Punjab-Haryana High Court
State Of Punjab And Ors vs Sukhmander Singh on 16 February, 2026
RSA No. 3195 of 1998 (O&M) 1 / 15
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(205) RSA No. 3195 of 1998 (O&M)
Reserved on :- 29.01.2026
Pronounced on: 16.02.2026
Uploaded on: 16.02.2026
State of Punjab & Another ... Appellants
Versus
Sukhmander Singh ... Respondent
CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Present:- Mr. I.S.Kingra, Senior DAG, Punjab
for the appellants
Mr. D.S.Bhinder, Advocate
for the respondent.
****
VIRINDER AGGARWAL, J.
1. The present Regular Second Appeal (hereinafter referred as “appeal”)
has been preferred by the defendant-appellant challenging the judgment and
decree dated 24.04.1998 passed by the learned District Judge, Bathinda,
whereby the suit of the respondent-plaintiff was decreed by setting aside the
order of dismissal from the service passed by the competent authority and the
judgment and decree dated 14.09.1996 of the learned Civil Judge (Junior
Division), Bathinda was reversed.
BACKGROUND FACTS
2. The respondent-plaintiff was appointed as a Constable
(No.1032/Bathinda) in the Punjab Police and was serving in the department at
the relevant time. During the course of his service, the respondent-plaintiff
remained wilfully absent from duty for 4 Months and 19 days on different
periods without obtaining prior permission or sanction from the competent
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RSA No. 3195 of 1998 (O&M) 2 / 15
authority. As the unauthorised absence continued, the department initiated
disciplinary proceedings against the respondent-plaintiff under the Punjab
Police Rules, 1934. A charge-sheet was served upon him alleging unauthorised
absence from duty. The respondent-plaintiff participated in the departmental
enquiry. Upon completion of the enquiry, the Enquiry Officer submitted a report
holding the charge of unauthorised absence to be proved against the respondent.
After considering the enquiry report and the explanation furnished by the
respondent-plaintiff, the competent disciplinary authority (appellant
no.2/defendant no.2-Senior Superintendent of Police, Bathinda) passed an
impugned order (Order No.38-42/802 dated 15.01.1992) imposing the penalty
of dismissal from service. While passing the said order, the authority also
directed that the period during which the respondent-plaintiff remained absent
shall be treated as non-duty period, keeping in view the respondent-plaintiff’s
pensionary entitlements. Aggrieved by the impugned order of dismissal, the
respondent-plaintiff availed of the departmental remedies available to him by
filing an appeal and thereafter a revision. Both the departmental appeal and
revision were dismissed by the competent authorities, thereby affirming the
order of dismissal.
3. Thereafter, the respondent-plaintiff instituted a civil suit challenging the
impugned order of dismissal as well as the orders passed in departmental appeal
and revision. In the suit, the respondent-plaintiff contended that once the period
of absence had been treated as non-duty period, the department could not have
imposed the extreme penalty of dismissal, as such treatment amounted to
condonation or regularisation of the absence. On the basis of these assertions,
the respondent-plaintiff sought setting aside of the dismissal order along with
consequential service benefits. The appellants-defendants contested the suit by
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RSA No. 3195 of 1998 (O&M) 3 / 15
filing a written statement, asserting that the respondent-plaintiff had remained
unauthorisedly absent, that a regular departmental enquiry had been conducted
in accordance with law, and that the punishment of dismissal was justified. It
was further pleaded that the treatment of the absence period as non-duty did not
amount to condonation or regularisation and was only intended to regulate
service and pensionary consequences.
