Punjab-Haryana High Court
The State Of Punjab And Another vs Subhash Chander Ex. Constable on 9 January, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
R.S.A. No. 1225 of 2011
Date of decision: January 09, 2013
The State of Punjab and another
.. Appellants
Vs.
Subhash Chander Ex. Constable
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Baljinder Singh Sra, Addl. A.G. Punjab
for the appellant.
Mr. M.S. Rakkra, Sr. Advocate with
Mr. P.S. Baath, Advocate for the respondent.
A.N. Jindal, J
The State has preferred this appeal against the judgment dated 1.11.2010 passed by the Additional District Judge, Fast Track Court, Gurdaspur, allowing the appeal of the plaintiff-respondent (herein referred as, 'the plaintiff') and restraining the appellant-defendant (herein referred as, 'the defendant') from conducting any enquiry.
Factual background of the case is that the plaintiff was appointed as Constable on permanent basis w.e.f. 1.9.1989. He went absent on 2.11.1994 for which an enquiry was held and on enquiry he was dismissed from service by the Senior Superintendent of Police, Gurdaspur, vide order dated 29.4.1995 mentioning that the plaintiff remained absent from duty w.e.f. 26.4.1993 to 23.5.1993 (61 days), 16.7.1990 to 23.7.1990 (8 days), 13.3.1991 to 20.3.1991 (7 days), 8.3.1994 to 11.3.1994 (3 days) and 27.7.1994 to 8.8.1994 (12 days). His this period was treated as leave without pay. However, the plaintiff explained that he remained ill got treatment from Dashmesh Hospital, Dhariwal from 2.11.1994 to 5.5.1995 and had sent intimation in that regard to the concerned authorities.
The State submitted written statement, wherein besides taking some preliminary objections, it was submitted that the plaintiff was habitual absentee and after completing departmental enquiry he was dismissed from service.
R.S.A. No. 1225 of 2011 -2-The trial court, vide judgment dated 14.5.2001 while holding that the ex-parte proceedings were held against the plaintiff; he was not given adequate opportunity to defend himself and show cause notice was not served up-on him personally, therefore, he was not provided opportunity to file reply and lead his defence, it partly decreed the suit while setting aside the order of penalty dated 29.4.1995. Further it directed that the defendants State will be at liberty to conduct a fresh enquiry. Still dis-satisfied, the plaintiff respondent filed the appeal. The appellate court accepted the appeal and removed the rider as fixed by the trial court and restrained the State from conducting any fresh enquiry vide judgment dated 1.11.2010. Feeling aggrieved, the State has preferred this regular second appeal.
The order of penalty relates back to 29.4.1995. Both the courts below have consistently held that the enquiry is in violation of the rules and procedure and the trial court had given liberty to the State to hold fresh enquiry, but no such enquiry has been conducted by the State so far.
After hearing arguments at length, it has come to light that since the State has not challenged the trial court judgment, which had upset the enquiry proceedings, has offered to take back the plaintiff into service provided the plaintiff does not raise claim for full salary of the previous years during which he remained out of service by way of suspension or otherwise. After some deliberations, both the parties are agreed that the plaintiff would not be entitled to receive more than the subsistence allowance as permissible under the rules for the period he remained out of service and otherwise the period of suspension would be counted towards all other benefits.
Resultantly, this appeal is dismissed with the modification in the impugned judgment that the plaintiff would not be entitled to receive more than the subsistence allowance as permissible under the rules for the period he remained out of service. However, the period of suspension would otherwise be counted towards all other benefits.
January 09, 2013 (A.N. Jindal) deepak Judge