RSA-3408-2010 (O&M) 119 IN THE HIGH COURT OF PUNJAB AND HARYANA State of Haryana Vs Rajinder Singh CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA Present: Mr. R.P.S. Brar, for the appellant. Mr. Rakesh Nagpal, Advocate for the respondent. HARKESH MANUJA, J. By way of p judgment and decree dated Additional District Judge (Fast Track Court), Sirsa as 'the First Appellate Court' judgment and decree dated (Junior Division), dismissing the suit for injunction, came to be learned Trial Court and decreeing the suit filed 2. Brief facts of the case are that respondent/ plaintiff as a Head Constable in Haryana Police and retired from service w.e.f. 31.12.2005, while posted at Sirsa. Since the respondent/plaintiff remained absent from 12.11.2003 to 08.04.2004, appellant 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-3408 Date of Decision: State of Haryana Vs Rajinder Singh HON'BLE MR. JUSTICE HARKESH MANUJA Mr. R.P.S. Brar, AAG, Haryana for the appellant. Mr. Rakesh Nagpal, Advocate for the respondent. **** HARKESH MANUJA, J. By way of present appeal, challenge has been laid to judgment and decree dated 03/05.04.2010 Additional District Judge (Fast Track Court), Sirsa 'the First Appellate Court'), whereby the appeal preferred against the judgment and decree dated 10.06.2009 passed by the learned Civil Judge sion), Sirsa (hereinafter referred to as dismissing the suit for declaration with a consequential relief of mandatory came to be allowed, thereby reversing the decision of the learned Trial Court and decreeing the suit filed Brief facts of the case are that respondent/ plaintiff as a Head Constable in Haryana Police and retired from service w.e.f. 31.12.2005, while posted at Sirsa. Since the respondent/plaintiff remained 12.11.2003 to 08.04.2004, appellant IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 3408-2010 (O&M) Date of Decision: 21.07.2026 ......Appellant …..Respondent HON'BLE MR. JUSTICE HARKESH MANUJA appeal, challenge has been laid to the .04.2010 passed by the learned Additional District Judge (Fast Track Court), Sirsa (hereinafter referred to ), whereby the appeal preferred against the passed by the learned Civil Judge (hereinafter referred to as 'the Trial Court' declaration with a consequential relief of mandatory allowed, thereby reversing the decision of the learned Trial Court and decreeing the suit filed at the instance of plaintiff. Brief facts of the case are that respondent/ plaintiff was posted as a Head Constable in Haryana Police and retired from service w.e.f. 31.12.2005, while posted at Sirsa. Since the respondent/plaintiff remained 12.11.2003 to 08.04.2004, appellant/defendant No. 2, vide 1 the passed by the learned (hereinafter referred to ), whereby the appeal preferred against the passed by the learned Civil Judge 'the Trial Court') declaration with a consequential relief of mandatory allowed, thereby reversing the decision of the at the instance of plaintiff. was posted as a Head Constable in Haryana Police and retired from service w.e.f. 31.12.2005, while posted at Sirsa. Since the respondent/plaintiff remained defendant No. 2, vide SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) order dated 12.03.2004, directed a regular departmental enquiry against him by placing him was entrusted to the DSP, City, Sirsa, by the competen Following due procedure, the enquiry officer found the respondent/plaintiff guilty of the charge of 2.1. The Superintendent of Police, Sirsa, having accepted the enquiry report, served a show copy of the enquiry report, calling upon the respondent/plaintiff to show cause within fifteen days as to why the punishment increments with cumulative effect should not be imposed upon him. The respondent/plaintiff neither replied to the show for personal hearing despite service of notices dated 29.07.2004, 04.08.2004, 11.08.2004, 2 matter, the Superintendent of Police, Sirsa, vide order dated 21.09.2004, awarded the punishment of stoppage of five increments with cumulative effect. Aggrieved thereby, the respondent/plaintiff instituted th declaration to the effect that the order dated 21.09.2004 was illegal, null and void with a consequential relief of mandatory injunction directing the defendants to withdraw the order dated 20.09.2004; release the annual increments of the plan; to 05.08.2005 and release all the arrears arising from grant of such relief with interest at the rate of 18% per annum. 3. Upon notice, raising preliminary objections as to the maintainability of the suit, cause of action, locus standi 2010 (O&M) order dated 12.03.2004, directed a regular departmental enquiry against by placing him under suspension with immediate effect. The enquiry was entrusted to the DSP, City, Sirsa, by the competen Following due procedure, the enquiry officer found the respondent/plaintiff guilty of the charge of willful absence from 12.11.2003 to 08.04.2004. The Superintendent of Police, Sirsa, having accepted the enquiry report, served a show-cause notice dated 10.07.2004, along with a copy of the enquiry report, calling upon the respondent/plaintiff to show cause within fifteen days as to why the punishment increments with cumulative effect should not be imposed upon him. The respondent/plaintiff neither replied to the show for personal hearing despite service of notices dated 29.07.2004, 04.08.2004, 11.08.2004, 20.08.2004, and 27.08.2004. After examining the matter, the Superintendent of Police, Sirsa, vide order dated 21.09.2004, awarded the punishment of stoppage of five increments with cumulative effect. Aggrieved thereby, the respondent/plaintiff instituted th declaration to the effect that the order dated 21.09.2004 was illegal, null and void with a consequential relief of mandatory injunction directing the defendants to withdraw the order dated 20.09.2004; release the annual increments of the plan; revoke the suspension of plaintiff w.e.f. 12.03.2004 to 05.08.2005 and release all the arrears arising from grant of such