IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2100 of 1989 Date of Decision : August 04, 2009 Punjab State through the Collector, Amritsar ....Appellant Versus Bhupinder Singh(now dead) through his legal representatives .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.S.Sidhu, Deputy Advocate General, Punjab Mr. D.S.Patwalia, Advocate T.P.S. MANN, J. Suit filed by Bhupinder Singh-respondent for the relief of declaration that he continued to be a Constable in Punjab Police and any order passed dismissing/removing him from service was arbitrary, malafide, cryptic, without jurisdiction, illegal and passed with a prejudiced mind in contravention of Police Rules and rules of natural justice, void and in- operative against him and he was in service and, thus, entitled to all the pay, powers and privileges of the post of Constable, was dismissed by the learned Sub Judge IIIrd Class, Amritsar, on 6.5.1987. Aggrieved of the same, the respondent filed an appeal, which was accepted by the learned Additional District Judge, Amritsar, on April 25, 1989 and the suit was decreed holding that the order dismissing him from service was illegal, void, ultra virus and against the principles of natural justice. The R.S.A. No. 2100 of 1989 -2- respondent was deemed to be in the service of Police Department and entitled to all benefits accruing from time to time. The judgment and decree dated April 25, 1989 was challenged by the defendant by filing the present second appeal. According to the plaintiff-respondent, he had joined the service in the Police Department on 25.9.1975. He was allotted constabulary No. 666 in Amritsar district. He had worked in the department with extreme honesty. When he stood posted at Police Station Verowal, he participated in an encounter in which two persons were killed. This left a deep impact on his mind as a result of which he was mentally disturbed. He was then posted as gunman with Shri Prithipal Singh DSP. On account of mental disorder, he lost his memory. Though he was entitled to treatment at the government expenses and it was the duty of the senior officers to look after him, yet nothing was done. Instead, he was marked absent on 22.11.1982 and departmental proceedings were initiated against him. He came to know about the departmental enquiry when he received letter dated 18.5.1983 at his house from the Senior Superintendent of Police, Amritsar. He was surprised to hear about the initiation of the departmental enquiry despite the fact that he had requested the Senior Superintendent of Police orally and also in writing disclosing his mental state of affairs. Accordingly, he requested for staying the enquiry proceedings. Thereafter, he received no communication. He also deposited his official weapon with the department. He then received show cause notice on 2.6.1983, wherein it was mentioned R.S.A. No. 2100 of 1989 -3- that an ex parte enquiry was conducted against him and he was directed to submit his representation against the proposed penalty of dismissal. Thereafter, he received no intimation from the department. Although his father had moved the department and sent an application but no reply was received. As the department remained mum, therefore, he had no other option but to file the suit. The defendant opposed the suit by taking preliminary objections regarding the maintainability of the suit, suit being bad for non- joinder of necessary parties and the suit being pre-mature as no notice under Section 80 C.P.C. had been served. Besides, the respondent had not availed all the departmental remedies. On merits, it was stated that the absence of the respondent was wilful. He was duly informed regularly to join the departmental proceedings, therefore, it could not be said that the enquiry was not held according to law. The following issues were framed by the learned trial Court:- 1. Whether impugned order passed by the SSP, Amritsar terminating the service of the plaintiff is void, illegal and in contravention of the Punjab Police Rules?OPP. 2. Whether suit is bad for non joinder of necessary parties?OPD. 3. Whether the suit is not maintainable in the present form?OPD. R.S.A. No. 2100 of 1989 -4- 4. Whether no valid notice under Section 80 CPC was served upon the defendant State by the plaintiff?OPD. 5. Relief. As is clear from the records, Shri Narinder Nath was nominated to hold departmental enquiry against the plaintiff-respondent, whereas it was Joginder Lal, who had conducted the ex parte enquiry. There is no order on the file appointing Joginder Lal as the Enquiry Officer. As such, he was not competent to hold the enquiry against the plaintiff-respondent. Moreover, the show cause notice of the proposed punishment had not been served upon the plaintiff-respondent, rather it was handed over to Charan Kaur, Member Panchayat. The serving official in his report mentioned that he did not come across the plaintiff when he visited his house. However, he learnt from Charan Kaur, Member Panchayat and Swaran Dass, Chowkidar, who told him that the plaintiff did not reside in the village and his parents had gone to a hospital. While appearing as PW2 Joginder Lal stated in his cross-examination that though the show cause notice was sent but he could not say as to whether it had been served upon the plaintiff or not. Further, he also could not say as to whether the plaintiff had been given an opportunity of hearing before passing of the order of his dismissal. Thus, there was no proper service of the show cause notice upon the plaintiff. R.S.A. No. 2100 of 1989 -5- Though the suit filed by the plaintiff-respondent was dismissed by the learned trial Court, yet the learned lower appellate Court thorough appraisal of the evidence on the file rightly came to the conclusion that the suit filed by the plaintiff deserved to be decreed. The findings arrived at by the learned lower appellate Court are based upon correct appreciation of the material evidence available on the file. These findings can neither be said to be perverse nor suffering from any illegality or infirmity. They cannot be disturbed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. Resultantly, there is no merit in the appeal and the same is, thus, dismissed. ( T.P.S. MANN ) August 04, 2009 JUDGE ajay-1