REGULAR SECOND APPEAL NO.2242 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 08, 2010 Pepsu Road Transport Corporation, Patiala & another .....Appellants VERSUS Balwinder Kaur and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Jaspal Kaur Gurna, Advocate, for the appellants. Mr. Vikrant Rana, Advocate for Mr. S. K. Sharma, Advocate, for the respondents. **** RANJIT SINGH, J. Respondent-plaintiff had filed a suit for declaration that the punishment order dated 24.6.1998 and the order passed by the Appellate authority dated 29.12.1998 were illegal, null and void. Respondent plaintiff had joined the service of the appellant Corporation on 5.10.1973. On 27.12.1996, he proceeded on leave as his brother-in-law was admitted in hospital at Patiala. He sought extension of leave upto 20.2.1997. On 7.1.1997, one of the brother-in-law of the respondent plaintiff died. He joined his duty on REGULAR SECOND APPEAL NO.2242 OF 2009 :{ 2 }: 21.2.1997 and performed duties till 24.6.1998. On 21.2.1997, he was charge-sheeted for being absent w.e.f 27.12.1996. He filed response to the charge sheet. Enquiry was conducted and it was held that the charges stood proved. Show cause notice proposing penalty of termination was accordingly issued by the General Manager. After considering the reply filed, the plaintiff - respondent was removed from service on 24.6.1998. He filed an appeal before the Additional Managing Director, which was also dismissed on 29.12.1998. He accordingly filed a suit, alleging that the orders were illegal, null and void. It is seen that the main submission by the respondent- plaintiff was that during this period he lost his two brothers-in-law and produced their death certificates during the course of enquiry. He also pointed out that 300 days earned leave was to his credit and accordingly he could have been granted leave. Respondent-plaintiff also pleaded that he had applied for voluntary retirement on 16.4.1998 but still was removed from service on 24.6.1998. At that time, he had more than 25 years of service and, thus, could seek voluntary retirement on completion of 20 years of service. The plea is that the respondent-plaintiff could not have denied his request of voluntary retirement. He also impugned that the order directing forfeiture of his pay and allowance for the period he remained absented would also be a punishment, which would be a second punishment. Upon notice, appellant-defendants appeared and filed written statement. Other facts are admitted and so too that the respondent-plaintiff absented w.e.f. 22.12.1996 and remained absent REGULAR SECOND APPEAL NO.2242 OF 2009 :{ 3 }: till 20.2.1997. Appellants would point out that no application for leave or extension of leave was ever received. On 17.1.1997, he was asked to report and explain reasons for his absence. He still failed to report and to submit his reply. As per the appellants, enquiry was conducted as per the Rules and before passing the order of removal, he was afforded opportunity of personal hearing. As per the appellants, the appeal of the respondent was rightly rejected. On the basis of this pleadings, suit was contested on the following issues:- “1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable?OPD 3. Whether the court has jurisdiction to try the present suit?OPP 4. Relief.” The Trial Court decreed the suit, which was taken in appeal. During the pendency of the suit, the respondent-plaintiff died and his L.Rs came on record. The L.Rs also filed cross- objections before the lower Appellate Court on the ground that the order rejecting the claim of the respondent-plaintiff during the time he remained out of service after pre-mature retirement was wrongly decided against them. One of the reason, which had weighed with the Court was that the order of removal was passed by an authority who was subordinate to the appointing authority. Concededly, the respondent- plaintiff was appointed by General Manager, which post was re- designated as Managing Director. The respondent-plaintiff was, REGULAR SECOND APPEAL NO.2242 OF 2009 :{ 4 }: however, removed from service by the General Manager, who was previously designated as Depot Manager. In support, reference was made to a case of Pepsu Roadways Transport Corporation, Patiala Vs. Bal Krishan, Driver in RSA No.4808 of 2002, where this Court has held that the order of removal passed by General Manager in such situation was illegal, null and void on the ground that General Manager was not competent to pass the order of punishment as the appointment was by a General Manager which has been re-designated as Managing Director. It is the Depot Manager, who has now been designated as General Manager and hence, was an authority subordinate to the appointing authority. Learned counsel for the appellants could not dispute this fact but would justify the same on the ground that ultimately the appellate order was passed by the Managing Director and thus, this infirmity, if any, stood cured, says the counsel. The second submission made related to the fact that the previous conduct of the respondent-plaintiff was taken into consideration without putting him to any notice in this regard. The plea was that the previous record was not considered by the Punishing Authority. This was also attempted to be justified on the ground that the Appellate Authority while deciding the appeal did not take into consideration the previous conduct of the respondent- plaintiff and hence, the infirmity in the regulation 28 or 29 of P.R.T.C. (Condition of Appointment and Services Regulation), 1981 stood complied with. In this regard also reference is made to the ratio of law laid down in Kuldip Singh Vs. Pepsu Road Transport Corporation, Patiala and another, 1995 (4) All Instant Judgments REGULAR SECOND APPEAL NO.2242 OF 2009 :{ 5 }: 316, where it is held that if punishing authority is to consider the previous record, which is likely to influence the matter of award of punishment, it is necessary that later be afforded an opportunity of being heard in this regard. This would be necessary to ensure adherence to principle of natural justice. The submission advanced by the appellants' counsel to justify these infirmities which are quite apparent can not be accepted as valid under law. If something is required to be done or followed by a punishing authority, it would be no solace for a party to urge that the same was considered and done at the appellate stage. May be if such consideration had been taken into account by the punishing authority, there would not have been a need for the delinquent to file an appeal and necessary relief may have been granted to him at that stage. In view of the violation as noticed, the submission by the counsel for the appellants can not be considered justified and this would not lead to any substantial question of law that would arise for consideration in such a case. The respondent-plaintiff is an unfortunate person who had lost two of his close relatives, which perhaps became cause for his absence. He himself is no more even to enjoy the fruits of the judgments passed by the Courts setting-aside his removal. Since there is no substantial question of law involved, the Regular Second Appeal is dismissed, as it lacks merit as well. February 08, 2010 ( RANJIT SINGH ) khurmi JUDGE