The Court emphasized the importance of proportionate punishment and directed the Appellate Authority to reconsider the appeal in light of this principle.

JUDGMENT :

1. The petitioner was appointed as Constable in Sashastra Seema Bal ("SSB" for short) during the year 1975. On 16-07-1995 i.e. after almost 20 years of service, the petitioner left his posting at Group Centre Headquarters/lines, Suderbani at 0755 hours without prior permission from the competent authority. Even after being served with two notices for resumption of his duties by the Group Centre SSB, Sunderbani, the petitioner did not resume his duties. When the notices issued to the petitioner for resumption of duty did not receive any response from the petitioner, a Court of Inquiry was ordered on 15-09-1995 to find out the circumstances under which the petitioner had, without any permission or authority, abandoned his services from Group Centre Headquarters, Sunderbani. On the basis of the recommendation of the Court of Inquiry, the Competent Authority declared the petitioner a deserter with effect from 16-07-1995 vide Order No. 9310-14 dated 26-09-1995.

2. Keeping in view the findings of the Court of Inquiry and regard been had to the service record of the petitioner, the petitioner was also found to be a habitual offender having committed misconduct in as many as 21 times in the past. Accordingly, the Departmental enquiry was ordered against the petitioner. The statement of Articles of Charge and statement of imputation of misconduct and misbehaviour in support of the Articles of charge along with the list of documents and prosecution witnesses proposed to be examined, were served upon the petitioner vide memo 9954 dated 18-10-1995. The Departmental Enquiry was entrusted to Shri J.L. Chakraborty, Deputy Commandant, who, on completion of the enquiry, submitted his report to the Commandant.

3. From the report it was found that the charges framed against the petitioner were duly substantiated and proved. Accordingly, a show cause notice was served upon the petitioner with proposed penalty of dismissal from service. The petitioner was given ample opportunity to make representation, if any, on the proposed penalty for his misconduct and misbehavior. The petitioner submitted his representation pointing out therein that the Enquiry officer had ignored the medical certificates submitted by him to justify his absence from duty. On consideration of all relevant material and the representation submitted by the petitioner against the notice of proposed penalty, it was thus found that petitioner had absconded from duty without proper permission and authority and, therefore, was guilty of committing misconduct unbecoming of a member of the disciplined force. The Commandant, thus reached a conclusion that the petitioner was not a fit person to be retained in service and, consequently, awarded him a punishment of dismissal form service with effect from 09-12-1995.

4. Feeing aggrieved, the petitioner challenged the impugned order of removal dated 09-12-1995 in SWP No. 294/1999 titled Om Parkash v. Union of India and Ors. The writ petition was disposed of by a Bench of this Court vide order dated 20-07-2001. This Court held both the charges framed against the petitioner proved during enquiry and left it open to the petitioner to avail his right of appeal against his order of removal before the Competent Authority. The Court thus directed that the writ petition be treated as an appeal and dealt with by the Appellate Authority.

5. In compliance with the order of this Court, the Divisional Organizer, SSB J&K Division, Jammu, being the appellate authority, disposed of the representation of the petitioner as an appeal and found the same devoid of any merit. The appellate authority thus rejected the appeal and up-held the order of removal. This was done by the appellate authority vide its order dated 01-10-2001. The order of the appellate authority dated 01-10-2001 is assailed in the instant petition filed only in the year 2005.

6. The impugned order of removal dated 01-10-2001 passed by the Appellate Authority as also order of removal dated