relief with interest at the rate of 18% per annum. Upon notice, the appellants/defendants filed a written statement inary objections as to the maintainability of the suit, cause of locus standi of the respondent/plaintiff, concealment of facts order dated 12.03.2004, directed a regular departmental enquiry against under suspension with immediate effect. The enquiry was entrusted to the DSP, City, Sirsa, by the competent authority. Following due procedure, the enquiry officer found the respondent/plaintiff absence from 12.11.2003 to 08.04.2004. The Superintendent of Police, Sirsa, having accepted the cause notice dated 10.07.2004, along with a copy of the enquiry report, calling upon the respondent/plaintiff to show cause within fifteen days as to why the punishment of stoppage of five increments with cumulative effect should not be imposed upon him. The respondent/plaintiff neither replied to the show-cause notice nor appeared for personal hearing despite service of notices dated 29.07.2004, 0.08.2004, and 27.08.2004. After examining the matter, the Superintendent of Police, Sirsa, vide order dated 21.09.2004, awarded the punishment of stoppage of five increments with cumulative effect. Aggrieved thereby, the respondent/plaintiff instituted the suit for declaration to the effect that the order dated 21.09.2004 was illegal, null and void with a consequential relief of mandatory injunction directing the defendants to withdraw the order dated 20.09.2004; release the annual revoke the suspension of plaintiff w.e.f. 12.03.2004 to 05.08.2005 and release all the arrears arising from grant of such relief he appellants/defendants filed a written statement inary objections as to the maintainability of the suit, cause of of the respondent/plaintiff, concealment of facts and 2 order dated 12.03.2004, directed a regular departmental enquiry against under suspension with immediate effect. The enquiry t authority. Following due procedure, the enquiry officer found the respondent/plaintiff The Superintendent of Police, Sirsa, having accepted the cause notice dated 10.07.2004, along with a copy of the enquiry report, calling upon the respondent/plaintiff to show of stoppage of five increments with cumulative effect should not be imposed upon him. The cause notice nor appeared for personal hearing despite service of notices dated 29.07.2004, 0.08.2004, and 27.08.2004. After examining the matter, the Superintendent of Police, Sirsa, vide order dated 21.09.2004, awarded the punishment of stoppage of five increments with cumulative suit for declaration to the effect that the order dated 21.09.2004 was illegal, null and void with a consequential relief of mandatory injunction directing the defendants to withdraw the order dated 20.09.2004; release the annual revoke the suspension of plaintiff w.e.f. 12.03.2004 to 05.08.2005 and release all the arrears arising from grant of such relief he appellants/defendants filed a written statement inary objections as to the maintainability of the suit, cause of and SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) further pleaded that the suit was false and frivolous dismissed. 4. On the pleadings of the p the following issues: 5. Upon appreciation of the evidence, the learned Trial Court its judgment and decree dated 10.06.20 6. Aggrieved thereby, the respondent/plaintiff filed the first appeal, which was accepted by the learned decree dated 03 five increments with cumulative effect coul and accordingly set aside the order dated 21.09.2004. Hence Regular Second Appeal. CONTENTIONS: ON BEHALF OF APPEL 7. Learned counsel for the appellant submits that the imposition of the penalty of stoppage of five increments upon the respondent/plaintiff does not amount to double jeopardy merely because his period of absence 2010 (O&M) further pleaded that the suit was false and frivolous On the pleadings of the parties, the learned Trial Court framed the following issues:- “1. Whether the plaintiff is entitled to the consequential relief of mandatory injunction, as prayed for? 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 3. Whether the plaintiff has no locus of action to file the present suit? OPD. 4. Whether the plaintiff has not come with clean hands and also concealed th this court? OPD. 5. Relief.” Upon appreciation of the evidence, the learned Trial Court its judgment and decree dated 10.06.2009, dismissed the suit. Aggrieved thereby, the respondent/plaintiff filed the first appeal, which was accepted by the learned First Appellate Court vide judgment and decree dated 03/05.04.2010, holding that the punishment of stoppage of five increments with cumulative effect could not be imposed on the plaintiff, and accordingly set aside the order dated 21.09.2004. Hence Regular Second Appeal. CONTENTIONS: ON BEHALF OF APPELLANT-STATE: Learned counsel for the appellant submits that the imposition of the penalty of stoppage of five increments upon the respondent/plaintiff does not amount to double jeopardy merely because his period of absence further pleaded that the suit was false and frivolous and thus liable to be arties, the learned Trial Court framed Whether the plaintiff is entitled to the consequential relief of mandatory injunction, as prayed for? OPP. Whether the suit of the plaintiff is not maintainable in the present form? OPD. Whether the plaintiff has no locus-standi and no cause of action to file the present suit? OPD. Whether the plaintiff has not come with clean hands and also concealed the true and material facts from Upon appreciation of the evidence, the learned Trial Court vide 9, dismissed the suit. Aggrieved thereby, the respondent/plaintiff filed the first appeal, irst Appellate Court vide judgment and .04.2010, holding that the punishment of stoppage of d not be imposed on the plaintiff, and accordingly set aside the order dated 21.09.2004. Hence, the present Learned counsel for the appellant submits that the imposition of the penalty of stoppage of five