Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4969 OF 2008  (Arising out of SLP [C] No.13011 of 2006)

State of Punjab          … Appellant

Vs.

Dr. P L Singla       … Respondent

O R D E R

R. V. Raveendran J.

1. Leave granted.  Heard the parties.

2. The respondent is a doctor in the service of the appellant – State of

Punjab.  On 1.8.1991,  the  respondent  was  transferred  to  Makandam. The

respondent joined duty on 17.8.1991, but unauthorizedly absented himself

from 1.6.1992.  As  he  was  absent  for  nearly  five  years,  the  Health  and

Family Welfare Department  issued a charge-sheet  dated 28.5.1997 to the

respondent.  The two charges  were :  (a) absenting  from duty deliberately

from  1.6.1992;  and  (b)  disobeying  the  orders  of  official  superiors.  An

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enquiry was held into the said charges. The Enquiry Officer submitted his

report.  In  regard  to  first  charge,  the  Enquiry  Officer  found  that  the

respondent had, in fact, absented himself unauthorisedly from 1.6.1992 to

17.10.1997.  But  he  accepted  two  explanations  given  by  respondent  and

concluded  that the absence was under compelling circumstances. The first

explanation was that those were days of terrorism in Punjab. The second

was that the respondent had sent by post an application seeking leave from

1.6.1992  to  30.12.1992  and  did  not  receive  any  refusal,  and,  therefore

presumed that the leave had been granted.  The Enquiry Officer also held

that the second charge was not proved.  

3. The Disciplinary Authority did not agree with the enquiry report, for

reasons recorded in a dissent note. The said note stated that unauthorized

absence  from 1.6.1992  to  17.10.1997  was  clearly  indiscipline;  that  only

after the chargesheet  was issued, the respondent had offered to join back

duty  (and  in  fact  joined  duty  only  on  18.10.1997)  and  not  earlier.  The

dissent note  therefore proposed to hold the respondent guilty of the two

charges. A show cause notice dated 1.4.1999 was issued to the respondent

enclosing a copy of the enquiry report and the dissent note. The respondent

sent  a  reply  dated  10.5.1999.  The  Governor  of  Punjab  by  order  dated

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16.9.1999 (communicated on 11.10.1999) did not accept the findings in the

Enquiry  Report.  For  the  reasons  stated  in  the  dissent  note,  he  held  the

respondent  guilty  and  imposed  a  punishment  of  withholding  of  five

increments with cumulative effect.  

4. By a subsequent order dated 25.1.2001, issued in continuation of the

order  imposing  punishment,  the  Governor  of  Punjab  accorded  extra-

ordinary leave to the respondent for the period 1.6.1992 to 17.10.1997. Two

consequences  followed  as  a  consequence  thereof  under  the  Punjab  Civil

Service Rules.  A government servant is not entitled to any salary during the

period of extra-ordinary leave (vide Rule 8.122 of Vol 1) and the period of

extraordinary leave is not counted as service qualifying for pension (vide

Rule 4.7 of Vol. II).  

5. The respondent  filed a  suit  on 24.1.2002 in  the court  of  the  Civil

Judge,  Junior  Division,  Bhatinda  for  a  declaration  that  the  order  dated

10.9.1999/11.10.1999  imposing  punishment  was  null  and  void  and  for

consequential reliefs. The trial court  by judgment dated 14.9.2004, decreed

the suit and declared that the order imposing punishment was void and that

the respondent  was entitled to  all  consequential   benefits with interest  at

12% PA from the date of suit. The appeal filed by the State was dismissed

by the first  appellate court on 16.3.2005. The second appeal  filed by the

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State was also dismissed on 20.1.2006. The said judgment of the High Court

affirming  the  decisions  of  the  trial  court  and  first  appellate  court  is

challenged in this appeal by special leave.

6. The  fact  that  the  respondent  had  absented  himself  unauthorizedly

from  1.6.1992  to  17.10.1997  was  neither  denied  nor  disputed  by  the

respondent.  The question was whether there were satisfactory reasons for

his absence and failure to seek leave.  The explanation was that he did not

join duty as it was a period of terrorism in the State. The further explanation

was that he had sent a leave application by post seeking leave for a period of

seven months, that is from 1.6.1992 to 30.12.1992 and as he did not receive

any  reply  rejecting  his  request,  he  assumed  that  the  leave  had  been

sanctioned.   Both  the  explanations  were  vague  and  unsatisfactory.  The

unauthorized absence for a long period of more than five years remained

unexplained.  Even in regard to the period 1.6.1992 to 30.12.1992 for which

he claimed to have sent a leave application, there was nothing to show that

such a leave application was sent or that it was received by the department.

No proof was produced for having sent such an application. Grant of leave

is  not  something  that  can  be  inferred  or  presumed.  At  all  events,  even

according to respondent, there was no application for leave for the period

31.12.1992  till  17.10.1997.  There  is  also  no  explanation  as  to  why  he

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remained absent unauthorizedly for more than five years. Hence the charge

of long unauthorized absence was clearly proved. The half hearted finding

of  the  Enquiry  Officer  that  there  were  compelling  circumstances  for  the

absence was clearly without  any basis.  The dissent  note  in regard to the

charge of absence was, therefore,  justified. The punishment imposed was

not disproportionate to the gravity of the misconduct.  

7. But the courts below have decreed the respondent’s suit not because

they  recorded  any  finding  to  the  contrary,  but  for  a  reason  wholly

unconnected with the disciplinary proceedings and imposition of penalty.

