R. S. SODHI, J. ( 1 ) THE petitioner, by this petition under Article 226 of the Constitution of India,seeks to challenge the judgment and order of the Central Administrative Tribunal (Principal Bench), Delhi, (for short the Tribunal ) dated 22/01/1999 in O. A. No. 901 of 1995, whereby the Tribunal has allowed the Original Application andquashed the order dated 29/04/1993, passed by the Deputy Commissioner ofpolice, 9t Bri. DAV, New Delhi, and directed reinstatement of respondent No. 1 inservice. However, the Tribunal did not deem it fit to grant backwages for the periodthe petitioner was out of job, but directed that this period should not be treated asbreak in service for other purposes. ( 2 ) THE facts of the case are that respondent No. 1 was working as Constable indelhi Police prior to his dismissal from service by order dated 29/04/1993,passed by the Deputy Commissioner of Police, 9th Bn. DAV, New Delhi. The chargeagainst respondent No. 1 was that he absented himself unauthorisedly on severaloccasions and was a habitual absentee. Since respondent No. . . 1 pleaded guilty tothe charge, no witnesses were examined, the Enquiry Officer held respondent No. 1guilty of the charge framed against him. The disciplinary authority, in its order dated 29/04/1993, while dismissing respondent No. 1, was pleaded to treat the periodof absence as leave without pay. Aggrieved of the order of dismissal, respondentno. 1 challenged the same before the Tribunal by way of Original Application No. 901of 1995. It was the case of respondent No. 1 before the Tribunal that the disciplinaryauthority, while passing the order of dismissal, had regularised the period of absenceby treating the period as "leave without pay", therefore, had nullified its earlier ordersof dismissal. ( 3 ) THE petitioner s contention before the Tribunal was that the disciplinary authorityintended to regularise the period of absence only by way of maintaining correctrecord of service. ( 4 ) THE Tribunal relying upon its earlier judgment dated 13/01/1999 passedin Ex. Head Constable Ram Pyara Singh Vs. Union of India and Others, (O. A. No. 2223/95) which in turn followed the judgment of the High Court of Punjab andharyana in Satya Pal Yadav s case and a decision of a two Judge Bench of thesupreme Court in State of Punjab and Others Vs. Head Constable Ram Pyara Singh Vs. Union of India and Others, (O. A. No. 2223/95) which in turn followed the judgment of the High Court of Punjab andharyana in Satya Pal Yadav s case and a decision of a two Judge Bench of thesupreme Court in State of Punjab and Others Vs. Bakshish Singh, JT 1998 (7) SC142, came to a finding that the absence without leave having been regularised asleave without pay would automatically set at naught the order of dismissal, therefore,by its order dated 22/01/1999 set aside the order of dismissal dated 2 9/04/1993 passed by the Deputy Commissioner of Police. ( 5 ) AGGRIEVED of the order of the Tribunal, the petitioner submitted. that the case iscovered by the judgment of the Supreme Court in State of M. P. Vs. Harihar Gopal,1969 SLR 274. ( 6 ) THE Supreme Court in that case, in no uncertain terms, held that :- "the order granting leave was made after the order terminating employmentand if was only for the purpose of maintaining of correctness record of theduration of service and adjustments of leave due to the respondent and forregularising his absence from duty. Our attention has not been invited to anyrules governing the respondent s service conditions under which an orderregularising the absence from duty subsequent to termination of employmenthas the effect of invalidating the termination. " ( 6 ) THE court further held: "we are unable to hold that the authority after terminating the employment ofthe respondent intended to pass an order invalidating the earlier order bysanctioning leave so that the respondent was to be deemed not to haveremained from duty without leave duly granted. " ( 8 ) THIS Judgment is by three Hon ble Judges of the Supreme Court in contract tothe decision of two judge bench of the Supreme Court in Bakshish Singh s case (supra) and, therefore, learned counsel for the petitioner submitted that it ought to befollowed. As against this, learned counsel for respondent No. 1 submitted that thetribunal was right in relying upon the judgment of the Supreme Court in State ofpunjab and Ors. Vs. Bakshish Singh (supra) as it overruled its earlier judgment inharihar Gopal s case. We have noted the submissions of the learned counsel andhave carefully gone through the precedents cited. As against this, learned counsel for respondent No. 1 submitted that thetribunal was right in relying upon the judgment of the Supreme Court in State ofpunjab and Ors. Vs. Bakshish Singh (supra) as it overruled its earlier judgment inharihar Gopal s case. We have noted the submissions of the learned counsel andhave carefully gone through the precedents cited. ( 9 ) BAKSHISH Singh s case arose from a suit filed before the Sub-Judge, Jalandhar;for a declaration to the effect that the order dated 11/01/1990 passed by theinspector General of Police, PAP, Jalandhar Cantt. , by virtue of which his revisionpetition was rejected and the order dated 6/01/1989 passed by the DIG PAP (Admn.) Jalandhar Cantt. and the order dated 1. 6. 