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BALDEV KAUR versus STATE OF PUNJAB & ORS

High Court of Punjab and Haryana, Chandigarh

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Baldev Kaur v. State of Punjab & Ors - RSA-2746-1988 [2006] RD-P&H 5386 (8 August 2006)

R.S.A.No2746 of 1988 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

R.S.A.No2746 of 1988

Date of Decision: 9 - 8 -2006

Baldev Kaur ........Appellant

v.

State of Punjab and others .......Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Pritam Saini, Advocate

for the appellant.

Mr.G.C.Gupta, DAG, Punjab

for the respondents.

***

P.S.PATWALIA, J. (Oral)

The present regular second appeal has been filed against the judgment of learned Subordinate Judge Ist Class, Jalandhar and the learned Additional District Judge, Jalandhar whereby the civil suit filed by the appellant- plaintiff was dismissed and thereafter first appeal filed by her was also dismissed.

A perusal of the facts as are clarified on the record would show that initially the plaintiff was appointed as a Trained Dai on 25.9.1967. Her services were, however, terminated on 29.2.1972. Thereafter she was again absorbed as a Female Attendant on 21.4.1972. She joined the said post on 30.3.1974. She was thereafter transferred to the G.A.D. Lodhipur as a Trained Dai on 22.3.1974. She joined as such on 6.4.1974. It has come in the statement of DW-1 Bakhshish Singh who was an Assistant in the Health Department, Jalandhar that thereafter the plaintiff went on maternity leave on 14.6.1975. Even after the expiry of the leave R.S.A.No2746 of 1988 [2]

she did not join duty. A letter was written on 15.12.1975 by the Civil Surgeon, Jalandhar to the Deputy Director, Ayurvedic, Health Department, Punjab intimating the absence of the plaintiff from June, 1975 onwards and a request was made that her services should be terminated. Another letter was written on 22.11.1975 wherein the Civil Surgeon, Jalandhar was also requested to terminate the services of the plaintiff as she has been continuously absent.

The plaintiff ultimately filed the civil suit in May, 1985. She sought a mandatory injunction directing the respondents to regularise her services, to issue her posting orders along with arrears of pay and other benefits attached to the post.

In the suit the plaintiff had taken a a plea that she had remained absent on account of her illness. Her plea of illness was examined by the trial Court. The plea was rejected with the following observations:- "10. The plaintiff has prayed for a decree for mandatory injunction directing the defendants to regularise her service and issue posting order alongwith arrears of pay and other benefits attached to the post.

The claim of the plaintiff is that she remained absent from duty on account of her sickness and, therefore, she is entitled to regularisation of his service and is entitled to the posting order alongwith arrears of pay. On the other hand, the claim of the defendants is that plaintiff remained willfully absent from duty for 10 years and as such she is not entitled to a decree prayed for. Although Baldev Kaur plaintiff as PW1 and her witness PW2 Subedar Chetan Singh have stated that Baldev Kaur fell ill and her operation was performed by Dr.L.R.Mathur at Pathankot, yet the plaintiff has failed to produce any documentary evidence to show that she was ill and she has undergone any operation from any doctor. In her cross- examination, Baldev Kaur plaintiff as PW1 has admitted that she was not paid her salary for 9/10 years because she was on leave without R.S.A.No2746 of 1988 [3]

pay. Baldev Kaur plaintiff has admitted her absence without leave in categorical manner but she twisted the facts that she was not paid salary for 9/10 years. However, DW1 Bakhshish Singh who is Assistant in the Health Department Jalandhar has stated that plaintiff had gone on maternity leave on 14.6.75 and that vide letter Ex.D2 the Civil Surgeon, Jalandhar has intimated the Deputy Director regarding the continuous absence of the plaintiff from duty. A perusal of letter dated 22.11.75 Ex.D1 shows that Baldev Kaur plaintiff was absented from duty and the Civil Surgeon Jalandhar was requested to terminate her service in case she was not willing to join her duty.

Ex.D2 is copy of letter dated 15.12.75 written by Civil Surgeon, Jalandhar to the Deputy director, Ayurvedic, Health Department, Punjab, Chandigarh intimating the absence of the plaintiff from duty w.e.f. 14.6.75 and further requested him to terminate her service.

