By Court—The petitioner has approached this Court challenging the order of dismissal dated 11.10.2001 and the appellate order dated 27.03.2002 whereby his appeal has been dismissed. The petitioner was appointed on 18.11.1995 as Assistant SubInspector. On 08.01.2001, he was served a chargememo for overstaying from duty on the ground that after his transfer from Dimapur, he was given usual leave of 10 days however, thereafter he did not join duties. It is the case of the petitioner that prior to his transfer, he was suffering from mental illness and he was admitted in CRPF Base Hospital, New Delhi between the period 25.11.1999 and 24.12.1999. After he was given the fitness certificate, he was permitted to join duty but without weapons. It is also the case of the petitioner that thereafter, he again became mentally ill and he was admitted to Davis Institute of Neuro Psychiatry, Kanke, Ranchi from 18.08.2001 to 17.09.2001. His father vide letter dated 24.10.2000 informed the authorities about the illness of the petitioner.

2. An enquiry was conducted and the petitioner was asked to report to the enquiry officer within 15 days however, the petitioner did not report to the enquiry officer. A certificate of the doctor and prescription and letter dated 17.04.2001 have been brought on record. The departmental enquiry proceeded exparte and the report of the enquiry was sent to the home address of the petitioner. However, the petitioner did not submit any reply and therefore, an order of penalty has been passed. The petitioner preferred appeal which was also dismissed by the appellate authority. In these circumstances, the petitioner has approached this Court.

3. A counter affidavit has been filed in which the respondents have taken the stand that the medical prescription do not indicate that the petitioner was suffering from mental illness. After he was declared fit he did not report for duties. He did not join duties till the order of dismissal was passed. Only after the order of dismissal was passed the petitioner made a representation that he is fit to join the duty and he should be allowed to join. The charge against the petitioner was grave and it was found proved in the departmental enquiry. The petitioner was given ample opportunity to defend himself however, he absented himself from the departmental enquiry.

4. Heard learned counsel appearing for the parties and perused the documents.

5. The learned Senior counsel appearing for the petitioner has submitted that overstaying is not a misconduct within the CRPF Rules. Petitioner was granted 10 days usual leave and thereafter, due to his illness he could not join duty. The learned Sr. Counsel has further submitted that although the petitioner has produced the medical certificate of the doctors to indicate that he was not able to join the duty due to the reasons beyond his control and his father had also requested to the authorities however, order of penalty has been passed. The petitioner has been victimised by the authorities. She has further submitted that the order of dismissal from service is disproportionate to the misconduct proved. On these grounds she has submitted that the order of penalty and the appellate order are liable to be interfered with by this Court.

6. The learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in “Union of India & Ors. Vs. Giriraj Sharma”, reported in AIR 1994 SC 215 to substantiate her contention that overstaying from duty does not warrant punishment of dismissal from service.

7. I have perused the documents on record and judgment cited by the learned counsel for the petitioner. I find that in “Union of India & Ors. Vs. Giriraj Sharma” (supra), the employee was granted 10 days' leave and he had made an application for further 12 days' leave, which was rejected and in these circumstances, it was found by the Hon'ble Supreme Court that the punishment awarded by the department was harsh and disproportiona