JUDGMENT :

NAMIT KUMAR, J. 

1. The appellants-State have filed the instant Regular Second Appeal challenging the judgment and decree dated 19.11.1999, passed by the learned Additional District Judge, Gurdaspur, whereby the appeal filed by the State against the judgment and decree dated 08.04.1997, passed by the learned Civil Judge (Junior Division), Gurdaspur, in favour of the plaintiff-respondent, was dismissed.

2. The parties to the lis hereinafter shall be referred to as per their original position before the learned Trial Court.

3. Briefly stated, the facts of the case are that the respondent- plaintiff was enrolled as Constable on 09.08.1989 in the Punjab Police on a permanent post. He absented himself from duty without any leave or permission on 10.05.1993 and returned back on 12.05.1993 and thereafter, he again remained absent from duty from 09.06.1993 to 29.07.1993 i.e. for a period of 01 month, 22 days, 10 hours and 45 minutes, while posted at Police Station City, Pathankot. A charge-sheet was issued to the respondent-plaintiff; however, he did not participate in the enquiry proceedings and was proceeded against ex-parte. Upon completion of the enquiry, the charges against the petitioner were found proved and he was issued a show cause notice for dismissal from service. No reply to the show cause notice was submitted by the respondent-plaintiff and consequently, he was dismissed from service, vide order dated 05.04.1994, passed by the Senior Superintendent of Police, Sadar, Gurdaspur. The departmental appeal preferred by him against the order of dismissal was dismissed by the Inspector General of Police on 13.05.1994. The said orders were challenged by the respondent-plaintiff by filing a suit for declaration to the effect that the impugned order dated 05.04.1994, passed by the Senior Superintendent of Police, Gurdaspur, vide which, the plaintiff was dismissed from service and the order of dismissal of departmental appeal passed by the Inspector General of Police on 13.05.1994 are illegal, unconstitutional and against the principles of natural justice. The suit preferred by the respondent-plaintiff was decreed on the ground that the previous instances of absence was not mentioned in the show cause notice, though the said instances have been taken into consideration by the punishing authority while passing the order of dismissal. In support of the said findings, the learned Trial Court placed reliance upon the judgment of this Court in State of Punjab Versus Chanan Singh (deceased) represented by his LRs, 1988(2) CLJ (CCR) 21 Another ground on which the suit has been decreed is that the period of absence of the petitioner had been treated as leave without pay in the punishment order. The said findings recorded by the Trial Court were upheld by the Lower Appellate Court in its judgment dated 19.11.1999. Aggrieved thereby, the State of Punjab has preferred the instant Regular Second Appeal.

4. Learned State counsel argues that the judgments of the learned Trial Court and the First Appellate Court deserve to be set aside as the order of dismissal passed against the respondent-plaintiff on 05.04.1994, by the punishing authority is in accordance with law. He further submits that the respondent-plaintiff was dismissed from service on account of his unauthorized absence from duty for a continuous period of 01 month, 22 days, 10 hours and 45 minutes. It is further submitted that while passing the order of dismissal, the past conduct of the respondent-plaintiff has been discussed and there is no illegality in considering the past conduct of the employee while inflicting the punishment. He further submits that on earlier occasions also, the respondent-plaintiff remained absent from duty for prolonged period of 56 days, 23 days, 79 days and 02 days respectively, which clearly reflects habitual misconduct and indiscipline. In support of this contention, he has placed reliance upon the judgment of this Court in Darshan Singh Versus Stat