The judgment establishes the principle of proportionality in disciplinary action, emphasizing the consideration of length of service and right to pension in determining the appropriate punishment.

RAJIV NARAIN RAINA, J.

1. The petitioner had put in about 15 years of service as a Constable in Haryana Police in District Sonepat when he was afflicted with Tuberculosis. The State admits that he died of the disease. He had some periods of absences in the past, but those periods were regularized by orders in due course of time and are presently of no moment for the legal representatives (LRs) of deceased Om Prakash, who are pursuing the case to claim monetary relief from his estate left behind as a deceased employee.

2. Challenge in this petition against the impugned order of dismissal from service was brought by Constable Om Parkash. He passed away in 1996 pending litigation and his widow and children have been brought on record as LRs since the cause of action qua reinstatement has abated, but not for monetary claims arising in case the petition succeeds and the impugned order is set aside or converted to lesser punishment which might entitle late Constable Om Parkash to salary for the remaining period, pension and pensionary rights etc.

3. The petitioner was accused by the police department of voluntarily absenting himself from duty for about 2½ months from 28.10.1991 to 14.01.1992 without leave which resulted in extreme penalty of dismissal from service after enquiry. There is no doubt that he neither applied for leave nor waited for it to be sanctioned. There was also no ex post facto sanction. The absence led to charge-sheet.

4. On notice, the State has contested the case, admitting that the department received intimation from late Constable Om Parkash vide telegram dated 26.12.1991 informing the office that, to quote: “I am seriously ill and not attending the duty”. Nevertheless, the telegram was sent after about 2 months of remaining absent without authorization. When the petitioner rejoined service, he was charge-sheeted for major misconduct of remaining on unauthorized absence from duty for the period aforesaid. His reply was not found satisfactory which led to the appointment of an inquiry officer.

5. In defence of the imputations of misconduct during the inquiry, the petitioner produced the doctor who treated him for a ‘diagnosed case of Tuberculosis’. He was treated as an out-door patient in his clinic. It is well-known that persons suffering from Tuberculosis are usually treated out-door hospitals as admission is not necessary unless the condition aggravates to a point when life is in danger and indoor treatment becomes life saving. It is not a case where the Inquiry Officer has disbelieved the statement of the private doctor since Tuberculosis is always a verifiable fact and cannot be concealed on medical examination. In any case, the petitioner succumbed to the disease of which there is no doubt.

6. What the Inquiry Officer pinned him down on prosecution evidence was that the delinquent had proceeded on leave without permission from the competent authority. There was no getting out of this except for any help the telegram sent albeit late in the day may offer. The charge was proven. The inquiry report was submitted to the petitioner and his reply sought. He filed reply and pleaded innocence stating that absence from duty was due to his medical unfitness and, therefore, he should not be treated harshly in the matter of punishment and the absence may be viewed sympathetically on health grounds. The disciplinary authority being the Superintendent of Police, Sonepat considered the matter and formed and opinion in his discretion that this was a fit case of dismissal from service. Accordingly, he exercised his powers under Rule 16.2 of the Punjab Police Rules, 1934, as applicable to the Haryana, and dismissed the petitioner from service. While dismissing the petitioner, he also took into account the petitioner’s past conduct and earlier instances of absences, which are narrated in the written statement to