increments upon the respondent/plaintiff does not amount to double jeopardy merely because his period of absence 3 and thus liable to be arties, the learned Trial Court framed Whether the plaintiff is entitled to the consequential Whether the suit of the plaintiff is not maintainable in standi and no cause Whether the plaintiff has not come with clean hands e true and material facts from vide Aggrieved thereby, the respondent/plaintiff filed the first appeal, irst Appellate Court vide judgment and .04.2010, holding that the punishment of stoppage of d not be imposed on the plaintiff, the present Learned counsel for the appellant submits that the imposition of the penalty of stoppage of five increments upon the respondent/plaintiff does not amount to double jeopardy merely because his period of absence SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) from 12.11.2003 to 08.04.2004 was treated as l pay and that the learned contrary. In support, by a Coordinate Bench of this Court in Kulbir Singh decree dated 03 set aside, consequently, dismissing respondent/plaintiff. ON BEHALF OF THE RESPOND 8. Per contra that the judgment and decree dated 03 First Appellate Court is based on a proper appreciation of evidence and therefore, calls for no interference. decision of this Court in 2007(3) PLR 108 “6. 2010 (O&M) from 12.11.2003 to 08.04.2004 was treated as l pay and that the learned First Appellate Court erred in holding to the contrary. In support, he relies upon the judgment dated 27.08.2009 passed by a Coordinate Bench of this Court in State of Haryana and others Vs. in RSA No. 2291 of 2007 and prays that the judgment and decree dated 03/05.04.2010 passed by the consequently, dismissing the suit for declaration filed by the respondent/plaintiff. ON BEHALF OF THE RESPONDENT-PLAINTIFF Per contra, learned counsel for the respondent/plaintiff submits that the judgment and decree dated 03/05.04.2010 passed by the learned irst Appellate Court is based on a proper appreciation of evidence and therefore, calls for no interference. In support, decision of this Court in Surinder Singh v. State of Punjab and others, 108. The relevant extract thereof is produced hereunder: It is admitted case of the parties that the allegations against the appellant, on the basis of which he was charge sheeted and after conducting inquiry dismissed from service, was that, he remained absent from duty for two years and it is further admitted case of the parties that at the time of passing of the dismissal order, this absence period was treated as leave without pay. Meaning thereby that, his period of absence for two years is sanctioned as leave without pay at the time of passing of the impugned order on 24.9.1984. difference in granting leave without pay and treating the period of absence as leave without pay. The distinction, which is sought to be drawn by the learned Additional Advocate General, is not possible. Upon granting of lea there can be no break in service, inasmuch as the period of from 12.11.2003 to 08.04.2004 was treated as leave of the kind due without irst Appellate Court erred in holding to the the judgment dated 27.08.2009 passed State of Haryana and others Vs. and prays that the judgment and learned First Appellate Court be the suit for declaration filed by the PLAINTIFF learned counsel for the respondent/plaintiff submits .04.2010 passed by the learned irst Appellate Court is based on a proper appreciation of evidence and In support, reliance was placed on the Surinder Singh v. State of Punjab and others, t thereof is produced hereunder:- It is admitted case of the parties that the allegations against the appellant, on the basis of which he was charge sheeted and after conducting inquiry dismissed from service, was that, he remained absent from duty for two years and it is further case of the parties that at the time of passing of the dismissal order, this absence period was treated as leave without pay. Meaning thereby that, his period of absence for two years is sanctioned as leave without pay at the time of ed order on 24.9.1984. I see no in granting leave without pay and treating the period of absence as leave without pay. The distinction, which is sought to be drawn by the learned Additional Advocate General, is not possible. Upon granting of leave without pay there can be no break in service, inasmuch as the period of 4 eave of the kind due without irst Appellate Court erred in holding to the the judgment dated 27.08.2009 passed State of Haryana and others Vs. and prays that the judgment and irst Appellate Court be the suit for declaration filed by the learned counsel for the respondent/plaintiff submits .04.2010 passed by the learned irst Appellate Court is based on a proper appreciation of evidence and reliance was placed on the Surinder Singh v. State of Punjab and others, It is admitted case of the parties that the allegations against the appellant, on the basis of which he was charge sheeted and after conducting inquiry dismissed from service, was that, he remained absent from duty for two years and it is further case of the parties that at the time of passing of the dismissal order, this absence period was treated as leave without pay. Meaning thereby that, his period of absence for two years is sanctioned as leave without pay at the time of I see no in granting leave without pay and treating the period of absence as leave without pay. The distinction, which is sought to be drawn by the learned Additional Advocate ve without pay there can be no break in service, inasmuch as the period of SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) DISCUSSION AND REASONING 9. I have heard learned counsel for the parties and gone through the paper-book 10. It is not in dispute that Constable with enquiry on account of his wi 08.04.2004. Vide order dated 21.09.2004, the punishment of stoppage of five annual increments with cumulative effect was impose thereby, the respondent/plaintiff filed a suit