PUNJAB STATE Vs. MALWINDER SINGH

JUDGEMENT

(1.) The State has filed this Regular Second Appeal to challenge the order passed by the Additional District Judge, Jalandhar.

(2.) Respondent-plaintiff, who was serving as a Constable in the police, had filed a suit to challenge the order of his dismissal on the ground that he had remained absent. The facts would show that the respondent-plaintiff had proceeded on two days' leave due to some domestic problem. Though he would claim that he had reported back for duty on 29.3.1986 and he was placed under suspension but as per the appellants, he had remained absent from 27.3.1986 to 16.7.1986. Though the departmental enquiry was ordered to investigate the charge of absence and after finding him guilty, he was dismissed from service on 26.3.1987, the period of his absence was treated as leave without pay and he was allowed nothing more than the subsistence allowance. The order regularising the leave primarily lead to grant of relief by the Court for the respondent-plaintiff. Though the Appellate Court held against the respondent- plaintiff on all other counts but the Court came to take a view that the period of his absence was converted into leave without pay and, therefore, the charge of absence would disappear. In this regard, reliance was placed on the case of State of Punjab v. Chanan Singh,1988 2 CLJ 21, where it was held that when the period of absence was regularised as leave without pay, then the absence period would stand regularised and as such, the charge of absence would no more subsist. The first Appellate Court accordingly held that the impugned order was not sustainable.

(3.) This view of the first Appellate Court can not be accepted now. This very precise question came up for consideration before this Court in Regular Second Appeal No.209 of 1993, The State of Punjab and another v. Ex. Constable Narinder Singh, decided on 21.5.2010. The issue arising in this case was referred to a Division Bench and the ratio of law as laid down in Chanan Singh's case was over-ruled in view of the law laid down in State of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274. It was held in this case that order granting leave was only for the purpose of maintaining correct record of service and does not amount to condonation of the misconduct. The issue was decided by the Division Bench on a reference made by Single Judge of this Court, who had expressed his reservation about the view expressed by this Court in Chanan Singh's case in the following manner:-