The central legal point established in the judgment is the requirement to consider the proportionality of punishment and all means of correction before imposing dismissal from service.

In this petition filed under Article 226 of the Constitution, petitioner has called in question the punishment order, whereby petitioner was dismissed from service and also the appellate order, whereby his appeal has been rejected by the appellate authority.

2. Petitioner was served with a charge-sheet Annexure-P/1, wherein it was alleged that petitioner remained unauthorizedly absent from 8-3-2002 to 19-6-2002 (104 days) without intimation and thereby caused dereliction of duties. The second charge against the petitioner was that he is a habitual absentee.

3. In the charge-sheet it is alleged against the petitioner that he was appointed on 24-8-1965 as Constable and till issuance of charge-sheet he was unauthorizedly absent on 47 occasions, which shows that he is a habitual absentee.

4. Learned counsel for the petitioner assailed the disciplinary proceedings on following grounds :- (1) The leave were available in the credit of petitioner which could have been sanctioned in terms of Regulation 178 of the Police Regulations. (2) The punishment can be imposed only in accordance with Regulation 226 of the Police Regulations and considering the aforesaid, punishment was extremely disproportionate. (3) Petitioner was at the fag end of his career and has rendered more than 38 years of service, in which he was given prizes on 40 occasions. Learned counsel submits that punishment is shockingly disproportionate and at best respondents could have inflicted a punishment of compulsory retirement, which could have at least provided him some financial aid to keep his body and soul together in the december of his life. Thus, the basic ground of attack is on the proportionality of punishment imposed on him.

5. Per Contra, Ms. Pachouri learned Dy. Government Advocate supported the order and by drawing attention of the Court on page 2 of the return submits that on 7 occasions, petitioner was inflicted with punishment of withholding one increment without cumulative effect on the allegations of unauthorized absent. On 32 times, he was censured for the same misconduct of remaining unauthorizedly absent, whereas on 2 times he was inflicted with gross censure and whereas for 18 occasions a punishment of P.D. was awarded to the petitioner for the same misconduct. The learned Government Advocate is unable to tell the full form of the "P.D".

6. I have heard learned counsel for the parties and perused the record.

7. The petitioner applied for leave which was disallowed on the ground that his leave application is not supported by a medical certificate. Regulation 178 of Police Regulation reads as under :-

"178 (i) Leave is earned by duty only. Leave is earned under the ordinary leave rules at the rate 1/11 of the period spent on duty. Leave is calculated in terms of leave on average pay, so that leave taken on half average pay will count as half the period actually spent on leave.

(ii) The maximum amount of leave on average pay which may be granted at one time is four months without medical certificate and eight months on medical certificate [Fundamental Rule 81 (b)(ii)]." The underlined portion of Regulation 178(ii) makes it crystal clear that the leave could have been granted to the petitioner without any medical certificate up to a period of four months. It is relevant to mention here that respondents have not doubted the genuineness of ailment of the petitioner. The leave was rejected solely on a technical ground that medical certificate was not filed. This also runs contrary to the enabling provision of Regulation 178(ii). The respondents have not chosen to direct the petitioner to appear before any medical board etc. for medical examination.

8. As per the return of the respondents, the petitioner was inflicted with a series of minor punishments for remaining unauthorizedly absent. However, at no point of time any major punishment is inflicted on the petitioner on the ground of his absence. Regulation 226 of the Police Regulations reads as under :-