1. This petition filed under Article 226 of the Constitution of India, is directed against the order Annexure P-2 dated 26.10.1995 whereby the Superintendent of Police (S.P.), Guna removed the petitioner from service as a measure of punishment. The appellate order Annexure P-1 passed by Director General of Police (DGP) dated 25.8.2004 is also under challenge in this petition.

2. The petitioner was subjected to disciplinary proceeding. It was alleged in the charge sheet that the petitioner was unauthorizedly absent from 29.4.1993 to 4.9.1993 (129 days). He remained unauthorizedly absent without giving any intimation to the department. Another charge against the petitioner was that he is in the habit of remaining unauthorizedly absent.

3. Shri Vivek Jain, learned counsel for the petitioner, has advanced singular contention before this Court. By drawing attention of this Court to the final order Annexure P-2 passed by S.P., Shri Jain submits that para 7 of the final order makes it clear that the period between 29.4.1993 to 4.9.1993 (hereinafter called as “period in question”) is regularized by granting extraordinary leave to the petitioner. After having granted extraordinary leave, the petitioner cannot be treated as unauthorizedly absent for the said period and, therefore, the punishment is totally unwarranted. In support of this contention, he relied on (2004) 4 SCC 560 (Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others).

4. Per contra, Shri B.Raj Pandey, Govt. Advocate supported the order and by taking this Court to various paragraphs of the reply, submits that the petitioner was in the habit of remaining unauthorizedly absent and for that he was punished on various occasions. He submits that the petitioner was given adequate, reasonable and sufficient opportunity to defend himself in the departmental enquiry. The decision making process is not polluted and, therefore, no interference is warranted on the decision. He supported the final order as well.

5. I have heard the learned counsel for the parties and perused the record.

6. The twin charges against the petitioner are pertaining to remaining unauthorizedly absent for the period in question (129 days) and secondly the said absent amounts to habitual absence on the part of the petitioner. Needless to mention that unless charge No.1 is proved, charge No. 2 cannot be said to be proved against the petitioner. In other words, the allegation of habitual absence can be substantiated against the petitioner only when charge No.1 is found to be proved. Interestingly, the disciplinary authority vide Annexure P-2 considered the past record of the petitioner and also considered the record of the disciplinary proceedings. The disciplinary authority regularized the period in question by granting extraordinary leave vide Annexure P-2 and in the same breath and in the same order inflicted the punishment of removal from service for remaining unauthorizedly absent. The extraordinary leave is defined in Regulation 180 of Police Regulations. The period in question stood regularized by granting leave to the petitioner. Thus, the pivotal question needs to be decided is whether on granting leave to the petitioner, he can be subjected to punishment. In other words, once leave is granted and period in question is regularized, whether petitioner can be said to be unauthorizedly absent for the period in question.

7. In Bhagwan Lal Arya (supra), the apex Court interfered on the quantum of punishment. A Police Constable had absented himself for two months on medical ground without sanction of leave. It was held to be not grave misconduct or continued misconduct rendering him completely unfit for police service. However, it is apt to consider the judgment of Supreme Court reported in (2008) 8 SCC 469 (State of Punjab v. Dr. P.L. Singla). Para 12 of this judgment reads as under:-

“An employee who remains unauthorizedly absent for some period (or who overstays the period of leave), on reporti