WP(C)/7845/2015
2024 Latest Caselaw 3206 Gua

Gauhati High Court

WP(C)/7845/2015 on 13 May, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

GAHC010230782015




                                   IN THE GAUHATI HIGH COURT
                        (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
                                            PRINCIPAL SEAT

                                         W.P(C) NO.7845/2015
                                        No. 971420374 Constable/GD
                                        Sri Santosh Kumar,
                                        Son of Sri D.B. Poddar, Resident of
                                        Mohalla- Shivpuri, Ward No. 14, near
                                        Trimurti Chouk, P.O & P.S. & Dist-
                                        Saharsa, Bihar, PIN-852201

                                                                               ........Petitioner

                                                   -Versus-

                                        1. The Union of India represented by Secretary to the
                                           Government of India, Ministry of Home Affairs, New
                                           Delhi-1
                                        2. The Deputy Inspector General of Police, CRPF,
                                           Khatkhatti, Assam
                                        3. The Director General, Central Reserve Police Force,
                                           CGO Complex, Block No. 7, Lodhi Road, New Delhi-1
                                        4. The Inspector General of Police, NE Sector, CRPF,
                                           Shillong-01, Meghalaya
                                        5. The Commandant, 36 Battalion, CRPF, Khonsa,
                                           District-Tirap, Arunachal Pradesh

                                                                         ........Respondents

-BEFORE-

HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the petitioner :Mr. B.D. Das, Sr. Advocate assisted by Ms. R Deka, Advocate

Advocate for the respondents :Mr. R.K.D. Choudhury, Deputy Solicitor General of India assisted by Ms. L. Devi, CGC Date of Hearing : 15.02.2024

Date of Judgment & Order: :13.05.2024

JUDGMENT AND ORDER(CAV)

The writ petitioner, who was appointed as a Constable/GD

in Central Reserve Police Force (CRPF) on 01.01.1997 bearing No.

971420374, is before this Court challenging his dismissal from

service pursuant to orders passed by the disciplinary authority

following an enquiry instituted against the petitioner. At the

relevant point in time, the petitioner was posted at 36 Battalion,

CRPF, Khonsa in the district of Tirap, Arunachal Pradesh. With

effect from 10.01.2011, the petitioner applied for and was

granted 15 days casual leave for arranging his sister's marriage in

his native place in the district of Saharsa in Bihar. Because of

some domestic problems which arose during his period of casual

leave, he applied for sanction of further 45 days of earned leave.

The Commandant of 36 Battalion, CRPF, Khonsa in the district of

Tirap, Arunachal Pradesh sanctioned 60 days earned leave and

cancelled the earlier 15 days casual leave. According to the

petitioner that although his leave expired on 10.03.2011 and he

was required to resume duties from 11.03.2011, but because of

illness that he had suffered during the first week of March, 2011,

he could not proceed to his battalion to resume his duties.

2. The pleaded case of the petitioner is that he was under

treatment from 04.03.2011 to 12.08.2011 and due to further

illness suffered, the petitioner was again under medical treatment

upto 22.03.2012. According to the petitioner, he intimated the

department about his illness and treatment and his inability to join

due to the illness by sending letters through speed post. After

recovery from his illness, as per the petitioner, he reported for

resumption of his duties on 03.04.2012 (AN) and submitted his

application on 04.04.2012 along with all medical certificates, cash

memos of medicines, pathological reports etc before the

Commandant, 36th Battalion, CRPF, Khonsa, in the district of Tirap,

Arunachal Pradesh. However, the petitioner was informed that a

departmental enquiry contemplated against the petitioner is in the

advance stage and hence his application for resumption of duty

was refused to be accepted. Subsequently, the petitioner came to

be aware that he was declared a deserter with effect from

11.03.2011 vide office Order No. 1-10-16/2011-36-Estt-2 dated

04.10.2011. It is stated by the petitioner that notwithstanding the

communications sent by the petitioner indicating his illness, the

petitioner was declared a deserter by the said order. Further the

disciplinary proceedings which were initiated against the petitioner

was conducted by the Enquiry Officer ex-parte and the

explanations forwarded by the petitioner through his

communications were not taken note of that the petitioner was

suffering from illness and was undergoing treatment. The entire

enquiry was conducted ex-parte and no opportunity was granted

to the petitioner to examine, cross-examine the witnesses. The

enquiry report was duly submitted before the Commandant, 36

Battalion, CRPF, Khonsa in the district of Tirap, Arunachal Pradesh.

