Ex. Constable Naresh Kumar v. State of Punjab & Ors.

HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr. R.S. Ahluwalia, Advocate for the appellant. **** AJAY KUMAR MITTAL, J. Having lost before the Courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 24.12.2007 passed by the Additional District Judge, Gurdaspur, affirming that of the Additional Civil Judge (Senior Division), Gurdaspur dated 10.2.2004 whereby the suit of the plaintiff for declaration and mandatory injunction was dismissed. Shorn off the unnecessary details, the facts of the case are that the plaintiff filed a suit for declaration to the effect that the impugned order dated 7.7.1998 passed by defendant No.2 dismissing the plaintiff from service and the order dated 28.6.2000 passed by defendant No.3 dismissing the appeal of the plaintiff, were illegal, unlawful, against the principles of natural justice and rules.

As a consequential relief, the plaintiff had sought a decree of mandatory R.S.A. No. 2308 of 2008 -2- injunction to withdraw the impugned orders and to take the plaintiff back in service from the date of his dismissal with all service benefits. It was pleaded that the plaintiff was appointed as a civil servant in the Punjab Police force on permanent basis and was posted at Pathankot. He was dismissed from service on the allegations that he remained absent from duty without any leave or permission from his superiors and reported back on duty after a period of 143 days and 18 hours. The plaintiff challenged the said order of dismissal on various grounds including that he was not associated in the departmental enquiry; none of the prosecution witnesses were examined in the presence of the plaintiff and he was deprived of his right to cross-examine the prosecution witnesses; neither show cause notice was issued to him nor was he supplied with the copies of the inquiry report.

According to the plaintiff, his departmental appeal was also not considered and was wrongly dismissed. It was further pleaded that the absence of the plaintiff from the department was neither intentional nor wilful but due to the compelling circumstances of domestic problems as his father who was also serving in the Police Department had died and there was no one in the family to look after his widow mother who had become mentally upset after the death of his father. The plaintiff pleading that the order of dismissal was passed in violation of the Punjab Police Rules and after serving a notice under Section 80 of the Code of Civil Procedure upon the defendants filed a suit, as mentioned above. Notice of the suit was issued. The defendants in their joint written statement raised various preliminary objections. It was pleaded that the plaintiff remained absent from duty on various occasions for R.S.A. No.

2308 of 2008 -3- several days and was, therefore, punished accordingly. It was further pleaded that 8 years' service of the plaintiff was forfeited on permanent basis due to his absence. On 12.11.1997, the plaintiff was absent from duty and DDR No. 12 dated 12.11.1997 was recorded in this regard. Vide various TPM dated 12.12.1997, 3.1.1998 and 31.1.1998, he was asked to join his duties but he did not turn up. The departmental enquiry was conducted against the plaintiff as per the service rules and he was supplied with the details of allegations and list of prosecution witnesses but he did not admit his guilt and as such the Enquiry Officer recorded the statements of the witnesses in the presence of the plaintiff. Having found guilty for wilful absent for the period of 143 days and 18 hours, he was served with a show cause notice dated 6.5.1998 and when he failed to give reply to the said notice within the stipulated period, the plaintiff was dismissed from service vide order dated

7.7.1998. The appellate authority duly considered all the facts and circumstances and thereafter dismissed the appeal of the plaintiff. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. The trial Court framed various issues and on appreciation of the oral as well as the documentary evidence dismissed the suit of the plaintiff vide judgment and decree dated 10.2.2004 holding that the plaintiff was in the habit of remaining absent from duty without any intimation to the superiors and, therefore, was not entitled to any declaration. The trial court further held that the impugned orders dated

7.7.1998 and 28.6.2000 were legal and valid. Feeling aggrieved, the plaintiff approached the lower appellate Court which, vide judgment and R.S.A. No. 2308 of 2008 -4- decree dated 24.12.2007, dismissed the appeal holding that a proper enquiry had been held before passing the impugned orders. Hence, the present regular second appeal. I have heard learned counsel for the appellant. Learned counsel for the appellant has made valiant efforts to persuade this Court to re-appreciate the evidence available on record so as to differ with the concurrent findings of fact recorded by the courts below, but he failed to show any illegality or perversity therein warranting interference by this Court in the regular second appeal. The courts below on the basis of the evidence adduced by the parties, had recorded a finding of fact that plaintiff was in the habit of remaining absent from duty and the impugned orders dated 7.7.1998 and

28.6.2000 were legal and valid. Further, it was recorded that the proper inquiry was held before passing the impugned orders. No question of law much less the substantial question of law arises in this appeal for consideration of this Court. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. May 7, 2009 (AJAY KUMAR MITTAL) JUDGE