In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.2638 of 2003 ..... Date of decision:23.8.2011 The Punjab State through Secretary, Department of Health and Family Welfare and another .....Appellants v. Dr. Ashok Oberoi .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Ranvir S. Chauhan, Deputy Advocate General, Punjab for the appellants. Mr. Parminder Singh-I and Mr. Arun Abrol, Advocates for the respondent. ..... Mohinder Pal, J. This is regular second appeal against the judgment of reversal passed by the learned Additional District Judge, Gurdaspur vide which the appeal of the plaintiff (respondent herein) was allowed and it was held that the plaintiff was not afforded adequate opportunity to defend his case and accordingly the ex parte order dated 18.10.1994 passed by the Inquiry Officer was found to be null and void. It was case of the plaintiff that he joined the Department of R.S.A. No.2638 of 2003 [2] Health and Family Welfare as PCMS Class-I on 8.4.1975 and was still in service. He was working at Gurdaspur uptill 1988 and thereafter was transferred to Civil Dispensary, Kahnuwan vide order dated 31.5.1988. Kahnuwan was a terrorist affected area during those times and on account of safety measures the plaintiff made a request for his transfer from Kahnuwan to any other station which was accepted and he was transferred to Civil Hospital, Garhshankar. After availing joining time, he joined the vacant post as Surgical Specialist at Garhshankar on 13.8.1988 and thereafter proceeded on earned leave. The leave of the plaintiff was never refused and after availing leave he reported to defendants (appellants herein). However, he was not allowed to join. Defendant No.1 vide letter dated 24.6.1991 served a charge-sheet on the plaintiff leveling allegations. After reply to charge-sheet, Dr. Manmohan Kaur, Additional Director, Health was appointed as an Inquiry Officer. It is case of the plaintiff that he never received any communication regarding date of inquiry nor any witnesses were ever summoned by the Inquiry Officer. He was never placed under suspension. He was kidnapped by the terrorist and the Police authorities, Gurdaspur recommended to the Department to cooperate as the plaintiff was under constant threat to his life. He served the defendants with a notice under Section 80 C.P.C. but to no effect and hence the suit. The suit has been contested by the defendants on the ground that leave applications of the plaintiff were rejected by Civil Surgeon, Hoshiarpur and he was asked telephonically to join duty vide order dated 10.4.1990 at Civil Hospital, Garhshankar but he did not join. The plaintiff submitted reply to the charge-sheet and as the reply was found to be R.S.A. No.2638 of 2003 [3] unsatisfactory, an Inquiry Officer was appointed. The plaintiff willfully abstained from appearance before the Inquiry Officer and finally it had been submitted that full opportunity was given to the plaintiff during inquiry and the impugned order was legal and valid. From the pleadings of the parties, the trial Court framed as many as six issues, however, the main issue whether impugned order dated 17.2.1997 regarding dismissal of the plaintiff on the basis of inquiry was illegal, null and void was decided against the plaintiff which was reversed in the appeal by the learned Additional District Judge, Gurdaspur and hence the present regular second appeal. I have heard learned counsel for the parties and have gone through the records. While arguing before me, it has been submitted by the learned counsel for the appellant that the appellate Court has fallen into error by holding that the plaintiff was not served charge-sheet which is Ex.P.1. It is submitted that the plaintiff filed reply to the charge-sheet which is Ex.P.2. An Inquiry Officer has been appointed vide Ex.P.3 on 10.3.1992 and copy of the same was sent to the respondent at his Gurdaspur address vide Ex.P.7. Finally, it has been submitted that the respondent willfully chose not to join the inquiry proceedings and as such his contention that the impugned order of dismissal has been passed in violation of principles of natural justice is devoid of any force. On the other hand, learned counsel appearing on behalf of the respondent has argued with vehemence that the appellate Court while decreeing suit of the respondent held that no show cause notice proposing R.S.A. No.2638 of 2003 [4] penalty of dismissal from service was issued to the respondent which is in total violation of principles of natural justice and the competent authority did not accord any reason in its order (Ex.D.7) vide which the penalty of dismissal from service was inflicted upon the respondent and as such the present appeal was liable to be dismissed. From the respective pleadings of the parties, the following substantial questions of law require to be answered by this Court:- (1) Whether the employee