Ujagar Singh, J. - (1.) The plaintiff-respondent filed a suit for declaration that office order No. 656/JES-70 dated 22.10.1975, passed by the Chief Engineer (South), was illegal, ultra-vires, unconstitutional, null and void, mala fide, perverse and against the principles of natural justice and for mandatory injunction directing the defendants to complete the service book of the plaintiff and to fix the pay of the plaintiff, etc. and further for declaration that show cause notice issued vide Memo No.2673/JES-70 dated 22-10-975 and XEN Rajpura Division letter No. 24574 dated 19-10-1975 were also illegal, ultra-vires, unconstitutional and against the principles of natural justice. This suit was opposed by the defendants-appellants. In the written statement the defendants-appellants contended that order of recovery from the plaintiff was validity passed by the Chief Engineer. Out of the pleadings, the following issues were framed:- 1. Whether the claim of the plaintiff regarding the recovery of Rs. 180.00 is barred by limitation ? Opp. 2. Whether the defendants Board ordered the Plaintiff to proceed on forced leave all alleged in para 8 of the plaint and with malacious intention ? If so, its effect ? Opp. 3. Whether the order of the Chief Engineer South, promoting Mr. R.S. Grewal dated 23.8.71 and 2.4.1973 are illegal and ineffective qua the rights of the plaintiff ? Opp. 4. Whether show cause notice dated 22.10.75 and letter dated 19.10.75 ordering recovery of Rs. 58,000.00 from the plaintiff is illegal and ineffective?Opp. 5. Whether the order dated 22.10.1975 for recovery of Rs. 6766.79 is illegal and ineffective qua the plaintiff? OPP. 6. Whether the suit is within time? OPP 7. Whether the plaintiff has retired from service, if so, when and its effect qua the present suit? OPP 8. Whether the suit is bad for misjoinder of causes or action?OPP. 9. Whether the suit has been properly valued for the purposes of court-fee and jurisdiction? OPP. 10. Relief. .
(2.) After trial, the trial Court partly decreed that suit to the extent only that orders sending him on forced leave were illegal and the plaintiff will be considered for promotion on 23.8.1971 and 2.4.1973 when Mr. R.S. Grewal was considered for promotion. The defendant-appellant filed an appeal before the lower appellate Court. The plaintiff-respondent also filed cross-objections. Both appeals and cross-objections were decided by one judgment of the lower appellate Court, dismissing the appeal as well as the cross-objections, leaving the parties to bear their own costs. The defendant-appellant has challenged the decree of the trial Court as well as dismissal of its appeal by the lower appellate Court. The plaintiff-respondent has not filed any cross-appeal or cross-objections to challenge the decree vide which part of the relief relating to show cause notice for the recovery of the amount from him, was not granted.
(3.) In support of the appeal, the learned counsel for the appellant has only relied upon clause (iv) of Ex. DA relating to its part A-preparation material at site accounts which are in arrears upto 31.3.1964. This clause reads as under:- "if the Line Superintendent fails to complete the accounts within this period of 10 days he may not be allowed halting allowance for the period in excess of ten days and he may be forced to proceed on such leave as may be admissible to him under the rules for the period determined under item (i) above." The main stress is on the words 'may be forced to proceed on such leave as may be admissible to him under the rules', in the said clause (iv) and the counsel argues that even if forced leave is without pay, it will be deemed to be admissible under the rules and, therefore, the plaintiff-respondent No. 1 could be forced to proceed on leave without pay. This argument does not stand to reason. Leave admissible will mean leave with pay and not without pay. However, the employee concerned, if he so desires, can be granted leave without pay. On this ground, this argument is not acceptable.;