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2007 DIGILAW 1151 (PNJ)

Surinder Singh v. State Of Punjab

2007-05-16

H.S.BHALLA

body2007
Judgment H.S.Bhalla, J. 1. 24th September 1984 was declared as a black day for Surinder Singh, who was working as a Constable with the Punjab Police (hereinafter referred to as "the appellant") when he was dismissed from service by the Superintendent of Police, Gurdaspur. He could not succeed even before the Department Appellate Authorities and his appeal and revisions were also dismissed. In order to revive his bread, he challenged the order of his dismissal passed by Superintendent of Police, Gurdaspur through a suit for declaration to the effect that the orders in question are illegal and against the rules. He was non-suited by the lower Court and his suit was dismissed vide judgment and decree dated 14.11.1987. Thereafter, he preferred an appeal, which was also dismissed by the learned Additional District Judge, Amritsar vide its judgment and decree dated 8.8.1988. Aggrieved against the judgment and decree passed by the lower appellate Court, he knocked the door of this court through the present appeal in hand. 2. Adumbrated, in brief, the facts necessary for the disposal of this appeal are that the appellant was posted as a Constable in Gurdaspur district in Police Lines. He went to Amritsar after availing leave for two days and was to report back for duty on 11.8.1981, but he was arrested by the Railway Police at Amritsar on 9.8.1981 on the basis of a complaint, as a result of which, he remained in police custody from 9.8.1981 to 15.8.1981 and in judicial custody till 15.9.1981 on account of which, he could not resume duty even thereafter as he fell ill. He has categorically pleaded that inquiry against him was not in accordance with the relevant procedure in respect of which the order of dismissal from service was liable to be set aside. 3. On the other hand, the suit of the plaintiff-appellant was contested by the State of Punjab by filing written statement raising objections of jurisdiction and notice and it was pointed out that the inquiry was conducted in accordance with rules and therefore, the order of dismissal and the findings of the inquiry passed by the Inquiry authority and appellate authorities respectively are legal and valid. 4. The learned lower Court, after framing necessary issues and assessment of the evidence on record, dismissed the suit as mentioned above. 5. 4. The learned lower Court, after framing necessary issues and assessment of the evidence on record, dismissed the suit as mentioned above. 5. I have heard the learned Counsel for the parties and have also gone through the record of the case minutely. 6. It is admitted case of the parties that the allegations against the appellant, on the basis of which he was charge sheeted and after conducting inquiry dismissed from service, was that, he remained absent from duty for two years and it is further admitted case of the parties that at the time of passing of the dismissal order, this absence period was treated as leave without pay. Meaning thereby that, his period of absence of two years is sanctioned as leave without pay at the time of passing of the impugned order on 24.9.1984. I see no difference in granting leave without pay and treating the period of absence as leave without pay. The distinction, which is sought to be drawn by the learned Additional Advocate General, is not possible. Upon granting of leave without pay, there can be no break in service, inasmuch as the period of absence is treated a period on leave. Therefore, the granting of leave, of whatever nature it may be, tantamounts to considering the absence as justified or at any rate to condonation and regularisation of the absence. I am of this opinion that after such regularisation and condonation, no disciplinary action lies. When once leave is granted in respect of particular period, it must be considered that he was permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other party to proceed against public servant for absenting from duty for the same period and to punish him. The authorities should have refused to grant leave of any kind due to the appellant and then proceed to punish him after due and proper inquiry and after affording reasonable opportunity to him. Once leave has been granted, it cannot be said that appellant had absented himself from duty and thereby made himself liable to be punished. 7. The authorities should have refused to grant leave of any kind due to the appellant and then proceed to punish him after due and proper inquiry and after affording reasonable opportunity to him. Once leave has been granted, it cannot be said that appellant had absented himself from duty and thereby made himself liable to be punished. 7. Now reverting back to the facts of the case in hand, it is conceded by the learned Counsel appearing for the State of Punjab that the appellant, who was charge sheeted on account of willful absence for two years, was dismissed from service in spite of the fact that the said period of absence is sanctioned as leave without pay on account of which, impugned order was passed by the Superintendent of Police, Gurdaspur. The observations made by the Punishing Authority in the order of dismissal itself, sanctioning period of absence as leave without pay certainly amounts to regularising absence and charge of absence no more survives. Faced with this situation, the learned Additional Advocate General appearing for the State of Punjab argues that this Court cannot sit over the judgment of the inquiry authority nor they can substitute the punishment. It is further argued by the counsel for the State that the duty of a police constable infers a lot of responsibility and it is a duty to be performed in a disciplined force and absence from duty cannot be less than gravest act of misconduct. This argument of the learned Counsel cannot be brushed aside. However, it is found that in this case, the absence period has been treated as leave without pay. The relevant part of the order as translated shall read: Keeping in view the period of government service of about 8 years rendered by Constable Surinder Singh No. 1444, I did not want to dismiss him from the police force but the charges against him are so serious that no other punishment except to dismiss him from service can meet the ends of justice. Since Constable Surinder Singh No. 1444 is incorrigible type and is unnecessarily occupying the post of a Constable, I dismiss him from service. The period of absence of this Constable from 11.8.1981 to 10.8.1984, total two years is being treated as without pay. 8. Since Constable Surinder Singh No. 1444 is incorrigible type and is unnecessarily occupying the post of a Constable, I dismiss him from service. The period of absence of this Constable from 11.8.1981 to 10.8.1984, total two years is being treated as without pay. 8. Learned Counsel further submitted that the said order treating the period