CHAUHAN, J. - (1.) THE State of Rajasthan has challenged the judgment dated 21.4.2008 passed by learned Single Judge in S.B. Civil Writ Petition No. 2603/1995 Ten Singh vs. State and Ors., whereby the learned Judge has allowed the writ petition, has set aside the order of termination dated 21.7.1993, and has granted all consequential benefits to the writ petitioner, Ten Singh (the respondent before this Court).
(2.) BRIEFLY , the facts of the case are that the respondent, Ten Singh, was appointed as a Constable in August 1979 under the Superintendent of Police, Banswara. In 1993, Ten Singh was chargesheeted; two charges were leveled against him. Firstly, that he was absent from his duty from 8.11.1992 till 12.1.1993. Secondly, that on 14.1.1993 when he was directed to keep vigil on an accused, who was hospitalized at the Mahatama Gandhi Hospital, Banswara, he left the place of duty without any information. Although Ten Singh admitted to the fact that he was, indeed, absent during the period between 8.11.1992 to 12.1.1993 and on 14.1.1993, he claimed that he left the place of his duty due to the sudden illness of his wife. By order dated 21st July 1993, the Superintendent of Police, Banswara, terminated his services, but sanctioned 71 days as PL and 23 days as Half PL. Since Ten Singh was aggrieved by the order dated 21.7.1993, he filed a departmental appeal before the Deputy General of Police, Police Range, Udaipur. However, vide order dated 23.9.1993 the appellate authority dismissed his appeal. Subsequently, Ten Singh filed a review/revision petition before the Governor. However, His Excellency the Governor also dismissed his review petition by order dated 10.4.1995. Aggrieved by the order dated 21.7.1993 (The termination order), by order dated 23.9.1993 (order dismissing the appeal), and by order dated 10.4.1995 (order dismissing the review petition), Ten Singh filed a writ petition before this Court. As. mentioned earlier, by judgment dated 21.4.2008 the learned Single Judge allowed the petition and quashed the order dated 21.7.1993 and directed that consequential benefits should be given to Ten Singh. Hence, this intra court appeal before this Court.
(3.) MR . I.J. Pareek, the learned counsel for the State, has vehemently raised the following contentions before this Court: firstly, the entire reasoning of the learned Single Judge is based on the case of State of Punjab vs. Bakshish Singh (AIR 1999 SC 2626), wherein it was held that once unauthorised absence from duty has been regularized, the charge of misconduct does not survive. Therefore, according to the learned Single Judge, in the present case since unauthorized absence was regularized by the grant of PL and HPL, the misconduct did not survive. Secondly, the learned Single Judge has overlooked the fact that in the case of State of Punjab vs. Charanjit Singh (AIR 2003 SC 4317), the case of Bakshish Singh (supra) was declared to be per incuriam. Moreover, in the case of Maan Singh vs. Union of India & Ors. (2003 SCC 464), the Hon'ble Supreme Court had gone back to the principle laid down by it in the case of State of M.P. vs. Harihar Gopal (1969 SLR (SC) 274). According to the learned counsel, since the case of Harihar Gopal is a judgment rendered by three Hon'ble Judges of the Apex Court, it holds the field even today. Therefore, the learned Single Judge has relied upon a judgment which is in conflict with the decision of the Apex Court in the case of Harihar Gopal (supra) and has been declared to be per incuriam in the case of Charanjit Singh (supra). Thirdly, according to the order dated 21.7.1993, the service of respondent. Ten Singh was terminated and subsequently the 94 days of unauthorized absence was regularized by granting him 71 days of PL and 23 days of HPL. Merely because his unauthorized absence was regularized, does not wipe out the misconduct committed by him. In fact, the leave was granted merely to maintain correct record of his service. In order to buttress this contention, the learned counsel has relied upon the cases of Harihar Gopal (supra), Maan Singh (supra) and Charanjit Singh (supra). Therefore, according to the learned counsel, the impugned judgment needs to be interfered with.;