HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.1293 of 2000 ORDER: This writ petition, filed on 31/01/2000, questions the order of removal passed by the first respondent dated 22/04/1987 as confirmed by the second respondent in his order dated 28/08/1987 which, in turn, was confirmed by the third respondent in his order dated 10/04/1990, as arbitrary and illegal. The petitioner was appointed as a constable in the Railway Protection Force on 01/05/1981. It is his case that, while he was working as a constable, he received letter dated 25/08/1986, and a telegram dated 28/08/1986, informing him that his wife was suffering from illness, and she was admitted in T.B.Hospital, Guntakal; since there was nobody to look after his wife in the hospital he requested the Inspector for grant of leave and went to Guntakal submitting an application to the Inspector; a charge memo was issued on 26/12/1986 alleging that he was absent from duty from 29/08/1986; an enquiry was conducted; an enquiry report was submitted holding the charge as having been established; a show cause notice, proposing penalty of removal, was issued on 03/04/1987; subsequently the order of removal was passed on 22/04/1987; and the period of his absence was treated as leave without pay. Aggrieved by the order of removal, the petitioner filed an appeal before the second respondent. The 2nd respondent rejected the appeal by his order dated 28/08/1987. The revision preferred by the petitioner, to the Chief Security Commissioner, was also rejected on 10/04/1990. The orders passed by the disciplinary authority, the appellate authority, and the revisional authority, would show that the petitioner remained unauthorizedly absent from duty from 29/08/1986 onwards without intimation to his superiors, and he continued to remain absent despite notices being issued on 18/09/1986 and 04/11/1986 asking him to report for duty; he neither submit an explanation to the charge memo nor did he submit his explanation to this show cause notice proposing imposition of punishment. It is also evident that, while the petitioner stated in his writ affidavit that he had received a letter on 25/08/1986 and a telegram on 28/08/1986 stating that his wife was not well and was admitted in the T.B.Hospital, during the disciplinary enquiry he stated that he was attending to his children, his parents and grand parents who are were old and, when his wife was going to college, there was none to look after his children. The petitioner, however, stated that his wife was a T.B.patient who required personal attention. The respondents noted that the petitioner did not produce either the letter or the telegram alleged to have been received by him regarding the admission of his wife in a T.B.Hospital. They held that his plea, that his wife was a T.B.patient and was admitted in hospital, was an afterthought. The respondents also found several other discrepancies in the statement submitted by the petitioner, on different occasions, and disbelieved his version of his wife having been admitted in the T.B.Hospital. On the ground that he was unauthorisedly absent from duty from 29/08/1986 till the charge sheet issued on 26/12/1982, the petitioner was imposed the punishment of removal from service. Subsequently, the period of his absence was treated as leave without pay. Sri J.M.Naidu, Learned counsel for the petitioner, would submit that, since the period when the petitioner was absent was regularized and treated as leave without pay, the punishment of removal from service could not have been passed. He would rely o n V.Bhushanam v. Divisional Security Commissioner, Railway Protection Force, S.C.Railway, Vijayawada and others[1] and Syed Zaheer Hussain v. Union of India and others[2], in support of his submission that the punishment of removal from service for unauthorized absence from duty is disproportionate and necessitates interference. He would rely on the judgment of this Court, in W.P.No.20448 of 1997 dated 20/06/2008 and W.P.No.12367 of 1992 dated 22/08/2002, in support of his submission that, since the misconduct of absence from duty is not as severe as the other misconduct enumerated in the regulations, the major punishment of removal from service could not have been passed. To substantiate his contention that the writ petition is not hit by laches, Learned counsel would rely on S.G.Constable v. Union of India[3] and APSRTC, Hyderabad and others v. M.Narasaiah[4]. On the other hand, Sri Gouri Shankar Sanghi, Learned Senior Standing Counsel for Railways, would submit that the petitioner was unauthorisedly absent for a period of more than four months; despite a notice being issued to him, on 18/09/1986 and 04/11/1986, calling upon him to report for duty, the petitioner had failed to do so, and his unauthorized absence for a period of four months showed his lack of interest in serving a disciplinary force like the Railway Protection Force. Learned Counsel would rely on Delhi Transport Corporation v. Sardar Singh[5] and Regional Manager, Bank of Baroda v. Anita Nandrajog[6]. Learned counsel would submit that, while the revision petition preferred by the petitioner was rejected on 10/04/1990, he had invoked the jurisdiction of this Court in January, 2000 nearly ten years thereafter and, except for some reference to representations said to have been made to the Director General of Police during the years 1994, 1995 and 1996 for which there is no provision in the regulations, the inordinate delay of ten year has not been explained and, as such, the writ petition is liable to be dismissed on this ground alone. As noted herein above, a perusal of the order passed by disciplinary