The main legal point established is that unauthorized absence due to genuine illness may warrant a lesser punishment than dismissal, and the court has the authority to direct the disciplinary authority to impose a lesser punishment.

JUDGMENT :

BISWANATH RATH, J.

1. This is a writ petition wherein the petitioner challenges the orders vide Annexure-1 involving a Memorandum of Charge, the Annexure-2, an order dismissing the petitioner from service by the Disciplinary Authority in disposal of a Departmental Enquiry and further seeking consequential directions contained therein.

2. Short background involved in this case is that the petitioner while serving as Constable in the border area, Manipur, availed leave for fifteen days on account of illness of his mother. Following the leave order the petitioner was to rejoin his duty on 30.08.1997. The petitioner states that unfortunately he suffered from Jaundice and viral fever, for which he was bedridden for a long period and it is only after his recovery from illness he reported back to opposite party no. 3 on 11.12.1997. It is on the premises of petitioner availing unauthorized leave thereby committing breach of service conditions, a Charge memorandum was served on the petitioner along with the communication of the imputation involving the petitioner vide Annexure-1. Consequent upon the dissatisfaction on the show-cause involving the petitioner, a Disciplinary Proceeding was initiated. It is contended in the Disciplinary Proceeding that in course of enquiry the petitioner filed medical certificates issued by the Government Hospital to show that he was suffering from jaundice and viral fever and was advised by the treating doctor to take bed rest for a particular period. Prosecution examined two witnesses to prove the charges. In spite of petitioner’s filing medical documents to satisfy the absence and evidence of PW-1 that during the entire service career petitioner was not only sincere but also had never overstayed and PW-2 stating that the petitioner was sincere in his duties, the Enquiry Officer being not satisfied with the case of the petitioner submitted report to the Disciplinary Authority suggesting that the petitioner remained absent from duty deliberately and without any authority. It is alleged, based on the submission of the Enquiry report the Disciplinary Authority mechanically accepted the report of the Enquiry Officer, holding that the charges levelled against the petitioner have been proved, imposed punishment of dismissal of the petitioner from service as appearing in Annexure-2.

3. Assailing the impugned order, Miss Arundhoti Sahoo, learned counsel appearing for the petitioner submitted that finding of the Enquiry Officer and the Disciplinary Authority that the petitioner has managed to obtain medical certificates is contrary to the disclosers in the medical certificate and for the medical certificates being issued by the competent persons of a Hospital none else than the District Headquarters Hospital, there was no question of discarding such materials by the Enquiry Officer or the Disciplinary Authority. Further, on the allegation against the petitioner for violation of the Rules and procedures meant for an employee of such establishment, Miss Sahoo, learned counsel appearing for the petitioner submitted that the unauthorized absence of the petitioner being bona-fide and on account of serious illness of the petitioner and for his confining to bed for his suffering from “viral hepatitis” making the petitioner impossible to send any intimation to the Disciplinary Authority has not been properly visualized by the Disciplinary Authority. It is under the pretext that the petitioner has reported back to the Appointing Authority immediately after recovery from his illness, Miss Sahoo, learned counsel appearing for the petitioner claimed that the absence ought to have been treated as bona-fide and not intentional. Further, taking this Court to the quantum of punishment imposed involving the petitioner on the ground of unauthorized absence, Miss Sahoo, learned counsel for the petitioner contended that the punishment of dismissal imposed against the petitioner also remained disproportionate looking to the g