4. Upon a meticulous examination of the pleadings and the competing
claims of the parties, the learned Trial Court proceeded to frame the following
issues for determination, with a view to secure a precise, coherent, and legally
structured adjudication of the controversies arising in the matter:-
1. Whether The Order No.38-42/802 Dated 15.1.92 issued by the
Defendent No.2 And further Order Of D.I.G-Ferozepur bearing
No.3730 dated 30.4.92 and further Order of I.G.Punjab Chandigarh
dated 19.4.93 conveyed to the plaintiff Vide No.14526 Dated 19.5.93
Are Illegal, Null And Void, arbitrary? OPP
2. Whether The Plaintiff Is Entitled To Declaration Prayed
For ? OPP
3. Whether The Suit Is Not Maintainable In the Present Form? OPP
4. Relief.
5. Both parties were afforded full and adequate opportunity to adduce
evidence in substantiation of their respective claims and defences. Upon the
culmination of the evidentiary proceedings, and after hearing learned counsel
for the parties at length, The learned Trial Court, upon consideration of the
pleadings and evidence, dismissed the suit.
6. Aggrieved by the judgment and decree so rendered by the learned Trial
Court, the respondent-plaintiff preferred an appeal before the learned District
Judge, Bathinda. The learned First Appellate Court reversed the judgment and
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RSA No. 3195 of 1998 (O&M) 4 / 15decree of the learned Trial Court and allowed the suit of respondent-plaintiff.
Dissatisfied with the same, the appellant-defendants have filed the present
appeal for seeking dismissal of the suit.
CONTENTIONS
7. Learned State counsel for the appellants submits that the respondent-
plaintiff had remained unauthorisedly absent from duty for a period of four
months and nineteen days. It is further contended that the learned First
Appellate Court has committed a grave error of law in holding that the
treatment of the said period amounted to regularisation or condonation of the
misconduct. According to learned counsel, the absence period was not
regularised in any manner; rather, it was expressly treated as non-duty period,
and such treatment was accorded only for the limited purpose of service related
pensionary benefits. It is argued that the impugned order does not, either
expressly or impliedly, condone the unauthorised absence or absolve the
respondent of the misconduct proved against him, and that safeguarding
pensionary benefits while imposing punishment is legally permissible.
Consequently, the finding recorded by the learned First Appellate Court on this
aspect is stated to be unsustainable in law.
8. Per contra, learned counsel for the respondent submits that once the
competent authority itself treated the period of absence as non-duty period, the
very foundation of the charge of unauthorised absence stood eroded, rendering
the punishment of dismissal unsustainable in the eyes of law. It is contended
that such treatment amounts to implied condonation of the alleged misconduct,
and therefore, the extreme penalty of dismissal could not have been imposed. It
is further argued that, in the facts and circumstances of the case, the respondent
has been subjected to double punishment and the punishment imposed upon the
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RSA No. 3195 of 1998 (O&M) 5 / 15
respondent deserves to be substituted with a lesser penalty, such as premature or
compulsory retirement.
OBSERVATIONS AND FINDINGS
9. I have heard learned counsel for the appellants and respondent with due
thoroughness and have undertaken a meticulous and comprehensive examination of
the entire record.
10. As regards the scope of second appeal, it is now a settled proposition of law
that in Punjab and Haryana, second appeals preferred are to be treated as appeals
under Section 41 of Punjab Courts Act, 1918 and not under Section 100 of CPC.
Reference in this regard can be made to the judgment of the Supreme Court in the
case of ‘Pankajakshi (Dead) through LRs and others V/s Chandrika and others’,
(2016)6 SCC 157, followed by the judgments in the case of ‘Kirodi (since deceased)
through his LR V/s Ram Parkash and others’ (2019) 11 SCC 317 and ‘Satender
and others V/s Saroj and others’, 2022(12) Scale 92. Relying upon the law laid
down in the aforesaid judgments, no question of law is required to be framed.
Effect of treating unauthorised absence as leave without pay/non-duty period
11. Before proceeding further, it is necessary to examine the nature and
effect of the impugned order dated 15.01.1992 insofar as it relates to the period
of absence of the respondent-plaintiff from duty. It is not in dispute that the
respondent-plaintiff remained absent from duty for period of 4 Months and 19
days, that the allegations of unauthorised absence were duly proved in the
departmental enquiry, and that on the basis thereof, the competent authority
imposed the penalty of dismissal from service. The period of absence was,
however, sanctioned as leave without pay which means it was treated as non-
duty period.
