SPECIAL LEAVE PETITION 986 of 1996 on 6 December 1995

1. Whether Reporters of Local papers may be allowed to see the judgment ?the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

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Present:Mr. S.S. Brar, Advocate for the appellant.

Mr. Rajiv Kwatra, Additional Advocate General, Haryana for the respondents.

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Mohinder Pal,J.

This appeal is directed against the judgment and decree dated 06.12.1995 passed by the learned Additional District Judge, Chandigarh. Bythe impugned judgment, the learned Additional District Judge has set asidethe judgment and decree dated 29.10.1987 passed by Sub Judge Ist Class,

Chandigarh. Consequently the suit of the plaintiff for declaration andmandatory injunction was dismissed. Now, the plaintiff is in this RegularSecond Appeal before this Court. The appeal filed by the plaintiff wasallowed by this Court vide Judgment dated 16-05-2000 vide which thejudgment and decree of the First Appellate Court was set aside and that ofthe trial Court was upheld.

The State of Haryana and others (defendants in the suit) filedSpecial Leave Petition before the Hon’ble Supreme Court of India againstthe decision rendered by this Court. The judgment passed by this Court wasset aside. The case was remanded back to this Court for fresh decision forcompliance of the provisions of Section 100 of the Civil Procedure Codeand by framing substantial question of law, if any, involved in the case videorder dated 25.08.2004.

In compliance with the orders of the Hon’ble Supreme Court of India following substantial questions of law arising out of the pleadingsof the parties were framed.

“(i)Whether in facts and circumstances of the case whenadmittedly the order dated 4.7.1979 (P-15) has set aside in appealby the competent authority i.e. Govt. on 29.4.81 (P-16) can thesubsequent order setting aside the same vide order dated 8.3.82 (P-17) be taken to be valid/legal in spite of the same having beenpassed at the back of the appellant?admittedly the order dated 4.7.1979 (P-15) has set aside in appealby the competent authority i.e. Govt. on 29.4.81 (P-16) can thesubsequent order setting aside the same vide order dated 8.3.82 (P-17) be taken to be valid/legal in spite of the same having beenpassed at the back of the appellant?

(ii) Whether in the facts and circumstances of the case, when noinquiry was held nor show cause notice was given to the appellantbefore passing adverse order dated 8.3.82 (P-17) nor anyinquiry was held nor show cause notice was given to the appellantbefore passing adverse order dated 8.3.82 (P-17) nor any

opportunity of being heard, the order dated 8.3.82 was totallyarbitrary and unsustainable in the eyes of law.arbitrary and unsustainable in the eyes of law.

(iii) Whether in the facts and circumstances of the case the inquiryofficer having failed to follow the procedure in holding on inquirythe order of punishments is illegal?officer having failed to follow the procedure in holding on inquirythe order of punishments is illegal?

(iv) Whether in the facts and circumstances, the lower appellateCourt erred in law in reversing the well reasoned judgment of thetrial Court by misreading and misinterpreting evidence brought onrecord?Court erred in law in reversing the well reasoned judgment of thetrial Court by misreading and misinterpreting evidence brought onrecord?

(v) That entire approach of the lower appellate Court is illegal andcannot be sustained in the eyes of law?”cannot be sustained in the eyes of law?”

The facts of the case necessary for disposal of this appeal arethat the appellant-plaintiff was appointed as Junior Lecturer in English andshe joined her duties on 30.9.1974 in Government Polytechnic, Sirsa. Sheremained on extra ordinary leave, medical leave and maternity leave andultimately failed to join her duties. Ultimately, departmental enquiry wasinitiated against the plaintiff and her services were terminated vide orderdated 04.07.1979. The plaintiff challenged that order throughappeal/revision on 05.09.1979 before defendant No.1. Then, plaintiff movedapplication dated 30.12.1980 to the Government that her appeal/revision bedecided in accordance with law. She appeared before the Minister, whoordered the quashing of the termination order dated 04.07.1979 and issuednecessary directions to defendant No.2 to issue appointment order to theplaintiff and to reinstate her forthwith. Ultimately, the order passed by theMinister was stayed on the report submitted by defendant no.3 on 26.05.1981 and thereafter on the representation made by the plaintiff, staywas vacated. In spite of that defendant No.3 did not issue any order ofreinstatement of the plaintiff. She received a letter dated 21.06.1983 fromdefendant No.2 vide which she was intimated that her appeal had beenrejected and she could not be taken back into service.

The defendants controverted the claim of the plaintiff by filingwritten statement on the ground that plaintiff remained absent from dutywithout any reason for sufficient time, which led to departmental enquiryculminating into termination of services after adopting proper procedureprescribed under service rules.

The learned trial Court after framing of issues arising out of thepleading of the parties, recording evidence and hearing learned counsel forthe parties at length decreed the suit of the plaintiff, which on appealpreferred by the defendants, first appellate Court set aside the judgment ofthe trial Court and consequently, dismissed the suit of the plaintiff. Theplaintiff is in regular second appeal before this Court.

I have heard Mr.S.S. Brar, Advocate for the appellant and Mr.Rajiv Kwatra, Additional Advocate General, Haryana for the respondentsand have gone through the records of the case very carefully.

