Allahabad High Court
Sanaullah Khan vs State Of U.P.Thorugh Secy. Home Deptt. ... on 13 April, 2017
Bench: Sudhir Agarwal, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- SERVICE BENCH No. - 1405 of 2010 Petitioner :- Sanaullah Khan Respondent :- State of U.P. and others Counsel for Petitioner :- Ajit Kumar Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the petitioner and perused the record.
2. The writ petition is directed against judgment and order dated 25.03.2009 passed by State Public Service Tribunal (hereinafter referred to as the "Tribunal"), whereby Claim Petition No. 440/V/1992 has been dismissed which was filed against dismissal order dated 14.08.1987.
3. Petitioner was a Constable enrolled in U.P. Police Force (Civil Police) on 06.10.1975 and initially posted at Police Lines, Bareilly, wherefrom he was transferred to various places. On the charge of unauthorized absence, a charge sheet was issued to petitioner levelling allegations of unauthorized absence and on the basis of report submitted by Inquiry Officer, show cause notice was issued on 28.05.1987, which was replied by petitioner on 08.06.1987 and thereafter order of punishment of removal was passed on 14.08.1987, whereagainst he filed appeal, which has also been rejected and against aforesaid orders, petitioner's claim petition, has been dismissed vide judgment impugned in this writ petition.
4. Only argument advanced before this Court is that period of absence was regularized by Competent Authority after granting due leave, hence question of unauthorized absence does not arise since absence was regularized as leave without pay and it cannot be said that there was any unauthorized absence. Reliance is placed on Supreme Court's decision in State of Punjab and others Vs. Bakshish Singh, 1998(8) SCC 222. Therein two Judges Bench confirmed the judgment of Court below wherein a finding was recorded that unauthorized absence from duty having been regularized by treating period of absence as leave without pay, charge of misconduct does not survive. Aforesaid finding was confirmed by Apex Court by observing that period of unauthorized absence from duty was regularized, hence charge did not survive.
5. It is admitted that absence from duty was unauthorized and without seeking any permission or leave before getting absented. This question was already considered by Supreme Court in State of M.P. vs. Hari Har Gopal and others, 1969(3) SLR 274 and it was held that an officer in failing to report on duty and absented without obtaining leave and acted in a manner irresponsibly and unjustifiably, finding of inquiry officer that charge of unauthorized absence is proved, may not be vitiated for grant of leave for the period of absence since purpose of such regularization is for maintaining a correct record of duration of service and adjustment of leave due to delinquent employee and for regularizing his absence from duty.
6. Subsequently noticing a conflict in State of M.P. Vs. Hari Har Gopal (supra) and State of Punjab and others Vs. Bakshish Singh (supra), matter was referred to Larger Bench. It was considered by a three Judges Bench in Maan Singh Vs. Union of India and others, 2003(3) SCC 464. Court held that in State of Punjab and others Vs. Bakshish Singh (supra) Court really considered the scope of power of remand and did not consider, whether view expressed by first appellate Court in affirming order of Trial Court was justified or not. Having said so Court said that State of Punjab and others Vs. Bakshish Singh (supra) is not an authority for the proposition that order terminating employment cannot be sustained inasmuch as once absence is regularized it will vitiate inquiry holding delinquent employee guilty of unauthorized absence and Court reiterated that decision in State of M.P. Vs. Hari Har Gopal (supra) is correct.
7. This has again been reiterated in State of U.P. and others Vs. Madhav Prasad Sharma, 2011(2) SCC 212 where, in paras 18 and 19, Court said as under:
"18. In State of Punjab and Ors. v. Bakshish Singh AIR 1999 SC 2626:(1998) 8 SCC 222, this Court has dealt with a case wherein the Trial Court as well as the First Appellate Court and the High Court had taken the view that in case unauthorized absence from duty had been regularized by treating the period of absence as leave without pay, the charge of misconduct did not survive. However, without examining the correctness of the said legal proposition, this Court allowed the appeal on other issues. As the said judgment gave an impression that this Court had laid down the law that once unauthorized absence has been regularized, the misconduct would not survive. The matter was referred to the larger bench in Mann Singh's case (supra) wherein this Court clarified that the earlier judgment in Bakshish Singh (supra) did not affirm the said legal proposition and after following the judgment of this Court in State of M.P. v. Hari Har Gopal and Ors. (SC) disposed of the case clarifying that this Court in Bakshish Singh (supra) dealt with only on the issue of remand by the High Court as well as by the Ist Appellate Court to the punishing authority for imposing the fresh punishment.
19. This Court held as under: (Maan Singh Case, SCC p. 470, para 6):
"6. .... Bakshish Singh's case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the Disciplinary Authority also regularized unauthorized absence from duty by granting an employee leave without pay."
This Court further held that the law laid down by this Court in Hari Har Gopal (supra) wherein it had been held that in absence of regularization of unauthorized absence it may not be possible for the employer to continue with the disciplinary proceedings as there would be break in service and thus, regularization of such absence even without pay is justified. It is so necessary to continue with the disciplinary proceedings."
8. In view of above authorities we have no hesitation in holding that State of Punjab and others Vs. Bakshish Singh (supra) does not help petitioner and mere fact that period of unauthorized absence was regularized for the purpose of keeping record straight and treating length of service, the misconduct already committed by petitioner would not stand condoned and that is a separate issue.
9. No other point has been argued.
10. The writ petition, therefore, lacks merit. Dismissed.
11. Interim order, if any, stands vacated.
Order Date :- 13.4.2017 AK