S. Saghir Ahmad, J. - (1.) The respondent who was a police constable in Punjab was dismissed from service on 1-6-1988 after a regular departmental enquiry on the charge of unauthorised absence from duty. This order was challenged by the respondent in a suit filed in the trial Court on 16-7-1990 which was decreed on 12-5-1993 and the order of dismissal was set aside as it was found by the trial Court that defendants having themselves regularised and treated the period of respondent's absence from duty as the "period of leave without pay," could not legally say that he was guilty of misconduct for unauthorised absence from duty. The trial Court also recorded a finding that the respondent's statement that he was not given an opportunity of personal hearing and that his signatures were obtained under duress in the departmental proceedings was not controverted by the appellant as no evidence was produced by the appellant in defence.
(2.) The decision of the trial Court was challenged in appeal before the District Judge which was disposed of by the Addl. District Judge, Jalandhar on 15-1-1996 with the following findings: "In view of the above brief discussion, I am of the considered opinion that once period of absence is treated as leave of the kind whatsoever, the fact that the delinquent remained absent from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be. Thus the findings of the learned lower Court upon this matter are hereby confirmed."
(3.) Having affirmed the findings of the trial Court that the charge of absence from duty did not survive, the lower appellate Court proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of "dismissal from service" or it was a mere "misconduct" for which lesser punishment would be appropriate. Having found that it was not a case of misconduct of the gravest kind, the lower appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a second appeal in the High Court which was dismissed summarily.;