R.S.A. No. 1746 of 2010 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1746 of 2010 (O&M) Date of Decision: December 1,2011 The State of Punjab and others ................. Appellants versus Amarjit Pal ........................................... Respondent Coram: Hon'ble Ms. Justice Ritu Bahri Present: Mr. Yatinder Sharma, DAG, Punjab for the appellants. Mr. R.S.Bajaj, Advocate for the respondent. ... RITU BAHRI, J. This is a Regular Second Appeal against the judgment dated 11.12.2009 passed by the Additional District Judge, Jalandhar. The plaintiff Amarjit Pal filed a suit for declaration that the order dated 9.9.1998 passed by the Inspector General of Police, Punjab Bahadurgarh, Patiala and order dated 11.5.1998 passed by the Deputy Inspector General of Police, Commando Bahadurgarh Patiala as well as order dated 2.2.1998 passed by the Commandant, 4th Commando R.S.A. No. 1746 of 2010 (O&M) [ 2 ] Battalion, Bahadurgarh whereby the plaintiff was dismissed from service for his alleged absence was illegal and void. Plaintiff joined as Constable on 20.11.1989 in Punjab Police Department at PAP at Jalandhar Cantt. On 27.5.1997 he left the battalion headquarters of 2nd Commando Battalion, Patiala, on transfer. On his way, he was taken seriously ill and was under treatment by various Doctors. He resumed duty on 14.8.1997. During the period from 27.5.1997 to 14.8.1997 he was unable to move and submitted his medical certificate in this respect. He was treated absent from duty from 27.5.1997 to 14.8.1997. He was dismissed from service vide order dated 2.2.1998 by the competent authority. The period from 27.5.1997 to 14.8.1997 was treated as non-duty period without pay. Subsequently, to the dismissal order, his appeal and revision were also dismissed. On notice, the defendants filed their written statements taking the preliminary objections that the suit was not maintainable. The civil court at Jalandhar had no jurisdiction to try and decide the suit. It was admitted that he was appointed as Constable on 20.11.1989 in PAP. He was a habitual absentee and his working is never satisfactory. As per the service record, he availed 156 days NDP on different occasions, 2 year service forfeited with temporary effect, 4 year service forfeited with permanent R.S.A. No. 1746 of 2010 (O&M) [ 3 ] effect and 3 times censure, one time warning recorded in service record. On his transfer, he remained absent from duty. He never informed the department about his illness nor sent any leave application to the Battalion Headquarters. He did not produce any medical certificate. The departmental inquiry was ordered on 25.9.1997. Shri Gurbachan Singh, DSP, was appointed as Inquiry Officer. The plaintiff did not join the departmental proceedings and remained willfully absent. A notice dated 4.2.1997 was sent to the home address of the plaintiff which was received by him. Another notice dated 10.7.1997 was sent and it was received by the father of the plaintiff on 19.7.1997. Notice dated 22.7.1997 was received by the wife of the plaintiff. The plaintiff in spite of that did not join the departmental proceedings. Departmental proceedings were completed according to Rules. A Show Cause Notice dated 19.1.1998 was issued which was received by the plaintiff in the office of the commandant Bahadurgarh, Patiala proposing the punishment of dismissal from service. The plaintiff neither submit any reply to the Show Cause Notice nor appeared before the Commandant. He was dismissed from service on 2.2.1998. The Commandant, Bahadurgarh, rejected the appeal filed by the plaintiff and the IGP Commando, Bahadurgarh dismissed the revision. The following issues were framed by the trial Court:- R.S.A. No. 1746 of 2010 (O&M) [ 4 ] 1.Whether the plaintiff is entitled for declaration as prayed for? OPS 2.Whether the suit is not maintainable in the present form? OPD 3.Whether the civil court at Jalandhar has no jurisdiction to try and decide this suit? OPD 4.Relief. The trial Court after examining Rule 16.2 of the Punjab Police Rules came to the conclusion that in the order of dismissal no finding was recorded that the plaintiff's act amounted to grievous act of misconduct. Mere mentioning of previous acts of absenteeism will not serve the purpose to dismiss an employee on the ground of grievous act of misconduct. In Satnam Singh v. State of Punjab and others 2006 (2) RSJ 346 it is held that a specific finding has to be given by the Punishing Authority while imposing the punishment under Rule 16.2 that the delinquent was dismissed on the grievous act of misconduct. The Punishing Authority has to record a finding with regard to the previous length of service and his claim of pension. The suit of the plaintiff was decreed and the order dated 2.2.21998 passed by defendant No.2, order dated 11.5.1998 passed by defendant No.3 and the order dated 9.9.1998 passed by defendant No.4 in revision were set aside. The plaintiff was not to be reinstated in service. The defendants were at R.S.A. No. 1746 of 2010 (O&M) [ 5 ] liberty to issue fresh Show Cause Notice and pass fresh orders of punishment in accordance with law. He was held not entitled to the salary between the date of dismissal and the date of this order. The competent authority was at liberty to pass appropriate orders in this context. The lower Appellate Court partly allowed the appeal of the plaintiff and granted him the benefit of reinstatement with back wages. The plaintiff was denied the back wages for the period of his absence. Appeal filed by the State was disposed of in the same terms. The Department was given liberty to initiate fresh inquiry on such allegations if so desired within a period of 8 months vide judgment dated 11.12.2009. State of Punjab has come up in appeal against this judgment. Mr. Yatinder Sharma, counsel for the State, has restricted his argument to the point that the judgment of the lower Appellate Court giving the benefit of reinstatement with full back wages is liable to be set aside in view of the Supreme Court judgment in State of Punjab and others v. Dr. Harbhajan Singh Greasy 96(3) RSJ 82. It is not disputed by both the counsel that it is now well settled that when the inquiry is found to be faulty it would not be proper to reinstate with full back wages. The delinquent employee can be reinstated and a fresh inquiry can be conducted. He should be deemed to be under suspension with effect from R.S.A. No. 1746 of 2010 (O&M) [ 6 ] the date of reinstatement and till the final order on the inquiry is passed. The R.S.A. is disposed of. The judgment and decree dated 11.12.2009 is set aside. It is clarified that the plaintiff shall be reinstated by the Department and he shall be treated to be under suspension till a fresh inquiry is conducted and final order is passed. No costs. ( RITU BAHRI ) 1.12.2011 JUDGE rupi