Indian Kanoon - Search engine for Indian Law

It was, however, contended by the learned counsel for the respondent, relying upon the decision of the High Court of Punjab in State of Punjab Vs. Channan Singh [1988 (3) All India Services Law Journal 216] that once the absence from duty without leave is condoned or regularized by treating it as extraordinary leave no order of removal of dismissal can thereafter be passed on the ground of absence from duty without leave. The learned counsel drew our attention to the second paragraph of the dismissal order wherein it is stated that "the absence period from 21 Dec. 83 to 05 May 84 (FN) is hereby treated as EOL". He submitted that as the period of respondent's absence from 21st December, 1983 to 5th May, 1984 was treated as extra ordinary leave, it could not have been, without being inconsistent, treated as absence without leave for the purpose of passing the order of dismissal. In Channan Singh's case (supra), the high Court of Punjab referred to the decisions in Tito Francisco Pereira Vs. Administrator of Goa Daman and Diu and others 1978 SJL 614, G. Papaiah Vs. Assistant Director, Medical Services, Secunderabad AIR 1976 AP 75 and Bhursinh Hamsinh Rajput Vs. The State of Gujarat and another 1982 (1) SLJ 697 and observed that the consensus of the decisions is that once the period of absence is treated as leave of any kind whatsoever, the fact that the person remained absent no more survives and the charge of absence from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be. In all those cases a departmental action was initiated for imposition of penalty upon the delinquent employee for the misconduct of remaining absent without leave and on completion of enquiry, while Passing an order of penalty, it was further ordered that the absence should be treated as leave of some kind. As absence was treated as leave of whatever kind, it ceased to be a misconduct and, therefore, it could not thereafter have survived as a basis for imposing penalty. For that reason it was held in those cases that as the very basis for the charge was knocked out no order of dismissal could have been passed thereafter. In the present case the order of dismissal was not passed by way of penalty for the misconduct of absence from duty without leave. Though such absence was the cause and, therefore it has been referred to in the show cause notice and the order of dismissal, the respondent's service came to be terminated on the ground that his conduct had rendered his retention in service undesirable. The order of respondent's dismissal was passed not because the misconduct of absence without leave was proved but because his further continuance in service was considered undesirable. The order was passed not by way of penalty but in exercise of an independent and separate power conferred by Section 11. Obviously, after holding that further retention of the respondent in the service was undesirable, while passing the order of dismissal it was necessary to pass some order as to how the period of absence from 21.12.83 to 5.5.84 was treated for the purposes of finalizing the dues and other benefits payable to the respondent. While ordering that period to be treated as extraordinary leave the Commandant did not knock out the basis of the order of dismissal passed by him as the basis of the order was that by remaining absent without leave for a long period the respondent had so conducted himself that his further retention in service had become undesirable. We do not think that by treating the period of absence as extraordinary leave the Commandant had made his order of dismissal inconsistent. Therefore, without deciding the contention of the learned Additional Solicitor General that the said decisions do not lay down correct law, we hold that the ratio laid down in those cases cannot apply to a case of this type.