Regular Second Appeal No. 2291 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2291 of 2007 Date of Decision: August 27, 2009 State of Haryana and others ......... Appellants versus Kulbir Singh .......... Respondent Present:- Shri Kulvir Narwal, Addl. Advocate General, Haryana Shri P.K. Ganga, Advocate for the respondent. HEMANT GUPTA, J. I have heard learned counsel for the parties on the following substantial question of law:- Whether the treatment of absence period as leave of the kind due amounts to condonation of misconduct of absence from duty? The plaintiff-respondent filed a suit for declaration challenging the Order No. 424/ Steno dated 7.9.2001 whereby his five future annual increments were stopped with permanent effect and the period of his absence was ordered to be treated as leave without pay. The challenge was also to the order No.425 dated 7.9.2001 whereby his five future annual increments were stopped with permanent effect. However, in appeal against the said orders, vide two separate orders the punishment of stoppage of five Regular Second Appeal No. 2291 of 2007 [2] annual future increments was reduced to two annual future increments with cumulative effect. Learned trial Court dismissed the suit but the learned First Appellate Court relied upon a judgment of this Court reported as Punjab State vs. Rur Singh (died) through his LRs, 2000 (2) SCT 60 to hold that if the period of absence has been treated as leave without pay, the order of misconduct on the ground of absence from duty amounts to double jeopardy and cannot be sustained. The question whether the order to treat the absence period as leave of the kind due would amount to condonation of misconduct came up for consideration before the Hon’ble Supreme Court in a judgment reported as State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274. It was held that the order granting leave is for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the respondent and regularizing his absence from duty, such order does not invalidate the earlier order of punishment. In State of Punjab and others vs. Charanjit Singh, AIR 2003 SC 4317, it was held to the following effect: - “ In the State of Punjab and others vs. Bakshish Singh, 1998 (7) JT (SC) 142 which was relied upon by the Courts below in holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularised the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274 (SC) wherein it ha Regular Second Appeal No. 2291 of 2007 [3] clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence when treated as leave without pay, was with a view to regularise the leave and not for condonation of misconduct”. In view of the above, I am of the opinion that the order passed by the learned First Appellate Court on the basis of Single Bench judgment of this Court is not sustainable as the said judgment is contrary to the judgment of the Hon’ble Supreme Court referred to above. Consequently, present appeal is allowed. The judgment and decree passed by the learned First Appellate Court is set aside and the suit filed by the plaintiff is dismissed. August 27, 2009 ( HEMANT GUPTA ) ks JUDGE