Thus, it stands proved on the record that plaintiff absented from duty in June, 1975 and she remained absent from duty for 9/10 years. As stated above, plaintiff has not produced any medical certificate for her illness. The plaintiff has also not examined any medical officer to show that she fell ill. The oral evidence led by the plaintiff in these circumstances cannot be accepted. Further more according to Baldev Kaur she got her operated from Dr.L.R.Mathur in October, 1976 but PW2 Subeydar Chetan Singh stated that Baldev Kaur was ill and in September, 1977 Dr.L.K.Mathur performed her operation.

Thus, the oral evidence of the plaintiff regarding the date of her operation is contradicted. In his examination-in-chief Subedar Chetan Singh PW stated that Baldev Kaur remained under treatment from 1976 to 1977 but in his cross-examination he denied knowledge as to where the plaintiff was from 14.6.75 to 1976. Thus, the R.S.A.No2746 of 1988 [4]

plaintiff has miserably failed to prove that she was absented from duty on account of her illness."

After rejecting this plea it was further noticed by the trial Court that the plaintiff had slept over the matter for about 10 years. After remaining absent, she could not be issued posting orders and arrears of pay. Accordingly, the trial Court dismissed the suit filed by the plaintiff.

In appeal the learned lower Appellate Court noted that plaintiff had not made any effort either to get her leave sanctioned or re-join for a period of 10 years. It was, thus, clear that she had abandoned her service. The appeal was rejected by the Appellate Court by recording the following findings:- "9. Having given my thoughtful consideration to the submissions of both the parties, I find that the relief for mandatory injunction can be granted by a Court under Section 39 of the Specific Relief Act in order to prevent the breach of an obligation and to compel the performance of certain acts which the Court is capable of interference.

10. In the instant case, the suit was filed on 30.5.1985 whereas her services were terminated w.e.f. 29.2.1972. This fact had been brought to the notice of the plaintiff/appellant while written statement filed in the Court on 14.11.1985. However, inspite of that the plaintiff took no pains either to amend the plaint or to incorporate assailing of the order of her termination of services. The position as it stands, the plaintiff/appellant's services stood terminated. As such there is no obligation casted upon the defendants and the Court is not competent to compel the performance of the contract i.e. issuing of posting orders. The suit as framed and the relief claimed is highly mis-conceived.

11. The plaintiff is guilty of delay and latches. Law helps vigilant R.S.A.No2746 of 1988 [5]

and not the dormant. Mandatory injunction being an equitable relief, the latches on the part of the appellant being writ large, she has dis- entitled herself to any relief. The allegations made by her in the plaint remained un-substantiated or corroborated. The services of the plaintiff/appellant were terminated on 29.2.1972 and she allegedly had proceeded on leave in October, 1976. The very factum of her having slumbered over her rights for a pretty long period of the nine years shows that she had abandoned the services. The findings of the learned lower Court on issues 1 and 2 are un-assailable and are hereby affirmed."

I have again re-examined the matter.

Learned counsel for the petitioner contends that it has not come on the record that the services of the plaintiff were actually terminated. It was further contended that before terminating her services principles of natural justice ought to have been complied with. He therefore prays that the findings of the Courts below should be reversed. He consequently prays that the plaintiff is entitled to a declaration as prayed for.

I am not inclined to agree with the contention of learned counsel for the appellant. A reading of the facts would show that after proceeding on leave in June, 1975 the plaintiff remained continuously absent for a period of 10 years. She thereafter did not join her duties. I find no reason to disagree with the findings recorded by the Courts below that under the circumstances the plaintiff had abandoned her job. She cannot claim in these circumstances that a direction should be given to the State to regularise her services, to issue her posting orders and pay all consequential benefits.

Before concluding it may be noted that it was the stand of the State of Punjab in the written statement that a recommendation had been made on 15.11.1975 to the Deputy Director, Ayurvedic, Health Department, Punjab that R.S.A.No2746 of 1988 [6]

plaintiff's services should be terminated. The State counsel was asked to find out as to whether an order of termination was actually passed. Today I have been informed that by an order passed on 15.10.1976 the services of the plaintiff had been terminated with immediate effect. Had the plaintiff been vigilant about the action of the respondents, she would have secured a copy of the said order. This order then would have to be impugned by her. In the absence of any effort either to approach the Department or secure a copy of the order and challenge the same, no effective relief can be granted.

For the reasons mentioned above, I find no reason to interfere in the findings recorded by the Courts below. The regular second appeal is accordingly dismissed.

( P.S.PATWALIA )

August 9, 2006. JUDGE

RC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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