C.M. NO.6980-C OF 2009 v. The Punjab Tourism Development Corporation Ltd., Chandigarh & Anr.

Mr. T.P.Singh, Advocate, for the appellant. Mr. Anil Kshetarpal, Advocate, for the respondents. **** RANJIT SINGH, J. The appellant had filed a suit seeking declaration that the order dated 29.3.2005 to the extent that it debarred him from payment of back wages and the award of punishment of one increment with cumulative effect was illegal, void and not binding. The suit was decreed by the Trial Court but the finding was reversed by the first appellate Court. The facts, in brief, are that the appellant was charge- C.M. NO.6980-C OF 2009 & R.S.A. NO.2349 OF 2009 :{ 2 }: sheeted by the Managing Director of the respondent-Corporation on

24.5.2000. The appellant submitted representation for supply of documents but these were statedly not supplied to him and the enquiry was ordered. On the basis of the enquiry report, the appellant was terminated. Appeal filed before the Board of Directors was dismissed. Feeling aggrieved against this order, the appellant had filed a civil suit, which was decreed on 29.11.2004 with some directions. In the light of said observations, the departmental appeal filed by the appellant was again considered by the Board of Directors, whereafter the Chairman was authorised to decide the appeal afresh. While considering the appeal, Chairman is stated to have found that during the raid, plaintiff was not present in the complex, when one Waiter was found fully drunk. Chairman further noticed that no action was taken against the Incharge and only proceedings were initiated against the appellant. Noticing that the FIR was registered but later cancellation report filed, the Chairman had awarded punishment of stoppage of one increment with cumulative effect and declined back wages to the appellant. The appellant had filed the civil suit alleging that the findings of the Chairman were self contradictory and no order of punishment could be passed. The suit was contested. A preliminary objection was raised on the ground of jurisdiction and concealment of material facts. It was pleaded that the suit was barred by principles of res- judicata. It was also pleaded that the Enquiry Officer had not C.M. NO.6980-C OF 2009 & R.S.A. NO.2349 OF 2009 :{ 3 }: conducted the proceedings in a fair manner. It was pointed out that the appellant was charge-sheeted when during the police raid, ladies named Smt.Jasbir Kaur, Smt.Rani and Smt.Sita were found present in objectionable manner, leading to registration of offences under Sections 41(2) and Section 109 Cr.P.C. It came in evidence that appellant used to call these ladies on telephone for prostitution and used to provide them rooms and by calling interested male parties. Money, thus, used to be collected and given to these ladies and was also kept by the appellant. On the basis of this evidence and the enquiry report, the services of the appellant were terminated. Service appeal was also dismissed. The suit, thus, was tried on the following issues:- “1. Whether plaintiff is entitled to the declaration as prayed for?OPP

2. Whether this court has no jurisdiction to try the present suit? OPD

3. Whether plaintiff has concealed the material facts from this Court? OPD

4. Whether the suit is barred by the principle of resjudicata? OPD

5. Relief.” The first Appellate Court considered the plea of suit being barred by principle of res-judicata. It is noticed that case was remanded back to the punishing authority only for re-consideration of the appeal. Ignoring this fact, the Trial Court exceeded its jurisdiction by setting-aside the order of punishment itself whereas only the order C.M. NO.6980-C OF 2009 & R.S.A. NO.2349 OF 2009 :{ 4 }: passed by the Appellate Authority was under consideration before the Chairman while exercising the powers of Appellate Authority. It is also noticed that only point under consideration was regarding denial of back wages and ignoring this fact, the Trial Court decreed the suit, granting relief which was not even prayed for. The first Appellate Court then went into the effect of the earlier suit filed by the appellant. On perusal of the record, it was noticed that copy of the earlier judgment had not been brought on record for some obvious reason. The Court had then summoned the suit file of the earlier suit. In the earlier suit, the appellant had challenged the order of the punishing authority as well as the Appellate Authority and by concealing these facts, he had filed this subsequent suit, claiming all the reliefs, which were earlier declined to him. The said finding had become final. The appellant had not filed any appeal against the earlier judgment. Earlier suit had only been decreed partly, which fact was clearly explained in the present suit filed by the appellant. The first Appellate Court noticed that half of the dispute was over and only question which remained under consideration was whether the order of Appellate Authority was legal and valid or not. The Appellate Authority had taken a view that there is nothing on record to indicate that the appellant was not liable for action or that the penalty was disproportionate. Since the order, reducing the penalty was not under challenge, the only question which required consideration was whether the appellant would be entitled to back C.M. NO.6980-C OF 2009 & R.S.A. NO.2349 OF 2009 :{ 5 }: wages or not. The first Appellate Court has rightly considered that it was not a case of complete exoneration, which would entitle the appellant to seek back wages for the period he had remained out of service. In my view, the first Appellate Court has rightly concluded that once the appellant was punished, there would not be any justification to hold him entitled for back wages. It has rightly been observed that the back wages are to be granted only in those cases where there is a complete exoneration. The only submission made by learned counsel appearing for the appellant in this case is that the order passed by the Punishing Authority stood merged with the order passed by the Appellate Authority. Even if that be so, the effect would be that the appellant was punished with a major penalty of stoppage of increment with cumulative effect. There would, thus, be a justification to decline back wages as it would not be a case of complete exoneration. The first Appellate Court has rightly viewed that principle of `no work no pay' would apply. The question of law arising in this case has rightly been decided by the first Appellate Court. Thus, no case for interference in the Regular Second Appeal is made out. The appeal is accordingly dismissed. March 23, 2010 khurmi ( RANJIT SINGH ) JUDGE