ORDER

R.V. Raveendran J.

Leave granted. Heard the parties.

2. The respondent is a doctor in the service of the appellant - State of Punjab. On 1.8.1991, the respondent was transferred to Makandam. The respondent joined duty on 17.8.1991, but unauthorizedly absented himself from 1.6.1992. As he was absent for nearly five years, the Health and Family Welfare Department issued a charge-sheet dated 28.5.1997 to the respondent. The two charges were : (a) absenting from duty deliberately from 1.6.1992; and (b) disobeying the orders of official superiors. An enquiry was held into the said charges. The Enquiry Officer submitted his report. In regard to first charge, the Enquiry Officer found that the respondent had, in fact, absented himself unauthorisedly from 1.6.1992 to 17.10.1997. But he accepted two explanations given by respondent and concluded that the absence was under compelling circumstances. The first explanation was that those were days of terrorism in Punjab. The second was that the respondent had sent by post an application seeking leave from 1.6.1992 to 30.12.1992 and did not receive any refusal, and, therefore presumed that the leave had been granted. The Enquiry Officer also held that the second charge was not proved.

3. The Disciplinary Authority did not agree with the enquiry report, for reasons recorded in a dissent note. The said note stated that unauthorized absence from 1.6.1992 to 17.10.1997 was clearly indiscipline; that only after the chargesheet was issued, the respondent had offered to join back duty (and in fact joined duty only on 18.10.1997) and not earlier. The dissent note therefore proposed to hold the respondent guilty of the two charges. A show cause notice dated 1.4.1999 was issued to the respondent enclosing a copy of the enquiry report and the dissent note. The respondent sent a reply dated 10.5.1999. The Governor of Punjab by order dated 16.9.1999 (communicated on 11.10.1999) did not accept the findings in the Enquiry Report. For the reasons stated in the dissent note, he held the respondent guilty and imposed a punishment of withholding of five increments with cumulative effect.

4. By a subsequent order dated 25.1.2001, issued in continuation of the order imposing punishment, the Governor of Punjab accorded extra- ordinary leave to the respondent for the period 1.6.1992 to 17.10.1997. Two consequences followed as a consequence thereof under the Punjab Civil Service Rules. A government servant is not entitled to any salary during the period of extra-ordinary leave (vide Rule 8.122 of Vol 1) and the period of extraordinary leave is not counted as service qualifying for pension (vide Rule 4.7 of Vol. II).

5. The respondent filed a suit on 24.1.2002 in the court of the Civil Judge, Junior Division, Bhatinda for a declaration that the order dated 10.9.1999/11.10.1999 imposing punishment was null and void and for consequential reliefs. The trial court by judgment dated 14.9.2004, decreed the suit and declared that the order imposing punishment was void and that the respondent was entitled to all consequential benefits with interest at 12% PA from the date of suit. The appeal filed by the State was dismissed by the first appellate court on 16.3.2005. The second appeal filed by the State was also dismissed on 20.1.2006. The said judgment of the High Court affirming the decisions of the trial court and first appellate court is challenged in this appeal by special leave.

6. The fact that the respondent had absented himself unauthorizedly from 1.6.1992 to 17.10.1997 was neither denied nor disputed by the respondent. The question was whether there were satisfactory reasons for his absence and failure to seek leave. The explanation was that he did not join duty as it was a period of terrorism in the State. The further explanation was that he had sent a leave application by post seeking leave for a period of seven months, that is from 1.6.1992 to 30.12.1992 and as he did not receive any reply rejecting his re