Learned counsel appearing on behalf of the appellant arguedbefore me that the order dated 4.7.1979 of the Director, TechnicalEducation, Haryana, Chandigarh (respondent No.3) removing the appellantfrom service w.e.f. 1.2.1977, the date from which she continuouslyremained absent from duty, was set aside in appeal by respondents on29.4.1981 and the appellant was ordered to be reinstated but subsequently,

without any notice to the appellant, order dated 29.4.1981 passed in appealhas been cancelled vide order dated 8.3.1992. Learned counsel furthercontended that the order dated 29.4.1981 was never communicated to theappellant and therefore, the same could not have been set aside withouthearing her and has prayed that appeal filed by the appellant be accepted.Judgment passed by the learned first appellate Court be set aside and that ofthe learned trial Court be upheld.

Arguments

Learned counsel for the respondents argued that the orderterminating the services of the appellant were passed on the basis of regularinquiry conducted against her on 4.7.1979. The same is Ex.P.15. It iscontended that the Inquiry Officer appointed was not Shri D.R. Malhotra,Principal, Government Polytechnic, Sirsa but Shri H.K. Chawla, who wasthe successor of Shri D.R. Malhotra. It was further contended that Shri D.R.Malhotra the then Principal was appointed as the Presenting Officer topresent the case before the Inquiry Officer and he was not the InquiryOfficer. It was contended that there was no bar in appointing thecomplainant as the Presenting Officer and the view gathered by the learnedlower Court that the complainant himself was appointed the Inquiry Officerwas not factually correct. It was claimed that impugned judgment of thefirst appellate Court was based on well reasoned findings and there are noreasons to set aside the same.

After having given my thoughtful consideration to thesubmissions made by the learned counsel for the parties and having perusedthe material available on the file, I am fully convinced that the appeal of theplaintiff-appellant is liable to be accepted in view of the proved and admitted fact that in this case plaintiff-appellant was clearly deprived ofbeing not heard before passing the order affecting adversely to her services.I would like to deal all the points involved in the case whichhave arisen on the basis of pleadings, evidence as well as relevantprovisions of law.

It is also noticed that penalty of removal from service wasimposed upon the appellant under Rule 4 (IV) of the Punjab Civil Services(Punishment and Appeal) Rules, 1952 (hereinafter referred to as `theRules’). It provides that for good and sufficient reasons, the penaltiesmentioned therein may be imposed upon a member of the service to whomrules are applicable. One of the penalties provided therein is removal fromGovernment service which does not disqualify him or her from futureservice, Vide order dated 04-07-1979 passed by Director TechnicalEducation, Haryana, Chandigarh ( Ex- P15), the plaintiff-appellant wasremoved from service with effect from 01-02-1977, the day from which shewas continuously found absent from duty, Vide Ex P16 , the Secretary toGovt. had passed the order dated 29-4-1981 and accepted the appeal filed bythe plaintiff-appellant and order dated 04-07-1979 was quashed.Subsequently, without any notice to the plaintiff order dated 29-04-1981passed in the appeal has been cancelled on the ground that the plaintiff-appellant after her reinstatement failed to pursue her case. This order isdated 08-03-1982. Main stress of the learned counsel for the appellant wasthat the order dated 29-04-1981 vide which the plaintiff was reinstated wasnever communicated to the plaintiff and that could not be set asidesubsequently without hearing the plaintiff-appellant. There is not an iota of

Conclusion

evidence led by the defendants to show that the order dated 29-04-1981 wasat any time communicated to the plaintiff-appellant. This fact is evenadmitted by the own witness examined by the defendants. Learned Statecounsel appearing for the defendants was fair enough to concede that as perrecord order dated 29-04-1981 was not conveyed to the plaintiff. Thus, inmy view, order dated 08-03-1982 vide which the order dated 29-04-1981was cancelled on the ground that the plaintiff failed to pursue her case is notsustainable in the eyes of law for the reason that the plaintiff had no noticeas to whom the order dated 08.3.1982 came into existence affecting herservices. Order dated 08.03.1982 cancelling the order dated 29-04-1981 wasnot appealable or revisable, so it was incumbent upon the authority at leastto give an opportunity of proper hearing to the plaintiff-appellant who waslikely to be adversely affected by the said order. Denial of opportunity ofbeing heard to the plaintiff-appellant, the order dated 08-03-1982 is notsustainable in the eyes of law. The same is set aside being without basis. Ithas been proved on record that there is clear cut violation of procedureadopted in this case by the authorities culminating into removal of servicesof the plaintiff. She was dragged into litigation without any fault on her partand she after long battle able to quash the order of termination and eventhen she failed to get appointment letter and without her notice or beingheard the order dated 29.04,1981 was withdrawn. Termination order waspassed in the year 1979 and now more than 32 years have been passed, itwould not be proper to open the case. In view of the above discussion, allthe substantial questions of law noticed here-in-above stand answeredaccordingly.

Resultantly, this regular second appeal is allowed and thejudgment and decree of the first appellate Court are set aside and that of thelearned trial Court are upheld. Consequently, the suit of the plaintiff isdecreed.

September 2, 2011. hsp/p.singh

(Mohinder Pal) Judge