Punjab-Haryana High Court
State Of Punjab And Ors vs Nazar Singh on 6 September, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No. 4690 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 4690 of 2014 (O&M)
Date of Decision 06.9.2014
State of Punjab and others
....Appellants
Versus
Nazar Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. L.S.Virk, Additional A.G. Punjab.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAMESHWAR SINGH MALIK J. (Oral)
Present appeal, at the hands of the defendants, is directed against the concurrent findings of facts recorded by both the learned courts below, whereby suit for declaration filed by the plaintiff was partly decreed, upholding the substantive punishment of termination from service and remanding the matter back to the respondent authorities, granting liberty to consider the claim of the plaintiff for pensionary benefits.
Briefly put, facts of the case, as noticed by the learned first appellate court in para 4 and 5 of the impugned judgment, are that the plaintiff joined as Constable in 1986 and the summary AMIT KUMAR of 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 2 allegations was issued against him by the enquiry officer. The plaintiff examined two witnesses namely Balwinder Singh, Sarpanch and Harcharan Ram, Panch in his defence. A show cause notice was issued to the plaintiff vide No. 188-16/2000/575/B dated 6.1.2001 and he was dismissed vide impugned order No. 12760-67/B dated 16.4.2001. It was ordered that period of absence will be treated as non duty and he shall not be entitled to pension. It was further averred that the plaintiff filed appeal to the DIG, Patiala Range, Patiala which was dismissed on 8.9.2001 and the revision filed by the plaintiff was also dismissed on 12.7.2002 by the Inspector General of Police, Zonal, Patiala. The plaintiff filed revision-cum-mercy petition to the Director General of Police, Punjab, Chandigarh which is pending. It was further averred that the orders were illegal, ultravires, unconstitutional, malafide, null and void, against principles of natural justice and against service rules and regulations on the following grounds:-
I) That the plaintiff submitted the medical certificate dated 12.5.2000 regarding his illness and also examined two witnesses in this regard. II) That the plaintiff in his appeal stated that he dispatched information regarding his illness alongwith application for leave on medical grounds.
None of the prosecution witnesses stated that application for leave was not received.
III) That neither the list of documents nor copies of documents were supplied to the plaintiff.
AMIT KUMAR2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 3 IV) That plaintiff was not given opportunity to cross examine the witnesses.
V) That neither the past record of the plaintiff was referred to in the charge sheet nor in show cause notice nor in summary of allegations, but the same was considered by competent authority while passing the impugned order.
VI) That the plaintiff was not given opportunity of personal hearing after considering his reply to the show cause notice and before passing the dismissal order.
VII) That on 19.2.2001, plaintiff appeared before SSP and explained the circumstances to him, who passed verbal order for forfeiture of three years service on permanent basis, which was converted into dismissal order by the enquiry clerk on account of non fulfillment of his demand by the plaintiff. VIII) That plaintiff has more than 10 years service to his credit and he was entitled to pension, as forfeiture of service was for the purpose of increments and not for the purpose of pension. IX) That plaintiff was penalized due to his previous misconduct.
X) That the plaintiff was not a habitual absentee and in the absence of findings of gravest act of misconduct the plaintiff cannot be dismissed. AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 4 XI) That whatever the plaintiff stated in his personal hearing was not recorded and the same was not considered while passing the dismissal order. XII) That the orders were against principles of natural justice, abuse of powers, perverse, arbitrary and against rules and regulations governing the services of the plaintiff.
Hence the present suit.