authority, appellate authority and the revisional authority would show that the petitioner’s claim of having received a letter and a telegram, regarding his wife being admitted in a T.B.Hospital, was disbelieved. The authorities held that, despite the notice being issued to the petitioner on 18/09/1986 and 04/11/1986 calling upon him to join duty, he had failed to report for duty and, in such circumstances when the petitioner was employed as a constable in the Railway Protection Force wherein employees are required to maintain discipline of a very high order, his abstention from duty without intimation, let alone obtaining prior permission, justified imposition of the major penalty of removal from service. Now to the judgments relied on by either side. In V.Bhushanam; this Court held that, where the period of absence of an employee of the Railway Protection Force is treated as absence without leave, the charge of unauthorized absence must be held to have been regularized and, consequently, the charge of unauthorized absence does not survive. This Court relied on a judgment of the Supreme Court in State of Punjab v. Bakshi Singh (1998 (8) Supreme 128) wherein it was held that, when the period of absence from duty was regularized and converted as leave without pay, the charge of absence from duty does not survive. I n Delhi Transport Corporation5, the Tribunal held that, since the employer had treated the employee’s absence from duty as leave without pay it indicated sanction of leave and, therefore, there was no misconduct. While the challenge thereto before the Delhi High Court found acceptance with the Single Judge, the Division Bench affirmed the order of the Tribunal. In appeal, the Supreme Court held that, treating the absence as leave without pay was not the same as sanctioned or approved leave and, when an employee absented himself from duty, even without sanctioned leave for a long period, prima-facie it showed his lack of interest in his work and the authority could come to the conclusion that the employee was habitually negligent in his duties and exhibited lack of interest in the employer’s work. The Supreme Court further observed that the burden was on the employee to show the seriousness attached to his absence and one exception which could be made was in the case of sudden illness. In the case on hand, Rule 146 (2) (iii) stipulates that no Member of the Force shall, without good and sufficient cause, be absent without leave or be late for any duty. The expression “absence without leave” can only mean that an employee is required to obtain prior sanction of leave failing which it would be treated as absence without leave. In the case on hand, the petitioner was, admittedly, absent without prior sanction of leave. Since the finding of fact recorded by the respondents is that he had not intimated any officer before he proceeded on leave, the mere fact that his absence was subsequently treated as absence without leave does not, in the light of the judgment of the Supreme Court in Delhi Transport Corporation5, amount to condonation or absolving him of the charge of remaining absent without leave. I n K.Rambabu v. Union of India[7], a constable of the Railway Protection Force remained absent from duty and, on his reporting for duty after an absence of 25 days, he was issued a charge memo which, eventually, resulted in his removal from service. The petitioner therein was also charged of having assaulted another employee. The charge of assault was held not established by the revisional authority and the petitioner’s punishment was upheld only on the ground of unauthorized absence. It is in this context that this Court held: “…….As can be seen from the report of the Enquiry Officer, he found him guilty of the unauthorized absence only on the ground that he failed to inform the authorities about the private sickness. The Enquiry Officer never discussed the charge relating to leaving the headquarters without permission. The reasons given by the petitioner was that he received message that his wife was sick at Kovvur, therefore, he had to leave on emergency basis, but this aspect was never considered and there is no specific finding as to whether the charge of leaving headquarter was proved or not. But the question that remains for consideration is whether the punishment of compulsory retirement for the misconducts referred to above viz., leaving headquarters without permission and unauthorized absence from 08/12/1989 to 03/01/1990 would be proper punishment. Admittedly, under Rule 146, the misconducts are divided into number of heads. Under Rule 146.2, the misconducts were enumerated relating to neglect of duty; 146.2 deals with disobedience of orders; 146.4 pertains to discredible conduct; 146.5 relates to misconduct towards Member of the Force; 146.6 regarding falsehood and pre-fabrication; 146.7 relates to corrupt or improper practice and 146.8 deals with abuse of authority. In the order of charge of misconducts, the unauthorized absence or leaving the headquarters would only fall under Rule 146.2 i.e., neglect of duty. It cannot be treated as a serious misconduct as falling in the other clause under Rule 146.3 or 146.8. Therefore, it has to be seen whether for the minor misconduct of negligence of duty, would it be just on the part of the respondents imposing punishment of compulsory retirement from service. The authorities did not consider this aspect. Originally the disciplinary authority passed orders of removal on the principal ground of assaulting the co-employee in the Force, but that charge was held not proved by the revisional authority, yet a major punishment was imposed