Hon’ble Sunil Hali, J.—The petitioner was working as Constable in the Central Industrial Security Force. He was granted leave w.e.f. 30.3.2005 to 22.4.2005 and was to report on duty on 23.4.2005. Instead of joining his duties, the petitioner extended his leave on account of his sickness up to 26.5.2005. For having remained on unauthorised leave, an enquiry was initiated against the petitioner.

2. Three charges were framed against the petitioner by the respondents. First charge relates to his unauthorised absence from duty from 23.4.2005 to 23.6.2005. The second charge was that he had refused to get himself medically examined by the Unit Hospital, Kanpur as an Outdoor patient. The intended purpose of the petitioner was to stay away from duty on the pretext of being ill. The third charge against the petitioner was that he has already been punished 8 times, out of which one major punishment and 7 minor punishments have been awarded to him.

3. In pursuance to the charge-sheet submitted against the petitioner, he filed his reply to the effect that he was hospitalised up to 26.5.2005 at Shyama Prasad Mukherjee Civil Hospital, Lucknow and after he was discharged from the said hospital, he went to a nursing home where he was initially admitted for three days, thereafter, he was discharged on 28.5.2005.

4. It is contended by the learned counsel for the petitioner that it is not the case of the respondents that the petitioner was not ill but what has been stated is that he should have got his treatment done by the Unit Hospital located at Kanpur. The explanation submitted by the petitioner did not find favour with the respondents for the following reasons :

(i) The conclusion of the enquiry report indicates that the illness from which the petitioner was suffering was not of a serious nature could have been treated in the Unit Hospital also.

(ii) If his illness was of a serious nature, he should have been hospitalised after 28.5.2005, which is not the case in hand.

5. The failure on the part of the petitioner to get himself examined as Outdoor patient in the Unit Hospital is an effort on his part to remain away from the duty. The petitioner was found guilty for remaining absent from the duty which is an act of indiscipline by a member belonging to a disciplined force.

6. After having found him guilty of the charges, the petitioner was punished by lowering down his pay scale from Rs. 3965 to 3710/- per month for a period of two years. He was also not to be given periodical increment for the period his pay has been lowered.

7. Heard the learned counsel for the petitioner and Sri Rajiv Singh, learned counsel for the respondents.

8. The case set up by the petitioner is that for having remained absent on duty on account of his illness cannot tantamount to misconduct. According to the petitioner his absence from duty was not intentional and he had not intended to remain away from duty. The stand of the petitioner is that he was sick and under treatment which fact has not been denied by the respondents and merely because he refused to be treated in the Unit Hospital, could not be a ground for holding him guilty of misconduct. In support of his contention learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of Noratanmal Chouraria v. M.R. Murli and another, (2004) 5 SCC 689, in which misconduct has been defined as :

“Any unlawful behaviour by a public officer in relation to the duties of his office is, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act”.

Learned Counsel for the petitioner has also placed reliance on a decision of this Court, Ram Sharan Lal Son of Sri Prahlad v. State of U.P., 2008 (1) ADJ 453, in which it is held that :

“Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow tha