Upon notice of the suit, the defendants appeared and contested the suit by filing a written statement taking preliminary objections that the plaintiff was having no locus standi to file the present suit, the plaintiff did not come to the court with clean hands and the plaintiff had no cause of action to file the present suit. On merits, it was submitted that the plaintiff got himself absented on 16.3.2000 and DDR No.16 dated 20.3.2000 was recorded in Roznamcha, Police Lines, Fatehgarh Sahib. The plaintiff joined his duty vide DDR No.12 dated 11.5.2000 after remaining willful absent for 56 days and 11 hours. An inquiry was conducted against the plaintiff and after completion of inquiry, the enquiry officer submitted his report to the competent authority, who after going through the enquiry file and findings of the enquiry officer, issued a show cause notice, summary of allegation and charge sheet. The plaintiff received the same and submitted his reply to the show cause notice, but he did not appear in person before the competent authority to explain the circumstances. Ultimately, after considering the departmental enquiry, reply to the show cause notice and AMIT previous KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 5 service record, the competent authority dismissed the plaintiff vide order dated 16.4.2001. It was further submitted that the revision-cum- mercy petition filed by the plaintiff was duly considered and rejected by the Director General of Police, Punjab, Chandigarh vide order dated 24.3.2004. It was submitted that the enquiry officer was not satisfied with the evidence produced by the plaintiff and medical certificate submitted by him. The plaintiff did not get his leave sanctioned regarding his illness and produced vague medical certificate prepared by a private practitioner. The plaintiff did not submit any postal receipt regarding dispatch of leave application on medical grounds or any other intimation to the department. It was further submitted that all the documents were supplied to him under proper signatures and full opportunity was provided to the plaintiff to cross-examine the prosecution witness, but he denied to cross- examine the witnesses. It was submitted that full opportunity was provided to the plaintiff to appear in person before the competent authority but he never appeared the competent authority to explain the circumstances. It was further submitted that the work and conduct of the plaintiff was not satisfactory during his service career and before passing the dismissal order, his previous record had been duly considered by the competent authority. The plaintiff was given the following punishment on different occasions:-
I) Punishment of censure for absence from duty from 11.12.1994 to 17.12.1994 i.e. 6 days vide order book No. 420/95 dated 30.1.1995. II) Punishment of censure for absence from duty AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 6 from 19.8.1996 to 13.12.1996 and 20.2.1997 to 5.3.1997 i.e. total 129 days vide SSP/Patiala's order No.2542-46/ST dated 8.7.1998.
III) Punishment of forfeiture of four years approved service on permanent basis towards increment in a departmental enquiry against the plaintiff for absence from duty from 5.3.1997 to 16.6.1997 and 29.6.1997 to 3.11.1997 total 230 days vide SSP Patialaorder's No. 22675-79/B.EC dated 11.6.1999. IV) Punishment of forfeiture of five years approved service on permanent basis towards increments in a departmental enquiry against the plaintiff for absence from duty from 4.1.1998 to 11.2.1998 and 23.2.1998 to 12.6.1998 total 147 days vide SSP/Patiala order's No. 1000865-69 B.EC dated 12.4.2000.
V) Punishment of forfeiture of two years approved service on permanent basis towards increments in a departmental enquiry against the plaintiff for absence from duty from 18.6.1999 to 21.8.1999 total 64 days vide SSP /Patiala order's No. 4648-51/ It was further submitted that the plaintiff being a member of disciplinary force has committed gravest act of misconduct and indiscipline. Time and again, he proved himself to be a incorrigible and complete unfit for police service, thus, he was dismissed from service. It was submitted that the plaintiff was penalized for forfeiture AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 7 of 11 years of service and he was not entitled to pension. Rest of the averments were denied and dismissal of the suit was prayed for.
On completion of pleadings of the parties, learned trial court framed the following issues:-
1. Whether the plaintiff is entitled to declaration as prayed for? OPP.
2. Whether the plaintiff has no locus standi to file the present suit? OPD.
3. Whether the plaintiff has no cause of action to file the present suit? OPD.
4. Relief"
With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing learned counsel for both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff could not prove his case, regarding order of termination passed by the competent authority, which was further upheld by the appellate as well as revisional authority of the department. However, suit of the plaintiff was partly decreed only to the limited extent, directing the authorities of the department to consider the claim of the plaintiff for pensionary benefits, on the basis of his service from 3.4.1986 to 16.4.2001. Both the parties felt aggrieved and filed their first appeals. One appeal was filed by the defendants and another was filed by the plaintiff. Plaintiff sought decretal of suit in toto whereas defendants sought setting aside of the impugned judgment and decree dated 29.7.2011. Both these AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 8 appeals were dismissed by the learned first appellate court, vide common impugned judgment and decree dated 28.1.2014. Hence this second appeal, at the hands of defendants.
Learned counsel for the appellants submits that plaintiff was a habitual absentee. Plaintiff had been awarded major punishments on many occasions. He further submits that plaintiff was not a willing worker and was also found to be an incorrigible employee. He also submits that since the plaintiff was a member of disciplined force, it was not in the public interest to retain him in service. However, since learned courts below failed to consider these aspects of the matter, the impugned judgments and decrees were not sustainable in law.
He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, present one has not been found to be a fit case warranting interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that while passing the termination order against the plaintiff, competent authority of the department did not consider his claim for pensionary benefits, on the basis of his service w.e.f. 3.4.1986 to 16.4.2001. While upholding AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 9 the substantive punishment of termination from service awarded to the plaintiff vide order dated 16.4.2001 and also appellate as well as revisional order, learned trial court was fully justified in facts as well as in law, while passing the impugned judgment dated 29.7.2011, whereby the suit of the plaintiff was partly decreed, directing the authorities of the department to consider the claim of the plaintiff for pension and other retiral benefits. However, instead of complying with the abovesaid decree passed by the learned trial court to the limited extent indicated above, defendants proceeded on a wholly misconceived approach and filed first appeal before the learned first appellate court, which was rightly dismissed by the learned Additional District Judge, vide impugned judgment and decree dated 28.1.2014.
