(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2563 OF 1999 Vishwas Dodhu Nerpagar, Age : 33 years, Occupation : Nil, R/o. C/o. A.P. Shimpi, Shivji Pagpal Compound, Session Road, Chalisgaon, District : Jalgaon. .. Petitioner. versus 1. The Railway Protection .. Petition dismissed Special Force, through as against respondent its Chief of the Staff, no.1, as per order New Delhi. dated 23-6-2003. 2. The Union of India. .. Respondent. ....................... Mr. S.R. Barlinge, Advocate, for the petitioner. Petition dismissed as against respondent no.1, as per order dated 23-6-2003. Mr. Alok Sharma, Assistant Solicitor General, for respondent no.2. ........................ (2) CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 11TH AUGUST 2010 ORAL JUDGMENT (Per S.V. Gangapurwala, J.) : 1. The petitioner, vide the present Writ Petition, assails the order dated 21-6-1996, passed by the Inspector General, Railway Protection Special Force, Railway Board, New Delhi, confirming the order dated 28-1-1995, passed by the Commanding Officer. 2. The petitioner was appointed as a Constable in Railway Protection Special Force in the year 1990. In 1994, the petitioner had applied for leave. The petitioner was sanctioned leave for 10 days. The petitioner did not join the service after lapse of the leave period and overstayed the sanctioned leave. The petitioner reported back to the duty only on 5th June 1994. The petitioner overstayed the sanctioned leave for a period of 107 days without intimation. 3. The departmental inquiry was initiated against the petitioner. The Inquiry Officer submitted the report. Pursuant to the said report, the Commanding Officer passed an order, removing the petitioner from service. The petitioner preferred an (3) appeal before the appellate authority, who dismissed the appeal by its order dated 21-6-1996. 4. Mr. S.R. Barlinge, learned Counsel appearing for the petitioner, contends that the petitioner was compelled to overstay on account of illness of his wife as there was no one to look after. He further contends that the appellate authority has also not given any reasons while dismissing the appeal. According to Mr. Barlinge, the punishment imposed is too disproportionate. 5. It is on record, that the petitioner had overstayed for a period of 107 days and he has joined only on 5-6-1994. From the record, it appears that the petitioner could not receive the first two communications and on receipt of third communication, the petitioner joined the duty. The order of removal, on account of absence of 107 days, would be too disproportionate. It is not the case of the respondent, that the petitioner was habitual absentee from the duty. By now, it is well settled position of law, the Wednesbury's principle of unreasonableness is substituted by doctrine of proportionality. Imposing a punishment of removal from service, on account of overstay for a period of 107 days, would be too disproportionate. Non-grant of back wages would be sufficient punishment to the petitioner. 6. In the result, the petition is allowed. (4) (i) The impugned order dated 21-6-1996, passed by the Inspector General, Railway Protection Special Force, Railway Board, New Delhi, and the order dated 28-1-1995, passed by the Commanding Officer, Head Quarters No.5, Battalian, R.P.S.F., Tiruchirapalli, are quashed and set aside. (ii) The respondent is directed to reinstate the petitioner in service with continuity and all further consequential benefits, except back wages. It is made clear that the petitioner shall not be entitled for the back wages from the date of his removal till his reinstatement. (iii) The respondent shall reinstate the petitioner, in service, within a period of three months from today. 7. Rule is made absolute on the above terms. However, there shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp2563