R.S.A.NO.4818 OF 1999
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Misc. No. 9027-C of 2009 and
Regular Second Appeal No. 4818 OF 1999
Date of decision: 10th November, 2009
The Punjab State through Secretary, Health and
Family Planning Department, Punjab, Chandigarh
and another
......Appellants
Versus
Sudhir Luthra
.......Respondent
Before: HON’BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. S.K.Bhanot, Senior DAG, Punjab
for the appellants.
Mr. Arun Chandra, Advocate
for the respondent.
Rajive Bhalla, J.(Oral)
The appellants challenge judgments and decrees dated
31.05.1997 and 10.08.1999, passed by the Civil Judge (Junior
Division), Samana and the Additional District Judge, Patiala, decreeing
the suit filed by the respondent and dismissing their appeal.
The plaintiff/respondent filed a suit for mandatory
injunction, to direct the appellants to release his salary and his general
provident fund along with interest @ 12% per annum w.e.f.
1.01.1994. On merits, the respondent pleaded that he joined the
P.C.M.S. Cadre on 28.06.1983 and as he subscribed to the general
provident fund account, he was allotted account no. P.B.MED/26020.
The respondent was selected for the M.S. Course in Opthalmology at
Medical College, Amritsar, in August 1987 and completed the course in
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December 1989. He was thereafter, posted at Civil Hospital, Ferozepur
and then transferred to Shergarh Rural Dispensary. He remained on
leave upto 15.10.1991, but could not rejoin service thereafter. As he
had furnished a service bond for Rs. 50,000/-, requiring him to serve
the appellants, he was asked to pay Rs.50,000/-. The respondent paid
Rs.50,000/- to the Tehsildar, Moga, by way of a demand draft drawn
in the name of the Director, Health and Family Welfare Department,
Punjab, Chandigarh and submitted his resignation. Despite this, an
enquiry was initiated for his absence, though, he had resigned. As the
appellants have withheld the provident fund amount and should
therefore, be directed to pay this amount to the respondent.
In response, the appellants filed a reply, stating that as the
respondent remained absent from duty, without leave, violated the
terms and conditions of his service bond and as departmental
proceedings are pending, the provident fund cannot be released to the
respondent. It was further averred that resignation has been rejected
and therefore, the respondent is still deemed to be in service.
On the basis of the pleadings, the trial court framed the
following issues:-
“1. Whether the plaintiff is entitled to the
relief of mandatory injunction on the grounds
mentioned in the plaint?OPP
2. Whether the suit is bad for non-joinder of
necessary parties and mis-joinder of the
defendants?OPD
3. Whether the suit is not maintainable in
the present form?OPD.
4. Whether the notice served upon
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defendants before institution of the suit was
legal and valid?OPD
5. Relief.”
After considering the pleadings, the evidence adduced and
the arguments addressed, the trial court decreed the suit by holding
that the appellants could not retain the amount deposited in the
general provident fund and therefore, directed the appellants to
refund the general provident fund amount and salary due to the
respondent with interest @12% per annum.
Aggrieved by the aforementioned judgment and decree,
the appellant filed an appeal. Vide judgment and decree dated
10.08.1999, the Additional District Judge, Patiala, dismissed the appeal
and affirmed the findings recorded by the trial court.
Counsel for the appellants submits that as the respondent
violated the terms and conditions of his service bond, exploited his
employment with the State of Punjab to undergo a M.S.Course, the
courts below could not have directed refund of the provident fund.
Counsel for the respondent, on the other hand, submits
that whatever, be the nature of the respondent’s misconduct, the
appellants have no right, in law to retain the provident fund, as even
otherwise, the respondent has paid the amount under the service
bond.
I have heard counsel for the parties, perused the impugned
judgments and decrees and do not find any reason to hold that the
impugned judgments and decrees in any manner are incorrect or give
rise to any question of law, much less a substantial question of law.
Admittedly, the appellants have retained the provident
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fund payable to the respondent on the plea that he was absent without
leave. The trial court and the first appellate court are concurrent in
their opinion, that the appellants have no right, in law to retain the
provident fund, particularly, when the respondent has already resigned
from service, as per letter of resignation Ex.P-8 and the registered
cover and posting receipt Ex.P-9. The courts below have also taken
note of the fact that the respondent has deposited the bond amount of
Rs. 50,000/-
In view of what has been stated hereinabove, as no
substantial question of law, much less a substantial question of law
arises for consideration, the appeal is dismissed with no order as to
costs.
[RAJIVE BHALLA]
JUDGE
10th November, 2009
Shivani Kaushik