RSA No.404 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 404 of 2009 (O&M) Date of Decision: August 28, 2009 Rajbir Singh ...........Appellant Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Rahul Vats, Advocate for the appellant. Ms.Maloo Chahal, Deputy Advocate General Haryana. ** Sabina, J. Plaintiff filed a suit for declaration to the effect that the order dated 31.5.1993 passed by the S.P.Karnal vide which the services of the plaintiff were dismissed read with order dated 15.7.1996 passed in appeal by the DIG Rohtak Range, Rohtak/Director General of Police, Haryana, Chandigarh and Order dated 18.9.2001 vide which the Mercy Petition filed by the plaintiff to the Commissioner & Secretary, Govt. Of Haryana, Home Deptt. Haryana Chandigarh has beend dismissed, are illegal null and void, arbitrarily, malafide not binding on the plaintiff and plaintiff is entitled to be taken back in the service on full back wages with continuity of service along with all consequential relief/benefits thereof. The suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Karnal vide judgment and decree dated 17.4.2006. Aggrieved by the same, the plaintiff filed an appeal which was dismissed by the Additional District Judge, Karnal vide judgment and decree dated 4.9.2008. Hence, the present appeal by the plaintiff-Rajbir Singh. The facts of the case, as noticed by the Additional District RSA No.404 of 2009 (O&M) 2 Judge in paras 2 to 8 of its judgment, read as under:- “ 2. Case of the plaintiff before the trial court was that in the month of June, 1992 he was posted under S.P.Karnal. Summary of allegations dated 12.10.92 was served upon the plaintiff regarding absence from duty on 4.6.1992 to 21.8.1992 i.e. for a period of 2 months and 18 days. Sh.Jeet Ram, Inspector CIA, Karnal conducted regular enquiry into the allegations and established the charge of absence vide his report dated 9.3.1993 . On the basis of report, then S.P.Karnal served a show cause notice of proposed punishment of dismissal vide No.503 dated 9.4.1993. 3. The plaintiff contended that the ex-parte enquiry was conducted illegally without ascertaining whether the process issued was served or refused. S.P.Karnal dismissed him from service vide order dated 31.5.1993. Appeal against the dismissal order before the DIG Rohtak Range, Rohtak was also rejected and plaintiff's revision petition before the Director General of Police, Haryana was dismissed vide order dated 15.7.1996. His mercy petition before the Commissioner & Secretary, Govt. of Haryana, Home Department, Chandigarh was rejected vide order dated 18.9.2001. 4. The order dated 31.5.1993 passed by S.P.Karnal dismissing plaintiff from service for absence of 2 months 18 days has been challenged in the suit as illegal, against the rules of natural justice and not binding on plaintiff 's right on the grounds:- i) That plaintiff's absence was not willful or intentional but due to illness beyond his control. RSA No.404 of 2009 (O&M) 3 ii) That S.P.Karnal had taken into consideration the previous bad record of the plaintiff at the time of awarding punishment which was against the rules of natural justice. Iii) That the enquiry was conducted ex-parte without due service of the plaintiff iv) That the Enquiry Officer considered personal information and extraneous matters in establishing the charge. v) That the plaintiff was not afforded an opportunity as provided in PPR 16.24 and Art. 311(2) of the Constitution of India. 5. Plaintiff further pleaded that his notice under Section 80 CPC served upon the defendant evoked no response. Thereafter, he filed the suit claiming a decree for declaration to the effect that the Order dated 31.5.93 of S.P.Karnal. Order dated 15.7.1996 of DIG Rohtak Range Rohtak and order dated 18.9.2001 of the Commissioner & Secretary Govt. Of Haryana, Home Department, Chandigarh were illegal, null and void and plaintiff was entitled to be taken back in service on full back wages with continuity of service along with all consequential benefits. 6. The State opposed the suit . Written statement was filed raising preliminary objections regarding limitation. Misjoinder and non- joinder of necessary parties. Cause of action, valuation etc. It was submitted that though plaintiff's revision petition was rejected by the Director General of Police, Haryana on 12.7.1996. The suit was not filed before 27.2.2004. the court could not sit in appeal over the findings of departmental authorities and plaintiff's absence from duty for 48 days was gravest misconduct. RSA No.404 of 2009 (O&M) 4 7. On merits, it was submitted that plaintiff while posted on Guard duty at PWD Rest House Karnal on 4.6.1992 absented willfully without leave or permission from the competent authority and remained absent for 2 months 18 days. In fact, he did not even join the enquiry despite repeated notices. The departmental enquiry was entrusted to Sahib Ram, Welfare Inspector on 6.7.1992 by order of the competent authority. The Enquiry Officer prepared statements of allegations, list of Pws, list of documents and asked the plaintiff to join the enquiry on 12.7.1992, but the plaintiff gave no response. Three notices dated 15.7.92, 4.8.1992 and 27.8.92 were sent at