of leave without pay cannot be said to be condoning the absence. In support of his contention, he also referred to State of Punjab V/s. Hari Har Gopal 1969 S.L.R. 274 S.C. and vehemently argued that the suit has been rightly dismissed and sanctioning of absence period as leave without pay was only for the purpose of maintaining correct record and it does not amount to regularising period of absence and charge of absence survives. I have gone through the law quoted above but the same is not applicable to the facts of the case in hand and for this purpose I refer to the relevant portion of the above quoted ruling in the form that "Order granting leave was made after passing of the termination order or in other words, subsequent order was passed by virtue of which leave was sanctioned and that is why it was laid down by the Honble Apex Court that the same was passed only for the purpose of maintaining correct record and duration of service and adjustment of leave due to the delinquent official, but in the instant case absence period has been treated as leave without pay in the order of dismissal itself. In the impugned order by virtue of which services of Surinder Singh plaintiff-appellant were terminated, it is clearly mentioned that his absence period from service is being treated as extra-ordinary leave, therefore, it is ipso facto clear that punishment authority at the time of passing of dismissal order also sanctioned absence period of the appellant and therefore, in such like circumstances charge of absence no more survives. Ratio of the judgment of Hari Har case (supra) is also not applicable to the facts of the case because the matter was remanded back by the Honble Apex Court to the High Court as is clear from the last para of their judgment with the direction to dispose it of according to law. Ratio of the judgment of Hari Har case (supra) is also not applicable to the facts of the case because the matter was remanded back by the Honble Apex Court to the High Court as is clear from the last para of their judgment with the direction to dispose it of according to law. Therefore, in view of all this, no reliance can be placed in Hari Hars case (supra) wherein punishing authority passed separate order later on after passing of termination order by virtue of which absence period was treated as leave of kind due. 9. Now reverting back to the facts of the case in hand, it is conceded by the learned Additional Advocate General, Punjab that appellant was charge sheeted on the ground that he was absent from duty leave and he further conceded that this period was treated as extraordinary leave (leave without pay) and the punishing authority by virtue of impugned order dismissed the appellant from service and by the same order, period of absence was treated as extraordinary leave. Therefore, I am of this opinion that such observation in the impugned order amounts to regularising absence and the only charge against the appellant being that he was absent from duty without leave, can not survive. Once period of absence is treated as extraordinary leave, whatsoever, the fact that delinquent official remained absent no more survives. This reasoning of mine is supported by the law laid down in State of Punjab and Ors. v. Bakshish Singh. In that case, there was a finding of the Additional District Judge as below: In view of the above brief discussion, I am of the considered opinion that once period of absence is treated as leave of the kind whatsoever, the fact that the delinquent remained absent from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be. Thus the findings of the learned lower court upon this matter are hereby confirmed. In that case, the lower appellate Court having affirmed the findings of the trial Court that the charge of absence from duty did not survive, proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of dismissal from service or it was a mere misconduct for which lesser punishment would be appropriate. It was further held therein that having found that it was not a case of misconduct of the gravest kind, the lower appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant in that case filed a second appeal which was dismissed summarily. In that case, the Supreme Court did not approve the later part of the order and passed the following order in the concluding part of the judgment: (a) The appeal is allowed. (b) The judgment dated 15.1.1996 passed by the lower appellate Court in so far as it purports to remand the case to the punishing authority as also the judgment of the High Court dated 21.8.1996 are set aside. (c) The judgment and decree passed by the trial Court is upheld. It can be seen that before the Supreme Court also it was State Appeal and in that case the finding that the delinquent remained absent on duty could not be sustained after the person has been treated on leave of whatever kind it may be, was not disturbed. 10 In view of the above quoted law, charge of absence from duty cannot be sustained after a person has been treated on leave of whatever kind it may be, as admittedly in the case in hand. In the case in hand, absence was treated as leave without pay and it amounted as if there was no break in service. Therefore, law laid down in Bakshish Singhs (supra) will apply to the facts of the present case and consequently, the order of dismissal could not be sustained. In such like circumstances, the findings recorded by both the courts below are liable to be set aside. 11. The contention of the learned Additional Advocate General appearing for the State of Punjab that appellant is not entitled to seniority and back wages is liable to be noticed only for the sake of rejection. Since the appellant remained out of service on account of the passing of an illegal order against him and once his absence period had already been condoned and charge of absence no more survives, he should have been taken on duty, but it is unfortunate that the government took up such a plea to defeat just claim of a citizen, particularly when his absence period was condoned. 12. 12. For the reasons recorded above appeal filed by the appellant is accepted. Impugned order dated 24.9.1984 passed by the Superintendent of Police, Gurdaspur, whereby the appellant was dismissed from service, is declared as illegal and inoperative as if no order of dismissal was passed against him. Judgments and decrees passed by the Courts below are also set aside. The suit of the appellant is decreed and he shall be reinstated with continuity of service along with all past benefits. However, it is made clear that the appellant will be entitled to back wages from the date of issuance of notice under Section 80 of the Code of Civil Procedure, i.e. 7.10.1985 till he is reinstated. It is further made clear that the appellant shall not be entitled to any wages prior to the date of issuance of notice. The arrears of the amount, so calculated by the respondent-department, shall be paid by it within a period of six months positively.