Thereafter, by order dated 16.04.2011 vide Office Order No. P-8-

1/2012-36-Estt-2, the Disciplinary Authority namely the

Commandant, 36 Battalion, CRPF, Khonsa in the district of Tirap,

Arunachal Pradesh imposed the punishment of removal from

service to the petitioner on the basis of the ex-parte findings in

the enquiry report.

3. The petitioner being aggrieved by the order of removal

dated 16.04.2012 preferred an appeal before the Deputy

Inspector General of Police, CRPF, Khatkhatti. The said appeal,

however, came to be dismissed vide order No. R-XIII.7/2012-DA-

2 dated 12.12.2012 upholding the enquiry report as well as the

order of dismissal passed by the Commandant, 36 Battalion, CRPF,

Khonsa in the district of Tirap, Arunachal Pradesh.

4. The petitioner also preferred a revision petition on

04.01.2013 against the appellate order dated 12.12.2012 before

the Inspector General of Police, N.E. Sector, CRPF under Rule 29

of the CRPF Rules. The said revision petition also came to be

dismissed by order No. R-XIII-04/2012-NES-Estt-3 dated

24.05.2013. Being aggrieved, the petitioner has filed this writ

petition assailing the dismissal order, the Appellate as well as the

Revisional order.

5. The respondents on the other hand stated that the

petitioner failed to resume his duties inspite of extensions being

granted and opportunities being given. The medical documents

which were sent by the petitioner by his communications were

placed before the company Medical Officer by the Enquiry Officer

calling for a report. The competent Medical Officer gave a report

that the petitioner appeared to have been suffering from jaundice

but no conservative treatment was prescribed and he did not

require hospitalization even for a single day and therefore, such

long periods of rest stated to have been advised by the treating

doctor, in the opinion of the Company Medical Officer was not

justified and the petitioner ought to have reported for resumption

of his duties. The respondents further stated that the petitioner

was declared as deserter by the Court of enquiry instituted by the

Commandant vide order No. 1-10-16/2011-36-Estt-2 dated

04.10.2011. The show cause notice was sent to the petitioner at

his address in his native place. However, no reply was received

from the petitioner in respect to the memo of charges. Several

opportunities were granted intimating the petitioner that he

should appear and participate in the enquiry proceedings.

However, petitioner failed to appear and continued to be on

unauthorized leave. Having no alternative, the respondents

proceeded with the enquiry ex-parte and the enquiry officer

concluded that the charges against the writ petitioner stood

proved. It is further stated that the disciplinary authority as well

as the appellant and revisional authority upon examining the

entire facts and circumstances of the case and upon due

application of their mind, accepted the findings of the enquiry and

confirmed the order of dismissal passed by the Disciplinary

authority. In view of the several opportunities being granted to

the petitioner to resume his duties and also to participate in the

disciplinary proceedings, the departmental authorities were left

with no alternative but to proceed with the enquiry ex-parte and

therefore there is no infirmity in the order which was passed.

6. The learned Senior counsel appearing for the petitioner

submits that the entire proceedings instituted against the

petitioner was motivated with the sole intention of deliberately

declaring the petitioner's guilty of misconduct and terminating him

from service. The petitioner was suffering from illness and was

undergoing treatment and these facts are not disputed by the

respondent authorities. The necessary documents along with

medical prescriptions were all communicated by the petitioner

from time to time informing the competent authority that he was

suffering from illness and therefore, could not resume his duties.

The learned Senior counsel further submits that since the

petitioner had reported for his duties but was not permitted to

join, there is no question of declaring the petitioner to be a

deserter.

7. The learned Senior counsel placing reliance on the

Judgment of the Apex Court in Krushnakant B. Parmar Vs. Union

of India & Anr., reported in (2012) 3 SCC 178 strenuously submits

that where absence is not willful, the same will not amount to

misconduct leading to imposition of major penalty like dismissal

from service of any employee. The learned Senior counsel submits

that where the petitioner had repeatedly furnished information

regarding his illness and treatment, it is evident that his absence

from service was not willful and deliberate. This aspect of the

matter was not taken into consideration by the enquiry officer and

therefore, the conclusions arrived at by the enquiry officer is not

justified as they have same are contrary to a law declared by the

Apex Court. He has also referred to a Judgment of the Apex Court

rendered in State of Uttaranchal & Ors Vs. Kharak Singh, reported

in (2008) 8 SCC 236. The learned Senior counsel submits that the

very fact that the enquiry proceeded ex-parte against the

petitioner is opposed to the basic principles of natural justice as

the petitioner was never heard. When the petitioner proceeded

for resumption of his duties, the authorities ought to have allowed

him to resume his duties and the enquiry proceedings ought to

have conducted in his presence. The charge memo as well as the

enquiry report was never received by the petitioner. Under such

circumstances, the entire disciplinary proceedings which was

conducted ex-parte behind the back of the petitioner, being

opposed to the principles of natural justice, is an eye wash and

cannot be given legal sanctity on the basis of which a major

penaltyof dismissal from service was imposed on the petitioner.

