JUDGMENT : MAHENDAR KUMAR GOYAL, J. 1. This writ petition is directed against the order dated 10.12.1997 passed by the respondent No.3-Deputy Inspector General of Police, Bharatpur Range, Bharatpur (for short, “the appellate authority”) whereby, while dismissing the appeal preferred by the petitioner, the order dated 14.02.1997 passed by the respondent No.4-Superintendent of Police, District Bharatpur (for short “the disciplinary authority”) imposing the penalty of ‘termination from service’, upon the petitioner in an enquiry conducted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short “the Rules of 1958”), has been affirmed. 2. The relevant facts in brief are that vide memorandum dated03.06.1995, the petitioner was served upon with a charge sheet under Rule 16 wherein, following two charges were levelled against him: **vkjksi la[;k izFke fnukad 31-1-94 dks le; 8&30 ih,e ij jkydky yh x;h rks vki [kqn xSj gkftj ik;s x;s] ftl ij vkidh xSj gktjh jiV uEcj 2249 fnukad 31-1-94 iqfyl ykbu Hkjriqj esa Mkyh x;hA vki fnukad 30-8-84 dks 6 ekg pkj fnu vFkkZr 148 fnu ckn mifLFkr gq;sA bl rjg vki xSj gkftj gksus ds vknh gSA vkjksi la[;k f}rh; vki vius vc rd ds lsokdky esa fnukad 28-1-86 ds 13-11-91 rd 35 ckj LosPNk ls vuqifLFkr ik;s tkus ij fofHkUu n.Mksa ls nf.Mr fd;k x;k Fkk exj vkius vki esa dksbZ lq/kkj ugha fd;kA vki xSj gkftj gksus ds vknh gSA vkidk mDr dk;Z ?kksj ykijokgh deZ.;rk] mnklhurk ,oa LosPNk ls xSj gkftj gksus dk ?kksrd gSA** 3. After conducting inquiry, the petitioner was punished by the disciplinary authority vide order dated 14.02.1997 in the manner stated herinabove and the appeal preferred by him thereagainst was also dismissed by the appellate authority vide order dated 10.12.1997. 4. Assailing the order impugned, learned counsel for the petitioner made two fold submissions. Inviting attention of this Court towards the findings recorded by the disciplinary authority, he would submit that on the one hand, the period of absence was regularized by sanctioning leave without pay, on the other hand, a punishment has been inflicted on account of willful absence which is not permissible in view of law laid down in the judgment of a Coordinate Bench of this Court dated 19.09.2001 passed in the case of Rajendra Singh Vs. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 3191/1992 . State of Rajasthan and Ors., S.B. Civil Writ Petition No. 3191/1992 . His another limb of submission is that in view of his length of service and the period of absence, the penalty of ‘termination from service’ is highly disproportionate and it should be converted into the penalty of compulsory retirement with proportionate pension. He, in support of his submissions, relies upon a judgment of the Hon’ble Supreme Court of India in the case of State of Punjab Vs. Dharam Singh, 1996 (6) SLR 361 and a judgment of this Court dated 18.09.2024 passed in the case of Rajendra Kumar Vs. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 2100/2002 . He, therefore, prays that the writ petition be allowed, the order impugned dated 10.12.1997 be quashed and set aside, he may be exonerated of both the charges, or, in alternative, the penalty imposed be altered to the penalty of compulsory retirement with proportionate pension. 5. Per contra, learned counsel for the respondents, supporting the findings recorded by the appellate authority as also the disciplinary authority, submitted that even regularization of the absence period during pendency of the departmental enquiry would not come to rescue of the petitioner as it does not wash away the misconduct already incurred. He, in support of his submissions, relies upon a Coordinate Bench judgment of this Court in the case of Dana Ram Parmar Vs. State of Rajasthan and Anr., 2004 WLC (Raj.) UC 659 . He, therefore, prays for dismissal of the writ petition. 6. Heard. Considered. 7. As already observed, the charge No.1 against the petitioner was that he remained willfully absent from 31.01.1994 till he joined duty on 30.08.1994, i.e., for a period of 184 days and the charge No.2 was that he remained willfully absent on as many as 35 occasions from 28.01.1986 till 13.11.1991 and in view of the evidence on record, both the charges were found to be proved against him. These findings are not subject-matter of challenge before this Court and have thus, attained finality. 8. These findings are not subject-matter of challenge before this Court and have thus, attained finality. 8. So far as first contention of the petitioner based on the judgment of a Coordinate Bench of this Court in the case of Rajendra Singh (supra) is concerned, it does not merit acceptance for the reasons stated hereinunder; although, in that case, relying upon a judgment of the Hon’ble Supreme Court of India in the case of State of Punjab and Ors. vs. Bakshish Singh, 1998 (8) SCC 222 , it was held that once the period of absence from duty was treated as leave without pay, the misconduct stands washed away and the disciplinary proceeding would not survive. 