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2014 DIGILAW 1313 (PNJ)

Gurdev Singh v. Municipality Bathinda

2014-09-17

RAMESHWAR SINGH MALIK

body2014
Rameshwar Singh Malik, J. 1. Present appeal, at the hands of dis-satisfied plaintiff, is directed against the judgment of reversal passed by the learned Additional District Judge, whereby first appeal of the defendant Municipal Committee (now Municipal Corporation) was partly allowed, denying the arrears of salary for the period during which the plaintiff was not allowed to join his duty. Brief facts of the case, as noticed by the learned first appellate court in para 2 of the impugned judgment, are that Gurdev Singh working as Peon, with Municipality Bathinda, filed a suit against Municipality Bathinda as well as against the State of Punjab for declaration to the effect that resolution No. 596 dated 26.12.1984 vide which the services of the plaintiff were terminated was illegal, void, arbitrary and against the provisions of the Punjab Municipal Act and thus not binding upon the plaintiff. Further order bearing No. 14 dated 20.1.1986 communicated to the plaintiff vide which the stay of the Director had been vacated was also illegal, void and arbitrary and the plaintiff was entitled to his reinstatement with all the arrears of pay, allowances and increments, notwithstanding the impugned termination order. It was alleged that Gurdev Singh plaintiff was appointed as a Peon in the year 1978 and he was confirmed by the Municipality, Bathinda on 19.9.1980. Vide letter No. 466/Octroi dated 8.3.1984 a charge sheet was levelled against the plaintiff to which he submitted his reply. However, the committee terminated the services of the plaintiff vide resolution No. 596 dated 26.12.1984. The said order was stayed by the Director Local Government Punjab, but later on the order was vacated and the Executive Officer Municipal Committee, Bathinda terminated the services of the plaintiff vide office order No. 14 dated 20.1.1986. It was alleged that no enquiry against the charges mentioned in the charge sheet was conducted and no show cause notice/personal hearing was afforded to the plaintiff. The plaintiff had submitted his arrival report alongwith the application for allowing him to join the duty in pursuance of the stay order granted by the Director-Local Govt. Punjab, Chandigarh, but he was not allowed to join his duties. It was alleged that the plaintiff has been discharged from the service in violation of Section 35 of the Punjab Municipal Act. Punjab, Chandigarh, but he was not allowed to join his duties. It was alleged that the plaintiff has been discharged from the service in violation of Section 35 of the Punjab Municipal Act. The termination order had been communicated to the plaintiff on 20.1.1986, but it had been made effective from 19.2.1984 which was illegal. The suit was contested by the appellants. It was alleged that the Director Local Bodies, Punjab, Chandigarh was a necessary party. The plaintiff had not filed any appeal against the order of his termination before the competent authority and as such he was not entitled to file the present suit. It was also alleged that the plaintiff had no locus-standi to file the suit. On merits, it was alleged that the order of termination was legal, correct and according to the rules. The plaintiff was served with a registered notice dated 28.5.1984 to join his duty within 7 days, but he failed to report for duty. Office order dated 20.1.1986 was correctly issued when the stay was vacated by the Director Local Bodies, Punjab, Chandigarh. 2. On completion of pleadings of the parties, learned trial court framed the following issues:-- "1. Whether the resolution No. 596 dated 25.12.1984 terminating the services of the plaintiff is illegal, void, arbitrary and against the provisions of Municipal Act, 1911? OPP 2. Whether order bearing No. 14 dated 20.1.1986 vide which the stay has been vacated is illegal, void and arbitrary? OPP 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the plaintiff has got no locus-standi to file the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Relief." 3. In order to prove their respective stands taken, both parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought,on record, learned trial court came to the conclusion that plaintiff has duly proved his case. Accordingly, his suit for declaration was decreed vide impugned judgment and decree dated 20.1.1990. Feeling aggrieved, defendant Municipality filed its first appeal which came to be partly allowed by learned Additional District Judge, vide impugned judgment and decree dated 10.10.1990. Hence this second appeal, at the hands of the plaintiff. 4. Learned counsel for the appellant-plaintiff submits that the appellant was always ready and willing to join and perform his duty. Feeling aggrieved, defendant Municipality filed its first appeal which came to be partly allowed by learned Additional District Judge, vide impugned judgment and decree dated 10.10.1990. Hence this second appeal, at the hands of the plaintiff. 4. Learned counsel for the appellant-plaintiff submits that the appellant was always ready and willing to join and perform his duty. He was not allowed to join his duty because of the serious omission on the part of the respondent-authorities. Once the appellant was not at fault in this regard, he was rightly held entitled for all the consequential service benefits by the learned trial court, while decreeing his suit in toto. The learned trial court also rightly granted liberty to the defendants to conduct enquiry against the plaintiff, in accordance with law, for his alleged absence from duty or to treat the period of the absence as leave of the kind due. However, defendants failed to do anything in this regard. Neither the enquiry was conducted before passing the punishment order nor it was initiated in compliance of the judgment passed by the learned trial court. In this view of the matter, learned first appellate court exceeded its jurisdiction while partly allowing the appeal of the defendants, denying the arrears of salary for the period during which the plaintiff was not allowed to work. He prays for setting aside the said offending part of the impugned judgment, by allowing the present appeal. 5. On the other hand, learned counsel for the respondents-defendants submits that it was a case of absence from duty. Absence was admitted by the plaintiff. This was the specific and strong reason that a regular departmental enquiry was not conducted against him. Once the plaintiff himself has admitted his absence from duty, there was no requirement to conduct the regular enquiry before passing the appropriate punishment order. He further submits that in the circumstances of the case, learned Additional District Judge committed no error of law, while passing the impugned judgment denying the arrears of salary to the plaintiff-appellant, for the period he did not work. Since there was no perverse finding recorded by the learned first appellate court, there was hardly any scope for interference at the hands of this Court. He prays for dismissal of the appeal. 