STATE OF PUNJAB AND ORS.versusCHARANJIT SINGH

A                       STATE OF PUNJAB AND ORS.
                                   v.
                            CHARANJIT SINGH

                             SEPTEMBER 17, 2003
B                  [V.N. KHARE, CJ. AND S.B. SINHA, J.)

         Service Law:

       Dismissal from service-unauthorized absence-Punishment
C awarded-Absence treated as leave without pay-Effect of-Police
  Constable-Place under suspension for misconduct-During suspension
  he absented himself unauthorisedly-Departmental Inquiry-Dismissal
  from service on proved charge of unauthorized absence-Period of
  absence treated as leave without pay-Delinquent filing suit for declaration
D contending that once the period of absence from duty was treated as leave
  without pay, the misconduct stood condoned-Suit decreed-Department's
  appeal and second appeal dismissed-Held, the courts below relying upon
  Bakshish Singh* erred in holding that the misconduct stood condoned-
  No law has been laid down in Bakshish Singh to the effect that only in the
E event leave without pay is directed to be granted while passing an order
   ofpunishment, the leave having been regularised the order of punishment
  also becomes bad in law and void ab initio.

         *The State of Punjab & Ors. v. Bakshish Singh, JT (1998) 7 SC 142,
F explained and distinguished.
        Maan Singh v. Union ofIndia and Ors., (2003) 3 SCC 464 and State
    of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274(SC), relied on.

         Suspension-Police Constable under suspension-Absented himself
G without permission-Disciplinary proceedings-Dismissal from service-
    Held, courts below erred in holding that since the delinquent was under
    suspension he was not required to take leave-The order of suspension
    stipulated that the delinquent shall remain present in the Police lines and
    will attend all the roll calls and parades and he was further ordered not
H   to leave station without prior permission.
                                       894
                          STATE v. CHARANJIT SINGH                         895

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1768 of A
       2002.

_,..       From the Judgment and Order dated 3.11.2000 of the Punjab and
       Haryana High Court in R.S.A. No. 980 of 1994.

             Harinder Mohan Singh, Kaushal Yadav, Anil Hooda and R.S. Suri B
       for the Appellants.

             Rajesh Kumar Sharma, Pramod Kumar Yadav and Ms. Shalu Sharma
       for the Respondent.

            The following Order of the Court was delivered :
                                                                                 c
             The respondent herein was recruited as a Constable on the rolls of
       Patiala Police, Punjab. His appointing authority was superintendent of
       Police, Patiala. Subsequently, the respondent was promoted to the post of
       Head Constable. Certain Misconduct committed by the respondent in the D
       year 1984 came to the notice of the appellants and as a result of which
       the respondent was placed under suspension in view of contemplated
       inquiry. While the respondent was under suspension, he absented himself
       atleast on three occasions without any kind ofleave from the Superintendent
       of Police. In view of unauthorised absence, the appellants herein initiated E
       a departmental inquiry against the respondent. The respondent was served
       with a charge-sheet to which he filed a reply. In his explanation, it was
       stated that he had gone to attend a court case at Patiala where he had learnt
       that his wife was ill and, therefore, he went to his home town and in such
       circumstances he could not take any permission. The Inquirying Officer F
       after making inquiry found the charges to have been proved and he sent
       his report to the disciplinary authority. The disciplinary authority having
        agreed with the finding of the Inquirying Officer issued a show cause notice
       to the respondent. After considering the explanation of the respondent, the
       disciplinary authority by an order dated 15.4.1985 dismissed him from G
       service.

            The disciplinary authority, however, while dismissing the respondent
       from service held that the period of absence of respondent from duty shall
       be treated as leave without any pay. The respondent thereafter filed an
       appeal before the appellate authority which was rejected and a revision H
    896                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A filed before the Inspector General of Police was also met with the same
    fate.

        It is under such circumstances, the respondent filed a suit for
  declaration that his dismissal from service is null and void. The trial court
  framed a large number of issues. It had decreed the suit, inter a/ia, on the
B ground that the authority could have refused to grant leave of any kind to
  the respondent and then proceeded to punish him. It held that "Once the
  leave has been granted, it cannot be said that the employee had absented
  himself from duty and thereby made himself liable to be punished. In this
  way, it would appear that the period of absence of the plaintiff having been
C treated as period spent on leave without pay, charge for which he was
  proceeded against departmentally is knocked out." In view of the aforesaid
  finding, the suit was decreed. Aggrieved, the appellants filed an appeal
  before the appellate authority, but the same was dismissed. A second appeal
  preferred by the appellants was also dismissed by the High Court. It is
D against the said orders and judgments of the courts below, the appellants
  are in appeal before us.

          Learned counsel appearing for the appellants, inter a/ia, urged that
    the view taken by the courts below that since the disciplinary authority has
    treated the period of absence as leave without pay, therefore the misconduct
E   stood condoned, is patently erroneous. Learned counsel also relied upon
    a decision of this Court in Maan Singh v. Union of India and Ors., [2003]
    3 SCC 464. Having heard the learned counsel for the respondent, we find
    that the argument raised by the learned counsel for the appellants has merit.

F       In The State of Punjab and Ors. v. Bakshish Singh, JT (1998) 7 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
G 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 v. Harihar Gopa/, (1969) SLR 274
  (SC) wherein it has clearly been stated that such an order is passed only
  for the purpose of regularising the leave and thereby the effect of
H punishment is not wiped out. In Maan Singh (supra), it was held that the
                        STA TE v. CHARANJIT SINGH                           897
    period of absence when treated as leave without pay, was with a view to A
    regularise the leave and not for condonation of misconduct.

          The submission of the learned counsel appearing for the respondent
    that since the respondent was under suspension, therefore there was no
    occasion for him to seek permission for leave, is also erroneous. The order B
    of suspension dated 24.11.1984 stipulated that the respondent shall remain
    present in Police Lines and will attend all the roll calls and parades and
    he was further ordered not to leave station without prior permission.

         In that view of the matter, the view taken by the courts below while
    decreeing the suit that since the respondent was under suspension he was C
    not required to take leave, is erroneous.

           For the aforesaid reasons, we find that the appeal deserves to succeed.
    It is allowed. The order and judgment under challenge is set aside. The suit
    filed by the respondent in the trial court shall stand dismissed.              D
          Before parting with the case, we may, however, observe that from the
    Record of Proceedings dated 21.1.2002 it appears that the learned senior
    counsel appearing for the appellants' had suggested that the order of
    dismissal passed against the respondent herein be converted into an order
    of compulsory retirement. Learned counsel now appearing for the appellants, E
    however, states that he does not have any instruction in this behalf. Keeping
    in view the fact that at one point of time, a senior counsel appearing on
    behalf of the appellants had given the aforementioned suggestion, we are
    of the opinion that in fitness of the matter, the appellants may consider the
    same.                                                                         F
    R.P.                                                       Appeal allowed.




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