9. In the case of Bakshish Singh (supra), the respondent-Bakshish Singh, a Police Constable, was dismissed from service on the charge of unauthorised absence from duty. However, the civil suit filed by him was decreed by the learned trial Court and the order of dismissal was set aside as it was found that the defendants have themselves regularized and treated the period of absence from duty as the period on leave without pay and also on the premise that the respondent was not given an opportunity of personal hearing and his signatures were obtained under duress in the departmental proceedings. In appeal, the learned Appellate Court, after affirming the findings of the learned trial Court, remanded the matter to the punishing authority for passing a fresh order of punishment on the question as to whether absence from duty was misconduct of gravest kind so as to warrant maximum penalty of dismissal from service or it was a mere misconduct for which lesser punishment would be appropriate. The second appeal preferred by the State of Punjab was dismissed by the High Court summarily. The second appeal preferred by the State of Punjab was dismissed by the High Court summarily. In the appeal before it, the Hon’ble Supreme Court of India held that once a finding of fact recorded by the trial Court that proper opportunity of hearing was not afforded to the respondent in the departmental proceedings and his allegation that signatures on certain papers during the proceedings were obtained under duress, remained uncontroverted and in view of the finding that unauthorized absence from duty has been regularized by treating the period of absence as leave without pay, the charge of misconduct did not survive and the first appellate court having affirmed the findings, it was not open for it to have remanded the matter back to the punishing authority for passing an order afresh on punishment. Even a holistic reading of the judgment does not reveal any affirmation of the finding recorded by the learned trial Court to the effect that once the period of absence was regularized by sanction of leave without pay, no misconduct survived; rather, it is reflected that the matter was examined confined to the extent of validity of the remand order by the first Appellate Court to the punishing authority even after confirming the findings of the learned trial Court. Therefore, this Court is not satisfied that the judgment in the case of Bakshish Singh (supra) lays down any such ‘ratio decidendi’ that regularisation of the absence period by grant of leave of any nature washes away the misconduct incurred on account of wilful absence. Moreover, a Larger Bench of the Hon’ble Supreme Court of India has, in the case of State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR (S.C.) 274 , held as under: “7. It was urged before the High Court on behalf of the State that the order granting leave was only for the purpose of regularising the absence from duty and for maintaining a true account of absence from duty, and had not the effect of first sanctioning leave to the respondent to which he was entitled, and then removing him from service for absence from duty. The High Court rejected this contention observing. "......... When the leave was granted even though belatedly, it had the effect of authorising with retrospective effect the petitioner's (respondent's) absence from duty during the period for which it was sanction. The High Court rejected this contention observing. "......... When the leave was granted even though belatedly, it had the effect of authorising with retrospective effect the petitioner's (respondent's) absence from duty during the period for which it was sanction. Having thus authorised the petitioner's (respondent's) absence from duty, it was not open to the State Government to proceed on the basic that his absence was unauthorised." 10. These observations proceed upon a misconception of the sequence of the orders passed by the State Government and the true effect of the order granting leave. The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularising his absence from duty. Our attention has not been invited to any rules governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment has the effect of invalidating termination. Both the orders, one terminating the employment of the respondent, and the other granting leave are made “by order and in the name of the Governor of Madhya Pradesh", and they are signed by L.B. Sarje, Deputy Secretary to the Government of Madhya Pradesh, General Administration Department. We are unable to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning leave so that the respondent was to be deemed nor to have remained absent from duty without leave duly granted. 11. There is another aspect of the case which also does not appear to have been considered by the High Court. The charge against the respondent was that he had absented himself "without obtaining leave in advance". The Enquiry Officer characterized the conduct of the respondent as "irresponsible in extreme and can hardly be justified". The Enquiry Officer clearly intended that in failing to report for duty and remaining absent without obtaining leave, the respondent had acted in manner irresponsible and unjustified. On the finding of the Enquiry Officer that charge was proved and the order, dated March 9, 1962, had no effect on the charge that the respondent had remained absent without obtaining leave in advance. 