RSA No.754 of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.754 of 2004(O&M) Date of decision: 15.5.2009 The State of Punjab and others ......Appellants Versus Jagjit Singh Ex.Const. No.465/GSP ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Rajesh Garg, Additional Advocate General, Punjab. for the appellants. Mr. G.C. Gupta, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This judgment of mine shall dispose of two regular second appeals i.e. RSA Nos.754 and 755 of 2004 both titled as State of Punjab and others v. Jagjit Singh Ex.Const.No.465/GSP which have arisen out of a common judgment and decree dated 9.9.2003 passed by Sh. C.D. Gupta, Additional District Judge, Gurdaspur in Civil Appeal No.71 of 2001 and Civil Appeal No.51 of 2001 vide which the judgment and decree of the trial Court dated 31.3.2001 passed by the Court of Sh. Surinder Singh., Civil Judge (Junior Division) Gurdaspur, decreeing the suit of the plaintiff-respondent was upheld and the order dated 18.5.1996 passed by the Senior Superintendent of Police, Gurdaspur, was set aside and the plaintiff was held entitled to all the service benefits except backwages from 18.5.1996 till his reinstatement. The services of the plaintiff-respondent were terminated as he had not completed 10 years of regular service and had absented himself for a period of about 2 months and 3 days. However, the plaintiff- respondent filed suit for declaration to the effect that the impugned order RSA No.754 of 2004(O&M) 2 bearing No.1026-30/ST dated 18.5.1996 passed by the Senior Superintendent of Police, Gurdaspur, by virtue of which the plaintiff was dismissed from service having merged into the impugned Appellate order of the Deputy Inspector General of Police, Border Range, Amritsar vide which the appeal of the plaintiff was rejected, are illegal, unlawful and not binding on the plaintiff and he was entitled to all the service benefits as if the impugned orders had never been passed. As per further averments made in the suit, the impugned order of dismissal from service was passed on the allegations that the plaintiff remained absent from duty for about 2 months 3 days and 3 hours without leave or permission from his superiors. On these allegations, departmental enquiry was ordered against him in which he was not given proper opportunity to defend himself and thereafter, his services were terminated vide order dated 18.5.1996. The plaintiff carried an appeal against the order dated 18.5.1996 which was dismissed by the Appellate Authority without application of mind as the reply submitted by the plaintiff to the charge-sheet was not considered by the Enquiry Officer. Notice of the suit was served upon the defendant who appeared and filed written statement raising various legal objections. On merits, it was alleged that the plaintiff was appointed as Constable in the police force on temporary basis on 18.7.1998 (forenoon). The plaintiff remained absent from duty and a show cause notice was served upon him. The reply filed by the plaintiff to the show cause notice was not found satisfactory and an Inquiry Officer was appointed. The Inquiry Officer conducted the enquiry in accordance with law and submitted his report to the Punishing Authority who after considering the findings of the Inquiry Officer, passed the impugned order legally. The appeal filed by the plaintiff was also dismissed by the Appellate Authority in accordance with law. RSA No.754 of 2004(O&M) 3 Thus, defending the impugned orders dismissal of the suit was prayed for. From the pleading of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the declaration that impugned order bearing No.1026-30/ST dated 18.5.1996 passed by defendant No.3 dismissing from service is illegal, null and void? OPP 2. Whether the plaintiff is entitled to the declaration that order passed by defendant No.3 rejecting the appeal of the plaintiff is also illegal, null and void ? OPP 3. Whether suit is not maintainable in the present form?OPD 4. Whether notice under Section 80 CPC served by plaintiff upon the defendants is not legally valid? OPD 5. Whether plaintiff has got no cause of action?OPD 6. Relief.” After recording the evidence and hearing the learned counsel for the parties, the trial Court partly decreed the suit of the plaintiff vide judgment and decree dated 31.3.2001 and ordered that the order bearing No.1026-30/ST dated 18.5.1996 passed by the Senior Superintendent of Police, Gurdaspur and order bearing No.1490/BR dated 18.7.1997 passed by the Deputy Inspector General of Police, Border Range, Punjab, were null and void and the plaintiff was entitled to all the benefits of service as no order of dismissal from service was ever passed against him except that the plaintiff was not entitled to backwages from 18.5.1996 till his reinstatement on the principle of “No Work No Pay”. While decreeing the suit of the plaintiff, the trial Court observed that a police employee can be dismissed from service only for grave misconduct on his part. It was further RSA No.754 of 2004(O&M) 4 found by the trial Court that in the case in hand the plaintiff remained absent from duty for about 2 months 3 days and 3 hours on account of illness but the Inquiry Officer and Punishing Authority did not consider the medical certificate of the plaintiff without any