R.S.A. No. 864 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 864 of 2008
Date of Decision : 17.2.2009
Constable Harish Chander
.......... Appellant
Versus
Punjab State & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Ms. R.K. Thind, Advocate
for the appellant.
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VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgments
and decree dated 9.3.2006 and 12.1.2008 passed by the learned Courts
below vide which suit filed by the plaintiff/appellant for declaration to
challenge the order of punishment of forfeiture of one year approved service
with permanent effect stands dismissed. The plaintiff/appellant also
challenged the order passed by the D.I.G. of Police, Ferozepur rejecting the
appeal of the plaintiff/appellant.
The case set up by the plaintiff/appellant was that he joined the
police department on 3.12.1991 as permanent and regular member of the
force. He was charged for misconduct, and departmental enquiry was held
on the allegations that when the plaintiff/appellant was posted at Police
Station, City Jalalabad he had a brawl with one Constable Ved Parkash in
R.S.A. No. 864 of 2008 2
front of the police station. When the MHC came to know about it, he was
directed to appear before the SHO but instead of appearing before the SHO
the plaintiff/appellant got himself admitted in Civil Hospital, Jalalabad. The
plaintiff/appellant thereafter was not found in the hospital and it transpired
that plaintiff left the hospital on 29.7.1999.
The plaintiff/appellant was also marked absent on account of
non-appearance on 30.7.1999. On account of the misconduct of the
plaintiff/appellant, SHO police Station City Jalalabad recommended the
suspension of plaintiff/appellant on 13.8.1999. The plaintiff/appellant only
came back on 7.8.2000 after remaining absent for 6 months and 9 days. In
the enquiry the appellant was found guilty of unauthorized absence.
In view of charges having been proved against the
plaintiff/appellant, he was awarded the punishment of forfeiture of his one
year service with permanent effect towards increment and the period of
absence was treated as non duty period.
The appeal against the impugned order was dismissed by the
appellate authority on 7.12.2001. The order passed by the Punishing and
Appellate Authority was challenged on the plea that the orders are illegal,
null and void and not operative on the rights of the plaintiff. It was also the
plea that the procedure as prescribed under Rule 16.24 of the Punjab Police
Rules was not followed. The plaintiff/appellant also denied having remained
absent from duty.
It was the case of the plaintiff/appellant that due to injuries
suffered by him he was admitted in Civil Hospital and his medicolegal
R.S.A. No. 864 of 2008 3
report was sent to the police station. The plaintiff/appellant was advised rest
for 4 days initially and lateron was extended for more period. The plaintiff
claimed that while availing rest, he appeared for duty in the police station
but MHC refused to mark his presence. He was told that as proposal for his
suspension was sent to the SSP, Ferozepur, so he would not mark his
presence.
The plaintiff claimed that his defence was not considered by the
Enquiry Officer and no opportunity of personal hearing as required under
Rule 16.24 of Punjab Police Rules was granted to him before awarding the
punishment to him. The plaintiff claimed that he had filed a writ of
mandamus in the Hon’ble High Court and thereafter allowed to join duty.
It was also the case of the plaintiff that medical record was
produced by him before the Enquiry Officer, which was not taken into
consideration.
It was also the case of the plaintiff that charge of absence from
duty was wrongly framed against him.The case of the appellant/plaintiff was
that the suspension period was considered as period of absence and
subsistence allowance was not paid during the enquiry to the plaintiff. He
claimed consequential relief of arrears of pay and seniority etc.
The notice was issued wherein an objection was raised to the
maintainability of suit on the plea that plaintiff/appellant had not exhausted
all the departmental remedies available to him.
On merits, it was pleaded that the plaintiff joined the
department on 3.12.1991 as Constable with a probation period of three
R.S.A. No. 864 of 2008 4
years. It was also the defence that proper and valid departmental
proceedings were conducted against the appellant/plaintiff for remaining
willfully and intentionally absent from his duty w.e.f. 28.7.1999.
It was also pleaded that when he was directed to appear before
the SHO, instead of appearing before him he got himself admitted in Civil
Hospital, Jalalabad and did not join back on duty after leaving the hospital
on 29.7.1999, so he was marked absent on 30.7.1999. It was also the case of
the State that after remaining willfully absented for the period of six months
9 days he reported back on 7.8.2000.
It was the case of the defendants/respondents that after
thorough examination of findings of the enquiry and after giving full
opportunity to plaintiff, he was awarded punishment of forfeiture of one
year’s approved service with permanent effect by the punishing authority by
taking a lenient view. It was, however, admitted that the appeal filed by the
plaintiff/appellant was dismissed on 25.4.2001.
On the pleadings of the parties, the learned trial Court framed
the following issues :-
“1. Whether the plaintiff is entitled to the
declaration as prayed for ?
2. Whether the plaintiff is entitled to the arrears, if
so, with interest at what rate and what amount ?
