Advocates:
Advocate Appeared:
For the Appellant : Mr. Jai Narain, AAG, Punja

JUDGMENT : 

Namit Kumar, J.

Instant Regular Second Appeal has been filed by the State of Punjab against the judgment and decree dated 24.07.1995, passed by the Court of learned Sub Judge III Class, Jalandhar, whereby suit filed by the respondent-plaintiff for declaration was decreed as well as against the judgment and decree dated 04.09.1999, passed by the Court of learned Additional District Judge, Jalandhar, whereby appeal filed by the State against the judgment and decree dated 24.07.1995, has been dismissed.

2. Parties to the lis hereinafter shall be referred to by their original position in the suit. In nutshell, the facts of the case emanating from the record are that plaintiff-Amarjit Singh filed a suit for declaration to the effect that the impugned order No.85-89 dated 27.04.1993, passed by the Comdt. 13th Bn PAF Jalandhar Cantt. whereby the plaintiff was dismissed from service and order dated 23.07.1993 passed by D.I.G. of Police (PAP) Jalandhar Cantt., dismissing the appeal of the plaintiff are illegal, void, capricious, arbitrary, unjust, unconstitutional, against the provisions of law & violative of the principles of natural justice and the plaintiff is entitled to re-instatement w.e.f. the date of dismissal with all other monetary benefits attached with the service. It was pleaded that plaintiff joined as Constable in PAP Jalandhar Cantt. w.e.f. 22.01.1992 and that due to his illness he had to be away from duty on two occasions and that he had submitted application for grant of leave on medical grounds. But the punishing authority-defendant No.3, instead of granting leave directed to hold ex parte departmental enquiry against the plaintiff, even without serving notice with regard to the enquiry. The Enquiry officer recorded evidence without serving any notice to the plaintiff and held the plaintiff guilty and thereafter, the Comdt. i.e. the punishing authority passed order of dismissal. The plaintiff further alleged that the ex parte proceedings could not be initiated against the plaintiff without serving any notice nor any publication was made for securing the presence of the plaintiff and that statements of witnesses were recorded without oath and as such violated Rule 16.2 of PPR. The plaintiff had produced the medical certificates regarding his illness but were ignored by defendant no.3. The plaintiff filed an appeal against the impugned order to the D.I.G. of Police, PAP Jalandhar Cantt. and appellate authority passed the order dated 23.07.1993, without giving personal hearing to the plaintiff. The plaintiff further alleged that copy of the findings of the Enquiry officer furnished to the plaintiff was dim and illegible which is against the mandatory provision for not supplying the fair copy of the enquiry report and all other documents. The impugned order is also against Article 311(2) of the Constitution of India.

3. Upon notice defendants appeared and filed written statement raising certain preliminary objections with regard to maintainability of the suit in the present form and being pre-mature. Validity and legality of the notice under Section 80 C.P.C. and locus standi of the plaintiff was also challenged. On merits, the defendants had admitted that the plaintiff has joined as Constable in P.A.P with effect from 24.01.1992 and he absented himself wilfully on 22.03.1992 from C.T.C. Kapurthala while he was undergoing basic training and further alleged that his absence was recorded in Roznamcha vide DDR No.6 dated 22.03.1992. The plaintiff reported back on 06.05.1992 after a period of 44 days and 23 hours. Defendants specifically denied any application by the plaintiff for medical leave. They further alleged that a notice No.3091/OSI dated 26.03.1992 was sent at his home address and directed him to join his duty immediately but the plaintiff failed to report back at his place of posting. He reported back at Battalion on 06.05.1992 after the period of absence for 44 days 23 hours. Due to his absence, a departm