who failed to join the inquiry proceedings can complain that there is violation of principles of natural justice and Rule 22 of the Punjab Civil Services Rules? (2) Whether the absence of the respondent from his office was willful and intentional or beyond his control? There is no dispute to the fact that an inquiry has been conducted into the allegations levelled against the respondent for being absent from duty. The delinquent employee was proceeded against ex parte on 18.4.1994. The ex parte statements of the witnesses have been recorded on the same day. From the inquiry report, it is apparent that number of witnesses have been examined. It is main allegation of the appellants-defendants that the delinquent employee has been indulging into private practice in the clinic of his wife. All these witnesses have been put to cross-examination by the Inquiry Officer herself and accordingly, the charges regarding absence from duty have been proved against the respondent-Dr. Ashok Oberai. It is case of the respondent that he has been proceeded against ex parte without assigning any reason whatsoever. Perusal of the file shows that from 10.10.1994 the Inquiry Officer adjourned the inquiry proceedings for R.S.A. No.2638 of 2003 [5] 18.10.1994. The respondent informed telegraphically to the Inquiry Officer regarding his inability to attend the inquiry proceedings on 18.10.1994 and copy of the statement is Ex.P.16 of file. It is surprising that request of the respondent has been declined and entire proceedings have been concluded on the same day by proceeding against the respondent as ex parte. Rule 22 of Punjab Civil Services (Punishment and Appeal) Rules, 1970 deals with the procedure to serve a notice etc. This rule specifically says that the notice on the government employee be served in person or a communication be sent to him by registered post. It is not case of the appellants that in the year 1994 the respondent-Dr. Ashok Oberai was absent from duty. The notices during the inquiry proceedings including the notice regarding imposing of the punishment could have been easily served upon the respondent in order to provide him with an opportunity to defend his case. It appears that the required rule has been violated in this case. There is another aspect of the matter. It is case of the respondent-Dr. Ashok Oberai from the beginning that he and his family was having a terrorist threat and was even kidnapped during the period of absence. He has placed on record Ex.P.2/A a letter written by the terrorists wherein his life was under threat. Thereafter, vide Ex.P.2/B Senior Superintendent of Police, Gurdaspur had written a communication to the appellants regarding the incident in which respondent-Dr. Ashok Oberoi had conducted the post-mortem of ten Sikh youths who were killed in Dera Baba Nanak and submitted his report which was treated to be wrong by the terrorists. A Police guard was deployed at the residence of the respondent- Dr. Ashok Oberai around the clock for his personal safety. Senior R.S.A. No.2638 of 2003 [6] Superintendent of Police had requested that this officer should not be shifted from the place of his posting at Gurdaspur in view of the threat to his life. There is another letter dated 6.6.1988 written by another Police Officer according to which some suspicious persons were keeping a close watch at the residence of the above mentioned doctor to attack him at available opportunity. It is also mentioned in this letter that services of this doctor were utilized in the Police Lines, Gurdaspur for welfare of the Police personnel. Apart from this communication with the appellants, (Ex.PD) is a news clipping which speaks about a tale of kidnapping where the doctor along with his driver seems to have been kidnapped. However, the name of the doctor seems to have been withheld for security reasons. A perusal of the evidence recorded in the inquiry report does not mention anything regarding the threat or the circumstances which have been explained by the Senior Superintendents of Police, Gurdaspur in their respective letters mentioned above. This leaves me with no doubt that the witnesses of the appellants and the Inquiry Officer is prejudiced against the delinquent employee. Otherwise also, vide impugned order the respondent Dr. Ashok Oberai has been declined back wages for the period he remained absent from duty and only the service benefits have been given to him. It will be pertinent to mention here that the appellants should be left at liberty to pass a fresh appropriate order in accordance with law. Under these circumstances, I do not find any fault in the impugned judgment and decree of the learned Additional District Judge. Resultantly, this appeal fails and is dismissed by upholding the judgment and decree of the learned Additional District Judge. R.S.A. No.2638 of 2003 [7] August 23, 2011. (Mohinder Pal) Judge *hsp*