viz., compulsory retirement. In my considered opinion, the compulsory retirement is wholly unconscionable punishment unrelated to the gravity of the misconduct. When various types of misconducts are notified in the Rules with reference to the gravity of the misconduct, the punishments should also vary with the punishments enumerated. The neglect of duty is one of the misconducts for which awarding higher punishment under major misconduct is wholly arbitrary and unreasonable. It is now well settled that this Court normally would not interfere with the orders of punishment passed by the authorities unless the punishments are shockingly disproportionate or unconscionable or the procedure adopted by the authorities are wholly erroneous and in violation of the statutory Rules. Admittedly in the instant case the punishment as proved against the petitioner was only leaving the headquarters and remaining absent unauthorizedly, for which a proper explanation was given, which was not considered in a fair manner, but yet could it be said that the punishment is in confirmity with the misconduct proved against the petitioner. As already stated by me, the punishment of compulsory retirement is grossly disproportionate and shocks the conscience of this Court. Accordingly, the order of the disciplinary authority as modified by the order of the revisional authority is set aside. However, the petitioner cannot be left over without imposing any penalty. Hence, the matter is remanded back to the appellate authority for imposing appropriate minor penalty on the petitioner keeping in view the nature of the misconduct as referred above…………” As can be seen from the aforesaid judgment, the employee therein was charged both of unauthorized absence and of leaving headquarters without permission. This Court was satisfied with the explanation given by the employee and held that the said explanation was not properly considered by the authorities. It is in these circumstances that the punishment was held not to be in confirmity with the misconduct proved and the matter was remanded for modification of the order of penalty. In the case on hand, the findings of fact recorded by the disciplinary authority, the appellate authority and the revisional authority are not under challenge. It is established that the petitioner remained unauthorizedly absent from duty and did not report for duty despite being twice called upon to do so. In such circumstances, reliance placed by Sri J.M.Naidu, Learned Counsel for the petitioner, on the judgment of this Court in K.Rambabu7 is misplaced. I n K.Vidyasagar V. Chief Security Commissioner[8], an employee suffered an accident receiving multiple injuries and, not being satisfied with the treatment given, he underwent treatment in a private hospital. It is in such circumstances that this Court interfered with the order of punishment. The nature of punishment to be imposed on an employee for proved acts of misconduct is, ordinarily for the employer to decide. This Court would, normally, not substitute the punishment imposed by the employer with another. It is only in the rarest of rare cases where the punishment imposed is one which shocks its conscience, would this Court interfere. The punishment imposed, in the present case, is not one such. Even otherwise the writ petition suffers from inordinate delay and laches. The revision preferred by the petitioner was rejected by the Chief Security Commissioner on 10/04/1990. It is nearly ten years thereafter in January, 2000 that the petitioner invoked the jurisdiction of this Court. Except for a vague assertion that he had submitted representations to the Director General in 1994, 1995 and 1996, there is no explanation, let alone a valid one, for the inordinate delay. It is not in dispute that the rules do not provide for a representation being made to the Director General against an order of punishment. In any event, even for the period of nearly four years from 1996 till January, 2000, the delay has not been explained. In the light of the settled judicial pronouncements in State of M.P. v. Nandlal Jaiswal[9], State of M.P. v. Bhailal Bhai[10], Tilokchand Motichand v. H.B.Munshi[11], Kamini Kumar Das Choudhury v. State of W.B.[12], Mafatlal Industries Ltd., v. Union of India[13] and A.Raj Kumar v. Divisional Security Commissioner, RPF[14], the writ petition is liable to be dismissed on the ground of inordinate delay and laches of around four years even if the so called representations are taken into consideration. Otherwise, the unexplained delay is of nearly a decade. Both on merits, and on the ground of inordinate and unexplained delay and laches, the writ petition fails. Sri J.M.Naidu, Learned Counsel for the petitioner, would submit that, even after punishment of removal, is imposed, an employee is entitled for compassionate allowance in cases of unauthorized absence. In case the petitioner submits a representation within six weeks from today, the respondents are directed to consider and pass appropriate orders, on his claim for compassionate allowance, within four months thereafter. Subject, to the above, the Writ Petition is dismissed. However, in the circumstances, without costs. ____________________________ RAMESH RANGANATHAN, J 26th August, 2010 SKM [1] 2000(3) ALT 224 [2] AIR 1999 SC 3367 [3] 1996 (4) ALT 911 [4] 2000 (6) ALT 662 (D.B.) [5] (2004) 7 SCC 574 [6] (2009) 9 SCC 462 [7] Judgment in W.P.No.20448 of 1997 dated 20/06/2000 [8] Judgment in W.P.No.12367 of 1992 dated 22-08-2002 [9] AIR 1987 SC-251 [10] AIR 1964 SC 1006 [11] AIR 1970 SC 898 [12] AIR 1972 SC 2060 [13] JT 1996 (11) SC 283 [14] Judgment in W.A.No.562 of 2007 dated 10-07-2007