1988 passed by the Commandant,80th Bn. PAP, Jalandhar Cantt. dismissing him from service were confirmed, wereillegal. ( 10 ) THE suit was decreed and, in appeal, the Additional District Judge, Jalandhar,by his order dated 15/01/1996 took note of the various judgments as also thejudgment of the Supreme Court in Harihar Gopal s case (supra ). The decision of thesupreme Court in Harihar Gopal s case was distinguished on the ground that theorder regularising leave without pay was made after terminating the employment andthat it was made only for the purpose of maintaining correct record of duration ofservice. ( 11 ) IT needs to be highlighted that the order granting leave was made subsequentlyafter the order terminating the employment. Both the orders were passed separatelyand were not rolled into one. In other words it was not a case of a composite order. Inbakshish Singh s case, however, the District Judge while concurring with the viewof the trial court found on the facts of that case that the absence of the official wasregularised by the administrative authority and the charge of absence from duty didnot survive. In spite of having arrived at the conclusion that the charge of absencefrom duty did not survive, the District Judge proceeded to consider the questionwhether or not absence of the official from duty was a misconduct of gravest kind soas to warrant the maximum penalty of dismissal from service or was it a baremisconduct for which lesser punishment would be appropriate. The District Judgehaving found that it was not a case of misconduct of gravest kind remanded the caseto the punishing authority for passing a fresh order of punishment. The District Judgehaving found that it was not a case of misconduct of gravest kind remanded the caseto the punishing authority for passing a fresh order of punishment. Aggrieved by theorder of the first appellate court, the State of Punjab moved the High Court by way ofregular Second Appeal No. 1555 of 1996. The High Court, by its judgment and orderdated 21/08/1996, dismissed the Regular Second Appeal of the State ofpunjab without a speaking order. This led the State of Punjab to file an S. L. P. beforethe Supreme Court which came to be disposed of by the Supreme Court as Appealno. 4212 of 1997. The Supreme Court, taking note of the findings of the fact arrivedat by the trial court and the lower appellate court, namely, that the charge of absencefrom duty did not survive, on to hold that the lower appellate court was not right inreminding the matter to the punishing authority. The Supreme Court also noted thatthe trial court had returned a finding of fact that proper opportunity of hearing was notgiven to him and his signatures were obtained under duress during the departmentalproceedings which findings were neither adverted to nor disputed by the first appellatecourt. It appears to us that in view of the aforesaid findings of fact the Supreme Courtheld that there was no occasion to remand the matter to the punishing authority forpassing a fresh order of punishment. In this regard the Supreme Court observed asfollows :- "it will thus be seen that the trial court as also the lower appellate court bothhad recorded the findings that the period of absence from duty having beenregularised and converted into leave without pay; the charge of absencefrom duty did not survive. Once it was found as a fact (emphasis supplied)that the charge of unauthorised absence from duty did not survive. We fail toappreciate how the lower appellate court could remand the matter back to thepunishing authority for passing a fresh order of punishment. In the face ofthese findings especially the finding of the trial court that proper opportunityof hearing was not given and the signatures of the respondent were obtainedunder duress during the departmental proceedings which have not been setaside by the lower appellate court, we are of the view that there was nooccasion to remand the case back to the punishing authority merely forpassing a fresh order of punishment. " ( 12 ) THEREFORE, it is clear that in Bakshish Singh s case (supra) the Supreme Courtwas dealing with the question whether it was open to the first appellate court to remitthe matter to the punishing authority in view of findings of fact arrived at by the trialcourt and not disturbed by the appellate court. The Supreme Court was not dealingwith a proposition of law already settled by Harihar Gopal s case and it was not overruled the same. To say the least the Supreme Court could not in Bakshish Singh scase be understood to have done so without adverting to its earlier decision inharihar Gopal s case. On the arguments raised by the State of Punjab before thesupreme Court in Bakshish Singh s case that the respondent had not filed anygross appeal and, therefore, the order of remand passed by the lower appellate courtfor a fresh order of remand passed by the lower appellate court for a fresh order ofpunishment need not be interfered with, particularly, as that order had been upheld bythe High Court which has summarily dismissed the second appeal filed by the Stateof Punjab and if, therefore, the Supreme Court intervenes in the matter, even inexercise of its power under Article 142 of the Constitution of India, the same would bewithout jurisdiction, it held as follows :- "applying the above principles to the instant case, it will be noticed that thetrial court