for declaration challenging the validity of the punishment order dated 21.09.2004. The learned vide judgment and decree dated 10.06.2009, dismissed the suit, which 2010 (O&M) absence is treated a period on leave. Therefore, the granting of leave, of whatever nature it may be, tantamounts to considering the absence as justified or at any rate to condonation and regularisation of the absence. opinion that after such regularisation and condonation, no disciplinary action lies. When once leave is granted in respect of particular period, it must be considered that he was permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other party to proceed against public servant for absenting from duty for the same period and to punish him. The authorities should have refused to grant leave of any kind due to the appellant and then proceed to punish him after due and proper inquiry and after affording reasonable opportunity to him. Once leave has been granted, it cannot be said that appellant had absented himself from duty and thereby made be punished.” DISCUSSION AND REASONING: I have heard learned counsel for the parties and gone through book and the records of the case. It is not in dispute that the respondent/plaintiff, working as a Constable with the appellants/defendants, faced a regular departmental enquiry on account of his willful absence from duty 08.04.2004. Vide order dated 21.09.2004, the punishment of stoppage of five annual increments with cumulative effect was impose , the respondent/plaintiff filed a suit for declaration challenging the validity of the punishment order dated 21.09.2004. The learned vide judgment and decree dated 10.06.2009, dismissed the suit, which absence is treated a period on leave. Therefore, the granting of leave, of whatever nature it may be, tantamounts to considering the absence as justified or at any rate to on and regularisation of the absence. I am of this after such regularisation and condonation, no disciplinary action lies. When once leave is granted in respect of particular period, it must be considered that he was f from duty for that period. In such a case, it is not permissible or open to the employer or any other party to proceed against public servant for absenting from duty for the same period and to punish him. The authorities should e of any kind due to the appellant and then proceed to punish him after due and proper inquiry and after affording reasonable opportunity to him. Once leave has been granted, it cannot be said that appellant had absented himself from duty and thereby made himself liable to I have heard learned counsel for the parties and gone through and the records of the case. the respondent/plaintiff, working as a the appellants/defendants, faced a regular departmental lful absence from duty w.e.f. 12.11.2003 to 08.04.2004. Vide order dated 21.09.2004, the punishment of stoppage of five annual increments with cumulative effect was imposed. Aggrieved , the respondent/plaintiff filed a suit for declaration challenging the validity of the punishment order dated 21.09.2004. The learned Trial Court, vide judgment and decree dated 10.06.2009, dismissed the suit, which 5 absence is treated a period on leave. Therefore, the granting of leave, of whatever nature it may be, tantamounts to considering the absence as justified or at any rate to I am of this after such regularisation and condonation, no disciplinary action lies. When once leave is granted in respect of particular period, it must be considered that he was f from duty for that period. In such a case, it is not permissible or open to the employer or any other party to proceed against public servant for absenting from duty for the same period and to punish him. The authorities should e of any kind due to the appellant and then proceed to punish him after due and proper inquiry and after affording reasonable opportunity to him. Once leave has been granted, it cannot be said that appellant had himself liable to I have heard learned counsel for the parties and gone through the respondent/plaintiff, working as a the appellants/defendants, faced a regular departmental 12.11.2003 to 08.04.2004. Vide order dated 21.09.2004, the punishment of stoppage of d. Aggrieved , the respondent/plaintiff filed a suit for declaration challenging the rial Court, vide judgment and decree dated 10.06.2009, dismissed the suit, which SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) came to be reversed and decree dated 03.04.2010, with the following observations: “15. 11. In the humble op learned First Appellate Court does not conform to the view expressed by the Hon’ble Supreme Court in the case of Harihar Gopal, 27.08.2009 passed in RSA No. 2291 of 2007, titled as and others Vs. Kulbir Singh passed by this Court 2010 (O&M) came to be reversed by the learned First Appellate Court vide its judgment and decree dated 03.04.2010, with the following observations: “15. After considering the facts of the case, evidence adduced by both the parties and giving due consideration to the rival contentions addressed by counsel for the appellant as well as learned Govt. Pleader the Court is of the view that once the absence period of the appellant is converted into the leave without pay by the competent authority then the charge of absence from duty and misconduct will not survive meaning thereby that the period of absence from duty is regularized and converted into leave without accordingly punishment of stoppage of five increments with cumulative effect cannot be imposed upon the appellant and accordingly the impugned order Ex.D4 being illegal, null and void and not passed as per law, is set aside.” In the humble opinion of this Court, the reasoning given by learned First Appellate Court does not conform to the view expressed by the Hon’ble Supreme Court in the case of , 1969 SLR 274 followed by this Court in its judgment date 27.08.2009 passed in RSA No. 2291 of 2007, titled as and others Vs. Kulbir Singh. The