JUDGMENT
M.L. Singhal, J.
1. Videorder dated 8.2.94 of Senior Superintendent of Police, Barnala, Constable Jarnail Singh No, 361/BarnaIa was dismissed from service. Reason for his dismissal from service was his absence from duty for a period of 110 days. He challenged his dismissal from service through suit for declaration filed by him against State of Punjab. It was alleged in the plaint that he had to proceed on leave under compelling circumstances, after the expiry of leave, he could not join his duty as his father was ailing at his native village Ramgarh, PS Bhadson. He died during that period which was treated as absence from duty. His absence from ditty was not wilful. His absence from duty could not be viewed as default when it had been condoned by Senior Superintendent of Police, Barnala contemporaneously while passing the impugned order of his dismissal from service. While passing the order of dismissal. Senior Superintendent of Police, Barnala ordered that period during which he remained absent shall be treated as leave of the kind due. No personal hearing was afforded to him while inflicting this punishment upon him. His dismissal from service goes against the provisions of Punjab Police Rules and Article 311 of the Constitution of India,
2. State of Punjab contested the suit of the plaintiff urging that he was wailfully absent from duty from 14.10.91 to 2.12.91, 29.12.91 to 4.1.92, 6.1.92 to 7.1.92, 10.2.92 to 15.2.92 and thereafter continuously from 24.2.92. He was asked to join inquiry proceedings. He intentionally avoided to join inquiry proceedings. He never applied for leave or reported for duly, order dismissing him from service was in tune with the provisions of Punjab Police Rules and the Constitution of India. On the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is adopted by Bhim Singh son of Sadda Singh ?OPP
2. Whether the impugned order dated 8.2.94 passed by Senior Superintendent of Police, Barnala is illegal, null and void and without jurisdiction ? OPP
3. Whether the show cause notice issued by the Senior Superintendent of Police, Barnala to the plaintiff is against the natural justice, arbitrary and shows the predetermination on the plaintiff ? OPP
4. Whether the departmental enquiry was arbitrary and against the natural justice/police rules ? OPP
5. Relief.
3. Civil Judge (Junior Division), Barnala decreed the plaintiffs suit for declaration to the effect that order dated 8.2.94 of Senior Superintendent of Police, Barnala was illegal, null and void in contravention of the Punjab Police Rules and against the principles of natural justice and as such was of no consequence against the right of the plaintiff to continue in the service of the State of Punjab and he was entitled to be reinstated into service notwithstanding order dated 8.2.93 and he was entitled to all benefits such as seniority, salary, increments, allowances etc, along with interest @ 12.5% per annum minus the period during which he remained absent and for mandatory injunction directing the State of Punjab to release in his favour the consequential benefits in view of his finding that the order terminating his services was bad in law inasmuch as when his period of absence was ordered to be treated as leave of the kind due, the misconduct costing him his job no longer survived.
4. State of Punjab went in appeal which was allowed by Additional District Judge, Barnala and he dismissed the plaintiffs suit with costs throughout.
5. Aggrieved from the judgment and decree of Additional District Judge, Barnala dated 26.9.98, plaintiff Jarnail Singh has come up in appeal to this Court.
6. This appeal has to be allowed and the dismissal of the appellant from service has to be set aside and it is accordingly set aside, on a short ground, namely that while dismissing him from service the Senior Superintendent of Police Barnala had observed that the period during which he remained absent shall be treated as the leave of the kind due, the period of absence which is the basis of his dismissal from service, no longer survived and it was condoned. It was held in the State of Punjab v. Bakhshish Singh, 1997(3) SCT 401 (SC) : 1998 (5) SLR 625, that once the period of absence was treated as leave of the kind due. the fact that the delinquent remained absence from duty could not be sustained. Since the period of unauthorised absence from duty was regularised, the charge of the absence did not survive. Appellant cannot, however, be allowed the entire back wages for the period during which he remained out of join in pursuance of order annexure P-3 dismissing him from service as his dismissal from service is being set aside on a technical ground namely that while passing the order of dismissal of the plaintiff from service the Senior Superintendent of Police, Barnala allowed the period of absence to be treated as leave of the kind due though there cannot be even the slightest doubt that he remained absent wailfully from duty during the aforesaid periods. He shall be entitled to 50% of the back wages for the period during which he remained out of job in pursuance of order Annexure P-3. This cut is being imposed on back wages as his dismissal/termination from service is being set aside on a technical ground and not on merit.
7. In view of what T have said above, the judgment and decree passed by the first appellate Court is set aside and the judgment and decree passed by the learned trial court is restored with this modification that the appellant- plaintiff shall be entitled to 50% of the wages for the period during which he remained out of job in pursuance of order Annexure P-3. This cut is being imposed on his back wages as his dismissal/termination from service is being set aside not merit but on a technical grounds, namely, the period of absence was ordered to be treated as leave of the kind due though it was categorically held that he remained absent unauthorisedly from duty for a period of 110 days.
Appeal is thus partly allowed. No costs.
8. Appeal parity allowed