THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.7516 OF 2000 O R D E R Heard both the counsel. 2. Petitioner was appointed as Security Vigilance of Group ‘B’ employee on 30.4.1985 and subsequent promoted to Grade 7 during the year 1996. While so, during the months of July and August, 1999, he remained absent from duty for a period of 25 days. On the ground that he remained absent continuously for more than ten days, the Deputy General Manager of the respondent – company, by invoking the Clause 14(b) of the Company Standing Orders, struck of the name of the petitioner from the rolls of the company with effect from 10.8.1999 on the ground of ‘voluntary abandonment of service’. Aggrieved by the same, the petitioner made representation dated 23.3.2000 seeking to rescind the orders dated 10.8.1999. By order dated 8.4.2000, his request was rejected. Hence, the present writ petition. 3. The case of the petitioner is that as he was suffering from enteric fever coupled with related complications, including high blood pressure, he could not attend duty. His further case is that he informed the authorities orally and on telephone and though he tried to attend the duty, due to weakness and as the doctors advised not to take any risk of traveling, he took bed rest and meanwhile sent the medical certificate on 11.8.1999. As his absence was not willful, he sought to set aside the impugned order and reinstate him into service with all consequential benefits. 4. On the other hand, the learned counsel appearing for the respondent supporting the impugned order sough for dismissal of the writ petition. 5. From the material on record, it could be seen that the case of the petitioner is that as he was suffering from enteric fever with related complications, he could not attend duty and that he sent medical certificate on 11.8.1999. Clause 14(b) of the Company Standing Orders, enables the respondent to struck of the name of the employee from rolls, who remains absent continuously for more than ten consecutive days without prior permission. But in the present case, the specific case of the petitioner is that he had informed orally and also on telephone and also sent medical certificates. Whether his absence was with permission or without permission, the respondent ought to have conducted an enquiry. Before passing the impugned order of termination, no enquiry was conducted and this amounts to violation of the principles of natural justice and on this ground alone, the impugned order is liable to be set aside. 6. The charge is unauthorized absence for a period of twenty five days. The case of the petitioner is that as he was suffering from enteric fever, he could not attend office and his further case is that he informed orally and also over phone. But to test the correctness, the respondents did not conduct any enquiry in conformity with the principles of natural justice, but terminated him from service. For absenting from duty, on the alleged ground of fever, the punishment of terminating from service, in my considered view, is grossly disproportionate. 7. In BHAGWAN LAL ARYA v. COMMISSIONER OF POLICE, DELHI[1] the facts disclose that an employee of the Delhi Police remained absent on medical grounds. He was terminated from service. On facts, the court found that the employee remained absent on medical grounds, supported by proper medical certificate and on prior sanction of leave. In these circumstances, the Apex Court held that dismissal is improper and accordingly set aside the punishment of removal from service and directed the respondent therein to reinstate him to service subject to the condition that the period during which he remained absent from duty and the period calculated up to the date on which he reports back to duty pursuant to the judgment, shall not be counted as a period spent on duty and that he shall not be entitled to any service benefits for that period. 8. In another judgment, the Apex Court in INDERJIT vs. PUNJAB AND HARYANA HIGH COURT[2] while considering the proved misconduct of unauthorized absence, held that awarding punishment of dismissal as well as proposed punishment of compulsory retirement, which was upheld by the High Court, is wholly disproportionate to misconduct proved. The Apex Court substituted the punishment of dismissal, to that of stoppage of three increments with cumulative effect. 9. In the present case, as the cost of repetition, the charge against the petitioner is unauthorized absence. The claim of the petitioner is that as he was suffering from enteric fever and related complications, he remained absent by informing orally and also over telephone. To test the veracity or otherwise of the charge, no enquiry was conducted and he was terminated in violation of the principles of natural justice. 10. The petitioner at the time of filing of the writ petition in the year 2000, as per the cause list, is aged about 47 years and now he has attained almost the age of superannuation. Pursuant to the interim orders of this court dated 28.4.2000, he was reinstated into service. 11. In view of the above facts and peculiar circumstances of the case and the law laid down by the Apex Court, the impugned order is set aside and the respondent shall continue the petitioner in service subject to the condition that the period during which he remained absent from duty and the period calculated up to the date on which he reported back to duty pursuant to the interim order of this court, shall not be counted as a period spent on duty and that he shall not be entitled to any service benefits for that period. 12. With the above direction, the writ petition is disposed of. No costs. AVS ------------------------------ 27—09—2011 [1] 2004 AIR SCW 2288 [2] 2002- Scale-2- 600