Om Prakash vs State Of Punjab & Ors

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.