The three courts have held that as a result of the subsequent order of the

Governor dated 25.1.2001 according extraordinary leave for the period of

absence (1.6.1992 to  17.10.1997),  the  misconduct  was  wiped out.   They

have proceeded on the basis that when the employer accords extra-ordinary

leave in respect of the  period of absence, for which the punishment was

imposed,  the  employer  is  deemed  to  have  condoned  the  unauthorized

absence. The courts below therefore,  held that the unauthorized  absence of

respondent between 1.6.1992 and 17.10.1997 could no longer be considered

as  unauthorized  absence,  and  when  the  misconduct  was  erased,  the

punishment therefor also  stood erased.  It is the correctness of this finding

that arises for our consideration.  

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8. Unauthorized absence (or overstaying leave), is an act of indiscipline.

Whenever there is an unauthorised absence by an employee, two courses are

open to the employer. The first is to condone the unauthorized absence by

accepting  the  explanation  and  sanctioning  leave  for  the  period  of  the

unauthorized absence in which event the misconduct stood condoned. The

second is to treat the unauthorized absence as a misconduct, hold an enquiry

and impose a punishment for the misconduct.  

9. An employee who remains unauthorisedly absent for some period (or

who overstays the period of leave), on reporting back to duty, may apply for

condonation  of  the  absence  by  offering  an  explanation  for  such

unauthorized  absence  and  seek  grant  of  leave  for  that  period.  If  the

employer is satisfied that there was sufficient cause or justification for the

unauthorized absence (or the overstay after expiry of leave), the employer

may condone the act of indiscipline and sanction leave post facto. If leave is

so sanctioned and the unauthorized absence is condoned, it will not be open

to the employer to thereafter initiate disciplinary proceedings in regard to

the  said  misconduct  unless  it  had,  while  sanctioning  leave,  reserved  the

right to take disciplinary action in regard to the act of indiscipline.  We may

note  here  that  a  request  for  condoning  the  absence  may  be  favourably

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considered where the unauthorized absence   is   of   a few days   or   a few

months and the reason for absence is stated to be the sudden, serious illness

or unexpected bereavement in the family.  But long unauthorized absences

are not usually condoned.  In fact in Security services where  discipline is of

utmost importance,  even a few of days overstay is viewed very seriously.

Be that as it may.

10. Where the  employee who is  unauthorizedly absent  does  not  report

back  to  duty  and  offer  any  satisfactory  explanation,  or  where  the

explanation  offered by the employee is not satisfactory, the employer will

take recourse to disciplinary action in regard to the unauthorised absence.

Such  disciplinary  proceedings  may  lead  to  imposition  of  punishment

ranging from a major penalty like dismissal or removal from service to a

minor  penalty  like  withholding  of  increments  without  cumulative  effect.

The extent of penalty will depend upon the nature of service, the position

held by the employee, the period of absence and the cause/explanation for

the absence.  Where the punishment is either dismissal or removal, it may

not be necessary to pass any consequential orders relating to the period of

unauthorized  absence  (unless  the  rules  require  otherwise).   Where  the

punishment  awarded  for  the  unauthorized  absence,  does  not  result  in

severance of employment and the employee continues in service, it will be

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necessary to pass some consequential order as to how the period of absence

should  be  accounted  for  and  dealt  with  in  the  service  record.   If  the

unauthorized absence remains unaccounted, it will result in break in service,

thereby  affecting  the  seniority,  pension,  pay  etc.,  of  the  employee.  Any

consequential  order  directing  how  the  period  of  absence  should  be

accounted, is an accounting and administrative procedure,  which does not

affect or supersede the order imposing punishment.  

11. In  this  case,  the  punishment  was  imposed  by  order  dated

16.9.1999/11.10.1999. That order was not cancelled, revoked or withdrawn.

The subsequent order dated 25.1.2001 merely accorded extraordinary leave

in regard to the period of absence, but did not condone the unauthorized

absence nor wipe out the punishment already imposed. The said order was

only  consequential  to  the  imposition  of  punishment.  Its  effect  was  to

maintain continuity of  service of  the respondent,  but  deny salary for  the

period  of  absence  and  not  to  count  the  period  of  absence  as  qualifying

service for the purposes of pension. Its effect is certainly not to exonerate

the respondent from the charge of unauthorised absence nor to wipe out the

punishment.  If the intention was to revoke the punishment, the order dated

25.1.2001 would have clearly stated so. But it did not.  

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12. The assumption  by the  courts  below that  when an  order  is  passed

according extra-ordinary leave for the period of absence, it  will  have the

effect of effacing or erasing the punishment already imposed, is therefore

incorrect  and  is  a  serious  error  of  law.   When  the  trial  court  and  the

appellate court had committed this serious error, the High Court  ought to

have  formulated  an  appropriate  question  of  law and  allowed  the  second

appeal.  Instead,  it  chose  to  dismiss  the  second appeal  putting  its  seal  of

approval on a wrong interpretation of law leading to serious repercussions

in regard to discipline and administration.  The judgment of the High Court

confirming the orders of the courts below, therefore calls for interference.

13.  We  accordingly  allow  this  appeal,  set  aside  the  judgments  and

decrees of the courts below and dismiss the suit of the respondent. Parties to

bear their respective  costs.

…………………………J. (R. V. Raveendran)

New Delhi; ………….……………J. July 31, 2008. (Lokeshwar Singh Panta)

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