The writ petitioner herein challenges his order of termination from service. The petitioner was a Constable in the Police Department and he was dismissed from service for being absent for a period of 68 days without grant of leave. The admitted position is that the petitioner was absent for this period of 68 days, but his case was that he applied for leave on medical ground alongwith the medical certificate. It is also admitted in the affidavit-in-opposition, inter alia, as follows:

"In reply to the petitioner's allegation, it is to state that the petitioner in his defence statement stated that he applied Earned Leave on 10.11.1986 through the Officer-in-charge, Yaripok. The said application for Earned Leave could not be traced in the office of the Superintendent of Police, Thoubal. However, vide despatch register of Yaripok Police Station, under entry No.2003 dated 19.11.1986, it was despatched to the Sub-Divisional Police Officer, Thoubal, through the receipt of the same is not shown in the register of the office of SDPO, Thoubal. In the above circumstances, leave application is presumed as to have been submitted by the petitioner before suspension order of Departmental Enquiry as initiated."

2. So the fact remains that the petitioner applied for leave on medical ground alongwith medical certificate. But the leave was not considered by the authority and the order of suspension was passed and thereafter, the departmental enquiry was initiated and it was concluded and the punishment was imposed.

3. I have heard Shri Lalit Kumar, learned Advocate for the petitioner and Shri Jagat Chandra, learned Advocate for the respondents. The parties in support of their contentions places reliance on the following decisions: (i) AIR 1994 SC 215 (Union of India & others vs. Giriraj Sharma). That was a case where a CRPF jowan overstayed a leave period and he was dismissed from service. There was a writ application under Article 226 of the Constitution and that was allowed on the ground that the dismissal merely on the ground of overstaying leave period and the authority imposed harsh and severe punishment and it is disproportionate with the gravity of the offence and violative of Article 14. By quashing the order of termination the Supreme Court directed to impose any other minor punishment save and except the dismissal.

(ii) The next case relied on by the learned Advocate is AIR 1992 SC 417 (Ex. Naik Sardar Singh vs. Union of India & others). That was a case of an Army jawan. That Army jawan was on leave and went to his native place to attend the marriage ceremony of his brother-in-law. When going to attend the marriage ceremony he purchased 11 bottles of Rum and 1 bottle of Brandy. According to law he was allowed to carry 4 bottles of Rum and 1 bottle of Brandy. When he was passing through Surendra Nagar, he was arrested on the ground that he was carrying liquor through a prohibited area. His defence was that he had the permission from the higher authorities to purchase 11 bottles of Rum and 1 bottle of Brandy. But he had to face a Court Martial and in the Court Martial he was sentenced for a period of 3 months RI and he was dismissed from service. There was an appeal before the Army Commander, but the appeal was rejected. Thereafter he filed a writ petition in the Delhi High Court which was summarily rejected. As against this a Special Leave Petition was filed. The Supreme Court quashed the order of termination holding that it was absolutely disproportionate to the gravity of the offence committed as he had the valid licence for purchasing of 11 bottles of Rum and 1 bottle of Brandy for celebration in the marriage ceremony. But instead of enjoying the celebration of marriage ceremony of his brother-in-law he was rotting in jail for a period of 3 months. The Supreme Court by quashing the order of dismissal passed an order for reinstatement to the service of the petitioner.

4. On the other hand the learned counsel for the respondents relies on (1

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