Once leave is granted, no disciplinary action lies, and the charge of absence cannot survive.

H.S.Bhalla, J.

1. 24th September 1984 was declared as a black day for Surinder Singh, who was working as a Constable with the Punjab Police (hereinafter referred to as "the appellant") when he was dismissed from service by the Superintendent of Police, Gurdaspur. He could not succeed even before the Department Appellate Authorities and his appeal and revisions were also dismissed. In order to revive his bread, he challenged the order of his dismissal passed by Superintendent of Police, Gurdaspur through a suit for declaration to the effect that the orders in question are illegal and against the rules. He was non-suited by the lower Court and his suit was dismissed vide judgment and decree dated 14.11.1987. Thereafter, he preferred an appeal, which was also dismissed by the learned Additional District Judge, Amritsar vide its judgment and decree dated 8.8.1988. Aggrieved against the judgment and decree passed by the lower appellate Court, he knocked the door of this court through the present appeal in hand.

2. Adumbrated, in brief, the facts necessary for the disposal of this appeal are that the appellant was posted as a Constable in Gurdaspur district in Police Lines. He went to Amritsar after availing leave for two days and was to report back for duty on 11.8.1981, but he was arrested by the Railway Police at Amritsar on 9.8.1981 on the basis of a complaint, as a result of which, he remained in police custody from 9.8.1981 to 15.8.1981 and in judicial custody till 15.9.1981 on account of which, he could not resume duty even thereafter as he fell ill. He has categorically pleaded that inquiry against him was not in accordance with the relevant procedure in respect of which the order of dismissal from service was liable to be set aside.

3. On the other hand, the suit of the plaintiff-appellant was contested by the State of Punjab by filing written statement raising objections of jurisdiction and notice and it was pointed out that the inquiry was conducted in accordance with rules and therefore, the order of dismissal and the findings of the inquiry passed by the Inquiry authority and appellate authorities respectively are legal and valid.

4. The learned lower Court, after framing necessary issues and assessment of the evidence on record, dismissed the suit as mentioned above.

5. I have heard the learned Counsel for the parties and have also gone through the record of the case minutely.

6. It is admitted case of the parties that the allegations against the appellant, on the basis of which he was charge sheeted and after conducting inquiry dismissed from service, was that, he remained absent from duty for two years and it is further admitted case of the parties that at the time of passing of the dismissal order, this absence period was treated as leave without pay. Meaning thereby that, his period of absence of two years is sanctioned as leave without pay at the time of passing of the impugned order on 24.9.1984. I see no difference in granting leave without pay and treating the period of absence as leave without pay. The distinction, which is sought to be drawn by the learned Additional Advocate General, is not possible. Upon granting of leave without pay, there can be no break in service, inasmuch as the period of absence is treated a period on leave. Therefore, the granting of leave, of whatever nature it may be, tantamounts to considering the absence as justified or at any rate to condonation and regularisation of the absence. I am of this opinion that after such regularisation and condonation, no disciplinary action lies. When once leave is granted in respect of particular period, it must be considered that he was permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other party to proceed against public servant for absenting from duty for the same period and to punish him. The authorities should have refused to grant leave of any kind due to the a