relevant portion passed by this Court is extracted hereunder: “The question whether the order to treat the absence period as leave of the kind due would amount to condonation of misconduct came up for consideration before the Hon'ble Supreme Court in a judgment reported as of Madhya Pradesh vs. Harihar Gopal was held that the order granting leave is for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the respondent and regularizing his absence from duty, such order does not invalidate the irst Appellate Court vide its judgment and decree dated 03.04.2010, with the following observations: After considering the facts of the case, evidence adduced by both the parties and giving due consideration to the rival contentions addressed by counsel for the appellant as well Govt. Pleader the Court is of the view that once d of the appellant is converted into the leave without pay by the competent authority then the charge of absence from duty and misconduct will not survive meaning thereby that the period of absence from duty is regularized and converted into leave without pay and accordingly punishment of stoppage of five increments with cumulative effect cannot be imposed upon the appellant and accordingly the impugned order Ex.D4 being illegal, null and void and not passed as per law, is set aside.” inion of this Court, the reasoning given by learned First Appellate Court does not conform to the view expressed by the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. followed by this Court in its judgment date 27.08.2009 passed in RSA No. 2291 of 2007, titled as State of Haryana . The relevant portion from the judgment is extracted hereunder:- “The question whether the order to treat the absence period as leave of the kind due would amount to condonation of misconduct came up for consideration before the Hon'ble Supreme Court in a judgment reported as State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274. It was held that the order granting leave is for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the respondent and regularizing his absence from duty, such order does not invalidate the 6 irst Appellate Court vide its judgment After considering the facts of the case, evidence adduced by both the parties and giving due consideration to the rival contentions addressed by counsel for the appellant as well Govt. Pleader the Court is of the view that once d of the appellant is converted into the leave without pay by the competent authority then the charge of absence from duty and misconduct will not survive meaning thereby that the period of absence from duty is pay and accordingly punishment of stoppage of five increments with cumulative effect cannot be imposed upon the appellant and accordingly the impugned order Ex.D4 being illegal, null and inion of this Court, the reasoning given by learned First Appellate Court does not conform to the view expressed by State of Madhya Pradesh vs. followed by this Court in its judgment dated State of Haryana from the judgment “The question whether the order to treat the absence period as leave of the kind due would amount to condonation of misconduct came up for consideration before State . It was held that the order granting leave is for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the respondent and regularizing his absence from duty, such order does not invalidate the SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) 12. This position has since been reaffirmed by the Hon'ble Supreme Court in 2004 SC 4161 without pay, passed after the order of punishment, is made only for the purpose of maintaining a correct record of service and does not amount to condonation of the misconduct of unauthorised absence; th right to punish long, unauthorised absence which prima facie evidences 2010 (O&M) earlier order of punishment. In vs. Charanjit Singh, AIR 2003 SC 4317 following effect: - "In the State of Punjab and others vs. Bakshish Singh, 1998 (7) JT (SC) 142 which was relied upon by the Courts below in holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularised the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence when treated as leave without pay, was with a view to regularise the leave and not for condonation of misconduct". This position has since been reaffirmed by the Hon'ble Supreme Court in Delhi Transport Corporation v. Sardar Singh, AIR 2004 SC 4161, wherein it was held that an order treating absence as leave without pay, passed after the order of punishment, is made only for the purpose of maintaining a correct record of service and does not amount to condonation of the misconduct of unauthorised absence; th right to punish long, unauthorised absence which prima facie evidences arlier order of punishment. In State of Punjab and others vs. Charanjit Singh, AIR 2003 SC 4317, it was held to the "In the State of Punjab and others vs. Bakshish Singh, 1998 (7) JT (SC) 142 which was relied upon by holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of e leave having been regularised the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. , 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence ated as leave without pay, was with a view to regularise the leave and not for condonation of This position has since been reaffirmed by the Hon'ble Delhi Transport Corporation v. Sardar Singh, AIR it was held that an order treating absence as leave without pay, passed after the order of punishment, is made only for the purpose of maintaining a correct record of service and does not amount to condonation of the misconduct of unauthorised absence; the employer's right to punish long, unauthorised absence which prima facie evidences 7 State of Punjab and others , it was held to the "In the State of Punjab and others vs. Bakshish Singh, 1998 (7) JT (SC) 142 which was relied upon by holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of e leave having been regularised the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. , 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence ated as leave without pay, was with a view to regularise the leave and not for condonation of This position has since been reaffirmed by the Hon'ble Delhi Transport Corporation v. Sardar Singh, AIR it was held that an order treating absence as leave without pay, passed after the order of punishment, is made only for the purpose of maintaining a correct record of service and does not amount to e employer's right to punish long, unauthorised absence which prima facie evidences SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) lack of interest in work thereof is reproduced hereunder: “10. 