RSA No. 1941 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1941 of 1995 Date of decision: 5.2009 State of Punjab and another … Appellants. Versus Baldev Singh … Respondent Present: Mr. B.S. Sra, DAG Punjab, for the appellant-State. Mr. D.S.Patwalia, Advocate for the respondent. … ARVIND KUMAR, J: The present appeal is by defendant-State of Punjab directed against the judgment and decree of the first appellate Court whereby the appeal filed by the plaintiff has been partly allowed and his suit for declaration has been decreed. Trial Court had dismissed the suit of the plaintiff. Plaintiff-respondent, Baldev Singh, brought the present suit pleading therein that he joined as Giani Teacher on 4.9.1961 at Dhanaude, District Mohindergarh and on his transfer on 14.6.1967, he joined in Government High School, Budhlada. According to the plaintiff, on 8.6.1967, he proceeded on leave and when on expiry of the his leave, he went to join and submitted his joining report to the Headmaster, Dialpur Mirza, he was asked to seek permission of the District Education Officer. Plaintiff stated that no termination order or suspension order was passed against him by the competent Authority and therefore, he continues to be an employee of the Government. When he was not allowed to join, he served upon the defendants a notice under Section 80 CPC but to no avail. Hence, the present suit. Upon notice of the suit, defendants filed written statement stating therein that the plaintiff was transferred from Government High School, Pitho, to Dialpur Mirza and from 14.6.1967 onwards he had RSA No. 1941 of 1995 2 been absent without submitting any leave application and since then, he is being treated as absent from duty. It was alleged that the plaintiff never came to the school or met any other authority to join his duties. It was however admitted that no termination or dismissal order is available on record. Trial Court upon appreciation of evidence on record, vide judgment and decree dated 28.9.1993, dismissed the suit of the plaintiff holding that the plaintiff had failed to prove that he was not allowed to join his duties after his return from leave. Aggrieved therefrom, the plaintiff preferred an appeal which was partly allowed by the first appellate Court vide judgment and decree dated 13.3.1995 and as a result thereof, the suit of the plaintiff was decreed to the extent that the plaintiff continued to be in service of the defendant-State. However, it was made clear that there would be no bar with the Government to initiate appropriate disciplinary action against the plaintiff and to deal with his case in accordance with appropriate service rules. Plaintiff was held not entitled to any past wages or other benefits owing to his absence from duty for more than 20 years. Feeling dissatisfied with the judgment and decree of the first appellate Court, defendant-State of Punjab has preferred the present appeal. Counsel for the appellant-State has contended that the lower appellate Court has fallen in error in partly decreeing the suit of the plaintiff and has postulated this as a substantial question of law. Respondent-plaintiff had been absent for a period of about 23 years. From the length of absence, an inference can easily be drawn that the employee has abandoned or relinquished the service. However, where there has been voluntary abandonment of service or not, is a question of fact which has to be determined in the light of the facts of each case. In the instant case, the department simultaneously was equally negligent while not taking any action against him. No letter/notice had been sent to the respondent-plaintiff regarding his absence and asking him to join his duties. No charge-sheet was issued or any enquiry conducted. So much so, no order of termination was passed. In other words, his services were never put to an end by the department. This is apparent from the statement of DW-1 Ranjit Singh Dhillon, District Education Officer. The learned lower appellate Court while referring to Rule 3.25 of the Punjab Civil Services Rules, Volume I, Part-I, stipulating that where RSA No. 1941 of 1995 3 absence is of more than five years, the competent Authority can remove the employee from service after following the procedure but since the department had not taken any action under this rule, has rightly held the respondent-plaintiff to be continuing in service with liberty to the department to hold an enquiry but no back-wages and other benefits be given to him. The learned State counsel has not referred to any contrary rule to substantiate his plea that the lower appellate Court has fallen in error while taking the said view. In this view of the matter, the judgment and decree of the lower appellate Court is upheld. It shall be appreciated if the decision is taken by the competent Authority within six months from the date of receipt of certified copy of this judgment. With the aforesaid observations, the appeal stands dismissed. Parties to bear their own costs. May 2009 ( ARVIND KUMAR) JS JUDGE