RSA No.1794 of 1996 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 1794 of 1996
Date of Decision:November 18, 2009
Barber Shiv Kumar No.14/B ...........Appellant
Versus
Haryana State and another ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Naveen Daryal, Advocate for the appellant.
None for the respondents
**
Sabina, J.
Plaintiff-Shiv Kumar filed a suit for declaration . The suit of
the plaintiff was decreed by the Sub Judge IInd Class, Karnal vide
judgment and decree dated 16.8.1994. Aggrieved by the same, the
defendants filed an appeal which was partly accepted and the suit was
decreed to an extent that order dated 14.9.1992 passed by the Deputy
Director PTC Madhuban was illegal but it was further held that petitioner
was not entitled to back wages by the Additional District Judge, Karnal vide
judgment and decree dated 31.1.1996. Hence, the present appeal by the
Plaintiff.
The facts of the case, as noticed by the Additional District
Judge in paras 2 to 5 of its judgment, read as under:-
“2. Shiv Kumar, plaintiff, was working as Barber in PTC,
Madhuban Karnal. A charge-sheet Exhibit P1/C under Rule 7 of
Punjab Civil Services (Punishment and Appeal) Rules, 1952
RSA No.1794 of 1996 2(hereinafter referred to as Rules,1952) was served upon the
plaintiff on October 16,1991 alleging therein that he remained
absent from August 31, 1991 to October 1,1991 without taking
leave. It is further the case of the plaintiff that earlier a charge-
sheet Exhibit DW1/2 was issued to him on May 18,1991 under
Rule 7 of Rules, 1952 alleging therein that he remained absent
from February 27,1991 to March 11,1991 and he was accordingly
suspended with effect from March 11,1991.
3. To the chargesheet dated October 16,1991, Exhibit P1/C. The
plaintiff filed reply dated November 4,1991, submitted with the
Punishing Authority on December 2,1991. Reply was found to be
unsatisfactory, as a result of which regular departmental enquiry
was ordered on December 23,1991. Shri Hazari Singh, Deputy
Superintendent of Police was appointed as an enquiry Officer.
After holding the enquiry and other procedure laid down in Rule 7
of Rules, 1952, Deputy director PTC Madhuban, Karnal,
dismissed the plaintiff from the service by order dated September
14, 1992, which has been challenged by the plaintiff by filing the
present suit.
4. The suit was contested. A Joint written statement was filed by
the defendants interalia pleading therein that the plaintiff
remained absent from the duty on three occasions, firstly, from
February 27,1991 to March 11,1991;secondly, from May 23,1991
to June 12,1991 and thirdly from August 31,1991 to October
1,1991. On all the three occasions, the departmental enquiry was
initiated against the plaintiff. The plaintiff was suspended on
RSA No.1794 of 1996 3March 11,1991 for his being absent from the duty from February
27, 1991 to March 11,1991. He was again suspended on October
4,1991 for remaining absent from August 31,1991 to October
1,1991. Two more departmental enquiries were also pending
against the plaintiff and notices of dismissal were also issued in
those two enquiries. In other words, it has been pleaded that the
order dated September 14,1992 passed by the Deputy Director
PTC, Madhuban was perfect and no interference should be called
therein.
5. The plaintiff had filed replication to the written statement filed
by the defendants controverting the contents of the written
statement and reiterating the averments made in the plaint”.
On the pleadings of the parties, the following issues were
framed by the trial Court on 8.1.2001:-
“1.Whether the order dated 14.9.1992 passed by the Director PTC
Madhuban dismissing the service of the plaintiff read with order
of the appellant authority, if any, are illegal, arbitrary, malafide,
not binding on the rights of the plaintiff, if so, its effect?OPP
2.In case issue no.1 is decided in favour of the plaintiff, whether
the plaintiff is entitled to the consequential relief alongwith
interest, if so, how much and at what rate?OPP
3.Whether the suit is premature?OPD
4.Whether there is no cause of action?OPD
5.Whether the suit is bad for non-joinder, mis-joinder of necessary
parties?OPD
6.Whether the plaintiff has not come with clean hands?OPD
RSA No.1794 of 1996 4
7.Whether this court has got no jurisdiction?OPD
8.Whether proper court fee has not been affixed?OPD
9.Relief.”