11. 12. 13. At this juncture, it may be relevant to mention that t placed by learned counsel for the respondent/plaintiff on case (supra) (supra) was distinguished absence as leave without pay was separate and subsequent, whereas in Surinder Singh's case With due respect, this Court is unable to accept that such a distinction 2010 (O&M) lack of interest in work, survives such regularisation. thereof is reproduced hereunder:- “10. Conclusions regarding negligence and lack of interest ca arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non the absence unauthorized. 11. The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the noted leave without pay. Treating as leave without pay is not same as sanctioned or approved leave. 12. That being the factual position, the Tribunal was not justified in refusing to accord approval to the order of dismissal/removal as passed by the employer. The learned Single Judge was justified in holding that the employer was justified in passing order of termination/removal. The Division Bench unfortunately did not keep these aspects in view and reversed the view of learned Single Judge.” At this juncture, it may be relevant to mention that t placed by learned counsel for the respondent/plaintiff on does not assist him. In that case was distinguished on the ground that in the latter, the order treating absence as leave without pay was separate and subsequent, whereas in Surinder Singh's case (supra) it formed part of the dismissal order itself. With due respect, this Court is unable to accept that such a distinction survives such regularisation. The relevant extract Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. a 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the noted leave without pay. Treating as leave without pay is not same as sanctioned factual position, the Tribunal was not justified in refusing to accord approval to the order of dismissal/removal as passed by the employer. The learned Single Judge was justified in holding that the employer was justified in passing removal. The Division Bench unfortunately did not keep these aspects in view and reversed the view of learned Single Judge.” At this juncture, it may be relevant to mention that the reliance placed by learned counsel for the respondent/plaintiff on Surinder Singh's does not assist him. In that case, Hari Har Gopal's case on the ground that in the latter, the order treating absence as leave without pay was separate and subsequent, whereas in it formed part of the dismissal order itself. With due respect, this Court is unable to accept that such a distinction that 8 The relevant extract n be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. a 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also enders The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the noted leave without pay. Treating as leave without pay is not same as sanctioned factual position, the Tribunal was not justified in refusing to accord approval to the order of dismissal/removal as passed by the employer. The learned Single Judge was justified in holding that the employer was justified in passing removal. The Division Bench unfortunately did not keep these aspects in view and reversed he reliance urinder Singh's Hari Har Gopal's case on the ground that in the latter, the order treating absence as leave without pay was separate and subsequent, whereas in it formed part of the dismissal order itself. that SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) whether the order was passed separately or along with the punishment can, by itself, be the determining factor as to whether stands condoned. documents employed by the punishing authority, but the intention underlying the order: whether it was intended to condone the absence or merely to account for it while punishi outcome depend upon the manner of drafting would permit form to override substance. 13.1 This position is made clear by the Hon'ble Supreme Court in State of Punjab v. P.L. Singla, AIR 2009 SC 1149 courses are open to an employer where an employee remains unauthorisedly absent: the first is to condone the absence by sanctioning leave for the period in question, in which event the misconduct stands condoned; the second is to treat the absence as misconduc enquiry, and impose punishment accordingly. The Court further clarified that even where punishment is imposed and the employee continues in service, a consequential order accounting for the period of absence in the service record remains necessa a break in service affecting seniority, pension, and pay. Such an order, it was held, is merely an accounting and administrative measure, and does not affect or supersede the order of punishment. It may be contemplated in order in Hari Har Gopal's case (supra) the order of punishment, which is not the position in the case at han 2010 (O&M) whether the order was passed separately or along with the punishment can, by itself, be the determining factor as to whether stands condoned. The material consideration is not the number of documents employed by the punishing authority, but the intention underlying the order: whether it was intended to condone the absence or merely to account for it while punishing the misconduct. To make the outcome depend upon the manner of drafting would permit form to