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12. The contention raised on behalf of the respondent-plaintiff that such
treatment amounts to regularisation or condonation of the absence cannot be
accepted. A careful reading of the impugned order makes it abundantly clear
that the competent authority did not regularise or condone the absence of the
respondent-plaintiff. The absence period was expressly treated as non-duty
period, and such treatment was accorded only keeping in view the pensionary
consequences flowing from the order of dismissal. The learned First Appellate
Court has proceeded on the assumption that once the period of unauthorised absence
was treated as leave without pay/non-duty period, the misconduct stood condoned or
regularised, thereby invalidating the punishment of dismissal. This approach is legally
unsustainable as it is alien to service jurisprudence. Leave without pay,
particularly when imposed after a finding of misconduct, serves a dual and
limited purpose:
(i) it penalises the delinquent employee financially by denying wages for the
period not worked, and
(ii) it enables correct maintenance of service records, so that statutory
benefits such as gratuity or pension, if otherwise admissible, are calculated
without introducing an artificial break in service.
13. Leave without pay is thus neither an act of forgiveness nor an act of
exoneration. It is an administrative regularisation for record-keeping, not a
disciplinary condonation of misconduct. It operates to the disadvantage of the
employee by denying wages for the period during which no service was
rendered. Its object is confined to administrative regulation of service records
so as to avoid an artificial break in service for the limited purpose of calculating
pensionary or other statutory benefits, if otherwise admissible. If leave without
pay were to be construed as condonation, every disciplinary authority would be
precluded from regulating service records post-enquiry without nullifying the
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RSA No. 3195 of 1998 (O&M) 7 / 15
punishment itself, an interpretation which would strike at the very root of
disciplinary control. Moreover, accepting such a proposition would lead to
absurd consequences that a delinquent employee could wilfully absent himself,
face disciplinary proceedings, and then contend that mere adjustment of the
absence period wipes out the misconduct. Such an interpretation would defeat
natural justice, undermine discipline, and render service rules unworkable.
Misapplication of Precedents
14. The authorities relied upon by the learned First Appellate Court to
conclude that the unauthorised absence of the respondent-plaintiff stood
condoned or regularised are clearly distinguishable and have no application to
the facts of the present case. In the present matter, the issue is required to be
examined primarily in the light of the impugned order itself, as it is the contents
and tenor of the said order which alone determine whether the absence was
regularised or merely regulated for limited purposes of pensionary benefits. The
relevant and operative part of the impugned order dated 15.01.1992 reads as
under:
“So, in the interest of justice I dismiss the delinquent Constable Sukhmander Singh
No.1032/Bathinda, today that is on 15.01.1992 afternoon in light of the aforesaid
charges. The aforesaid absence period of 4 months and 19 days is accordingly
considered/accepted as non-duty period, without pay.”
15. A plain reading of the above extract leaves no manner of doubt that the
competent authority, while imposing the punishment of dismissal, consciously
treated the period of absence as non-duty period without pay. Such treatment
cannot be construed as regularisation or condonation of unauthorised absence as
aforesaid stated. In this regard, the learned First Appellate Court attempted to
distinguish the judgment of the Hon’ble Supreme Court in State of M.P. v.
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Harihar Gopal, 1969 SLR 274, on the ground that in the present case leave
without pay was adjusted in the same order of dismissal, whereas in that case it
was done in the subsequent order. This distinction is artificial and devoid of
legal substance. The Hon’ble Supreme Court in Harihar Gopal (supra)
recognised that post-termination adjustment of leave or absence is intended for
maintaining correct service records and does not invalidate or dilute the order of
termination. The timing of such adjustment whether in the same order or
subsequently is immaterial. What is relevant is the intent, which is
administrative and not condonatory. In the present case, the intent behind
treating the absence period as non-duty without pay is clearly administrative.