The learned Senior counsel has also referred to and relied upon

Judgment of the Co-ordinate Bench rendered in Kukheswar Saikia

Vs. Union of India and Anr, reported in (2003) 3 GLR 1. It is

submitted that this Court had earlier held that orders passed by

Court of enquires instituted by the Force declaring a person to be

deserter cannot be understood to an order for imposition of any

penalty. Under Rule 31 of the CRPF Rules, 1955, the Court of

enquiry is neither a trial nor any disciplinary proceedings and

therefore findings of the Court of enquiry cannot be used in

respect of a departmental proceeding conducted under Rule 27 of

the CRPF Rules and thereby imposing major penalty on the

petitioner. The learned Senior counsel submits that the enquiry

being totally contrary to the prescription under the CRPF Rules as

well as the Judgments of the Apex Court and this Court, is

required to be interfered with and a Writ be issued setting aside

the enquiry proceedings and reinstating the petitioner with all

backwages.

8. Per contra, the learned Deputy Solicitor General of India, Mr.

R.K.D. Choudhury submits that the petitioner was declared a

deserter and that order had never been put to challenge in any

proceedings and therefore, the fact remains that the petitioner is

declared as a deserter by order dated 11.03.2011. It is further

submitted that the enquiry had to proceed ex-parte because the

petitioner declined to resume his duties and participate in the

enquiry proceeding notwithstanding the several opportunities

granted to the petitioner and therefore the claim of the petitioner

that he did not receive the enquiry report is not a correct

statement. The learned DSGI representing the respondents

submits that all other communications which were addressed to

the home address of the petitioner were duly received and

therefore there is no question that the enquiry report and the

dismissal order was not received by the petitioner which was also

sent by post at his home address. He relies upon the Judgment of

the Apex Court in Union of India and Ors. Vs. Ghulam Mohd. Bhat

reported in (2005) 13 SCC 228to submit that where the absence

without leave is for a substantial period of time then dismissal

from service has been held to be justified by the Apex Court. The

learned counsel has also referred to a Judgment of the Division

Bench of this Court rendered in Union of India and Ors, Vs. Irfan

Ali (Md.), reported in 2012 (1) GLT 542wherein under similar

circumstances a Division Bench of this Court refused to interfere

with the punishment of dismissal imposed on the petitioner. The

learned counsel for the respondents submits that in view of the

repeated intimations issued to the petitioner to resume his duties

and failure of the petitioner to resume his duties and being absent

without authority for more than 300 days and without proper

reasons, the departmental authority had no other alternative but

to proceed with the departmental proceedings as had been done

and consequently the imposition of major penalty dismissal from

service does not warrant interference by a writ Court in Judicial

Review.

9. The learned counsel for the parties have been heard.

Pleadings on record have been carefully perused. The records of

the proceedings both in original and translated copies are placed

before the Court by the respondent counsel. The Judgments

pressed in the bar have also been carefully noted.

10. There is no dispute that the petitioner was initially granted

casual leave for 15 days w.e.f 10.01.2011. Upon his request for

extension of leave, the Commandant, 36 Battalion CRPF, Khonsa

in the District of Tirap, Arunachal Pradesh sanctioned 60 days

earned leave and cancelled the earlier 15 days casual leave.

