( 1. ) THE petitioner, who was rifle-man in the 1st Battalion, has suffered penalty of dismissal from his services by order (Annexure V) dated 13-2-87. The appeal preferred by the petitioner was also dismissed by order dated 26-11-87 (Annexure X) by the Deputy Inspector General, West Zone, central Industrial Security Force, Bombay.

( 2. ) THE petitioner faced the following two charges:-

(i) "gross misconduct and indiscipline in that CISF No. 7518174 const. Lekh Ram was absent from Unit line without any permission or authority from 2300 hrs. to 26-8-1986 hrs. on 3-10-1986. "

(ii) "gross misconduct and indiscipline in that CISF No. 7518174 const. Lekh Ram disobeyed that the orders issued to him to turn-up from Dy. Commandants orderly room on 3-10-86 by hc/cjm T. Nagaratinam and thus did not turn-up for orderly room of Dy. Commandant. "

( 3. ) THE Enquiry Officer after enquiry, submitted a report on 7-2-87 (Annexure VIII ). Thereafter, disciplinary authority vide order, Annexure -V passed penalty of dismissal from services of the petitioner. ( 4. ) THE contention of the learned Counsel for the petitioner is as under:-

(i) That, the petitioner has submitted explanation for his absence for a period of 7 days and in this regard, the witnesses produced in the enquiry, have supported the contention of the petitioner. In spite of this, the disciplinary authority erred in awarding the major penalty.

(ii) That, the disciplinary authority has taken into consideration the past conduct of the petitioner in awarding the major punishment, which record was not made subject-matter of the charge at first stage.

(iii) That, the punishment is harsh and shocks and conscious and it should be moulded by a minor penalty.

( 5. ) TO substantiate his contention, learned Counsel for the petitioner has relied the decision of Apex Court in the case of State of Mysore vs. K Manche Gowda, AIR 1964 SC 506, B. C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484, and Malkiat Singh Vs. State of Punjab and others, 19% (7) SCC 634, and contended that even if mis-conduct for absence of 7 days may be found against the petitioner, even then, the major penalty may be reduced to minor penalty.

( 6. ) LEARNED Counsel appearing for respondent, has supported the order of punishment and contended that the petitioner was constable in the armed Force. He is expected to maintain discipline of the Armed Force. Without sanction of leave, he proceeded on leave and in place of seeking treatment in the Army Hospital, he went to his village and was treated in civil hospital. All this shows that the absence was wilful and disciplinary authority has rightly passed the major punishment. The authority has rightly taken into consideration the past record of the petitioner while passing the punishment. He further contends that even if any lenient view has to be taken, then the matter has to be remitted back to the appellate authority, who will take into consideration all the circumstances to show leniency in reducing the punishment of the petitioner.

( 7. ) CONSIDERING the rival contentions of the parties, it is necessary to state some facts of the case :-

( 8. ) THE petitioner, who was Constable in Armed Force, proceeded on leave without getting it sanctioned. He remained on leave between the period 26-9-86 to 3-10-86. It is not in dispute that before proceeding on leave, he did not seek permission from the authorities. Though, learned Counsel for the petitioner has relied upon some part of the enquiry report (Annexure VIII)and the statements of Const. Mahender Singh (D. W. 1) and ASI Man Singh (D. W. 2) and contended that the petitioner was sick and all of a sudden, he had to proceed on leave. After informing the Const. Mahender Singh and ASI man Singh, he proceeded on leave. It is not a case where the petitioner wilfully remained absent but because of compelling circumstances as he was sick, he proceeded on leave. Learned Counsel for the petitioner further submits that petitioner