reason and the Enquiry Officer and the Punishing Authority acted arbitrarily against the plaintiff. It was further observed by the trial Court that in the impugned order dated 18.5.1996, it is not mentioned that the act of misconduct on the part of the plaintiff was gravest act of misconduct and as per Rule 16.24 of the Punjab Police Rules, 1934, the disciplinary Authority had not taken into consideration the claim of the employee for pension having regard to his length of service. Moreover, DIG, Border Range, Amritsar had not given any opportunity of hearing to the petitioner before passing the impugned order and therefore, the impugned orders were null and void. The State of Punjab as well as the plaintiff-respondent preferred appeals challenging the judgment and decree of the trial Court. In his appeal, the plaintiff-respondent sought backwages which were not allowed to him by the trial Court whereas the defendant-State challenged the findings of the trial Court arguing that the enquiry was held against the plaintiff under the Punjab Police Rules and the plaintiff was punished and dismissed from service. It was alleged that when the enquiry was found to be faulty, it was not proper to direct reinstatement with consequential benefits and the matter was required to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. While partly allowing the appeals, the Lower Appellate Court vide impugned judgment and decree held that DIG, Border Range, Amritsar, gave no opportunity of hearing to the petitioner before passing the impugned order dated 18.7.1997 and therefore, the impugned orders RSA No.754 of 2004(O&M) 5 were bad and not binding on the plaintiff. Resultantly, the impugned orders dated 18.5.1996 as well as 18.7.1997 were set aside and it was held that the competent Authorities would be at liberty to hold fresh enquiry from the stage it was found faulty by the trial Court and if the competent authority decides to hold fresh enquiry, the same be completed within a period of six months. Still not satisfied, the State of Punjab has filed the instant appeals challenging the judgment and decrees of the Courts below. At the motion stage, it was argued by the learned State counsel that the plaintiff had participated in the entire enquiry proceedings against him. The plaintiff had also led his evidence. The witnesses on behalf of the State were also cross-examined before the Inquiry Officer and on the basis of these facts, it was submitted that once the plaintiff had fully participated in the enquiry before the Inquiry Officer, no fault can be found in the proceedings conducted by the Inquiry Officer. It was further contended by the learned counsel for the appellant-State that merely because the Courts below did not mention that the conduct of the plaintiff was gravest, it would not vitiate the enquiry conducted against him. On the other hand, Mr. G.C. Gupta, learned counsel appearing on behalf of the respondent had argued that the appellants had been given the opportunity to conduct the enquiry from the stage it was found faulty by the trial Court and therefore, the judgments of the Courts below are not liable to be set aside. On the basis of the aforesaid argument, the following substantial questions of law were framed by this Court vide order dated 15.9.2005: “1. As to whether in the absence of any finding to the effect that any prejudice has been caused to the respondent, the Hon'ble Court could have set aside the RSA No.754 of 2004(O&M) 6 orders of the competent authority? 2. As to whether judgments of both the Courts below are totally perverse and thus, liable to be set aside.” I have heard learned counsel for the parties and perused the record. A perusal of the impugned judgment and decree of the Lower Appellate Court would show that the only argument which was raised by the appellant-State before the Lower Appellate Court was that the trial Court committed an error of law after finding that enquiry was faulty, reinstatement with consequential benefits of the respondent was not proper and the matter was required to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. The aforesaid argument of the State counsel was accepted by the Lower Appellate Court and appeal filed by the State of Punjab was partly accepted. While setting aside the impugned order dated 18.5.1996 as well as order 18.7.1997, the competent authority was given opportunity to hold fresh enquiry. It was further observed that if the competent authority decided to hold fresh enquiry then the same should have been completed within a period of six months. Learned State counsel was unable to show in what manner the appellant-State was aggrieved against the findings of the Lower Appellate Court as whatever the argument was raised before the Lower Appellate Court, the same was accepted and therefore, it cannot be said that the appellants are aggrieved against the judgment and decree of the Lower Appellate Court. It is not the case of the appellant-State that any other point was raised before the Lower Appellate Court. In view of the aforesaid factual position, the substantial RSA No.754 of 2004(O&M) 7 questions of law as raised by the appellants before this Court do not arise at all. No merits. Dismissed. May 15, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.754 of 2004(O&M) 8