SC maintains dismissal of cop over ‘wilful’ absence

Top court sets aside PST decision to allow constable to resume his duty

Hasnaat Malik October 09, 2021


The country’s top court has endorsed the dismissal of an employee on account of his “unauthorised and wilful” absence from duty.

A three-judge bench of the Supreme Court, led by Chief Justice Gulzar Ahmed, has set aside the Punjab Service Tribunal’s judgment wherein the dismissal of a Punjab police constable was quashed.

Earlier, the department had proceeded against the constable for his wilful absence from duty from December 21, 2016 to February 16, 2017 as well as his involvement in three criminal cases. The Punjab police had move the top court against the PST decision.

“It is an admitted position that the respondent remained absent for a long period of about 55 days without taking prior leave or without informing his high ups,” Justice Sayyed Mazahar Ali Akbar Naqvi noted while authoring a five-page judgment.

"The respondent [constable] being a member of the highly disciplined force was required to maintain strict discipline having regard to nature of duties enjoined to these forces and such an attitude cannot be excused and tolerated,” the verdict read.

Justice Naqvi has also referred to a 1998 judgment wherein it was held that employer or competent authority, in case of unauthorised absence of an employee from duty, would be entitled to be dismissed, removed or terminated from service. The dismissal could be effective from their date of absence. The penalty of dismissal from service could be maintained even though the absence has been treated as leave.

Also read: Reasons for dismissal should be cited: SC

The court has also cited its 2020 ruling wherein the respondent employee was awarded the major penalty of compulsory retirement for his unauthorised absence of 66 days.

The competent authority in the order of imposing the major penalty had also treated the period of absence as extraordinary leave or leave without pay. The respondent went to the high court pleading that as the office order through which the major penalty of compulsory retirement from service was imposed also directed the treatment of his unauthorised absence as extraordinary leave without pay. Therefore, he added, the penalty could not be sustained and ultimately succeeded in getting the relief.

However, in an appeal filed by the department against the impugned judgment of the high court, the SC while setting aside the verdict held that since the penalty imposed by the competent authority was of compulsory retirement which followed the payment of salaries and other dues till the date of imposing it. Therefore, the SC noted, it was necessary to give finding as to how such absence was to be treated where an employee was dismissed from service but might not be entitled to any dues. Therefore, there could hardly be any reason to provide for the treatment of his unauthorised absence as leave without pay.

Justice Naqvi also referred to the case of WAPDA Versus Shan Elahi Supra case, wherein it was also held that the Service Tribunal was competent to confirm, set aside, vary or modify the punishment but such power was to be exercised not arbitrarily or capriciously or on the basis of wrong premises or misconception of law.


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