It is neither pleaded nor argued case on behalf of the appellants that they were not granted liberty by the learned trial court for passing a fresh order, after considering claim of the plaintiff for granting pension and other retiral benefits taking into consideration the long service rendered by the plaintiff. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing the impugned judgments and decrees and the same deserve to be upheld.
Before arriving at a judicious conclusion, learned first appellate court, rightly re-appreciated true facts of the case as well as evidence available on record in the correct perspective, for recording its own cogent findings in para 12 to 22 of the impugned judgment. Relevant findings recorded in para 17 to 19 of the impugned judgment, read as under:- AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 10 "Firstly, I have considered the respective submissions of learned Govt. Pleader for the defendants and learned counsel for the plaintiff. The defendants have filed the present appeal solely on the ground that because the learned trial court upheld the dismissal of plaintiff from services, therefore, decree of the suit with regard to retiral benefits is bad at law and cannot be sustained. However, I do not find merit in these submissions of learned Govt. Pleader for the defendants because of settled proposition of law in that regard. In number of cases, the Hon'ble Supreme Court and Hon'ble High Court of Punjab & Haryana was pleased to grant the retiral benefits taking into consideration the length of services of the concerned employee while converting the punishment into an order of compulsory retirement. The reference in this regard is made to recent judgment of Hon'ble High Court of Punjab & Haryana cited as Satbir Singh Vs. The Director General of Police, Haryana and others 2013 (3) SCT, 76. In view of the settled proposition of law, the impugned judgment of learned trial court regarding direction to the appellants to consider the case of plaintiff with regard to his pension and other retiral benefits, cannot be considered to be perverse or bad at law.
Now so far as appeal filed by Nazar Singh regarding dismissal of his suit qua reinstatement to services is concerned, I have also considered the respective learned Govt. Pleader for the defendants and learned counsel for the plaintiff.
The perusal of the file reveals that during the cross examination, the plaintiff admitted that he AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 11 appeared as his own witness during his enquiry and show cause notice was received by him and reply was duly filed by him. The plaintiff during the enquiry even cross-examined the witnesses of the department. As such, I do not find any force in the contention raised by the learned counsel for the plaintiff that during the enquiry he was not supplied with documents, i.e. charge sheet, show cause notice, summary of allegations etc. The enquiry file has been proved on the record. The perusal of impugned order dated 16.4.2001 reveals that the evidence led by the plaintiff was considered by the enquiry officer and it has been specifically mentioned that the medical certificate produced by the plaintiff is not reliable. The perusal of enquiry file further reveals that the plaintiff failed to appear for personal hearing despite notices being served upon him before passing of the impugned order. I do not find force in the contention raised by the learned counsel for the plaintiff that the enquiry report and show cause notice were not served to him. The perusal of the statement of DW1 reveals that the recital of letter dated 3.2.2001 issued by SSP wherein it is stated that enquiry report and show cause notice was served in person to the plaintiff on 7.1.2001. In spite of various notices served to the plaintiff, the plaintiff calling his explanation and written reply was filed by the plaintiff and the same was duly considered by the competent authority before passing of the impugned order. I have also considered the contention of learned counsel for the plaintiff that previous adverse record of the plaintiff was taken into consideration for the purpose of passing the AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 12 punishment order against him. The perusal of the enquiry file reveals that it has been stated in detail that previous record of the plaintiff was also considered which was unsatisfactory as his approved service was twice ordered to be forfeited earlier and his absence was treated as non duty and it was clearly notified to the plaintiff that his previous record of his habitual absenteeism was duly considered by the competent authority and he was given full opportunity to explain the same before passing of the impugned order dated 16.4.2001. As such, I am of confirmed opinion that the dismissal order of the plaintiff does not suffer from any infirmity and illegality."
During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by both the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present appeal, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in Naryanan Rajendran and another Vs. Lekshmy Sarojini and others, 2009 (2) RCR (civil) 286. Thus, the impugned judgments deserve to be uphled, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document RSA No. 4690 of 2014 (O&M) 13 case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 06.9.2014 AK Sharma AMIT KUMAR 2014.09.24 17:28 I attest to the accuracy and authenticity of this document