1. Heard Mr. A.M. Mazumdar learned senior counsel assisted by Mr. F.K.R. Ahmed, learned counsel for the petitioner. Also heard Mr. A.K. Bora, learned CGC representing the Union of India and others.

2. The legality and correctness of the order dated 15.9.2004 passed by the appellate authority, i.e., the Deputy Inspector General of Police, Rapid Action Force, Central Reserve Police Force, ('the CRPF') affirming the initial order of dismissal of the petitioner from service vide order dated 14.6.2003 passed by the Commandant of the CRPF has been assailed in this writ petition.

3. The pleaded case of the petitioner expressed in this writ petition supported by an additional affidavit is that while the petitioner was enjoying earned leave with effect from 6.5.2002 to 25.5.2002, unfortunately he fell ill and had to be hospitalised that took long time for his recovery. In such process, he overstayed by at least 5 months beyond his sanctioned leave. Meanwhile, to his utter surprise, a warrant of arrest was issued by the authority, however, the same was not executed. He was, thereafter, informed that he was placed under suspension with effect from 15.11.2002.

4. It is also contended that in the meantime to his misfortune the petitioner lost his minor son on 15.11.2002 for which he had to submit application praying for extension of leave.

5. On consideration of the representation so submitted by the petitioner before the authority, the petitioner's suspension was revoked w.e.f. 4.2.2003, Nevertheless, he could not proceed to the place of posting due to his deteriorated ill health.

6. Sequel to such non-joining in the place of posting after revocation of suspension order, the authority concerned proceeded with the Department proceedings against the petitioner and eventually the petitioner was dismissed from service vide impugned order dated 14.6.2003 passed by the Commandant-104 Bn. RAF, CRPF, Aligarh and the same was served upon him at his home village at Adhikari, P.O. Rajghat under Mangaldoi Police Station in the district of Darrang.

7. Being aggrieved by such dismissal order, the petitioner, preferred the statutory appeal before the appellate authority, i.e., viz., DIG, RAF, CRPF, New Delhi who in turn by impugned order dated

15.9.2004 dismissed the appeal holding that there was no good reasons to interfere with the impugned dismissal order passed by the Commandant-104 RAF, CRPF and the same was passed after giving full opportunity of hearing in a formal departmental enquiry so proceeded against him.

8. Mr. Mazumdar, learned senior counsel assailing both the orders, i.e., the initial order of dismissal and the appellate order affirming the same has vehemently argued that punishment of dismissal against the petitioner is absolutely disproportionate to the offence allegedly committed by the petitioner, i.e., unauthorized absence for the period from 27.5.2002 to 15.8.2002. His clear stand is that though in the initial order dated 14.6.2003 there were three charges levelled against the petitioner as mentioned in the statement of articles which pin-pointedly indicate the unauthorized overstayed leave from 25.7.2002 to 15.8.2002, he was shown to have overstayed leave on previous as many as 6(six) occasions that has been reflected at paragraph 3(j)(2) of the impugned order dated 14.6.2003 though no separate charge was levelled against such alleged unauthorized leave. The learned senior counsel has fairly submitted that instead of punishment of dismissal from service, the petitioner would have been inflicted with any other lesser punishment. The reason for such submission is that admittedly there was no charge against the petitioner to the effect that he failed to discharge his duty with sincerely, honestly and diligently and his unauthorized absence cannot be said to be the act prejudicial to the disciplined force. His only offence was he remained in unauthorized absence and that too due to his own illness plus death of his minor son. Under such circ

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