After hearing the learned counsel for the appellant, I am of
the opinion that the present appeal deserves to be dismissed.
Plaintiff-appellant had filed a suit for declaration that the
order dated 14.9.1992 whereby he was dismissed from service was illegal
and arbitrary. The suit of the plaintiff was decreed by the trial Court. The
judgment and decree of the trial Court were modified to the extent that the
plaintiff was not entitled to salary for the period he had remained out of
service. Plaintiff was working as a Barber with the defendants. He
remained absent from duty from 27.2.1991 to 11.3.1991, 23.5.1991 to
12.6.1991 and 31.8.1991 to 1.10.1991. Admittedly the services of the
plaintiff were terminated after holding a departmental inquiry against him.
The Courts below have ordered that the order of dismissal was illegal. The
State has not filed any appeal challenging the judgment and decree of the
learned Additional District Judge whereby it was held that the dismissal
order is illegal. The learned Additional District Judge has denied the
benefit of back wages to the plaintiff on the ground that since the plaintiff
had not worked for the said period, consequently, he was not entitled for the
salary for the period he remained out of employment of the Police
Department. Learned counsel for the appellant has placed reliance on a
decision of the Full Bench of this judgment in Radha Ram vs. Municipal
Committe Barnala (1983)85 PLR 21 wherein it was held as under:-
“12. Now apart from precedent on larger consideration of
principle as well the stand of the appellant herein commends itself
RSA No.1794 of 1996 5for acceptance. Once the relief of setting aside or quashing the
order of termination has been granted or a declaratory decree has
been passed to the similar effect. It necessarily follows that the
employee in the eye of law continues to be in service and as a
necessary consequence thereof would be entitled to all the
emoluments flowing from that status. He must be deemed to be in
a position identical with that existing prior to the passing of the
order of termination of his service. In the felicitous language of
their Lordships the emoluments of the post are a logical
consequence of setting aside the order of termination. In such a
situation to insist upon the filing of a second suit for a relief
which directly flows from the declaratory decree can hardly be
warranted. The hallowd rule that the law disfavours multiplicity
of proceedings would again require that the consequential relief
should be recorded in the original proceedings itself. This seems
to be the more so in view of the recent judgments of the final
court adverted to above holding that in essence the cause of action
for the claim to salary and emoluments is co-terminus with the
decree setting aside the wrongful termination. Therefore, no issue
or bar of limitation now raises any hurdle in this context. It
deserves recalling that on the earlier view that the right to salary
and emoluments was likely to become barred after a period of
three years from the date of the order of termination itself there
might have been some jurisdiction for the need of a separate suit
for emoluments etc. to test it on the envil of limitation. However,
since such a view has now been given the go-by and its
RSA No.1794 of 1996 6anomalous results have been authoritatively noticed by the final
Court in State of Madhya Pradesh V. State of Maharashtra and
Maimoona Khatun’s case, it seems wholly wasteful to require a
fresh spurt of litigation for the recovery of emoluments which
necessarily flow from the quashing of the termination order or the
grant of the declaratory decree”
In the present case, the plaintiff had remained absent from duty. Although
the order of dismissal passed after holding a departmental inquiry against
the plaintiff has been held to be illegal but in the facts and circumstances of
the present case, the learned Additional District Judge has rightly held that
the plaintiff is not entitled for the salary for the period he had not worked.
The view taken by the learned Additional District Judge cannot be said to be
perverse. The judgment relied upon by the learned counsel for the appellant
fails to advance the case of the appellant.
No substantial question of law arises in this regular second
appeal which would warrant interference by this Court Accordingly, this
appeal is dismissed.
( Sabina )
Judge
November 18, 2009
arya