The Hon’ble Supreme Court in Harihar Gopal (supra) held in no uncertain
terms that :
“Para 7. It was urged before the High Court on behalf of the State that the
order granting leave was only for the purpose of regularising the absence
from duty and for maintaining a true account of absence from duty and had
not the effect of first sanctioning leave to the respondent in which he was
entitled and then removing him from service for absence from duty. The High
Court rejected this contention observing.
“……… When the leave was granted even though belatedly, it
had the effect of authorising with retrospective effect the
petitioner’s (respondent’s) absence from duty during the period
for which it was sanction. Having thus authorised the
petitioner’s (respondent’s) absence from duty, it was not open to
the State Government to proceed on the basic that his absence
was unauthorised.”
These observations proceed upon a misconception of the sequence of the
orders passed by the State Government and the true effect of the order
granting leave. The order granting leave was made after the order
terminating the employment and it was made only for the purpose of
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RSA No. 3195 of 1998 (O&M) 9 / 15
leave due to the respondent and for regularising his absence from duty. Our
attention has not been invited to any rules governing the respondent’s
service conditions under which an order regularising absence from duty
subsequent to termination of employment has the effect of invalidating
termination. Both the orders, one terminating the employment of the
respondent and the other granting leave are made by order and in the name of
the Governor of Madhya Pradesh” and they are signed by L.B. Sarje, Deputy
Secretary to the Government of Madhya Pradesh, General Administration
Department. We are unable to hold that the authority after terminating the
employment of the respondent intended to pass an order invalidating the
earlier order by sanctioning leave to that the respondent was to be deemed
nor to have remained absent from duty without leave duly granted.”
16. Hence, the dicta laid down by the Apex Court in Harihar Gopal
(supra) is unambiguous and still holds the field, namely, that it is open to the
Punishing Authority to direct the Record Keeper to complete the service record
by treating the period of absence as one without pay. The impugned order was
to be read as a whole and harmoniously construed to ascertain the real intention
of the impugned order. Merely because in the last line of the order the
disciplinary authority has directed the absence period to be treated as “leave
without pay” cannot be read to mean that the disciplinary authority intended
that the petitioner should be continued in service,. Further, the distinction
sought to be drawn to the effect that the order regularising the absence from
duty as “leave without pay” is not a separate order, as was in the Harihar
Gopal (supra) cannot be accepted. It does not stand to reason that in said case
the termination order was upheld only because the order of regularising leave
was passed subsequently. A reading of the judgment does not give such an
impression. Further, the Hon’ble Supreme Court has re-affirmed the law laid
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down in Harihar Gopal (Supra) in Maan Singh v. Union of India, 2003 (3)
SCC 464 and State of Punjab v. Charanjit Singh 2004 (1) SCT 283, wherein it
was also held that regularisation of unauthorised absence was to ensure that
there is no break in service and thus, empowers the disciplinary authority to
continue with the disciplinary proceedings. Therefore, in the present case, the
First Appellate Court misread and misapplied the binding precedent.
17. On the contrary, the reliance placed by the learned First Appellate Court
on authorities is wholly misplaced. In Om Parkash v. Presiding Officer,
Labour Court, Amritsar, 1992 (1) SCT 166, the order of dismissal was
subsequently “converted” by the employer into leave without pay by a separate
and later order, which had the effect of condoning the dismissal itself. It was in
those peculiar facts that the Court held that once the dismissal stood condoned
by the employer’s own subsequent conduct, the punishment could not be
sustained which shows the intent of court. The said ratio has no application to
the present case, where the respondent was dismissed from service by a final
and operative order, and there is neither any subsequent order nor any act on the
part of the competent authority “converting or condoning/withdrawing” the
dismissal. The treatment of the period of absence as non-duty without pay in the
very order of dismissal was only for the purpose of regulating service
consequences and maintaining correct service records, and not for condoning
the misconduct or the punishment imposed. Likewise, the judgment in Union
of India v. Ram Phal, 1996(2) SCT 638 does not advance the case of the
respondent. In that case, the Court found that the Commandant/authority had
not rendered the order of dismissal internally inconsistent by treating the period
of unauthorised absence as extraordinary leave of respondent in that case, and
on that ground the appeal preferred by the State was allowed. The said decision,
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RSA No. 3195 of 1998 (O&M) 11 / 15
therefore, itself reinforces the principle that administrative treatment of absence
cannot be construed to dilute or negate a valid order of dismissal. Far from
supporting the respondent, the ratio of Ram Phal (Supra) affirms that unless
the dismissal itself is withdrawn or condoned, mere adjustment of the absence
period does not invalidate the punishment. The learned First Appellate Court,
therefore, committed a manifest error in relying upon the aforesaid judgments,
which are clearly distinguishable on facts and, in fact, support the legal position
that treatment of unauthorised absence for service record purposes does not
amount to condonation of dismissal. The learned First Appellate Court,
therefore, erred in law in relying upon inapplicable precedents to set aside the
punishment of dismissal. The said finding is legally unsustainable and deserves
to be set aside.