recorded a categorical finding of fact that a proper opportunity ofhearing was not afforded to the respondent in the departmental was notafforded to the respondent in the departmental proceedings and that hissignatures on certain papers during those proceedings were obtained underduress, was not controverted as the State of Punjab had led no evidence indefence. The trial court also recorded a finding that unauthorised absencefrom duty without leave having been regularised by treating the period ofabsence as "leave without pay", the charge of misconduct did not survive. Itwas with this finding that the suit was decreed. The tower appellate courtaffirmed the finding that since the period of unauthorised absence from dutywithout leave was regularised the charge did not survive, but it did not say aword about the finding relating to the opportunity of hearing in the departmentalproceedings. Since those findings were not specifically set aside and thelower appellate court was silent about them, the same shall be treated ashaving been affirmed. Since those findings were not specifically set aside and thelower appellate court was silent about them, the same shall be treated ashaving been affirmed. In the face of these findings, it was not open to thelower appellate court to remand the case to the punishing authority forpassing a fresh order of punishment. The High Court, before which thesecond appeal was filed by the State of Punjab, did not advert itself to thisinconsistency as it dismissed the appeal summarily, which indirectly reflectsthat it allowed an inconsistent judgment to pass through its scrutiny. It is inthese circumstances that we, in exercise of our power of doing completejustice between the parties. Finally decide the appeal and the whole case byproviding as follows. . . . . . " ( 13 ) THE court finally passed the following directions :- " (A) the appeal is allowed: (b) the judgment dated 15/01/1996passed by the lower appellate court, in so far it purports to remand the caseto the punishing authority as also the judgment of the High Court dated21. 8. 1996 are set aside; (c) the judgment and decree passed by the trialcourt is upheld. " ( 14 ) FROM the operative part of the judgment it appears that the appeat of the Statewas allowed even though the reasoning is otherwise. Further, the earlier judgment ofthe Supreme Court in Harihar Gopal s case was not placed before the Court norwas its attention drawn to the question of taw decided by it, namely, that merely byregularising the absence from duty subsequent to termination of employment did nothave the effect of invalidating termination. Moreover, the case of Bakshish Singh hasbeen decided on its own fact situation. The Judgment of the Supreme Court laysemphasis on the findings arrived at by the trial court with which the suit was decreed,namely, that proper opportunity hearing was not afforded to the respondent in thedepartmental proceedings, that his signatures on certain papers during thoseproceedings were obtained under duress and that the charge of absence from dutydid not survive were not set aside by the first appellate court. In view of the findings offact arrived at by the courts below, the Supreme Court held that the first appellatecourt could not have remanded the case to the punishing authority for passing of afresh order on punishment. In view of the findings offact arrived at by the courts below, the Supreme Court held that the first appellatecourt could not have remanded the case to the punishing authority for passing of afresh order on punishment. We do not find anything in the judgment of Bakshishsingh s case (supra), which expressly or by implication overrules the judgment in. Harihar Gopal s case. To our mind, Harihar Gopal s case (supra) still holds thefields. The distinction Sough to be drawn to the effect that the order regularising theabsence from duty as "leave without pay" is not a separate order, as was in the caseof Harihar Gopal, cannot be accepted. It does not stand to reason that the Supremecourt in Harihar Gopal s case has upheld the termination order only because theorder of regularising leave was passed subsequently. A reading of the judgmentdoes not give such an impression. The dicta laid down by the Supreme Court isunambiguous and still holds the fields, namely, that it is open to the punishingauthority to direct the record keeper to complete the service record by treating theperiod of absence as one without pay. ( 15 ) THE Supreme Court in Harihar Gopal s case cannot be said to have laid downthe law to the effect that the dismissal order is protected only because it has beenmade on a different sheet of paper, although by the same authority and on the samedate. ( 16 ) THE judgment of the Supreme Court in Bakshish Singh s case in any case isper incuriam and does not over rule nor differentiate the judgment in Harihar Gopal scase. In this view of the matter, we are of the opinion that the order of terminationdoes not suffer from any illegality and that the regularisation of leave without pay isonly for purposes of maintaining correct record of service which does not interferewith nor obliterate the order of dismissal from service. ( 17 ) THE order of the Tribunal dated 22/01/1999 in O. A. No. 901 of 1995 isset aside. The writ petition is allowed and the Rule made absolute. No order as tocosts.