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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL NO. 4893 OF 2007

OM PRAKASH                                        Appellant (s)

                VERSUS

STATE OF PUNJAB & ORS.                            Respondent(s)

O R D E R

1. This appeal is directed against the judgment and order  

dated 1.3.2007 passed by the Punjab & Haryana High Court setting  

aside the judgment and decree passed in favour of the appellant  

herein and thereby upholding the order of punishment awarded to  

the appellant.

2. The appellant was working as Head Constable in Punjab  

Police.  He absented from duty on 13.10.1984 which was recorded  

vide D.D.R. No. 2 at 10.00 A.M.  It is alleged on behalf of the  

respondents  that  neither  did  he  pray  for  any  leave  for  his  

absence nor did he intimate the authorities the reasons for not  

attending the duty.  The appellant after absenting from duty for  

39 days reported back on 22.11.1984.  Even at that stage, he did  

not produce any document regarding his illness or any evidence  

to indicate that he was admitted in any hospital.

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3. Consequently,  a  departmental  proceeding  was  initiated  

against the appellant for awarding major punishment.  In the  

said  proceedings,  the  appellant  appeared  and  contested  the  

matter.   After  the  conclusion  of  the  inquiry,  the  inquiry  

officer submitted his report finding the appellant guilty of the  

charges.  On submission of the aforesaid report by the Inquiry  

Officer,  the  competent  and  disciplinary  authority  on  going  

through the records passed an order of dismissal from service.

4.  The said order was challenged by the appellant by filing  

an  appeal  which  was  dismissed  and  thereafter,  by  filing  a  

revision petition, which was also dismissed.

5. The appellant thereafter filed a civil suit seeking for a  

declaration and for setting aside the order of dismissal from  

service.  The Trial Court decreed the suit holding that in view  

of the regularisation of the leave by the competent authority  

for the period of unauthorised absence, the charge no longer  

survives.  Consequently, the order of dismissal was set aside  

with a direction to reinstate the appellant in service and to  

pay him back wages.

6.  Being dissatisfied with the aforesaid judgment and decree  

passed by the Trial Court, an appeal was filed which was heard  

by  the  District  Judge  and  the  said  appeal  filed  by  the

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respondent  herein  was  dismissed.   Still  aggrieved,  the  

respondent  filed  an  appeal  before  the  High  Court  which  was  

registered as RSA No. 336 of 1993.  The said second appeal was  

heard and by the impugned judgment and order, the said second  

appeal was allowed and the judgment and decree passed was set  

aside.  The High Court held that the order of punishment awarded  

against  the  appellant  herein  is  legal  and  valid.   Being  

aggrieved, the appellant has filed this appeal on which we have  

heard the learned counsel for the parties who have taken us  

through the records.

7. The  first  contention  that  is  raised  by  the  counsel  

appearing for the appellant is regarding non furnishing of the  

absence report. The submission is that it was not furnished to  

the appellant at all during the proceeding and, therefore, the  

Inquiry proceeding was vitiated.  The aforesaid submission is  

untenable.  The appellant himself was fully conscious and aware  

that he was absent from duties for 39 days.  The said fact was  

mentioned in the charge-sheet and he had full opportunity to  

defend  himself  against  the  said  allegation  of  unauthorised  

absence of 39 days.  Therefore, no prejudice was caused to the  

appellant even assuming that such a report was not furnished by  

the departmental authorities.

8. The next contention is that the appellant was not given  

any opportunity of hearing in the departmental proceedings.  The

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said submission is belied on the face of the records as it is  

established from the records that the appellant participated in  

the departmental proceedings.  He was given an opportunity to  

cross-examine which he had availed of.  He had taken even notes  

from the records as also of the proceedings before the Inquiry  

Officer.  The said contention, therefore, is also baseless.

9. It was also sought to be contended that he produced a  

medical certificate in support of his contention that he was  

medically unfit to work.  However, it is established from the  

records  and  the  report  of  the  Inquiry  Officer  that  no  such  

medical  certificate  was  produced  by  the  appellant  before  the  

Inquiry Officer during the departmental proceeding.   

10. The next contention that is raised is that the period of  

absence of the appellant having been regularised, the aforesaid  

charge  of  unauthorised  absence  would  fall  through  and,  

therefore, the order of punishment is required to be set aside  

and quashed. We are unable to accept the aforesaid contention as  

period  of  the  unauthorised  absence  was  not  condoned  by  the  

authority but the same was simply shown as regularised for the  

purpose of maintaining a correct record.

11. A similar issue came to be raised in this Court several  

times. In the case of State of M.P. Vs. Harihar Gopal 1969 SLR  

274(SC),  this  Court  noticed  that  the  delinquent  officer  in

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failing  to  report  for  duty  and  remaining  absent  without  

obtaining  leave  had  acted  in  a  manner  irresponsibly  and  

unjustifiedly; that, on the finding of the enquiry officer, the  

charge  was  proved  that  he  remained  absent  without  obtaining  

leave in advance; that the order granting leave was made after  

the order terminating the employment and it was made only for  

the purpose 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.  This Court in the  

said  decision  held  that  it  could  not  be  accepted  that  the  

authority  after  terminating  the  employment  of  the  delinquent  

officer  intended  to  pass  an  order  invalidating  that  earlier  

order by sanctioning leave so that he was to be deemed not to  

have remained absent from duty without leave duly granted.

12. Our attention is also drawn to the decision of this Court  

in  Maan Singh Vs.  Union of India and Others 2003(3) SCC 464  

wherein a similar situation and proposition has been reiterated  

by this Court.  There are a number of decisions of this Court  

where it has been held that if the departmental authorities,  

after  passing  the  order  of  punishment,  passes  an  order  for  

maintaining a correct record of the service of the delinquent  

officer and also for adjustment of leave due to the delinquent  

officer,  the  said  action  cannot  be  treated  as  an  action  

condoning  the  lapse  and  the  misconduct  of  the  delinquent  

officer.

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13. There is yet one more factor which stands against the  

appellant herein.  It is indicated from the counter affidavit  

filed by the respondents 1 to 4 that the appellant had also been  

punished  earlier  to  the  aforesaid  incident  also  with  a  

punishment  for  leave  without  pay  for  total  of  527  days  on  

different occasions in service as per details below:-

13.11.1965 to 05.01.1996 -  54 days

25.07.1973 to 28.07.1973 -   4 days

04.10.1977 to 12.01.1978 - 120 days

13.01.1978 to 09.05.1978 - 118 days

25.10.1979 to 31.10.1979 -   6 days

10.02.1981 to 14.08.1981 - 185 days

13.10.1984 to 22.11.1984 -  40 days

14. Therefore, it is established that the appellant was a  

habitual  absentee  without  leave  and,  therefore,  he  does  not  

deserve any sympathy from this Court.  In terms of the aforesaid  

order, we hold that there is no merit in this appeal which is  

dismissed but leaving the parties to bear their own costs.

     ...........................J.     (DR. MUKUNDAKAM SHARMA)

   ...........................J.     (ANIL R. DAVE)

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NEW DELHI SEPTEMBER 08, 2011.