IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 1 of 2005 State of Uttaranchal and others …Petitioners. Versus The Public Services Tribunal and another …Respondents. Mr. Bindesh Kumar Gupta, Advocate for the petitioners. Mr. M.S. Pal, Senior Advocate with Mr. V.S. Pal, Advocate for respondent no. 2. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. Heard learned counsel for the petitioners as well as learned counsel for respondent no. 2. The present writ petition has been filed by the State of Uttarakhand challenging the order of the Public Services Tribunal, Uttaranchal, Dehradun dated 6.10.2004, whereby the Claim Petition of respondent no. 2 has been allowed and the order of dismissal passed against him has been set aside. The brief facts of this case are as follows :- Respondent no. 2 was a constable in the erstwhile State of Uttar Pradesh. At the relevant time i.e. in the year 1997 he was posted at Pauri Garhwal. Vide order dated 2.5.1997 respondent no. 2 was directed to report at Police Training School, Meerut for a refresher training course. This course respondent no. 2 was to attend between 8.5.1997 to 2.6.1997. Though the respondent reported for the said course before the course was to start on 8.5.1997, but did not join the course and remained absent since 8.5.1997. He only reported at Police Line, Pauri on 26.11.1997 i.e. after a period of 205 days. Therefore, the disciplinary proceedings were initiated against respondent no. 2 which culminated in his dismissal. He filed a departmental appeal against the dismissal order which was 2 also dismissed and consequently he moved a Claim Petition before the Public Services Tribunl, which was allowed by the Public Services Tribunal, Uttaranchal, Dehradun by order dated 6.10.2004 primarily, on the ground that one material witness in the departmental proceedings, namely, Sri Ved Pal Singh, R.I. was not examined and also that the punishment of dismissal under the circumstances was too harsh and not in proportion to the charges against the delinquent constable i.e. respondent no. 2. The petitioners i.e. the State of Uttarakhand before this Court, however, has challenged the order of the Public Services Tribunal, Uttaranchal, Dehradun on various grounds and have stated that the charge against respondent no. 2 of unauthorised absence from duty stood proved inasmuch as he could not explain any plausible reason for remaining absent for 205 days and this unauthorised absence in a disciplined force like Police is inexcusable and would create a havoc if the officer is not dismissed from his services. This Court has heard the arguments of the rival parties at some length. The case of respondent no. 2 was that he had a pain in his heels for which he got treatment at different nursing homes and hospitals, however, he could not produce any medical evidence or worthwhile proof to explain his continued and unauthorised absence of 205 days. His contention is that the evidence was with R.I. Ved Pal Singh. It is also an admitted case that respondent no. 2 categorically stated before the Enquiry Officer that he is not able to bring Ved Pal Singh as a witness and further that he does not wish to examine any other witness. There is no allegation by respondent no. 2 before the Public Services Tribunal, Uttaranchal, Dehradun of any procedural fault. Ample 3 opportunity was given to respondent no. 2 in the disciplinary proceedings where he failed to establish his case or to justify his continued unauthorised absence for a period of 205 days. The police is a disciplined force and in case the charge of unauthorized absence is proved, it may invite the maximum punishment! The Public Services Tribunal, Uttaranchal, Dehradun has also gone on the proportionality of the punishment and has stated that under the circumstances of the case punishment was too harsh. Learned counsel for respondent no. 2 has also made a new submission before this Court and has stated that unauthorised absence of 205 days stands condoned inasmuch as after passing the order of termination the absence of 205 days has been treated to be “leave without pay”. Since this period of 205 days has already been treated as “leave without pay”, therefore, it cannot be treated as a charge any more and in fact it will be deemed that respondent no. 2 has been absolved of the charges. On the other hand, the learned counsel for the petitioner submitted that this aspect has been resolved by a decision of the Supreme Court in Maan Singh v. Union of India and others (2003) 3 SCC 464, wherein the Supreme Court has held that where an order granting leave without pay is made after terminating the services of an employee, it is only made for the purposes of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising his absence from duty. All it means is that no salary is liable to be paid for the above period. It means nothing more or less. Therefore, reliance on this aspect by the counsel for respondent no. 2 is entirely misplaced. For the reasons recorded hereinabove, we are satisfied that the order passed by the Public Services Tribunal, 4 Uttaranchal, Dehradun dated 6.10.2004 allowing the Claim Petition of the petitioner/respondent no. 2 is not sustainable. There were no good grounds available for allowing the claim of respondent no. 2. The order of the appointing authority dismissing respondent no. 2 from service is justified under the circumstances. The present Writ Petition deserves to be allowed and is hereby allowed. The order passed by the Public Services Tribunal, Uttaranchal, Dehradun dated 6.10.2004 is accordingly hereby set aside. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 18.5.2010 Avneet