12. On the finding of the Enquiry Officer that charge was proved and the order, dated March 9, 1962, had no effect on the charge that the respondent had remained absent without obtaining leave in advance. 12. Thus, it is apparent that their Lordships have held in the aforesaid case unequivocally that if, while terminating the services of the delinquent employee on the charge of willful absence from duty without leave, even if the period of absence is regularized by grant of leave, if it is not before initiation of the departmental enquiry, it does not tantamount to washing away the misconduct and if the charge is proved from the evidence on record, the order of termination from service is valid. In the instant case as well, the disciplinary authority has sanctioned the leave without pay for the absence period after terminating the petitioner’s services on finding the charges to be proved against him. Therefore, the dictum of the Hon’ble Supreme Court of India laid down in the case of Harihar Gopal (supra) applies squarely to the facts of the case. Since, as already observed, in the case of Bakshish Singh (supra), their Lordships have not held that regularization of the absence period by grant of leave without pay at the time of termination of service of the delinquent on the charge of willful absence tantamounts to nullifying the misconduct, this Court, very humbly, finds the judgment of the Coordinate Bench in the case of Rajendra Singh (supra) to be per incuriam. Even otherwise, since, in the case of Bakshish Singh (supra) delivered by a two- Judges Bench of the Hon’ble Supreme Court of India, the previous Larger Bench judgment of the same Court in the case of Harihar Gopal (supra) was not taken into consideration, it can very safely be held that the judgment of the co-ordinate Bench of this Court in the case of Rajendra Singh (supra) based on the judgment in the case of Bakshish Singh (supra) does not lay down a binding precedent on this aspect which, otherwise also, is not found to be laid down in the case of Bakshish Singh (supra). 13. 13. There is one more reason to hold the judgment in the case of Rajendra Singh (supra) to be per incuriam as it does not take into consideration the Rule 86 of the Rajasthan Service Rules, 1951 (for short “the RSR”), the relevant provisions whereof read as under: Rule 86. Absence after expiry of leave : (1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained willfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularized by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2) [(a)] A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularized by grant of leave due by the authority to grant leave. [(b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.] (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. (4).........… 14. Thus, Sub-Rule 3, which starts with a non-obstante clause, in no uncertain terms provide that despite regularization of absence period by grant of leave in any manner, the disciplinary authority is empowered to initiate departmental proceeding under the Rules of 1958 against a Government servant who has remained willfully absent for a period exceeding one month and if such charge is proved against him, he may be removed from service. Therefore, Rule 86 also renders the submission raised by the learned counsel for the petitioner to assail the validity of the order impugned, unacceptable. 15. Therefore, Rule 86 also renders the submission raised by the learned counsel for the petitioner to assail the validity of the order impugned, unacceptable. 15. Further, a Coordinate Bench of this Court has, in the case of Dana Ram Parmar (supra) involving identical controversy, held as under: 12. In case a person remains absent from duty and the enquiry is conducted and he is visited with punishment of removal from service, the question arises for consideration of the concerned authority, how the period of absent from duty without leave is to be treated. If it is to be treated to be period not spent on duty without adjust by granting such leave to the petitioner as may be available for grant, a break in the service of the petitioner occurs resulting in forfeiture of his all past service, and cannot be considered for any purpose in future. It is for that reason it becomes necessary to make an order for adjusting the period of absence without leave by sanctioning such leave as may be available to the delinquent for the purpose of regularising his service. Taking recourse to such a course by any stretch of imagination cannot be considered to be a case of condonation of misconduct so as to warrant nullifying the imposition of punishment as a result of disciplinary proceedings. 