plaintiff's residential address, yet the plaintiff did not join the enquiry despite service through family members. After that Sahib Ram, Enquiry Officer proceeded on long leave. The enquiry was,therefore, entrusted to Jaai Ram, Inspector CIA Karnal on 7.9.1992. The Enquiry Officer made a request to the competent authority on 21.9.1992 for initiating exparte proceedings against the plaintiff and permission was granted. The Enquiry Officer issued notices dated 4.12.1992 and 30.1.1993 to the plaintiff but the plaintiff did not join the enquiry. The Enquiry Officer then took exparte evidence prepared the statement of charges against the plaintiff which were sent to plaintiff's residential address. On receiving the charges, plaintiff moved an application on 28.2.1993 stating that he had willfully absented from Govt. Duty due to family problems. He admitted the statement of charges and allegations. After due consideration of the evidence on record, the Enquiry Officer held RSA No.404 of 2009 (O&M) 5 plaintiff guilty for wilful absence vide his report dated 9.3.1993. 8. It was further stated that the plaintiff was served with a show cause notice dated 9.4.1993 proposing penalty of dismissal from service which was served on him on 11.4.1993. No reply to show cause notice was received and finally notice dated 1.5.1993 was sent to the plaintiff inviting him for personal hearing. The notice was served through H.C.Jai Kishan on 2.5.1993. The plaintiff neither submitted reply to the notice nor appeared in person. Accordingly the competent authority dismissed the plaintiff from service vide order dated 31.5.1993. the plaintiff was found to have committed misconduct of gravest nature. All other allegations were disputed and prayer was made for dismissal of the suit with costs. On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiff is entitled for decree of declaration as prayed for?OPP 2. Whether the suit is barred by law of limitation?OPD 3. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties?OPD 4. Whether the plaintiff has not approached to the court with clean hands?OPD 5. Whether the plaintiff has no cause of action to file and maintain the present suit ?OPD 6. Whether the present suit is not been properly valued for the purpose of court fee and jurisdiction Haryana ?OPD RSA No.404 of 2009 (O&M) 6 7. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff was working as a Constable with the defendant. He was dismissed from service vide order dated 31.5.1993. Appeal filed by the plaintiff against the said order was rejected by DIG Rohtak Range Rohtak. The revision petition filed by the plaintiff against the said order was dismissed by the Director General of Police Haryana vide order dated 15.7.1996. The mercy petition filed by the appellant was also rejected vide order dated 18.9.2001 by Commissioner and Secretary to Govt. of Haryana. The scope of judicial review regarding interference with punishment order is very limited. The jurisdiction of the Civil Court is only to see the method/manner of awarding punishment. The Court is only concerned with the procedure adopted by the Punishing Authority. If the procedure adopted by the Punishing Authority is according to rules and natural justice, then no interference with the punishment order is called for. The Civil Court cannot go into the merits of the case. In case, the finding of the Inquiry Officer is based on some evidence, then the Court cannot re- appreicate the evidence or weigh the same like the Appellate Authority. So long as there is some evidence in support of the conclusion arrived at by the departmental authority, the same has to be sustained. Some defects in the inquiry has to be pointed out before the Civil Court can interfere with the punishment order. Further more, if defect is pointed out then the delinquent employee has to show as to what prejudice has caused to him on account of the said defect. The Court exercising jurisdiction of judicial review is not to interfere with the finding of the fact arrived at in a RSA No.404 of 2009 (O&M) 7 departmental inquiry excepting in a case of mala fide or perversity. The finding recorded by the disciplinary authority is immune from interference within the limited scope of power of judicial review applicable to the Court. The allegations against the plaintiff were that he had remained absent from duty with effect from 4.6.1992. Plaintiff being a Constable and working in police department was, thus, a member of the disciplined force. Notice was issued to the plaintiff with regard to the departmental inquiry, but he failed to appear before the Inquiry Officer. Thereafter, an exparte inquiry was conducted against the plaintiff and he was held guilty by the Inquiry Officer. A show cause notice was issued to the plaintiff dated 9.4.1993 and was received by him on 11.4.1993. Plaintiff, however, did not file any reply to the show cause notice. A reminder was also sent to the plaintiff but he failed to respond to the reminder. In these circumstances, both the Courts below had rightly dismissed the suit of the plaintiff as he had failed to make out a case for interference by the Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge August 28, 2009 arya