RSA No. 1580 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1580 of 2008 Date of decision: February 2,2009 Uttar Haryana Bijli Vitran Nigam and others ..Appellants. Versus Mohan Lal ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Ms.Naveender P.K.Singh, Advocate for the Appellants. Mr. H.N.Sahu, Advocate for the Respondent. ... Rakesh Kumar Garg,J. This is defendant’s second appeal challenging the judgment and decrees of the courts below whereby suit filed by the plaintiff-respondent seeking a decree for mandatory injunction directing the defendants to reinstate the plaintiff in service as regular employee and to pay subsistence allowance subtracting which had already been paid to the plaintiff during his service with interest at the rate of 8 % p.a. from the date of his suspension till the realization of the payment has been decreed. Admittedly, the plaintiff-respondent was working as A.F.M. in the office of SDO ‘OP” Sub Division, Jundla and was placed under suspension by the Executive Engineer , Sub Urban Division No. II, Karnal vide office order No. 395 dated 11.8.2004 and the headquarters of the plaintiff-respondent was fixed with S.D.O. ‘OP’ Sub Division, Assandh. The plaintiff-respondent was charge sheeted vide office memorandum dated 2.12.2004. The charge sheet was received by him on 16.12.2004 and he submitted his reply to the aforesaid charge sheet. Since then plaintiff did not receive any order regarding his reinstatement and the subsistence allowance of the suspension period as per RSA No. 1580 of 2008 2 rules, he requested to defendants the allow him to join his duties as a regular employee and further to make payment of his due allowance but defendants refused to accept his genuine request. Hence the suit. The suit was resisted by the appellants by filing written statement and raising various legal objections. On merits, it was admitted that plaintiff- respondent was placed under suspensions and was charge sheeted and he submitted his reply to the aforesaid charge sheet. It was further stated in the written statement that on receipt of reply, plaintiff was reinstated vide office order dated 30.9.2005 and was posted in Operation Sub Division, Jundla. It was denied that the plaintiff was declined the subsistence allowance as was available to him as per the rules. It was further stated that plaintiff had no cause of action and suit be dismissed with costs. On the pleadings of the parties, the following issues were framed by the trial court:- 1.Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for ?OPP 2.Whether the suit of plaintiff is not legally maintainable in its present form? OPD 3.Whether the plaintiff has got no locus standi nor any cause of action to file and maintain the present suit ?OPD 4.Whether the plaintiff has concealed the true and material facts from the court ?OPD 5.Relief. The trial Court after considering the evidence on record and arguments of the parties observed that once the order of suspension is revoked and reinstatement is ordered, then the order of suspension comes to an end and the employee is entitled to remuneration for the period of suspension. Since the department has not given any justifiable reason for withholding the remaining arrears of salary and other allowances during the suspension period and that the plaintiff has proved that he is entitled for the arrears of his pay which has been withheld by the defendant during the suspension period in an illegal manner, RSA No. 1580 of 2008 3 decreed the suit of the plaintiff-respondent directing the defendants to reinstate the plaintiff in service as a regular employee and to pay subsistence allowance subtracting which had already been paid to the plaintiff with interest at the rate of 8 % per annum from the date of his suspension. Feeling aggrieved from the judgment and decree of the trial Court, the defendants filed an appeal before the lower Appellate Court which was dismissed by the Additional District Judge, Karnal vide impugned judgment and decree dated 18.3.2008. Still not satisfied the defendants have filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that in view of the facts that defendants had reinstated the appellant vide order dated 30.9.2005, the impugned judgment and decrees passed by the courts below are erroneous as no mandatory injunction could be issued against the appellants directing them to reinstate the plaintiff in service as regular employee and to pay him the subsistence allowance and thus the following substantial question of law arises in this appeal:- “Whether the learned lower Courts have erred in directing the appellant/defendants to “reinstate the plaintiff/respondent in service as a regular employee and to pay subsistence allowance which is wholly misconceived, as the same had been done vide office order No.670/3278, dated 30.9. 2005? The learned counsel further prayed for acceptance of the appeal and setting aside of the impugned judgment and decrees of the trial Court by dismissing the suit of the plaintiff-respondent. I have heard learned counsel for the parties. A perusal of the record of the appeal shows that in spite of the fact that the defendant-appellants have taken a stand that plaintiff-respondent stood reinstated on 30.9.2005, they have not stated any where in their defence that the plaintiff-respondent has been paid his full dues for the suspension period as per RSA No. 1580 of 2008 4 law. Rather it has been admitted that he was entitled to payment of 75 % of the salary as subsistence allowance after the expiry of six months period from the date of suspension. However, there is nothing on record to show that the plaintiff-respondent was paid more than 50 % of the salary as subsistence allowance for the suspension period. Moreover, on the basis of pleadings, the trial court framed issue No.1 specifically to the following effect : “1. Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for ?OPP No objection was taken by the appellant to the aforesaid framing of issue. Neither any objection was raised by the appellants before the courts below that the aforesaid issue was framed erroneously. Moreover, the onus to prove issue Nos.2 to 4 was upon the appellant. Neither any evidence was led by the appellant to discharge their burden nor any argument was raised. In view of the aforesaid facts, the appellant cannot be allowed to raise the question that the suit for mandatory injunction filed by the plaintiff- respondent was not maintainable. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. February 2, 2009 (RAKESH KUMAR GARG) nk JUDGE