override This position is made clear by the Hon'ble Supreme Court in State of Punjab v. P.L. Singla, AIR 2009 SC 1149 ses are open to an employer where an employee remains unauthorisedly absent: the first is to condone the absence by sanctioning leave for the period in question, in which event the misconduct stands condoned; the second is to treat the absence as misconduc enquiry, and impose punishment accordingly. The Court further clarified that even where punishment is imposed and the employee continues in service, a consequential order accounting for the period of absence in the service record remains necessary, failing which the employee would suffer a break in service affecting seniority, pension, and pay. Such an order, it was held, is merely an accounting and administrative measure, and does not affect or supersede the order of punishment. It may be pertinent to note here contemplated in P.L. Singla's case (supra) Hari Har Gopal's case (supra), was one passed subsequent to the order of punishment, which is not the position in the case at han whether the order was passed separately or along with the punishment can, by itself, be the determining factor as to whether the misconduct The material consideration is not the number of documents employed by the punishing authority, but the intention underlying the order: whether it was intended to condone the absence or ng the misconduct. To make the outcome depend upon the manner of drafting would permit form to override This position is made clear by the Hon'ble Supreme Court in State of Punjab v. P.L. Singla, AIR 2009 SC 1149. It was held that two ses are open to an employer where an employee remains unauthorisedly absent: the first is to condone the absence by sanctioning leave for the period in question, in which event the misconduct stands condoned; the second is to treat the absence as misconduct, hold an enquiry, and impose punishment accordingly. The Court further clarified that even where punishment is imposed and the employee continues in service, a consequential order accounting for the period of absence in the ry, failing which the employee would suffer a break in service affecting seniority, pension, and pay. Such an order, it was held, is merely an accounting and administrative measure, and does not affect or supersede the order of punishment. nent to note here that the consequential order P.L. Singla's case (supra), like the leave-sanctioning , was one passed subsequent to the order of punishment, which is not the position in the case at han 9 whether the order was passed separately or along with the punishment the misconduct The material consideration is not the number of documents employed by the punishing authority, but the intention underlying the order: whether it was intended to condone the absence or ng the misconduct. To make the outcome depend upon the manner of drafting would permit form to override This position is made clear by the Hon'ble Supreme Court in . It was held that two ses are open to an employer where an employee remains unauthorisedly absent: the first is to condone the absence by sanctioning leave for the period in question, in which event the misconduct stands t, hold an enquiry, and impose punishment accordingly. The Court further clarified that even where punishment is imposed and the employee continues in service, a consequential order accounting for the period of absence in the ry, failing which the employee would suffer a break in service affecting seniority, pension, and pay. Such an order, it was held, is merely an accounting and administrative measure, and does that the consequential order sanctioning , was one passed subsequent to the order of punishment, which is not the position in the case at hand, SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) where the order dated 21.09.2004 itself treats the period of absence as leave without pay. Even so, this distinction does not, in the opinion of this Court, affect the applicability of the principle. determinative factor is substance and the order. 13.2 Applying the aforesaid test to the facts of the present case, had the Superintendent of Police, Sirsa, intended to condone the respondent/plaintiff's absence while passing the order dated 21.09.2004, the order would have said so in express terms. There can be no condonation by implication merely because the leave and the order of punishment happen to appear in the same document. The order in question imposed punishment for wilful and the treatment of the same period as leave without pay served only to ensure that the respondent/plaintiff's service record did not reflect a break in service and that his future service benefits remained unaffected, which is precisely the accounting function contemplated in (supra). Read as a whole, the order intention to punish the misconduct drawn in Surinder Singh's case (supra) was separate or combined, does not, therefore, merit acceptance in the humble opinion of this Court 14. In view of the detailed discussion made hereinabove that the respondent/plaintiff's period of wilful absence was of the kind due without pay record of the duration of service and for adjustment of leave 2010 (O&M) where the order dated 21.09.2004 itself treats the period of absence as leave without pay. Even so, this distinction does not, in the opinion of this Court, affect the applicability of the principle. determinative factor is substance and intention Applying the aforesaid test to the facts of the present case, had the Superintendent of Police, Sirsa, intended to condone the respondent/plaintiff's absence while passing the order dated 21.09.2004, the order would have said so in express terms. There can be no condonation by implication merely because the leave and the order of punishment happen to appear in the same document. The order in question imposed punishment for wilful and the treatment of the same period as leave without pay served only to ensure that the