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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
ORDER
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)