IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No.4155 of 2007 Date of decision: 03.02.2009 Mukesh Kumar ...... Petitioner versus State of Haryana & others ..... Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Suneet Sharma, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. **** AJAY TEWARI, J. (ORAL) In this writ petition, the petitioner has challenged the termination order which has been passed on account of absence from duty for 34 days. Learned counsel has relied upon the following judgments: i) General Manager, Haryana Roadways Hisar Depot, Hisar versus Raghubir Singh & others, reported as 2008(1) SLR 638 ii)Pepsu Road Transport Corp. versus Rawel Singh reported as 2008(2) SLR 826 iii)Management of M/s Advance Engineering Corporation versus Presiding Officer, Labour Court No.II & another reported as 2007(6) SLR 166 iv)Mahipat versus State of Haryana & others, reported as 1994(3)RSJ 132 v)Ex. Constable Surinder Singh versus State of Punjab & others, reported as 2000(1) RSJ 451 vi)Sh. Bhagwan Lal Arya versus Commissioner of Police, Delhi & others, reported as JT 2004(3) SC 384 vii)State of Punjab & others versus Gursewak Singh, reported as 2006(1) RSJ 685 In the case of General Manager, Haryana Roadways Hisar Depot (supra), the petitioner who had been removed from service without inquiry was ordered to be taken back in service with 75% back wages. In the case of Pepsu Road Transport Corp. (supra), the Hon'ble Supreme Court held as follows: “The dismissal of workman on the ground of absence for few days, according to the Labour Court, was grossly disproportionate and excessively high. In our judgment, the Labour Court had not committed error of law in recording such finding. Reinstatement granted to the respondent-workman, therefore, needs no interference.” In Management of M/s Advance Engineering Corporation (supra), the decision of Delhi High Court considered overstay of leave where the petitioner had reported for duty after medical and fitness certificate. In Mahipat (supra) this Court held that absence from duty is to be seen in totality of the circumstances. In the case of Ex. Constable Surinder Singh (supra) a Single Bench of this Court found that absence of the petitioner was due to his being patient of mental disorder and was not willful affair. In Sh. Bhagwan Lal Arya (supra), the petitioner therein was dismissed after he had applied for leave. In State of Punjab & others (supra), this Court held that punishing authority who is in lower in rank than the appointing authority is not competent to punish the petitioner. In the present case, the appellate authority has noticed that in the year 2002 also the petitioner had been dismissed on a similar ground but at that stage in appeal the termination order was set aside holding as follows: “Besides this, the appellant prayed for mercy and his small children and wife will be on the road and he has no other source of livelihood except the job. The appellant has also assured that if he is forgiven this time then he will not give any opportunity of any complaint and he will not neglect his duty. Thus, I while looking into the family circumstances and taking a lenient view towards his family and providing him the last opportunity to serve in the transport department, modify the order dated 30.04.2002 passed by the General Manager, Haryana Roadways, Delhi to the extent that he will be reinstated but because of being guilty for not sending the leave application on time and not getting it sanctioned, he will not get any financial benefit of that period. But that period will be counted for the purpose of pension/gratuity and other post retirement benefits.” Then after a year the petitioner again went on unauthorised leave for 34 days. Interestingly before the Inquiry Officer the stand taken was that his wife was ill while in his appeal he stated that he was ill. I find that the petitioner to be an incorrigible recidivist and takes his job most lightly. The judgments cited by the learned counsel for the petitioner are clearly distinguishable. Consequently, this petition is dismissed. No costs. February 03, 2009 (AJAY TEWARI) sonia/ashish JUDGE