JUDGMENT :

H.S. THANGKHIEW, J.

1. The writ petitioner being aggrieved with his removal from service on account of unauthorized absence, which he claims is not willful, but due to compelling circumstances is before this Court, assailing the order of removal dated 17.06.2020, passed by the respondent No. 4, and the appellate order dated 15.02.2021, passed by the respondent No. 3, whereby the order of removal has been upheld.

2. The petitioner who was serving in the Meghalaya Police, due to his unauthorized absence for the period from 14.12.2019 to 18.03.2020, without any information to his superiors was subjected to departmental proceedings. The said proceedings culminated in the orders of removal from service, which the petitioner alleges is arbitrary, and the punishment awarded disproportionate to the alleged misconduct. It has also been contended that, adequate opportunity was not afforded to the writ petitioner and that there was no willful absence from duty as the petitioner was hospitalized and suffering from psychiatric issues, brought upon by alcohol dependency.

3. Mr. S. Deb, learned counsel for the petitioner submits that, the petitioner was unable to attend his duties, as he was undergoing treatment for his physical and psychiatric ailments, and in the departmental proceedings, while admitting to the unauthorized absence before the Enquiry Officer, however did not file any show-cause, but had produced medical certificates indicating his medical condition. He submits that, the petitioner could not attend to his duties or inform his superiors, is due to these compelling circumstances and his absence can in no manner, be considered as willful. Learned counsel has further submitted that, on the earlier occasions, when he was absent without leave or information, the respondents had condoned the same, as they were aware about his medical condition, but for the last period of his unauthorized absence, he has been harshly dealt with, which is disproportionate to the act of misconduct. At the most he submits, an order of compulsory retirement could have been passed in the facts and circumstances of the case.

4. The learned counsel however, in the course of hearing, did not press the aspect of not being afforded adequate opportunity to defend his case, but has limited his challenge to whether the absence can be considered willful, and whether the petitioner has been awarded punishment, which is not commensurate with the infraction. Reliance has been placed on the following judgments, on the point of willful absence and extent of penalty.

i) Krushnakant B. Parmar vs. Union of India & Anr. (2012) 3 SCC 178

ii) State of Punjab vs. Dr. P.L. Singla (2008) 8 SCC 469

iii) Chairman-Cum-Managing Director , Coal India Limited & Anr. vs. Mukul Kumar Choudhuri & Ors. (2009) 15 SCC 620

iv) Order dated 15.03.2023, passed in Civil Appeal No. 10604/2010 (Eastern Coal Fields Limited & Ors. vs. Ajit Mondal & Ors.)

5. Mr. B. Bhattacharjee, learned AAG assisted by Ms. R. Colney, learned GA on behalf of the respondents submits that, adequate opportunity had been afforded to the writ petitioner, and when notice to resume duty dated 09.01.2020, which was published in The Shillong Times, did not evoke any response from the petitioner, a show-cause notice was issued on 04.03.2020, which was duly received by the writ petitioner. However, he submits as reflected from the impugned order, the petitioner did not submit any written explanation to the show-cause notice, and inspite of all opportunities being provided in the course of inquiry to the petitioner, to examine the prosecution witnesses, at the time of recording statements, the petitioner declined the same. The learned AAG then submits that, the petitioner did not offer any explanation as to his absence, to show that the same was not willful, and in this regard, has referred to a Fitness Certificate issued by the Shillong Hospital, which shows that, he was fit to join service as on 15.02.2020, but still rem