RSA No.1603 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1603 of 1992 Date of Decision: 23.04.2009 Kirpal Singh ..Appellant Vs. The Punjab State ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vijay Pal Singh, Advocate, for the appellant. Mr.R.L.Gupta, Addl. Advocate, General, Punjab, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 31.3.1992 passed by learned courts below dismissing the RSA No.1603 of 1992 2 suit for declaration filed by the plaintiff-appellant to challenge order No.531/ECW dated 20.1.1986 passed by the General Manager, Punjab Roadways, Jalandhar-II terminating the services of the plaintiff/appellant w.e.f. 1.6.1984. Order was claimed to be illegal, biased, discriminatory, against the principles of natural justice and against the mandatory provisions of Punjab Civil Services (Punishment & Appeal) Rules, 1970, thus, was claimed to be null and void having no existence in the eyes of law and not binding upon the plaintiff. The plaintiff, thus, claimed his continuation in service with back wages. The plaintiff/appellant was appointed on 17.2.1962 as a permanent employee of Punjab State Government who proceeded on sanctioned leave w.e.f. 1.3.1984 to 31.5.1984. After expiry of leave period, the plaintiff/appellant did not join back on the plea that because of the circumstances beyond his control he was not able to join his duties. It was also the case of the plaintiff/appellant that no intimation was received by him regarding non-sanction of his leave application for extended period. Thus, he remained under a bona fide mistaken belief that his leave application has been sanctioned. The plaintiff claimed that he reported for duty when circumstances changed but he was informed that his services were terminated vide order dated 20.1.1986. Order of termination was said to have not been served on the plaintiff nor communicated to him. The plaintiff claimed that he sought the copy of the order of termination from the General Manager but the same was not supplied. The plaintiff, however, came to know that the order of termination was passed in RSA No.1603 of 1992 3 view of the absence from duty. The impugned order was challenged on the following grounds:- “(i) That as per service rules, the plaintiff was entitled to various type of leave. (ii) That while refusing leaving there was no exigency of service which compelled the general manager to refuse leave. (iii) That according to rules 3.25 of the Punjab Civil Service Rules, Volume-I, Part I, the plain tiff could obtain leave of the kind due or could remain absent up to five years. (iv) That no intimation was received regarding non- sanctioning of his leave application. (v) That plaintiff was neither charge-sheeted nor any explanation was called from him before terminating his services. (vi) That no inquiry was held. (vii) That there was no good and sufficient reason for awarding such a severe punishment. (viii) That said order is biased and mala fide. (ix) That order of termination has been effected with retrospective effect, as such the order is illegal and not binding upon the plaintiff.” The plaintiff issued notice under section 80 of the Code of Civil Procedure (for short the Code). No reply was received, therefore, he filed RSA No.1603 of 1992 4 the suit. The suit was contested, wherein preliminary objection was taken that no valid notice under section 80 of the Code was served upon the defendant. The suit was said to be barred by limitation. Jurisdiction of the civil court to entertain the suit was also challenged. On merit, it was submitted that the appellant-plaintiff never reported for duty and that the order of termination was conveyed to the plaintiff/appellant. It was also denied that the plaintiff had requested for copy of order of termination. It was claimed that the order passed by the punishing authority was legal and valid and in accordance with rules. Thus, it was prayed that the suit be dismissed. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- 1. Whether the order dated 20.1.1986 passed by the General Manager, Punjab Roadways, Jalandhar-II is illegal, null and void etc.? OPP 2. Whether the plaintiff is entitled to the declaration as prayed for? OPP 3. Whether the suit is within time? OPP 4. Whether Civil Court has got no jurisdiction to try the instant suit? OPD 5. Whether no valid notice u/s 80 CPC was served upon the defendant? OPD 6. Relief. RSA No.1603 of 1992 5 On appreciation of evidence, learned courts below have recorded a concurrent finding of fact that the order dated 20.1.1986 passed by the General Manager, Punjab Roadways, Jalandhar Depot was legal and not null and void. However, it was held that the termination with retrospective was not sustainable and therefore, the plaintiff/appellant was directed to be treated to have been terminated w.e.f. 20.1.1986. The learned courts below held that in the facts and circumstances of the case the plaintiff was not entitled to declaration prayed for. Issues No.3 and 4 were not pressed and therefore, decided against the defendant, whereas on issue No.5 it was held that a valid notice under section 80 of the Code was served on the defendant. Learned counsel for the appellant contends that the appeal raises the following substantial questions of law:- 1. Whether the judgment and decree passed by the learned courts below are the outcome of misreading of evidence and thus, perverse? 2. Whether the punishment awarded to the plaintiff/appellant is disproportionate to proved charge, thus harsh? In support of the first substantial question of law learned counsel for the appellant contends that the departmental proceedings held against the plaintiff were proved to be against the statutory provisions of law as well as in violation of principles of natural justice as admittedly charge-sheet, notice and termination order were not served on the appellant RSA No.1603 of 1992 6 as notices sent by way of registered covers were received back by the defendant/respondent as not served and therefore, learned courts below erred in law in not recording a finding that the departmental proceedings as well as the punishment order on the face of it were not sustainable. The finding was claimed to be the out come of misreading of evidence and thus, perverse. However, this plea of the learned counsel for the appellant cannot be accepted, as it is not disputed that the charge-sheet as well as notice calling upon the plaintiff/appellant to appear were sent by way of registered A.D. covers at the last known address of the plaintiff/appellant. The said notices were received back with the remarks that the plaintiff was not available having gone to Dubai. Thus, it was proved on record that either the plaintiff/appellant was intentionally evading service or had, in fact, left the country without permission of the employer. Not only the registered notices were issued, the show cause notice was published in the various news-papers. The appellant chose not to appear before competent authority. It cannot be said that the findings recorded by the learned courts below are perverse. Learned courts below rightly held that the notices were issued to the plaintiff at the address which was given by the plaintiff in the plaint and thus, it cannot be said that there was violation of principles of natural justice. No fault can be found with the judgment and decree passed by the learned courts below. Therefore, the findings cannot be said to be the outcome of misreading of evidence and perverse as RSA No.1603 of 1992 7 contended. On the next substantial question of law learned counsel for the appellant contends that the plaintiff was appointed on 1.6.1962 and had unblemished service of more than 20 years, when he proceeded on leave. The order of termination of services is very harsh as he has lost his right to pension for the services rendered by him. The order is thus said to be violative of Article 14 of the Constitution. I find force in this contention of the learned counsel for the appellant. The punishment awarded, without taking into consideration unblemished service of 20 years which results in loss of pension, is certainly harsh or perverse, besides being violative of Article 14 of the Constitution of India. Consequently, the second substantial question of law is answered in favour of the appellant and against the respondent/State. In order to do substantial justice, the appeal is partly allowed and the order of termination is set aside being violative of Article 14 of the Constitution of India and further in view of the facts and circumstances, the punishment awarded being harsh, is modified to the one of compulsory retirement w.e.f. 1.1.1986. However, it is made clear that the plaintiff/appellant would not be entitled to any salary or any financial benefits from 31.5.1984 till 20.1.1986 on the principle of 'no work no pay'. However, he shall be entitled to consequential benefits arising out of modification of punishment order. No costs. 23.04.2009 (Vinod K.Sharma) rp Judge