13. The two decisions relied on by the learned counsel also does not tell anything to the contrary to the view I have expressed. In the Bench decision of this Court in Datar Singh’s case (supra), the facts were that the petitioner had been dismissed from service vide order dated June 3, 1987 and dismissal order was affirmed by the Appellate Authority as well as by the Reviewing Authority. The Court noticed the fact that even before charge- sheet was issued to the petitioner, the petitioner has been granted extraordinary leave and his absence from duty had been regularized. Thus, after regularisation, for the period of absence from duty, the petitioner has been subjected to disciplinary proceedings and was removed from service. The Court referred to the direction issued by the Director General of Police in that regard in which it has clearly been stated that in cases where the enquiry is conducted in relation to charge relating to willful absence from duty, it has to be levelled before period of absence from duty is regularized. The Court referred to the direction issued by the Director General of Police in that regard in which it has clearly been stated that in cases where the enquiry is conducted in relation to charge relating to willful absence from duty, it has to be levelled before period of absence from duty is regularized. Once absence from duty has been regularised by adjusting the period of absence against leave account, in that event, the dichotomy arise that condonation of absence from duty by regularisation took place by the executive action by regularising the period of leave of absence without there being any recourse to disciplinary proceedings or its culmination, which results in imposition of punishment after it has been condoned. The Court noticed that the leave has been granted and absence from duty has been regularised even before charge-sheet was served. In these circumstances, after such regularisation no disciplinary action lies. 14. Apparently, present is the case where the disciplinary proceedings took place before the regularisation of the period of absence from duty took place and therefore, this decision does not help the petitioner. 15. In another decision of Ashok Kumar’s case referred to above, the fact situation was similar to one noticed by the Court in Datar Singh’s case wherein also the leave of absence was regularised before the enquiry was conducted by granting him extraordinary leave without pay. The learned Single Judge also referred to decision of Supreme Court in State of Punjab & Ors. Vs. Bakshish Singh, AIR 1999 SC 2626 , which also related to a case where matter was referred to the Disciplinary Authority after regularisation of period of absence. 16. As the present case is not of the nature and regularisation of the leave of period of absence has taken place only after he has been found guilty of period of absence from duty unauthorizedly in a duly conducted disciplinary proceedings and has been duly punished for that, the matter has, thereafter, been considered to be dealt with for the period he remained willfully absent from duty and in the interest of the petitioner, the absence period has been regularized by adjusting the same against the available leave. In such circumstances, no illegality can be found in imposition of punishment which is preceded with regularisation of period of leave. 16. In such circumstances, no illegality can be found in imposition of punishment which is preceded with regularisation of period of leave. 16. A perusal of the aforesaid findings reflects that in that case also, a Coordinate Bench of this Court, distinguishing the judgment of the Hon’ble Supreme Court of India in the case of Bakshish Singh (supra), held that mere regularization of the absence period by grant of leave of any nature would not amount to condonation of misconduct so as to nullify the imposition of punishment as a result of disciplinary enquiry. Evidently, the facts in the instant case and in the case of Dana Ram Parmar (supra)are identical. 17. Although, this Court is in respectful agreement with the findings/observations made by the Hon’ble Supreme Court of India in the case of Dharam Singh (supra) and by this Court in the case of Rajendra Kumar (supra) but, the same are of no assistance to the petitioner in the facts and circumstances of the instant case. As already observed, the charge against the petitioner was not only of remaining willfully absent for a period of 184 days but, also of remaining willfully absent on as many as 35 occasions in the tenure from 28.01.1986 to 13.11.1991 which also stood proved against him. Such gross and repeated misconduct of the petitioner, a member of the disciplinary force, is totally unacceptable and unwarranted. In view thereof, this Court does not find the penalty of ‘termination from service’ to be so shockingly disproportionate to the charges levelled and proved so as to warrant interference of this Court in its writ jurisdiction. 18. Resultantly, this writ petition is dismissed being devoid of merit. Pending application(s), if any, also stands disposed of.