Judgment

GOSWAMI, J.:- These appeals are by certificate of the High Court of Punjab and Haryana. Civil Appeal No. 1299 of 1969 is concerned with the appellants suit for declaration of his dismissal order dated October 21, 1959, as void and illegal. Civil Appeal No. 1298 arises out of his suit for arrears of salary. Both the matters were heard together in the High Court and the judgment out of which Civil Appeal No. 1299 of 1969 arises is the principal judgment following which a short order was passed by the High Court dismissing the other suit of the appellant for arrears of salary. The High Court granted certificates is both the appeals. It will be sufficient to deal with Civil Appeal No. 1299 of 1969 in this judgment as the decision therein will govern the other appeal.

2. The facts may now be briefly stated:

3. The appellant who was the plaintiff in the court below was appointed as a clerk in the Patiala state some time in July 1948. On the formation of the new State of Punjab on November 1, 1956, with the merger of erstwhile Pepsu and Punjab States the appellant was integrated in the service of the new State of Punjab as permanent assistant in the grade of Rs. 150-10-300/- and was actually getting Rs. 170/- per month on October 21, 1959, the date of his dismissal in the office of the Financial Commissioner, Punjab.

4. The appellant instituted a suit in March 1962 challenging his order of dismissal dated October 21, 1959, as void and unconstitutional praying for a declaration that be continued to be in service of the Punjab State. In June 1962 he instituted a second suit as pauper claiming a decree for about Rs. 8,689/- as arrears of his salary and allowances and also a further decree for Rs. 278/-12/- per mensem from 5-6-1962 to 4-7-1962 and Rs. 290/- per mensem from 5-7-1962 upto the date of the decree. Both the suits were decreed by the trial Court.

5. According to the plaint, the appellant, due to serious illness of his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the sanction of the competent authority. He obtained extension of leave on account of illness of his mother, wife and daughter. Meanwhile the appellant himself became seriously ill and prayed for leave from 1-11-1958 to 28-2-1959 on the basis of a medical certificate granted by Dr. Inder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala. The authorities declined to sanction the leave. The appellant also continued to be seriously ill and was unable to attend his duties. When he recovered he reported for duty at Simla on March 2, 1959 and he was permitted to resume his duty on furnishing a certificate of fitness granted by the aforesaid Retired Civil Suergeon.

6. On January 27, 1959, the appellant was served with a charge -sheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his willful absence from duty after the expiry of the earned leave sanctioned to him upto October 31, 1958, which was described as misbehaviour. The chargesheet, inter alia, stated:

(1) ....... You deliberately defied the orders and against applied for extension of leave upto the 31st December 1958, feigning yourself to be ill, and also threatened that in case leave was not allowed, you might be granted interview with the Revenue Minister ........

X X X X X

(2) That on the one hand you have been applying for grant of extension of leave on account of your own illness and on the other, you have requested that the may be allowed to appear in B. A. Examination to be held in April, 1959. This, therefore, clearly shows that you are not actually ill but are malingering, and have knowingly defied Government orders.

(3) That you wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is a misbehaviour.

The appellant submitted his explanation on March 11, 1959. There was an enquiry by the Deputy Secretary (Development) i