Application of Rule 16.2(1) of the Punjab Police Rules, 1934
18. Rule 16.2(1) of the Punjab Police Rules, 1934 embodies the strict
disciplinary regime applicable to members of the police force. The rule permits
dismissal for the gravest acts of misconduct, even on the basis of a single act,
keeping in view the nature of police service and the paramount importance of
discipline. The Hon’ble Supreme Court in State of Punjab v. Ram Singh, 1992
(4) SCC 54, has held that 16.2(1) contemplates dismissal both for grave
misconduct and for incorrigibility. Prolonged and wilful unauthorised absence
strikes at the very root of discipline and squarely falls within the category of
grave misconduct. In the present case, the respondent remained unauthorisedly
absent for a period of four months and nineteen days that directly impacted
discipline and operational readiness, an aspect of paramount importance in
police service. The departmental enquiry culminated in a clear finding that the
absence was wilful. Once such wilfulness stands established, the misconduct is
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RSA No. 3195 of 1998 (O&M) 12 / 15
complete, and the disciplinary authority is justified in imposing the punishment
of dismissal. The subsequent treatment of the absence period as leave without
pay does not dilute the application of Rule 16.2. The First Appellate Court
completely failed to examine the applicability of Rule 16.2 and instead confined
itself to the perceived effect of leave without pay, thereby ignoring the statutory
mandate governing police discipline. Police discipline stands on a higher
pedestal than ordinary civil service. Leniency in cases of wilful absenteeism
undermines public confidence and operational efficacy. Equity, therefore, lies in
favour of the employer, not the delinquent. The punishment of dismissal cannot
be said to be disproportionate or shocking to the conscience.
19. In view of the above, the findings recorded by the First Appellate Court
are based on conjectures rather than law. By assuming that leave without pay
implies absence of misconduct, it ignored both factual findings and statutory
discipline norms. Such findings are perverse and invite interference by this
court. Resultantly, the judgment and decree dated 24.04.1998 passed by the
learned First Appellate Court suffer from perversity and misapplication of law
and are liable to be set aside. The judgment and decree dated 14.09.1996 passed
by the learned Trial Court deserve to be restored.
20. Moreover, the contention raised by the respondent-plaintiff that he has
been subjected to double punishment is equally misconceived. Declaring the
period of unauthorised absence as non-duty without pay is not a punishment but
a natural consequence of the principle of no work, no pay. It merely regulates
service records and does not amount to a disciplinary penalty. The denial of pay
for the period during which no service is rendered does not amount to double
jeopardy. As the denial of wages for a period not worked is a service
consequence and not a punishment unless the rules specifically provide
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RSA No. 3195 of 1998 (O&M) 13 / 15
otherwise. The doctrine of double jeopardy has no application in service matters
unless two distinct penalties are imposed for the same misconduct under the
disciplinary rules. In the present case, the respondent-plaintiff has been
subjected to only one disciplinary penalty, namely dismissal from service. The
declaration of the absence period as non-duty without pay is not a punishment
but a consequence flowing from the very nature of unauthorised absence.
Therefore, the plea of double punishment is devoid of merit and is rejected.