6. Since there was no perverse finding recorded by the learned first appellate court, there was hardly any scope for interference at the hands of this Court. He prays for dismissal of the appeal. 6. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, the learned Additional District Judge has clearly exceeded his jurisdiction, while denying arrears of salary to the plaintiff-appellant for the period he was not allowed to work. Thus the appeal deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter. 7. Under the above-said circumstances of the case, following substantial question of law arise for consideration of this Court: "Whether the learned first appellate court fell in serious error of law, while denying the arrears of salary to the plaintiff-appellant for the period during which he was not allowed to work by the defendant municipality." 8. It is a matter of record and not in dispute that on account of the alleged absence from duty, no departmental enquiry was ever conducted by the respondent-department against the plaintiff-appellant. He was terminated from service without conducting an enquiry. Services of the plaintiff were terminated by passing a resolution No. 596 dated 26.12.1984. This resolution passed by the municipality was stayed by the Director Local Government, Punjab, vide his order dated 28.2.1985. However, stay order was vacated vide order dated 4.12.1985. 9. It is also not in dispute that despite stay order having been granted by the competent higher authority, which remained in operation for about 10 months, plaintiff was still not allowed to join his duty. This serious inaction and omission on the part of the authorities of the defendant municipality would show that the appellant was being treated in arbitrary manner. In such a situation, learned trial court rightly decreed the suit of the plaintiff in toto. However, since the learned Additional District Judge proceeded on a wholly misconceived approach, while partly allowing the first appeal of the defendants, thereby denying the arrears of salary for the period during which he was not allowed to work, the impugned judgment cannot be sustained. 10. However, since the learned Additional District Judge proceeded on a wholly misconceived approach, while partly allowing the first appeal of the defendants, thereby denying the arrears of salary for the period during which he was not allowed to work, the impugned judgment cannot be sustained. 10. A bare combined reading of documentary evidence available on record, particularly in the form of Ex. P-4, Ex. P-5, Ex. P-6 submitted by the appellant before the defendant-authorities, praying for allowing him to join his duty would make it crystal clear that the appellant was ready and willing to join and perform his duty at every relevant point of time. However, it were the authorities of the respondent-municipality who did not budge from their unreasonable stand and the appellant was not allowed to join and perform his duty. No contrary evidence has been brought to the notice of this Court. 11. In such a situation, it can be safely concluded that the plaintiff was forced to remain out of service and he cannot be said to be at fault in this regard by any stretch of imagination. Under these circumstances, the irresistible conclusion is that the learned Additional District Judge exceeded his jurisdiction and committed a serious error of law, while passing the impugned judgment partly allowing the first appeal of the defendant municipality, thereby illegally denying the arrears of salary to the plaintiff-appellant for the period during which he was not allowed to join and perform his duty. It is so said because the appellant was very much willing to perform his duty but he was not allowed to join and surprisingly for a period of about 10 months, when the stay order passed by the competent authority was operating in favour of the appellant and against the respondent municipality. Thus, the offending part of the impugned judgment passed by the learned additional District Judge is based on a totally perverse approach and the same cannot be sustained. 12. It is the settled principle of law that over-all conduct of the parties to the litigation has always been a relevant factor for consideration of the Court. In the present case, the fault, if any, lies with the respondent municipality. Respondents cannot be permitted to draw undue benefit out of their own wrong. Appellant who was a class IV employee was being treated in an arbitrary manner. In the present case, the fault, if any, lies with the respondent municipality. Respondents cannot be permitted to draw undue benefit out of their own wrong. Appellant who was a class IV employee was being treated in an arbitrary manner. His repeated requests for permitting him to join and perform his duty fell on deaf ears. Even the stay order passed by the higher authority was not paid due respect by the respondent-municipality. 13. In view of what has been discussed above, it is unhesitatingly held that the appellant was entitled for all the consequential service benefits, including the arrears of salary for the period during which he was not allowed to join and perform his duty. The contrary findings recorded by the learned first appellate court cannot be sustained. The answer to the abovesaid substantial question of law is and has to be in favour of the appellant-plaintiff and against the defendant municipality. Answered accordingly. No other argument was raised. 14. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the offending part of the impugned judgment passed by the learned first appellate court cannot be sustained and the same is hereby set aside. Judgment and decree rendered by the learned trial Court are restored. Since the appellant-a low paid class-IV employee was a victim of arbitrary action and the amount of his arrears of salary had been used by respondent municipality during all this period, appellant is also declared entitled for consequential relief of interest at the rate of 9% per annum from the date of filing of the suit till date of payment. The respondent-municipality is directed to pay the arrears of salary alongwith interest to the appellant within a period of three months from the date of receipt of a certified copy of this order. Resultantly, instant appeal stands allowed, however, with no order as to costs.