According to the petitioner, he had domestic problems and

subsequently fell ill and was in need of periodic medical treatment

and checkup and therefore upon completion of the sanctioned

leave, he was not in a position to report at the Battalion for

resumption of his duties. What is also not disputed are that the

petitioner had periodically sent medical documents in support of

his contentions that he had undergone medical treatment and

was required to be at bed rest as per medical advice. What is

however disputed by the petitioner are the receipt of the orders

declaring the petitioner to be a deserter by Court of enquiry as

well as the enquiry report stated to have been furnished to the

petitioner. Because the petitioner was absent without due

sanction from the appropriate authority, a show-cause notice with

the following charges was issued to the petitioner:

"ITEM-ONE

That, the Force No. 971420347/F/36 CRPF Battalion Constable/GD Santosh Kumar working in the capacity of Constable/GD has done the act of insubordination/laxity in performing the duty/negligence of duty and other misconduct/malpractice under section 11 (1) of CRPF Act, 1949. The personal had gone on a sanctioned Earned leave for 60 days w.e.f. 10.01.2011 to 10.03.2011. Accordingly, he was supposed to report for duty on 10.03.2011 but he did not report on the stipulated time and he has been absent since 04.03.2011 without any authorized permission which is against the orderliness and discipline of the force.

ITEM-ONE

That, the Force No. 971420374/F/36 CRPF Battalion Constable/GD Santosh Kumar F/36 battalion CRPF, working in the capacity of Constable/GD being the member of the force, has done the act of insubordination/laxity in performing the duty/negligence of duty and other misconduct/malpractice under section 11(1) of CRPF Act 1949 under which Company's vide letter No. L 2-6/2011-F/36 dated 20.07.2011, issued by this officer, the personnel had been directed /ordered to report for duty immediately but he has neglected the direction/order and has been remained absent willfully which is a punishable offence of indiscipline."

11. The show-cause notice was accompanied by a detailed

description in support of the charges as well as the list of

documents and the list of witnesses sought to be relied upon

during the enquiry. Since the petitioner did not resume his duties

and participate in the enquiry instituted, the department

proceeded with the departmental enquiry ex-parte. The enquiry

officer submitted the enquiry report holding both the charges

against the petitioner to be proved. The said enquiry report was

duly considered by the disciplinary authority and by order dated

16.04.2012, the disciplinary authority namely the Commandant,

36 Battalion, CRPF, Khonsa in the district of Tirap, Arunachal

Pradesh imposed a major penalty of dismissal from service. When

the petitioner subsequently came to resume his duties, he was

informed of the disciplinary proceedings conducted and the order

of the disciplinary authority imposing the order of dismissal on the

basis of the enquiry conducted. He preferred an appeal before the

appellate authority namely the Deputy Inspector General of Police,

CRPF which came to dismissed by order dated 12.12.2012

upholding the order passed by the Disciplinary Authority as well

as the order of dismissal. The further revision petition filed by the

petitioner before the Inspector General of Police in N.E Sector,

CRPF also came to be dismissed by order dated 24.05.2013.

12. The fact that the petitioner was suffering from ailments is

not disputed by the authorities concerned. The same finds

reference in the enquiry report as well as in the orders passed by

the higher authorities. However, the claim of the petitioner that

because of the ailments that he suffered, he was unable to

resume to his duties is disputed and not accepted by the Enquiry

Officer as well as the Disciplinary Authority in view of the opinion

given by the Group Medical Officer on the documents furnished by

the petitioner. According to the opinion rendered, although from

the medical prescription, it is evident that the petitioner was

suffering from jaundice. However, as the petitioner was never

hospitalized even for a single day, the treating Doctors advise

long periods of rest was not agreed to by the Group Medical

Officer. It is under such circumstances that the enquiry officer as

well as the Disciplinary authority declined to accept the

explanation furnished by the petitioner and consequently the

major penalty of dismissal from service has been imposed on the

petitioner.

13. In so far as the averments made by the petitioner that he

did not receive the copies purportedly stated to have been sent by

the department in respect of the disciplinary proceedings

conducted, besides the burden not being specifically discharged

by the petitioner that no such copies were received at his

residence by referring to any relevant records which may be

available in the postal department near his residence, the same

also cannot be accepted in view of the law laid down by the Apex

Court that where notices are served by registered post at the

home address, under Section 27 of the General Clauses, it is to be

considered that those have been properly served. Reference in

this may be made to the Ratio laid down in Harihar Banerji and

Others Vs Ramsashi Roy and Others reported in (1918) AIR PC

102 as well as the Judgment of the Apex Court in Income Tax

Officer, Etawah Vs Dharam Narain reported in 2018 (13) SCC 499.

14. A writ court is not an appellate forum for deciding the

punishments awarded pursuant to disciplinary proceedings. A writ

court is only required to examine process of the decision arrived

at by the Enquiry Officer, as well as by the disciplinary authority,

and whether the procedure prescribed has been duly followed and

that the basic requirements of natural justice have been complied

with and also whether such enquiry was conducted on the basis

of evidences adduced before the Enquiry Officer. These salutary

principles have been laid down by the Apex Court in State of

Karnataka and Anr. Vs Umesh reported in (2022) 6 SCC 563.

