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MOHAMMAD HAFIZ KHAN versus UNION OF INDIA & ANR

High Court of Punjab and Haryana, Chandigarh

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Mohammad Hafiz Khan v. Union of India & Anr - RSA-2552-2006 [2006] RD-P&H 5387 (8 August 2006)

C.M. No.6159-C of 2006 and [1]

R.S.A.No.2552 of 2006

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.M. No.6159-C of 2006 and

R.S.A.No.2552 of 2006

Date of Decision: 27-7-2006

Mohammad Hafiz Khan ........Appellant

v.

Union of India and another ........Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Mohammad Hafiz Khan appellant in person.

***

P.S.PATWALIA, J. (Oral)

The present regular second appeal has been filed against the judgment and decree of the learned Sub Judge Ist Class, Jalandhar dismissing the suit filed by the plaintiff-appellant and the judgment and decree passed by the learned Additional District Judge, Jalandhar dismissing the first appeal filed by the plaintiff against the aforesaid judgment.

Along with this regular second appeal, an application has been filed seeking condonation of 6020 days delay in filing the present appeal. The judgment passed by the learned Additional District Judge is dated 8.8.1989. The present regular second appeal was filed in the Registry of this Court on 15.5.2006 more than 16 years after the learned Additional District Judge had dismissed the first appeal.

The plaintiff was serving in the B.S.F. The suit had been filed C.M. No.6159-C of 2006 and [2]

R.S.A.No.2552 of 2006

challenging the acceptance of a resignation submitted by the plaintiff on 28.7.1983. The same was accepted on 1.9.1983. It is the appellant's contention that he was physically tortured and pressurised to tender his resignation. This was, however, denied by the respondents. The trial Court examined the evidence and recorded the following conclusions:-

"8. Coming to evidence on the file, he has submitted that R.S.C.Singh, DW.1 has stated on oath that letter DA was written by Mr.S.S.Bajwa Deputy Commandant and was endorsed by him through endorsement Ex.DA/1. Resignation of the plaintiff was accepted by Lt.Col. A.S.Gill with effect from 1.9.1983 photostat copy of which placed on record is Ex.DB. Ex.DD is the photo copy of the discharge certificate of the plaintiff in this case, which is signed by Mr.M.Bhalla. Ex.DF is the No Demand Certificate regarding the plaintiff prepared at the time when he was discharged.

According to DW.2 Ram Phal, he had informed the plaintiff now present in the court against the receipt of signature of letter, photostat copy of which placed on record Ex.DE. S.S.Bajwa DW.3 has stated that he had conducted enquiry about the resignation Ex.P1 tendered by the plaintiff. He enquired from plaintiff his grievance but he could never satisfy him. He accordingly made his report on the resignation under his signature though the same was written by his clerk under dictation. He was posted as Company Commandant Dalta company at the relevant time when he made the said endorsement. Acceptance of his resignation was conveyed to the plaintiff through his company clerk Ram Phal, through Ex.DC. Sh.M Bhalla DW4 has also stated on oath that order of acceptance of the resignation of the plaintiff was conveyed to him through Ex.DC.

Discharge certificate Ex.DD is also signed by him. No Demand C.M. No.6159-C of 2006 and [3]

R.S.A.No.2552 of 2006

Certificate also bears his signature which is Ex.DF. Learned GP for the defendants has submitted that all these officers examined by the defendants happen to be gazetted officers except a constable. No animous stands proved on the file against them as to why they should depose against him. Under these circumstances he has submitted that findings on both these issues may be recorded against the plaintiff in the instant case.

9. I agree with the submission of the learned GPP for the defendants in the instant case. Unexplained circumstances on the part of the plaintiff in keeping silent for such a long period from the date of his alleged difference of opinion with Mr.Shah from the time when he was posted at Amritsar Border till filing of the present suit goes to show that only vague plea is now taken by the plaintiff to withdraw from his resignation which stands already accepted. He could have reported the matter to the higher authorities atleast by post regarding highhandedness of any of the officials in this case even if his case is taken to be correct that he was tortured by his officers. Nothing in that connection has been done by the plaintiff.

Even notice copy of which placed on record, is Ex.P2 is dated 27.2.1984. Documentary evidence placed on record by the defendants goes to show that contention of the plaintiff is devoid of force in this case. I accordingly decide issue no.1 in favour of the defendants with the observation that the order passed by the Commandant dated 1.9.1983 removing the plaintiff from service is perfectly valid and under rules as resignation had been tendered by the plaintiff voluntarily in this case. With the above observations issue no.2 is decided against the plaintiff that he had tendered his resignation voluntarily."

C.M. No.6159-C of 2006 and [4]

R.S.A.No.2552 of 2006

The lower Appellate Court again re-examined the entire evidence and rejected the appeal with the following conclusions:-

"12. Overwhelming documentary evidence produced by the defendants/respondents, contents of which are admitted by the plaintiff/appellant in his cross examination clearly go to prove that story with regard to the resignation being involuntarily one and having been obtained by duress is quite an after thought when the better sense prevailed upon the appellant and he was out of job. The dictum laid down in 1978(2) SLR 425 is not applicable to the facts and circumstances of the case, particularly because the resignation is held to be voluntary one and more over it is settled law that the parties cannot be allowed to travel beyond the pleadings. The fact that Ex.P1 do not amount to resignation, was neither pleaded in the plaint nor such a ground had been taken in the grounds of appeal. A new case cannot be allowed to be made out, or around by the appellant for the first time in appeal." The appellant has appeared in person before me. He has only stated that he had served in the B.S.F. and was dealt with unfairly by the respondents. He submitted that justice should be done to him.

Having gone through the judgments of the Courts below, I am of the opinion that the matter has been decided after examining the evidence on record.

The appellant's contention that the resignation was involuntary and obtained by duress has been disbelieved. I find no reason to disagree with the firm findings of fact recorded by the Courts below. This is more so when the present appeal has been filed after more than 16 years and the only reason given for the delay is that the appellant was living in a disturbed area of Jammu and Kashmir which was affected by militancy. There is no good ground to accept the application for condonation of delay as well.

C.M. No.6159-C of 2006 and [5]

R.S.A.No.2552 of 2006

For the reasons aforesaid, the application for condonation of delay as also the main appeal are therefore dismissed in limine.

( P.S.PATWALIA )

July 27, 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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