RSA No.2271 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2271 of 1996 Date of Decision: 19.9.2008 State of Punjab and others .....Appellants Vs. Baldev Singh ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. H.S. Gill, DAG, Punjab for the appellants. Mr. K.G. Chaudhary, Advocate for the respondent. ... RAJIVE BHALLA, J (Oral) The State of Punjab, challenges the judgements and decrees of the Sub Judge, IInd Class, Gurdaspur and the Additional District Judge, Gurdaspur dated 23.5.1994 and 2.11.1995, decreeing the suit filed by the respondent and dismissing the appeal filed by the State of Punjab, respectively. The respondent-plaintiff joined the police department as a Constable. He was deputed to undergo a regular course at P.R.T.C. Jahan Khelan and was relieved on 6.4.1990 with a direction to report at P.R.T.C. Jahan Khelan. As he reported on 28.4.1990, the Incharge of P.R.T.C. Jahan Khelan did not accept his arrival. He, therefore, returned to Gurdaspur and though he was to report back on 29.4.1990, reported on 2.5.1990. An enquiry was ordered and conducted into the respondent's absence. As he was found guilty, he was dismissed from service. The period of absence RSA No.2271 of 1996 2 was, however, treated as leave without pay. The respondent filed an appeal, which was dismissed. Aggrieved by his dismissal, the respondent filed the present suit, praying for a declaration that the order of punishment was illegal and void. In response, the appellants asserted that as the respondent had been dismissed from service by following the procedure prescribed under the Punjab Police Rules, the suit be dismissed. On the basis of the pleadings, the learned trial Court framed the following issues :- “1. Whether the plaintiff is entitled to the decree for declaration prayed for ? OPP. 2. Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP. 3. Whether no cause of action accused to the plaintiff ? OPD. 4. Whether no legal and valid notice u/s 80 C.P.C. is served ? OPD. 5. Relief.” The learned trial Court decreed the suit by holding that as the period of absence from duty having been regularised and treated as leave without pay, the punishment of dismissal did not survive. The trial Court placed reliance upon a judgement reported as State of Punjab. V. Chanan Singh, 1988(2) CLJ 21. Aggrieved by the judgement and decree passed by the trial Court, the State of Punjab filed an appeal. The Additional District Judge, Gurdaspur, vide judgement dated 2.11.1995 dismissed the appeal. Counsel for the appellants submits that the respondent RSA No.2271 of 1996 3 remained absent without leave for a period of five days. Accordingly, a show cause notice was issued and an enquiry was conducted. The respondent was found guilty and was dismissed from service. The period of absence,though, treated as leave without pay i.e. an extra ordinary leave was misconstrued by the Courts below to hold that as the respondent's absence had been regularised, the order of punishment would not survive. It is submitted that such an interpretation is impermissible and, therefore, the appeal be allowed and the judgements and decrees passed by the learned Courts be set aside. Counsel for the respondent submits that as the period of absence was regularised by treating it as leave without pay, the order of punishment dismissing the respondent from service is a contradiction in terms and, therefore, did not survive. Counsel for the respondent places reliance upon a judgement reported as State of Punjab V. Chanan Singh (supra), wherein while considering a similar controversy, this Court held that where the period of absence has been regularised, the Punishing Authority would not be justified in dismissing the delinquent for absence from duty. I have heard learned counsel for the parties and perused the impugned judgements. Admittedly, the respondent was absent without leave. After service of a show cause notice, the appellants instituted an enquiry. As a result and after following the procedure prescribed under the Punjab Police Rules, the respondent was dismissed from service for remaining absent without leave. The Punishing Authority simultaneously passed an order regularising the period of absence by treating as extra ordinary leave. The RSA No.2271 of 1996 4 latter order, therefore, in essence, nullified the order of punishment, as by regularising the period of absence, the Punishing Authority, condoned the absence and imposed a punishment that would deprive the respondent of his salary, for the period of absence. The punishment of dismissal would, therefore, be a contradiction in terms and would no longer survive. For the above conclusion, reference would necessarily have to be made to the judgement reported as State of Punjab V. Chanan Singh (supra), paras 7 and 8 whereof reads as follows :- “7.Further the learned counsel for the appellant has made feeble attempt to contend that the order of dismissal stating that the period of absence shall count as leave without pay does not amount to condonation of the absence and it does not waive off the dereliction of duty committed by the delinquent. 8. Counsel for the respondents contends that it amounts to regularising the absence and only charge against the respondent being that he was absent from duty without leave, the charge is knocked out at its basis. He, in order to support his contention relied upon Tito Francisco Pereira V. Administrator of Goa Daman and Diu and others, 1978 SLJ 614, G. Papaiah V. Assistant Director, Medical Services Secunderabad, AIR 1976 Andhra Pradesh 75 and Bhursinh Hamsinh Secunderabad Rajput V. The State of Gujarat and another, 1982 (1) SLJ 697. The consensus of the decision in the precedents relied upon by the respondent is that once the period of RSA No.2271 of 1996 5 absence is treated as leave of any kind whatsoever, the fact that the delinquent remained absent no more survives. The Charge of absence from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be, as admittedly in the case in hand the absence was treated as leave without pay and it amounted to as if there was no break in service. The counsel for the appellant only contends that the above precedents do not lay down the correct law as no reason has been pointed out for the same. In view of my above observations, I find force in the contention raised by the counsel for the respondent. In view of the observations made by the punishing authority in the order of dismissal that the period of absence shall be counted as leave without pay amounts to regularising the absence and as such the charge of absence no more survives.” In view of the ratio laid down by the aforementioned judgement, which as per counsel for the respondent, still holds the field, I have no hesitation in holding that as the punishing authority condoned the period of absence by treating it as a period of leave without pay, the order of punishment no longer survives. In view of the aforementioned conclusion, the arguments raised by counsel for the State of Punjab, do not merit any further consideration. As no question of law much less substantial question of law arises for consideration, the appeal is dismissed. RSA No.2271 of 1996 6 No order as to costs. 19.9.2008 (RAJIVE BHALLA) GS JUDGE