State of Punjab and Another vs Harbhajan Singh

L.N. Mittal, J.—Judgment debtors-State of Punjab and General Manager, Punjab Roadways have filed this revision petition under Article

227 of the Constitution of India assailing order dated 8.9.2010 (Annexure P/9) passed by the executing court. Suit filed by respondent/decree

holder Harbhajan Singh, driver in Punjab Roadways, was decreed in first appeal vide judgment and decree dated 23.10.2007 thereby setting

aside order of compulsory retirement of the respondent and ordering his reinstatement in service with all consequential benefits including continuity

of service. Pursuant thereto, respondent rejoined his duty with effect from 12.6.2008.

Petitioners vide order dated 9.7.2008, Annexure P/6 treated period from 30.10.2002 (date of compulsory retirement) till 23.10.2007 (date of

judgment of the appellate court ordering reinstatement in service) as duty period and treated the period from 24.10.2007 to 12.6.2008 as leave of

the kind due.

Respondent/decree holder in the execution petition sought that the aforesaid period since 24.10.2007 till 12.6.2008 be also treated as duty

period. The petitioners disputed the said claim of the respondent. Learned executing court vide impugned order Annexure P/9 has held the said

period also as duty period by setting aside order treating the said period as leave of the kind due. Feeling aggrieved, judgment debtors have filed

this revision petition.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioners contended that the aforesaid disputed period since 24.10.2007 to 12.06.2008 has been rightly treated as leave of

the kind due because respondent/decree holder himself submitted his joining report on 12.6.2008 and not prior to it.

On the other hand, counsel for the respondent/decree holder contended that the respondent had been repeatedly approaching the petitioners for

permitting him to join duty but the petitioners did not permit him to join duty as petitioners received opinion dated 13.3.2008 from their Legal

Remembrancer that the main case was not fit for appeal and only thereafter respondent was allowed to join duty. It was also argued that no show

cause notice was given to the respondent before ordering the aforesaid period to be treated as leave of the kind due and therefore, the said order

is bad. In support of this contention, reliance has been placed on judgment of Hon''ble Supreme Court in Shri B.D. Gupta versus State of Haryana,

1972 SLR 845.

I have carefully considered the rival contentions.

Perusal of file of the executing court reveals that witness of petitioners Sarabjit Singh JDW 1 specifically stated in the affidavit of his

examination-in-chief that the respondent/decree holder did not appear personally in the office of judgment debtors for allotment of duty prior to

12.6.2008. On the contrary, respondent/decree holder in his affidavit of examination-in-chief did not state that he approached the petitioners for

joining duty on any particular date prior to 12.6.2008. The respondent rather vaguely stated in his affidavit that after receiving copy of judgment

and decree of the first appellate court, he approached the department for allotment of duty. However, the decree holder neither specified the date

when he received copy of judgment and decree of the lower appellate court nor specified the date when he approached the Department for joining

duty. In these circumstances, it is apparent that the decree holder had not approached the judgment debtors for joining duty prior to 12.6.2008

and therefore, the period since 24.10.2007 till 12.06.2008 cannot be treated as duty period because the decree holder himself did not join the

duty during the said period.

Show cause notice was, of course, not issued to the respondent before passing order Annexure P/6. However, now it has come in evidence that

the decree holder himself did not approach the judgment debtors for joining duty prior to 12.6.2008. Consequently, he is not entitled to be treated

on duty for the aforesaid disputed period and mere omission to issue show cause notice before passing order Annexure P/6 would not entitle the

decree holder to treat the said period as duty period. Moreover, for implementing judgment of court, show cause notice was not required to be

issued to the respondent. For the reasons aforesaid, I find that the impugned order of the executing court is illegal and suffers from jurisdictional

error. Accordingly, the instant revision petition is allowed. Impugned order Annexure P/9 passed by the executing court is set aside. Period since

24.10.2007 till 12.06.2008 has been rightly ordered to be treated as leave of the kind due vide order Annexure P/6.