RAJINDER KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Unsuccessful plaintiff Rajinder Kumar has filed the present regular second appeal and it has been directed against the judgment and decree dated 3.6.1986 passed by the Court of District Judge, Chanigarh, who affirmed the judgment and decree dated 13.3.1984 passed by the Court of Sub Judge Ist Class, Chandigarh, who dismissed the suit of the plaintiff- appellant for declaration with consequential relief of mandatory injunction, as prayed for.

(2.) The brief facts of the case are that plaintiff Rajinder Kumar filed a suit for declaration and for mandatory injunction on the averments that he was appointed as Draftsman, on ad hoc basis, by the Chief Engineer, Irrigation Department, Haryana, Chandigarh, through Employment Exchange, on 9.4.1971. After joining the duty as such, on that date, he continued to work in that capacity on ad hoc basis upto 9.7.1972. Subsequently, he was selected as Draftsman by the Subordinate Services Selection Board, Haryana (for short 'the Board'), whereupon he was appointed as such, on regular basis w.e.f. 10.7.1972 by the Chief Engineer on the recommendation of the Board. He worked there till 3.10.1977 and his work and conduct were found to be satisfactory. He applied for leave on account of illness for the period 4.10.1977 to 16.10.1977. Subsequently, he submitted another application for the grant of leave for the period 27.11.1977 to 2.12.1977 and then application for extension of leave upto 15.12.1977. Thereafter he submitted another application on 15.12.1977 for the grant of leave for the period starting from 17.12.1977 to 16.9.1978. Yet another application on the ground of illness was submitted on 14.3.1978 for the grant of leave for the period of 17.3.1978 to 16.9.1978. Then another application was submitted on 12.9.1978 on the ground of illness for the period 17.9.1978 to 16.3.1979 and lastly an application was submitted on 16.3.1979 for the grant of leave and that also on the ground of illness for the period 17.3.1979 to 24.5.1979. In short the plaintiff moved various applications for the grant of leave with effect from 4.10.1977 upto 24.5.1979. The plaintiff alleges that his applications were despatched under certificates of posting and those must have been delivered to the addressee. But he did not receive any intimation as to whether his applications for leave were sanctioned or not, nor he was called upon to produce any medical certificate. In these circumstances, the plaintiff presumed that he had been granted leave for the entire period starting from 4.10.1977 to 24.5.1979. He submitted his joining report on 24.5.1979 in the afternoon after the expiry of the leave but his joining report was not accepted and no posting orders were given to him. On 8.6.1979 he addressed another letter to the department requesting it for the issuance of posting orders without any delay, but instead of getting his posting order as Draftsman, the plaintiff received letter dated 7.7.1979 from the office of the Engineer-in-Chief, Irrigation Department, Haryana, to the effect that since the plaintiff remained absent from duty with effect from 27.11.1977, without leave and without informing his whereabouts to the office, it has been decided that his services were no longer required by the Department and the plaintiff was given one month's notice vide letter dated 27.2.1979. It was stated that in terms of the notice dated 27.2.1979 the services of the plaintiff stood discharged on the expiry of the said notice period. The plaintiff made representation to the Engineer-in-Chief on 13.1.1980, challenging the validity of the order of termination/discharge on account of its being hit by Article 311(2) of the Constitution of India as the impugned order dated 7.7.1979 was not a simple order of termination but was passed by way of punishment which cast stigma on him without affording him any opportunity of hearing. Moreover the order dated 27.2.1979 was served upon the plaintiff through order dated 25.6.1979, on 7.7.1979, the Engineer-in- Chief could not terminate his services, retrospectively on the expiry of the notice period given in the order dated 27.2.1979. The plaintiff also contended that the penalty of termination of his services was extreme and not warranted by law. He was never informed about the refusal of the leave. With the above allegations, the plaintiff filed a suit for declaration to the effect that the orders dated 27.2.1979 and 25.6.1979 served upon him on 7.7.1979 were illegal, void, inoperative, unconstitutional, arbitrary and against the principles of natural and he sought mandatory injunction directing the defendant to take the plaintiff into service with full backwages and also by granting other benefits of service.

(3.) The suit was contested by the State. It admitted the plaintiff's initial appointment as Draftsman on ad hoc basis through the Employment Exchange on 9.4.1971 and his subsequent appointment as Draftsman on the recommendation of the Board. However, the suit was resisted by the State on the ground that the plaintiff was appointed on temporary basis as Draftsman for the period of six months at the first instance upto 10.4.1971 and then on the recommendation of the Board on temporary post of Draftsman on regular basis vide letter dated 10.7.1972. The State admitted that the plaintiff worked on that post upto 3.10.1977, but his work and conduct was not satisfactory. It was pleaded that after serving upon him show-cause notice and after affording to him opportunity of hearing he was censured for having remained wilfully absent from duty with effect from 30.8.1976 to 26.6.1977 vide office order dated 18.1.1978. That period was, however, directed to be treated as extraordinary leave (leave without pay). It was further pleaded that the plaintiff submitted application on 4.10.1977 for the grant of leave on the ground of illness for the period starting from 4.10.1977 to 16.10.1977. Thereafter, he remained absent from duty from 28.11.1977 onwards. Later on his application was received on 2.12.1977 requesting for the grant of leave for the period 28.11.1977 to 2.12.1977. His other application dated 2.12.1977 was received through special messenger on 28.12.1977 requesting for leave upto 16.12.1977. All these applications were refused and the plaintiff was informed vide registered A.D. letter dated 15.5.1978 and he was advised to join duty at once. The registered letter was sent at the two addresses given by him, but the same were received back undelivered from the postal authorities. The plaintiff did not join the duty. The department did not receive his other applications for the grant of leave. The plaintiff remained wilfully absent from duty with effect from 28.11.1977. As his services were no more required, he was served one month's notice dated 27.2.1979 despatched by registered A.D. post conveying that the plaintiff would be considered as discharged from the post of Draftsman on the expiry of one month's notice from the date of issue of that letter. It was received back undelivered. The name of the plaintiff was ordered to be scored out on 31.3.1979 and since then he stood discharged from service. The arrival report given by the plaintiff was not accepted because he had already been discharged from service. The notice of discharge, received back undelivered from the postal authorities, was presented to the appellant (plaintiff) when he came to the office, but he left without information after refusing the same. It was again presented to him on 25.6.1979 when he visited the office of the Engineer-in-Chief, but after going through its contents the plaintiff refused to receive it. It was then despatched to the plaintiff at his postal address but was received back undelivered. The plaintiff again visited the office on 6.6.1979 and 7.7.1979. The notice of discharge with the forwarding letter dated 25.6.1979 was received by the plaintiff on 7.7.1979. Thereafter he applied for final payment of General Provident Fund and the same was made to him. In these circumstances, the defendant-State maintained the validity of the order of discharge from service of the plaintiff.