R.B. MISRA, J.

1. In this writ petition prayer has been made to quash the order dated 30.3.94 passed by District Judge removing the Petitioner from service/Class IV post and 20.9.1996 passed by the Respondent No. 3 the Administrative Judge as appellate authority.

2. Heard Anu Jaiswal, learned Counsel on behalf of the Petitioner as well as Sri K.R. Sirohi, learned Counsel for the Respondents.

3. The facts necessary for adjudication of the case are that the Petitioner was appointed as class IV/peon in the judgeship of Jalaun at Orai in the month of November, 1980 and at the relevant time, while working as Chaukidar at the head quarter Orai, he proceeded on sanctioned casual leave on 26.6.93 and was expected to come back on the next day, however, the Petitioner moved an application for availing fifteen days earned leave up to 12.7.93. In the meantime, the Petitioner had fallen seriously ill, suffered from Pyrexia Anesebic Hepatitis and due to the said disease the Petitioner remained absent from 12.7.93 to 21.8.93 also and after that the Petitioner was declared fit to resume duty on 23.8.93, therefore, sought permission to join his duty, along with medical fitness certificate dated 21.8.93 issued to him by Medical Officer of P.H.C. The Petitioner was not allowed to join duty on the ground that he had already been suspended on 7.8.93 for absence from duty since 13.7.93.

4. The departmental proceedings were initiated against the Petitioner and learned civil Judge was appointed as Inquiry Officer. A charge-sheet dated 16.8.93 (Annexure-4 to the writ petition) was issued to him on 24.12.93. The charge-sheet indicated the allegations against the Petitioner that the Petitioner proceeded on sanctioned leave on 26.6.93 and was about to come back to join to the office on 27.6.93 and the Petitioner has submitted an application dated 5.7.93 through Sri Jagdish II counsel requesting for fifteen days earned leave up to 12.7.93 even then he did not turn up on 12.7.93. In these circumstances, the Petitioner was absent for long period without sanctioned leave and absence from 28.6.93 without sanctioned leave is a misconduct and is defiance of the provisions of the Government Servants Conduct Rules, 1956, as such in support of the charges following documents was also to be considered:

(a) Application dated 5.7.93 of the Petitioner ;

(b) Report of Assistant Nazir dated 2.7.93, 5.7.93 and 7.8.93 ;

(c) The Petitioner was expected to give reply before 26.8.93 by writing.

The reply was filed and it shall be presumed that the Petitioner has not to say anything in his defence. By the charge-sheet dated 16.8.93, it was also expected by the Petitioner that if he wanted personal hearing, he can give in writing to the inquiry officer. The Petitioner submitted his reply dated 5.1.1994 (Annexure-5) by saying that immediately after proceeding on leave on 26.3.93 the Petitioner became seriously ill and the Petitioner had endeavoured to send the application through Sri Jagdish, however, since his physical condition was so deteriorated and the Petitioner was unable to read or write in those conditions the Petitioner could not send the reply. However, in the explanation the Petitioner has to only submit the medical certificate and the reply is sent Under Certificate of Post/U.P.C.

5. Sri D.N. Shukla, Inquiry Officer vide its order dated 22.3.94 (Annexure-6) has considered all the documents and has found that one application which is dated 5.7.93 was sent by the Petitioner through Sri Jagdish where the Petitioner had prayed for earned leave from 28.6.93 to 12.7.93 on the ground of the illness of his wife and according to the statements of Sri Munna Lal-II his second application dated 14.7.93 in respect of the Petitioner was sent by U.P.C., over which the inquiry officer has said that by submission of application for leave the Petitioner or any employee is not entitled to remain on leave and by submission of the application for leave only the employee is not absolve