Loss of pay is based on the principle of “no pay no work”. It is an action quite
separate and distinct from a disciplinary proceeding, which may visit an
employee for such misconduct. In State of U.P. and others v. Madhav Prasad
Sharma, 2011 (2) SCC 212, the Apex Court was considering the question
whether the employer who had already sanctioned the leave, albeit without pay,
was justified in terminating the service for the same charge and whether such an
action is hit by the doctrine of double jeopardy. The Apex Court after noticing
the relevant statutory service rules concluded by holding that leave without pay
is not a punishment prescribed under the rules and thus, denial of salary on the
ground of “no pay no work” cannot be treated as a penalty nor the doctrine of
double jeopardy would be attracted in case the employee is inflicted with the
punishment of dismissal for the same charge. The Apex Court in Madhav
Prasad Sharma (Supra) observed as under:-
“Para 9. ……. The perusal of major and minor penalties prescribed
in the above Rule makes it clear that “sanctioning leave without pay”
is not one of the punishments prescribed, though, and under what
circumstances leave has been sanctioned without pay is a different
aspect with which we are not concerned for the present. However, Rule
4 makes it clear that sanction of leave without pay is not one of the
punishments prescribed. Disciplinary authority is competent to impose
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RSA No. 3195 of 1998 (O&M) 14 / 15
appropriate penalty from those provided in Rule 4 of the Rules which
deals with the major penalties and minor penalties. Denial of salary
on the ground of “no work no pay” cannot be treated as a penalty in
view of statutory provisions contained in Rule 4 defining the penalties
in clear terms. Rule 7 empowers the Government or any officer of the
police to award the punishment mentioned in Rule 4. Rule 8 provides
for punishment of dismissal and removal. Thus the punishment of
dismissal from the service is the punishment which has been awarded
to the respondent in accordance with Rules 4 and 8 of the Rules. There
is no question of awarding two punishments in respect of one charge.”
Para 10. Doctrine of double jeopardy enshrined in Article 20(2) of the
Constitution of India has no application in the event of there being
only one punishment awarded to the respondent under the Rules on
charges being proved during the course of disciplinary enquiry. The
law laid down by this Court in the case of Union of India v. Datta
Linga Toshatwad, (2005)13 SCC 709 and Maan Singh v. Union of
India, 2003(2) S.C.T. 84 : (2003)3 SCC 464 fully apply in the facts
and circumstances of the present case.”
21. Lastly, the contention of the respondent-plaintiff that the penalty of
dismissal ought to have been converted into premature or compulsory
retirement cannot be accepted. This Court does not sit as a disciplinary
authority and lacks jurisdiction to substitute the punishment imposed by the
competent authority with any other penalty. The power to alter or modify the
punishment vests exclusively in the punishing authority in terms of the
applicable service rules. In second appeal, the scope of interference is limited
and does not extend to re-evaluating or substituting the punishment, unless it is
shockingly disproportionate or patently illegal, which is not so in the present
case.
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RSA No. 3195 of 1998 (O&M) 15 / 15
22. However, it is evident from the impugned order itself that the competent
authority had kept in mind the respondent-plaintiff’s pensionary entitlements
while treating the absence period as non-duty. In view thereof, and without
expressing any opinion on merits, this Court deems it appropriate to direct that,
if the respondent-plaintiff submits a representation seeking conversion of the
order of dismissal into premature/compulsory retirement, the same shall be
considered by the competent authority in accordance with law. Such
consideration shall be undertaken independently and objectively, and a reasoned
decision thereon shall be taken within a period of three months from the date of
receipt of such representation.
23. In view of the foregoing discussion, the present Regular Second Appeal
is allowed. The judgment and decree passed by the learned First Appellate
Court dated 24.04.1998 is set aside, and the impugned order dated 15.01.1992
is upheld to the extent indicated above, subject to the limited direction issued
herein.
24. Since the main appeals stand decided, the miscellaneous application(s), if any,
stand also disposed of.
( VIRINDER AGGARWAL )
16.02.2026 JUDGE
Saurav Pathania
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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