15. These principles culled out by the Apex Court in the case of

Deputy General Manager (Appellate Authority) and Others Vs Ajai

Kumar Srivastava reported in (2021) 2 SCC 612reiterates that the

limits for judicial review under Article 226 or Article 32 or Article

136 of the Constitution of India is circumscribed in matters of

disciplinary enquiries conducted by departmental or Appellate

authorities. The Apex Court in this Judgment after examining the

earlier judgments of the Apex Court rendered, reiterated the

principles for exercise of judicial review under inter alia Article 226

of the Constitution of India. The Apex Court held that in respect

of disciplinary enquiries conducted or alleged misconduct against

public servant, the Court is to examine and determine the

following:-

"25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:

(i) Whether the enquiry was held by the competent authority;

(ii) Whether rules of natural justice are complied with;

(iii) Whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion".

16. It was held that strict rules of evidence are not applicable to

departmental enquiry proceedings. The only requirement of law is

that the allegations against the delinquent must be established by

some evidence acting upon which a reasonable person acting

reasonably and with objectivity may arrive at a finding upholding

the gravity of the charge against a delinquent employee. It is true

that mere conjectures or surmises cannot sustain the finding of

guilt even in Departmental enquiry proceedings. A Constitutional

Court while exercising jurisdiction under Article 226 would not

interfere with the findings of fact arrived at in departmental

enquiry proceedings except in a case of malafides or perversity,

namely, where there is no evidence to support a finding or where

a finding is such that no man reasonable and with objectivity

would have arrived at those findings. No interference is called for

so long there is some evidence to support the conclusion.

17. In State of Karnataka and another Vs Umesh reported in

(2022) 6 SCC 563, the principles for exercise of judicial review by

Constitutional Court while exercising jurisdiction under Article 226

of the Constitution of India has yet again been reiterated. The

Apex Court, while examining the challenges made in respect of

findings of the disciplinary authority, held that the court does not

act as appellate forum over the findings of a disciplinary authority

and does not appreciate evidence on the basis of which findings

of misconduct have been arrived at in the course of disciplinary

enquiry. The Court in exercise of judicial review must restrict its

review to determine whether- i) rules of natural justice have been

complied with, ii) findings of misconduct are based on some

evidence, iii) statutory rules governing the conduct of disciplinary

enquiry were followed, iv) findings of disciplinary authority does

not suffer from perversity, v) penalty imposed should not be

disproportionate to the proved misconduct.

18. It is only when all or any of these findings are arrived at by

a Constitutional court in exercise of judicial review, that it would

warrant interference of disciplinary proceedings conducted and as

well as consequential orders of penalty imposed on the delinquent

personal and any personal.

19. An analysis of the law laid down of the Apex Court clearly

reveals that under Judicial Review, it is not open for a writ Court

to examine the sufficiency of evidence led in a departmental

enquiry. Whether the explanation given by the petitioner in

support of his unauthorized absence that he was suffering from

the ailments and was advised long period of rest, was incorrectly

appreciated by the enquiry officer on the basis of the Group

Medical Officer's opinion, is an area which the writ Court is not

required to venture into. Under Judicial Review of Departmental

Proceedings, a writ Court would ordinarily interfere where the

proceedings are not conducted as per the Rules of the provisions

of law, opportunity of proper hearing is not granted to the

delinquent employee, the officer conducting the enquiry is not

authorized under the provisions of law to be appointed as an

Enquiry Officer or the findings of the enquiry officer is completely

perverse inasmuch as that it is based on no evidence or it has

taken into consideration materials which are not at all relevant for

the purposes of deciding the issue or has left out materials which

are germane for deciding the issue.

20. Upon a careful consideration of the facts and circumstances

in the present proceedings, it cannot be said that the disciplinary

proceedings in question do not satisfy any or all of the parameters

as discussed above. What is also to be noted is the law laid down

by the Apex Court in Krushnakant B. Parmar (Supra) and Ghulam

Mohd. Bhat (Supra). While in Krushnakant B. Parmar (Supra), the

Apex Court had laid down a law that unauthorized absence in all

cases are not to be treated as willful without proper evidence

available to that effect, before the enquiry officer in the

disciplinary proceedings. While in Ghulam Mohd. Bhat(Supra), the

Apex Court declined to interfere with the punishment of dismissal

imposed where the unauthorized absence of the delinquent

employee was for more than 300 days.

