ORDER

1. This Writ Petition has been filed under Article 226/227 of the Constitution of India assailing the order of punishment of removal from services dated 31.7.2004 (Annexure P/1) passed by the Superintendent of Police, District Morena as well as order dated 5.1.2005(Annexure P/2), whereby order dated 31.7.2004 have been affirmed by the DIG, Chambal Range, Gwalior so also order dated 24.8.2007 (Annexure P/3) passed by respondent No.3 rejecting the appeal filed by the petitioner.

2. The brief facts leading to filing of this case are that the petitioner was appointed on the post of Constable on 20.7.1988 in District Sehore after following due procedure, from where he was transferred to Shivpuri. Thereafter, he was transferred to PTS, Tighra and in December, 2002, he was transferred from PTS, Tighra to District Morena. On 12.2.2003, the petitioner was deployed at Police Lines, Morena. Due to personal ailment, the petitioner came into depression and he could not attend the duties w.e.f. 12.2.2003 to 20.5.2003. However, he reported for duty on 20.5.2003 and also submitted the medical certificates. For the aforesaid lapse, charge sheet was issued against the petitioner for remaining absent from duties for 98 days w.e.f. 12.2.2003 to 20.5.2003. The enquiry was conducted in accordance with rule, however, while recording the statements of Mukesh Dixit (P.W.1), Subedar of Police Line Morena and Moharmanlal (P.W.2), Head Constable, the petitioner was not given any notice of the date of hearing and the statements were recorded behind his back, which is violative of principle of natural justice. The enquiry was proceeded ex-parte without issuing any notice. After conducting the enquiry behind the back of the petitioner, the Enquiry Officer submitted the enquiry report (Annexure P/4) (holding the charges as proved). After that, a show cause notice alongwith the proposed punishment was issued on 19.5.2004 with the proposal to remove the petitioner from services. Vide order dated 31.7.2004 (Annexure P/1), the petitioner was removed from services. The appeal against the aforesaid order filed before DIG, Chambal Range, Gwalior was also rejected.

3. Learned counsel for the petitioner submits that the orders (Annexures P/1, P/2 and P/3) are fully illegal, without jurisdiction, and contrary to the provisions of the M.P. Police Regulations since the petitioner did not absent himself willfully but on account of his personal ailment of serious depression. Learned counsel for the petitioner further submitted that the examination-in-chief ought to have been recorded in the presence of the petitioner and mere giving opportunity to cross examine the statements of witnesses recorded behind his back vitiate the enquiry. The punishment of removal from services is a major punishment, which could not have been imposed on a person, who has rendered more than 15 years of services from the date of joining. The punishment order affects the petitioner and his family seriously and deprived them by means of livelihood and therefore, the punishment is disproportionate and liable to be set aside.

4. Learned counsel for the petitioner by inviting attention of this Court to Regulation 226 of the M.P. Police Regulation, submitted that normally the punishment of dismissal from services should not have been imposed and the same should have been imposed looking to the gravity of offence.

5. Per contra, learned Government Advocate for the respondents/State supported the impugned orders and submitted that since the charges have already been proved, therefore, there is no scope of any interference either on merits or on the quantum of punishment since the punishment was not disproportionate. In such circumstances, the writ petition deserves to be dismissed.

6. Learned Government Advocate further submitted that there is no procedural error in conducting the enquiry, therefore, no interference is called for. Moreover, the petitioner did not submit the proof regarding his ai