The main legal point established is that absence from duty for more than 3 months by a member of a disciplined force constitutes grave misconduct, and any act subversive of discipline would be considered misconduct.

JUDGMENT :

NAMIT KUMAR, J.

1. Instant Regular Second Appeal has been filed by the State of Punjab against the judgment and decree dated 12.02.1998 passed by the Court of learned Civil Judge (Junior Division), Gurdaspur, whereby suit filed by the respondent-plaintiff for declaration was decreed as well as against the judgment and decree dated 17.05.2000 passed by the Court of learned District Judge, Gurdaspur, whereby appeal filed by the State against the judgment and decree dated 12.02.1998, has been dismissed.

2. In nutshell, the facts of the case emanating from the record are that plaintiff-Inderjit Singh filed a suit for declaration to the effect that impugned order dated 18.02.1993 passed by defendant No. 3-Senior Superintendent of Police, Amritsar, by virtue of which plaintiff was dismissed from service, is illegal, unlawful, unjustified and against the principles of natural justice. It was pleaded that the plaintiff was appointed as Constable on 05.08.1986 on permanent basis and he performed the duties efficiently, honestly and to the satisfaction of his superiors. He was posted on guard duty at PWD Rest House, Amritsar, but he was suddenly fell ill on 08.12.1991. His father came to see him and took with him when he was lying in unconscious condition and his father being illiterate had not made any written representation but he simply informed the other guards on duty and thus he was treated as absent from duty from 08.12.1991 to 02.04.1992. He produced the medical certificate but the same was not considered and thereafter he was dismissed from service vide order dated 18.02.1993. It was further pleaded he filed an appeal against the said order but the same was rejected by defendant no. 2 vide order dated 08.08.1995 and thus the plaintiff has also challenged the said order of rejection of appeal. It is also alleged by plaintiff that show-cause proceedings are null and void because the show cause notice was not served to him nor he was given reasonable opportunity to defend his case. No personal hearing was given to him. The said order is violative of the procedure laid down under Rule 16.24 of the Punjab Police Rules. There is no specific finding of his misconduct. The punishment awarded is disproportionate to the gravity of misconduct and it is violative of Article 14 of the Constitution of India.

3. Defendants contested the suit and alleged that the suit is not maintainable; the Civil Court at Gurdaspur has no territorial jurisdiction to entertain the case; the suit of the plaintiff is pre-mature as revision petition has not been preferred and finally no legal and valid notice under Section 80 CPC has been served. On merits, it was submitted that plaintiff was enrolled as Constable on 08.05.1986 and not on 05.08.1986 as mentioned in the plaint. The defendant is habitual absentee. He has absented from the duty from 08.12.1991 to 04.04.1992. The enquiry was conducted against him and he was proceeded against ex-parte.

4. In the replication, plaintiff reiterated his assertions and denied the contentions of the defendants contained in the written statement.

5. From the pleadings of the parties, the following issues were framed:

1. Whether the impugned orders passed by the defendants No. 2 and 3 are illegal, null and void? OPP

2. Whether the suit of the plaintiff is not maintainable in the present form? OPD

3. Whether this court has no jurisdiction to try the present suit? OPD

4. Whether the suit of the plaintiff is pre-mature as alleged? OPD

5. Whether the notice served under section 80CPC is legal and valid? OPP

6. Whether the plaintiff is entitled to the relief declaration prayed for? OPP

7. Relief.

6. Both the parties led their oral as well as documentary evidence.

7. The trial Court, vide judgment and decree dated 12.02.1998 decreed the suit of the plaintiff. Aggrieved against the judgment and decree dated 12.02.1998, appellants-State preferred an appeal before the lower Appellate Court. The lower Appellate Court vide judgment and dec