21. Keeping in view the law laid down by the Apex Court in the

above Judgments and upon careful consideration of the facts and

circumstances of the case, it is seen that the petitioner was

absent without leave for a period of more than 300 days i.e. 357

days from the date he was originally required to report for duty.

The enquiry officer had conducted the enquiry and had taken

note of the grounds cited by the petitioner for the reasons of his

absence and it has held that his absence was willful and

deliberate.

22. Under such circumstances, if the principles culled out by the

Apex Court while considering or during Judicial Review of

disciplinary proceedings are to be applied to the facts and

circumstances of the present case, it cannot be held that this

enquiry proceedings was not conducted as per the procedure

prescribed under the CRPF Act and the Rules. It also cannot be

held that the proceedings were not conducted by a person

competent as such under the provisions of the Act and the Rules.

The proceedings were conducted ex-parte as the petitioner did

not or could not report for his duties. The question of sufficiency

or inadequacy of evidence before the enquiry officer and the

manner in which the enquiry officer is required to arrive at a

conclusion has been expressly held to be an area which writ

Court's are not required to venture into under Judicial Review of

disciplinary proceedings unless the same are otherwise contrary

to the procedure prescribed as per Rules or the enquiry was

conducted in a manner which is completely opposed to the

principles of natural justice.

23. The grounds urged on behalf of the petitioner that the

enquiry proceedings although conducted ex-parte, it cannot be

likely interfered with in the absence of any materials before the

Court to suggest that there were evidence in the possession of

the petitioner to show that his absence from service after expiry

of sanctioned leave was due to compelling reasons was prevented

him from resuming his duties. The medical opinion relied upon by

the petitioner has not been agreed to by the Group Medical

Officer in respect of the long periods of rest stated to have been

advised by the treating physician. In other words, in view of the

long absence, it does not inspire the Court to arrive at a

conclusion that the ex-parte proceedings conducted by the

department against the petitioner was violative of any procedure

prescribed under the Act and the Rules. The documents and the

medical prescriptions etc which were sent by the petitioner were

duly considered by the enquiry officer and the enquiry officer

returned his findings on the basis of the opinion of the Group

Medical Officer. No additional or new materials have been placed

before the Court to reveal that the petitioner was incapacitated

from resumption of his duties because of his ill-health for such the

long dated period of time.

24. Under such circumstances, this Court is of the considered

opinion that the petitioner has not been able to pursue the Court

to interfere with the ex-parte disciplinary proceedings conducted

by the respondent authorities. However, what is also seen is that

the ailment of the illness suffered by the petitioner is not in

dispute and the materials thereto were placed before the

competent authorities. Although the petitioner is a member of the

disciplined Force and in respect of such employees, discipline is

an implicit requirement of continuation of services under such

force, in the peculiar facts and circumstances in the case, this

Court is of the considered view that dismissal from service

imposed on the petitioner by the disciplinary authority appears to

be harsh. The Court is of the view that any other punishment

other than dismissal from service as permissible under the

provisions of the Act ought to have been imposed on the

petitioner. This view of the Court is arrived on the peculiar facts

and circumstances of the case as there is no allegation of mischief

or mutiny or falsification of any documents or papers against the

petitioner nor are there any such direct or indirect findings arrived

at by the Enquiry Officer or by the Disciplinary Authority. The

unauthorized absence of the petitioner may make the petitioner

unworthy of continuing in a disciplined Force, however, such

severance from his employment as deemed proper by the

competent authorities need not be only be at the cost of the

dismissal order from service.

25. In that view of the matter, this Court having expressed that

imposition of dismissal from service is found to be harsh, this

Court directs the respondent authorities to revisit the question of

imposition of punishment on the petitioner. The authorities will

now proceed to impose any other punishment on the petitioner

other than dismissal from service as is permissible under the

provisions of law. The directions of this Court shall be carried out

within a period of 60 days from the date of receipt of a certified

copy of this order. This imposition of punishment other than the

order of dismissal will be treated to be an order which runs or is

granted with effect from the date the order of dismissal was

passed by the disciplinary authority namely w.e.f 28.10.2011.

26. Upon such imposition of other punishments, as directed by

this Court, in place of dismissal from service, if any financial or

service benefits are found to be payable then the same shall be

released to the petitioner accordingly.

27. The writ petition is disposed of in terms of the order.

28. Records be returned to the learned counsel for the

respondents.

JUDGE

Comparing Assistant