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2010 DIGILAW 1812 (PNJ)

Punjab State v. Malwinder Singh

2010-05-27

RANJIT SINGH

body2010
Judgment Ranjit Singh, J. 1. The State has filed this Regular Second Appeal to challenge the order passed by the Additional District Judge, Jalandhar. 2. Respondent-plaintiff, who was serving as a Constable in the police, had filed a suit to challenge the order of his dismissal on the ground that he had remained absent. The facts would show that the respondent-plaintiff had proceeded on two days leave due to some domestic problem. Though he would claim that he had reported back for duty on 29.3.1986 and he was placed under suspension but as per the appellants, he had remained absent from 27.3.1986 to 16.7.1986. Though the departmental enquiry was ordered to investigate the charge of absence and after finding him guilty, he was dismissed from service on 26.3.1987, the period of his absence was treated as leave without pay and he was allowed nothing more than the subsistence allowance. The order regularising the leave primarily lead to grant of relief by the Court for the respondent-plaintiff. Though the Appellate Court held against the respondent- plaintiff on all other counts but the Court came to take a view that the period of his absence was converted into leave without pay and, therefore, the charge of absence would disappear. In this regard, reliance was placed on the case of State of Punjab v. Chanan Singh, 1988 (2) CLJ 21, where it was held that when the period of absence was regularised as leave without pay, then the absence period would stand regularised and as such, the charge of absence would no more subsist. The first Appellate Court accordingly held that the impugned order was not sustainable. 3. This view of the first Appellate Court can not be accepted now. This very precise question came up for consideration before this Court in Regular Second Appeal No.209 of 1993, The State of Punjab and another v. Ex. Constable Narinder Singh, decided on 21.5.2010. The issue arising in this case was referred to a Division Bench and the ratio of law as laid down in Chanan Singhs case (supra) was over-ruled in view of the law laid down in State of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274. It was held in this case that order granting leave was only for the purpose of maintaining correct record of service and does not amount to condonation of the misconduct. It was held in this case that order granting leave was only for the purpose of maintaining correct record of service and does not amount to condonation of the misconduct. The issue was decided by the Division Bench on a reference made by Single Judge of this Court, who had expressed his reservation about the view expressed by this Court in Chanan Singhs case (supra) in the following manner: - "I have reservations about the view expressed by this Court in Chanan Singhs case. A person who has served the department for 30 years may remain absent without justifiable cause for some time. He would be guilty of the misconduct of absence from duty. The disciplinary authority may not dismiss him from service. It may impose a lesser penalty-say a stoppage of increment/s. Thereafter, it may also order that the period of absence shall be treated as leave of the kind due or leave without pay. Would this result in annulment of the order of punishment? I think not. It would only entitle the employee to claim continuity of service for the purpose of computation of retiral benefits. He would not be deemed to have joined the service afresh after his absence from duty. This would, however, not be a condonation of the misconduct of absence." The Division Bench, thus, came to take a view that if an employees services have been terminated on account of misconduct, i.e., willful absence from duty and the period of absence is regularised either under the same order or any subsequent order that would not have the effect of setting aside of the order terminating the services. While taking this view, a heavy reliance is placed on Harihar Gopals case (supra), where the Honble Supreme Court had observed that the order granting leave without pay was only for the purpose of maintaining a correct record of the duration of service and would not amount to condonation of misconduct. 4 Accordingly, the judgment under appeal can not be sustained. A substantial question of law, whether the order regularising the leave would nullify the misconduct would arise in this case and the same having been settled by the Division Bench judgment of this Court, is required to be decided accordingly. The judgment under appeal is, therefore, unsustainable. 5. The Regular Second Appeal is accordingly allowed. The judgment under appeal is set-aside.