Jagtar Singh vs Punjab State

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the first appellate Court which, on appeal, affirmed those of the trial Court.

The facts :

The services of the appellant (hereinafter referred to as the plaintiff), who was employed as a Driver with the Punjab Roadways were terminated vide order dated June 2, 1983. The challenge was made on the ground that in the month of April, 1982, the plaintiff suffered from mental depression. He applied for leave on medical grounds and also sought extension upto June 1, 1983. The validity of the order of termination was challenged on the ground that it was passed in breach of the provisions of Article 311 of the Constitution of India. No proper enquiry was held against the plaintiff as enjoined by the Rules before passing the order of termination.

The defendant in the written statement controverted the allegations made in the plaint. It was pleaded therein that the plaintiff abandoned his duty without taking per mission from the appropriate authority. He was served with registered notices dated July 30, 1982, August 25, 1982, September 10, 1982 and February 18, 1982, requiring him to resume duty. Thereafter a notice was published in the newspaper calling upon him to join the duty. Since he failed to do so, the order of termination was passed.

The trial Court, on the pleadings of the parties, framed the following issues :--

Whether the impugned order dated 2-6-1983 dismissing the plaintiff from service is illegal, void and inoperative ? OPD

Whether civil Court has got no jurisdiction to adjudicate upon the matter in controversy ? OPD

Whether suit is not maintainable in the present from ? OPD

Whether General Manager, Pb. Roadways, Chandigarh is necessary party and suit is barred for non-joinder ? OPD

Relief.

It was held under issue No. 1 that the plaintiff had been intentionally avoiding to resume duty. He was afforded opportunity to explain his conduct, but he failed to avail of the same. It was also held that the provisions of Article 311 of the Constitution were not contravened.

Under issue No. 2, the trial Judge found that the Civil Court had jurisdiction to decide the lis. Issue No. 3 was not pressed and was answered against the defendant. Issue No. 4 was answered against the defendant.

The first appellate Court, on appreciation of the evidence, came to the conclusion that the notices were issued to the plaintiff. Report on these notices was to the effect that either the plaintiff was not available or that he had refused to accept the service of the notices. The appellate Court affirmed the decision of the trial Judge under issue No. 1.

The entire approach of the learned appellate Judge is wholly unjust. Admittedly, the notices were issued by the respondent to the plaintiff to resume his duty. He failed to do so. Thereafter, a notice was published by an insertion in the newspaper calling upon him to join duty. Even this was not complied with. The respondent thought that since the plaintiff had failed to resume duty, it was competent to pass an order of termination against him. Respondent was mistaken. Rules of natural justice require that before any penal action could be taken against the plaintiff, a show cause notice had to be served upon him. A proper enquiry had to be held and thereafter consequential order could be passed. D. W. 1 Amar Singh, Clerk appeared on behalf of the respondent. He candidly admitted in his cross-examination that at no stage any enquiry was conducted against the plaintiff. If the plaintiff had remained absent from duty without obtaining leave, a charge sheet ought to have been framed against him, an enquiry ought to have been held and thereafter penal action could be taken against him. In the instant case, admittedly the principle of natural justice was violated. The order of termination cannot be upheld and the same is quashed.

The impugned order has been quashed purely on legal ground. The plaintiff has not worked for the entire period. It will be inequitable if he is paid for the period during which he willfully remained absent and thereafter from the date of the termination of his services till his reinstatement which will be necessary consequence of the order of termination having been set aside. Accordingly, I direct that the plaintiff will be reinstated without being paid his back wages.

For the reasons recorded above, the appeal is allowed and the judgments and decrees of the Courts below are set aside with the observations that the order of termination is quashed but the plaintiff will not be entitled to any back wages and will be deemed to be a new entrant in service from the date he joints his duty.