respondent/plaintiff's service record did not reflect a break in service and that his future service benefits remained unaffected, which is recisely the accounting function contemplated in . Read as a whole, the order dated 21.09.2004 intention to punish the misconduct and not to condone it. The distinction Surinder Singh's case (supra), turning was separate or combined, does not, therefore, merit acceptance in the humble opinion of this Court. In view of the detailed discussion made hereinabove that the respondent/plaintiff's period of wilful absence was of the kind due without pay, for the limited purpose of maintaining a correct record of the duration of service and for adjustment of leave where the order dated 21.09.2004 itself treats the period of absence as leave without pay. Even so, this distinction does not, in the considered opinion of this Court, affect the applicability of the principle. The intention and not the timing or form of Applying the aforesaid test to the facts of the present case, had the Superintendent of Police, Sirsa, intended to condone the respondent/plaintiff's absence while passing the order dated 21.09.2004, the order would have said so in express terms. There can be no condonation by implication merely because the leave-without-pay notation and the order of punishment happen to appear in the same document. The order in question imposed punishment for wilful absence after due enquiry and the treatment of the same period as leave without pay served only to ensure that the respondent/plaintiff's service record did not reflect a break in service and that his future service benefits remained unaffected, which is recisely the accounting function contemplated in P.L. Singla's case dated 21.09.2004 discloses an and not to condone it. The distinction , turning upon whether the order was separate or combined, does not, therefore, merit acceptance in the In view of the detailed discussion made hereinabove, the fact that the respondent/plaintiff's period of wilful absence was treated as leave for the limited purpose of maintaining a correct record of the duration of service and for adjustment of leave, does not 10 where the order dated 21.09.2004 itself treats the period of absence as considered The and not the timing or form of Applying the aforesaid test to the facts of the present case, had the Superintendent of Police, Sirsa, intended to condone the respondent/plaintiff's absence while passing the order dated 21.09.2004, the order would have said so in express terms. There can be no pay notation and the order of punishment happen to appear in the same document. The absence after due enquiry and the treatment of the same period as leave without pay served only to ensure that the respondent/plaintiff's service record did not reflect a break in service and that his future service benefits remained unaffected, which is P.L. Singla's case discloses an and not to condone it. The distinction upon whether the order was separate or combined, does not, therefore, merit acceptance in the , the fact treated as leave for the limited purpose of maintaining a correct does not SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document RSA-3408-2010 (O&M) invalidate the punishment already imposed, and does not amount to double jeopardy. Such t count towards future service benefits; it neither condones the misconduct nor operates as a fresh adjudication of the charge. The learned Appellate Court, therefore, fell in error in equating absence with condonation of the underlying misconduct and in setting aside the punishment order dated 21.09.2004 on that basis. RELIEF: 15. Accordingly, passed by the learned and decree dated 10.06.2009 passed by the learned the suit, is restored. The present Regular Second Appeal is 16. Pending application(s), if any, shall also stand disposed of. 21.07.2026 sanjay Whether speaking/reasoned Whether reportable 2010 (O&M) invalidate the punishment already imposed, and does not amount to double jeopardy. Such treatment of the absence is merely to enable the period to count towards future service benefits; it neither condones the misconduct nor operates as a fresh adjudication of the charge. The learned Appellate Court, therefore, fell in error in equating absence with condonation of the underlying misconduct and in setting aside the punishment order dated 21.09.2004 on that basis. Accordingly, the judgment and decree dated 03 passed by the learned First Appellate Court is set aside, and the judgment and decree dated 10.06.2009 passed by the learned the suit, is restored. The present Regular Second Appeal is Pending application(s), if any, shall also stand disposed of. Whether speaking/reasoned Whether reportable invalidate the punishment already imposed, and does not amount to double reatment of the absence is merely to enable the period to count towards future service benefits; it neither condones the misconduct nor operates as a fresh adjudication of the charge. The learned F Appellate Court, therefore, fell in error in equating the regularisation of the absence with condonation of the underlying misconduct and in setting aside the punishment order dated 21.09.2004 on that basis. the judgment and decree dated 03/05.04.2010 llate Court is set aside, and the judgment and decree dated 10.06.2009 passed by the learned Trial Court, dismissing the suit, is restored. The present Regular Second Appeal is allowed. Pending application(s), if any, shall also stand disposed of. (HARKESH MANUJA) JUDGE Yes/No Yes/No 11 invalidate the punishment already imposed, and does not amount to double reatment of the absence is merely to enable the period to count towards future service benefits; it neither condones the misconduct First the regularisation of the absence with condonation of the underlying misconduct and in setting .04.2010 llate Court is set aside, and the judgment rial Court, dismissing SANJAY GUPTA 2026.07.28 16:26 I attest to the accuracy and integrity of this document