Punjab State and Another vs Surjit Singh

Sat Pal, J.—This appeal has been filed by the State against the judgment dated 15th May, 1993, passed by the learned Additional District Judge, Amritsar. By this judgment, the learned Additional District Judge set aside the order passed by the learned trial Court by which the suit filed by the plaintiff was dismissed.

Briefly stated the facts of the case are that the respondent joined the service of the Police Department on 18th March, 1963. The respondent remained absent from 4.00 P.M. on 23rd February, 1986 till 15.05 P.M. on 24th February, 1986, i.e. he remained absent from duty for a period of 23 hours 5 minutes. For this alleged unauthorised absence the respondent was issued charge sheet and after conducting the departmental inquiry, he was dismissed from service vide order dated 30th September, 198C conveyed on 1st October, 1986. Aggrieved by the aforesaid order, the respondent filed suit for declaration to the effect that the order dated 30th September, 1986 was illegal, void, inoperative, and contrary to the provisions of law and ineffective. The suit was. dismissed by the learned trial Court vide judgment dated 26th September, 1991. Aggrieved by this judgment, the plaintiff-respondent filed an appeal which was allowed by the learned Additional District Judge. The learned Additional District Judge held that while passing the impugned order the punishing authority did not take into consideration the claim of the plaintiff for pension and also did not consider the length of service. In view of this, the learned Additional District Judge decreed the suit of the plaintiff for declaration to the effect that the order dated 30th September, 1986 was null and void. It was, however, made clear that the defendant-State could pass fresh order while taking into consideration the fact, on the basis of which the order was declared to be null and void. Against the aforesaid order passed by the learned Additional District Judge, Amritsar, the present appeal has been filed.

Mr. Vashisht, learned AAG appearing on behalf of the State, submitted that the learned Additional District Judge erred in holding that the punishing authority did not take into consideration the claim of the respondent for pension. In this connection, he drew my attention to para 3 of the judgment passed by the learned trial Court wherein it has been stated that the plaintiff had got four punishments including three major punishments, i.e. forfeiture of approved service of one year, three years and 4 years. He, therefore, contended that the judgment of the learned trial Court could not be sustained and was liable to be set aside.

Mr. Mohinder Singh Gyani learned Senior Counsel appearing on behalf of the respondent, however, submitted that the respondent had been absent from duty for a period of only 23 hours and 5 minutes and for that he had given even satisfactory explanation and had also produced the medical certificate which, of course, was issued by a private medical practitioner. He, therefore, contended that the case was fully covered by a judgment of the Supreme Court in Mukhtiar Ahmed Vs. Husan Bano (Smt) and Others, .

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. Admittedly the plaintiff (respondent in the present case) had been absent from duty only for a limited period of 23 hours and 5 minutes. It is true that the medical certificate produced by the plaintiff-respondent is not from a Government doctor but keeping in view of the limited period of absence from duty, which at the most could be treated as unauthorised, even then the case of the respondent was fully covered by the judgment of the Supreme Court in the case of Malkiat Singh (supra) wherein Hon''ble Supreme Court held as under;-

"It is true that discipline is required to be maintained. However, absence may sometimes be inevitable. In the facts and circumstances of this case, an opportunity may be given to the appellant to work efficiently to prove his excellence. The order of discharge is set aside. The respondents are directed to take the appellant into service forthwith. If the appellant absents himself again for two consecutive days within one year without prior permission, appropriate action may be taken by dismissing him from service. The appellant, however, is not entitled to back wages."

In view of the law laid down by the Hon''ble Supreme Court in the case of Malkiat Singh (supra) I am of the view that the dismissal from service of the respondent cannot be sustained and the respondent is entitled to the same relief which was granted in the case of Malkiat Singh (supra). Accordingly, the appellant-State is directed to reinstate the respondent in service forthwith. It is, further directed that in case the respondent-plaintiff absents himself for two consecutive days within one year without prior permission, appropriate action may be taken by dismissing him from service in terms of the law laid down by the Hon''ble Supreme Court in the case of Malkiat Singh (supra). The respondent-plaintiff shall not be entitled to any back wages. It is further made clear that the case of the respondent-plaintiff shall be considered for pension at the appropriate time in case he will be found entitled to the pension under the rules. The appeal is disposed of in the manner indicated herein above. The parties are, however, left to bear their own costs.