count the period of extraordinary leave for the purpose of pension only and not for any other purposes i.e for increment, promotion etc. Learned counsel for the appellant vehemently contended that in view of Rule 4.9 (b) (ii) of the Punjab Civil Services Rules as applicable to the State of Haryana (in short, the Rules), all leave except extraordinary leave taken otherwise than on medical certificate shall count for increment. It was thus contended that extraordinary leave on medical certificate also counts for increment. It was next contended that according to Rule 2.3 of RSA No.2621 of 2009 (O & M) - 3 - the Rules, active service for the purpose of pension includes leave of all kinds except extraordinary leave not counted towards increment. It was accordingly contended that only that period of extraordinary leave which is not counted towards increment is to be excluded whereas extraordinary leave which counts towards increment has to be included for the purpose of pension. On the other hand, learned counsel for respondents contended that extraordinary leave to the plaintiff was not sanctioned on the basis of medical certificate, but was sanctioned by taking lenient view in view of her financial condition. It was also pointed out that under rule 3.25 of the Rules, an employee is not entitled to leave of any kind exceeding 5 years. I have carefully considered the rival contentions. In the instant case, medical certificates placed by the plaintiff on record indicate that she was suffering from Hypothyroidism since 18.04.1990 till 07.06.1990 as depicted by medical certificate Ex.P-15. There is also medical certificate Ex.P-8 dated 05.10.1999 depicting that he was also suffering from nervous illness since 03.02.1990. She was declared fit to join duty from 06.10.1999. There are also certificates Ex.P-16 to P-18 regarding nervous illness of the plaintiff in the year 1990 only. There is no document regarding treatment of the plaintiff during the period from the year 1991 till the year 1999 when she joined duty. On the contrary, vide medical certificate dated 27.10.1990 Ex.P-16, the plaintiff was declared fit to join light duty with effect from 30.10.1990, but she did not even offer to join her duty pursuant to the said medical certificate. It is thus manifest that the plaintiff has not been able to prove that throughout the entire period of more than 10 years since July, 1989 till October, 1999, she was suffering RSA No.2621 of 2009 (O & M) - 4 - from nervous illness or breakdown. As regards absence from duty since 01.04.1986 till 10.03.1988, it is not even plaintiff’s case that during the said period, she herself was suffering from any ailment; rather her case is that her daughter was suffering from chronic ailment. Consequently, extraordinary leave for the said period was not on account of the medical certificate of the plaintiff herself. On the contrary, defendants took a lenient view and granted extraordinary leave to the plaintiff for her absence for more than 12 years, including leave of the kind due (earned leave and half pay leave). Even otherwise, no leave exceeding five years could be sanctioned to the plaintiff in view of rule 3.25 of the Rules. It would again depict that defendants had taken a sympathetic view towards the plaintiff. Consequently, the plaintiff is not entitled to count the period of extraordinary leave for the purpose of pension. Rule 4.9 (b) (ii) of the Rules stipulates that extraordinary leave sanctioned on medical certificate shall count for increment. Consequently, in view of rule 2.3 of the Rules, the said period i.e extraordinary leave on medical certificate may count for pension. However, in the instant case, extraordinary leave was not sanctioned on medical certificate. Finding of the lower appellate Court to this effect is fully justified by the evidence on record and is supported by cogent reasons and, therefore, does not warrant interference in second appeal. The plaintiff has miserably failed to prove that extraordinary leave sanctioned to her was on medical certificate. Consequently, the plaintiff is not entitled to count the same for pension. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. (L. N. MITTAL) RSA No.2621 of 2009 (O & M) - 5 - JUDGE 10.03.2011. A.kaundal