3. Whether the suit is not maintainable in the
present form ?OPD
4. Whether no valid and legal notice U/s 80CPC
was not served upon the defendants before the
filing of the present suit ? OPD
R.S.A. No. 864 of 2008 5
5. Relief.”
Issues No.1 & 2 were taken up together and on appreciation of
evidence the learned trial Court decided issues No.1 & 2 against the
plaintiff/appellant. Whereas issues No. 3 & 4 were decided in favour of the
plaintiff and against the defendant-respondent as these were not pressed at
the time of hearing.
The suit was consequently, dismissed.
The plaintiff/appellant preferred an appeal against the judgment
and decree passed by the learned trial Court. The appeal also stands
dismissed by holding as under :-
“10. I have considered the above submissions
made on behalf of the parties and gone through
the evidence on record very carefully.
11. The appellant-plaintiff remained absent
from duty w.e.f. 28.7.99. He was having a brawl
with his colleague and thereafter he remained
admitted in the hospital. After leaving the
hospital, he did not join his duties and
remained absent for over six months. He was
served with a charge sheet and an enquiry was
conducted. He was found guilty and ultimately,
he was awarded punishment of forfeiture of one
year approved service with permanent effect. I
find no merit in the contention of the learned
counsel for the appellant-plaintiff that the
charge sheet severed upon him is not clear and
as such the enquiry report conducted on this
charge sheet cannot be relied upon. I have
R.S.A. No. 864 of 2008 6perused the copy of the charge sheet placed on
the record which shows that the appellant-
plaintiff was charged for remaining absent from
duty without intimation. The evidence adduced
before the Enquiry Officer was to the effect that
the appellant-plaintiff remained absent from
duty for a period of six months and 9 days. In
view of this, the contention of the learned
counsel for the appellant-plaintiff has no force.
I have perused the record. Full opportunity was
given to the appellant-plaintiff to plead and
prove his case before the Enquiry Officer. It
does not made any difference if in the charge
sheet the period of absence is not mentioned.
The authorities relied upon by the learned
counsel for the appellant-plaintiff on this point
are not applicable to the facts of the present
case. The Enquiry file also shows that after
considering the evidence led by the respective
parties, the enquiry report was given by the
Enquiry Officer and on the basis of Enquiry
report, the punishing Authority awarded the
punishment by passing the impugned order. The
Enquiry Officer as such as complied with the
relevant rule i.e. 16.24 of the Punjab Police
Rules while conducting the enquiry. I do not
find any merit in the contention of the learned
counsel for the appellant-plaintiff that the
Enquiry Officer has not considered the evidence
properly. The evidence was properly considered
by the Enquiry Officer.”
The plea of the plaintiff/appellant that charge-sheet was not
R.S.A. No. 864 of 2008 7
clear and, therefore, the enquiry report deserved to be ignored was rejected
by observing that the plaintiff/appellant was charged for remaining absent
from duty without intimation. The learned Courts also held that full
opportunity was given to the plaintiff/appellant to plead and prove his case
before the Enquiry Officer. The learned Courts also held that the finding
were recorded by the Enquiry Officer after considering the evidence led by
the parties. Rule 16.24 of the Punjab Police Rules was duly complied while
holding enquiry.
The learned counsel appearing on behalf of the appellant states
that this appeal raises the following substantial questions of law :-
1. Whether the Courts below over-
looked the important evidence led by the
appellant which clearly shows that the
appellant tried his level best to join his duty
but was not allowed and, therefore, the
findings recorded by the learned Courts
below are perverse and, thus, not
sustainable in law ?
2. Whether in view of the admissions
made by the witnesses of the State that the
appellant was not allowed to join duty
which resulted in his long absence was
relevant piece of evidence which has been
ignored by both the Courts below ?
In support of the questions of law, the learned counsel for the
appellant contends that the learned Courts below failed to notice, that there
was ample evidence produced by the plaintiff/appellant to show, that he was
R.S.A. No. 864 of 2008 8
not willfully absent from duty, but was rather under treatment due to the
injuries sustained in a brawl with constable Ved Parkash.
The contention of the learned counsel for the appellant
that evidence on record was produced to show that he was in fact not
allowed to join duty, therefore, could not be treated to be absent from duty
cannot be accepted. Rather the plaintiff/appellant was allowed to join duty
during the pendency of the writ petition filed to seek writ of mandamus.
On consideration of the matter, I find no force in the
contentions raised by the learned counsel for the appellant. The learned
Courts below have recorded a concurrent finding of fact that proper
procedure was followed by the department in the departmental proceedings
where the plaintiff/appellant was given full opportunity.
It is well settled law that the Civil Court cannot sit in appeal
over the findings in the departmental proceedings so as to reappreciate the
evidence. Once it was proved on record that punishment awarded was after
following due procedure of law it was not open to the Civil Court to have
gone into details of the evidence led by the parties before the Enquiry
Officer. The Courts, therefore, were right in holding that the declaration
prayed for could not be granted to the appellant.
The substantial questions of law framed do not arise for
consideration in this appeal.
No merit.
Dismissed in limine.
17.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE