RSA No.1794 of 1996 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1794 of 1996 Date of Decision:November 18, 2009 Barber Shiv Kumar No.14/B ...........Appellant Versus Haryana State and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Naveen Daryal, Advocate for the appellant. None for the respondents ** Sabina, J. Plaintiff-Shiv Kumar filed a suit for declaration . The suit of the plaintiff was decreed by the Sub Judge IInd Class, Karnal vide judgment and decree dated 16.8.1994. Aggrieved by the same, the defendants filed an appeal which was partly accepted and the suit was decreed to an extent that order dated 14.9.1992 passed by the Deputy Director PTC Madhuban was illegal but it was further held that petitioner was not entitled to back wages by the Additional District Judge, Karnal vide judgment and decree dated 31.1.1996. Hence, the present appeal by the Plaintiff. The facts of the case, as noticed by the Additional District Judge in paras 2 to 5 of its judgment, read as under:- “2. Shiv Kumar, plaintiff, was working as Barber in PTC, Madhuban Karnal. A charge-sheet Exhibit P1/C under Rule 7 of Punjab Civil Services (Punishment and Appeal) Rules, 1952 RSA No.1794 of 1996 2 (hereinafter referred to as Rules,1952) was served upon the plaintiff on October 16,1991 alleging therein that he remained absent from August 31, 1991 to October 1,1991 without taking leave. It is further the case of the plaintiff that earlier a charge- sheet Exhibit DW1/2 was issued to him on May 18,1991 under Rule 7 of Rules, 1952 alleging therein that he remained absent from February 27,1991 to March 11,1991 and he was accordingly suspended with effect from March 11,1991. 3. To the chargesheet dated October 16,1991, Exhibit P1/C. The plaintiff filed reply dated November 4,1991, submitted with the Punishing Authority on December 2,1991. Reply was found to be unsatisfactory, as a result of which regular departmental enquiry was ordered on December 23,1991. Shri Hazari Singh, Deputy Superintendent of Police was appointed as an enquiry Officer. After holding the enquiry and other procedure laid down in Rule 7 of Rules, 1952, Deputy director PTC Madhuban, Karnal, dismissed the plaintiff from the service by order dated September 14, 1992, which has been challenged by the plaintiff by filing the present suit. 4. The suit was contested. A Joint written statement was filed by the defendants interalia pleading therein that the plaintiff remained absent from the duty on three occasions, firstly, from February 27,1991 to March 11,1991;secondly, from May 23,1991 to June 12,1991 and thirdly from August 31,1991 to October 1,1991. On all the three occasions, the departmental enquiry was initiated against the plaintiff. The plaintiff was suspended on RSA No.1794 of 1996 3 March 11,1991 for his being absent from the duty from February 27, 1991 to March 11,1991. He was again suspended on October 4,1991 for remaining absent from August 31,1991 to October 1,1991. Two more departmental enquiries were also pending against the plaintiff and notices of dismissal were also issued in those two enquiries. In other words, it has been pleaded that the order dated September 14,1992 passed by the Deputy Director PTC, Madhuban was perfect and no interference should be called therein. 5. The plaintiff had filed replication to the written statement filed by the defendants controverting the contents of the written statement and reiterating the averments made in the plaint”. On the pleadings of the parties, the following issues were framed by the trial Court on 8.1.2001:- “1.Whether the order dated 14.9.1992 passed by the Director PTC Madhuban dismissing the service of the plaintiff read with order of the appellant authority, if any, are illegal, arbitrary, malafide, not binding on the rights of the plaintiff, if so, its effect?OPP 2.In case issue no.1 is decided in favour of the plaintiff, whether the plaintiff is entitled to the consequential relief alongwith interest, if so, how much and at what rate?OPP 3.Whether the suit is premature?OPD 4.Whether there is no cause of action?OPD 5.Whether the suit is bad for non-joinder, mis-joinder of necessary parties?OPD 6.Whether the plaintiff has not come with clean hands?OPD RSA No.1794 of 1996 4 7.Whether this court has got no jurisdiction?OPD 8.Whether proper court fee has not been affixed?OPD 9.Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff-appellant had filed a suit for declaration that the order dated 14.9.1992 whereby he was dismissed from service was illegal and arbitrary. The suit of the plaintiff was decreed by the trial Court. The judgment and decree of the trial Court were modified to the extent that the plaintiff was not entitled to salary for the period he had remained out of service. Plaintiff was working as a Barber with the defendants. He remained absent from duty from 27.2.1991 to 11.3.1991, 23.5.1991 to 12.6.1991 and 31.8.1991 to 1.10.1991. Admittedly the services of the plaintiff were terminated after holding a departmental inquiry against him. The Courts below have ordered that the order of dismissal was illegal. The State has not filed any appeal challenging the judgment and decree of the learned Additional District Judge whereby it was held that the dismissal order is illegal. The learned Additional District Judge has denied the benefit of back wages to the plaintiff on the ground that since the plaintiff had not worked for the said period, consequently, he was not entitled for the salary for the period he remained out of employment of the Police Department. Learned counsel for the appellant has placed reliance on a decision of the Full Bench of this judgment in Radha Ram vs. Municipal Committe Barnala (1983)85 PLR 21 wherein it was held as under:- "12. Now apart from precedent on larger consideration of principle as well the stand of the appellant herein commends itself RSA No.1794 of 1996 5 for acceptance. Once the relief of setting aside or quashing the order of termination has been granted or a declaratory decree has been passed to the similar effect. It necessarily follows that the employee in the eye of law continues to be in service and as a necessary consequence thereof would be entitled to all the emoluments flowing from that status. He must be deemed to be in a position identical with that existing prior to the passing of the order of termination of his service. In the felicitous language of their Lordships the emoluments of the post are a logical consequence of setting aside the order of termination. In such a situation to insist upon the filing of a second suit for a relief which directly flows from the declaratory decree can hardly be warranted. The hallowd rule that the law disfavours multiplicity of proceedings would again require that the consequential relief should be recorded in the original proceedings itself. This seems to be the more so in view of the recent judgments of the final court adverted to above holding that in essence the cause of action for the claim to salary and emoluments is co-terminus with the decree setting aside the wrongful termination. Therefore, no issue or bar of limitation now raises any hurdle in this context. It deserves recalling that on the earlier view that the right to salary and emoluments was likely to become barred after a period of three years from the date of the order of termination itself there might have been some jurisdiction for the need of a separate suit for emoluments etc. to test it on the envil of limitation. However, since such a view has now been given the go-by and its RSA No.1794 of 1996 6 anomalous results have been authoritatively noticed by the final Court in State of Madhya Pradesh V. State of Maharashtra and Maimoona Khatun's case, it seems wholly wasteful to require a fresh spurt of litigation for the recovery of emoluments which necessarily flow from the quashing of the termination order or the grant of the declaratory decree" In the present case, the plaintiff had remained absent from duty. Although the order of dismissal passed after holding a departmental inquiry against the plaintiff has been held to be illegal but in the facts and circumstances of the present case, the learned Additional District Judge has rightly held that the plaintiff is not entitled for the salary for the period he had not worked. The view taken by the learned Additional District Judge cannot be said to be perverse. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant. 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 November 18, 2009 arya