JUDGMENT 1. - Babulal, petitioner, has preferred this writ petition challenging imposition of penalty of compulsorily retiring him from railway service vide order date 21.3.1990 (Ann. 3) passed by the Additional Security Commissioner, Kota which was upheld in appeal and revision petition vide orders dated 13.12.1990 (Ann. A4) and 17.5.1991 (Ann. A5) respectively in a departmental enquiry conducted under a charge sheet dated 1.4.1987 (Ann. A1). 2. The facts leading to this writ petition, briefly stated, are that the petitioner was appointed as a Constable in Kota Division on 18.3.1970. A charge sheet (Ann. A1) was issued to the petitioner on 1.4.1987 alleging therein that he is negligent and not fit for official duty because he remained absent from duty for (i) 24.8.1985 to 26.8.1985 (3 days) (ii) 1.11.1985 to 14.11.1985 (14 days) and (iii) 28.5.1986 to 11.6.1986 (15 days) without complying with railway medical rules but remained under private doctor's treatment, remained unauthorisedly absent from duty on (iv) 4.3.1986 (1 day), (v) 27.5.1986 (1 day) and (vi) 12.6.1986 (1 day). Shri R.P. Mathur, Enquiry Officer then conducted enquiry upon aforesaid charge-sheet (Ann. A1) and he submitted his report but upon representation of the petitioner, the Disciplinary Authority on 30.12.1988 ordered for de novo inquiry on 30.12.1988 appointing one She Liyakat Ali who completed the enquiry by submitting his report (Ann. A2) on 20.2.1990 wherein, he held that the petitioner remained under private doctor's treatment from (i) 24.8.1985 to 26.8.1985, (ii) 1.11.1985 to 14.11.1985 and (iii) 28.5.1986 to 11.6.1986 but without observing prescribed Railway Medical Rules and on 4.3.1986, 27.5.1986 and 12.6.1986 he remained absent unauthorisedly. The Disciplinary Authority agreed with inquiry report (Ann. A2) and referred the matter to respondent No. 3 for imposition of deterrent punishment. Respondent No. 3 by his order date 21.3.1990 (Ann. A3) awarded a punishment for compulsorily retiring the petitioner w.e.f. 21.3.1990. Against order of compulsory retirement the petitioner preferred an appeal which was also dismissed by order dated 13.12.1990 (Ann. A4) against which revision petition was filed but was rejected by order date 17.5.1991 (Ann. A5). Hence, this writ petition. 3. Respondent No. 3 by his order date 21.3.1990 (Ann. A3) awarded a punishment for compulsorily retiring the petitioner w.e.f. 21.3.1990. Against order of compulsory retirement the petitioner preferred an appeal which was also dismissed by order dated 13.12.1990 (Ann. A4) against which revision petition was filed but was rejected by order date 17.5.1991 (Ann. A5). Hence, this writ petition. 3. Shri A.K. Bhandari, learned counsel for the petitioner contended that admittedly the petitioner rendered 20 years service to the respondents railway administration but mercilessly he was compulsorily retired from service w.e.f. 21.3.1990 for the only charge of allegedly having remained absent because of his ailment though admittedly having been medically treated by a private doctor but not by railway doctor observing railway medical rules. Shri Bhandari also contended that in reply the respondents have admitted that the period of alleged absent has been treated as without pay and therefore once the absence of the petitioner on various dates was treated as without pay on the ground of sickness duly verified either by private or of railway doctor, the charge of unauthorised absence or any non-compliance of Railway Medical Rules loses its sanctity and does nullify the subject matter thereof under the charge sheet. Shri Bhandari then contended that the petitioner had timely informed of his sickness and leave to the railway authorities and in support of it, he had produced under posting certificates of various intimations as provided in GM Circulars and thus he had already complied with Railway Medical Rules. The petitioner has also produced a certificate of death of his father which took place on 23.10.1985 to show that death of father has caused him much mental stress resulting into his sickness. 4. Shri Bhandari also contended that certificate of death of son of the petitioner was submitted along with his letter dated 14.7.1988 which was duly received by the inquiry officer on 15.7.1988 so as to show the reasonable cause of his absence on the dates which is subject matter of the impugned charge sheet. 5. 4. Shri Bhandari also contended that certificate of death of son of the petitioner was submitted along with his letter dated 14.7.1988 which was duly received by the inquiry officer on 15.7.1988 so as to show the reasonable cause of his absence on the dates which is subject matter of the impugned charge sheet. 5. Shri Virendra Lodha, learned counsel for the respondents contended that the impugned orders of punishment confirmed in appeal and revision petition are perfectly correct and sustainable in the eye of law as there is no violation of any provisions of the relevant Rules applicable to the departmental inquiries held against railway employee nor any constitutional mandate stands violated as a result of the impugned punishment. He contended that the inquiry has contended (Conducted ?) fairly complying with the inquiry rules and after having afforded reasonable opportunity of defence to the petitioner who did not observe the Railway Medical Rules of the Railway authority while remaining absent unauthorisedly and on his ailment. He also contended that persistent absence from duty, without prior leave sanction as well as intimation observing no compliance to the service and medical Rules, totally depicts misconduct so also negligence besides incapability of a Railway servant on the part of the petitioner, which warranted the impugned punishment to him. 6. Having heard the learned counsel for the parties and considered their rival contentions, coupled with careful perusal of material on record, I find that it is not in dispute at the Bar that the petitioner remained absent for the period of his leaves which is subject matter in the departmental inquiry on the reasonable cause having been withheld on account of his sickness for which undisputedly he was under medical treatment by a private doctor and the sickness was beyond his control resulting into his absence from duty. It is not the case of the respondents either during the impugned departmental inquiry or during the course of hearing before this Court that the certificates of sickness and reasons for absence were otherwise fictitious, and the genuineness of those certificates have not at all been doubted elsewhere. The death of his son and father during the period of leaves in dispute has also not been disputed. The death of his son and father during the period of leaves in dispute has also not been disputed. In the inquiry report, itself, the findings arrived at by the Inquiry Officer are that the petitioner remained under treatment of a private doctor (i) from 24.8.1985 to 26.8.1985 (3 days) (ii) from 1.11.1985 to 14.11.1985 (14 days) and that from 28.5.1986 to 11.6.1986 (15 days) he remained undergoing treatment with Railway doctor. Only the allegation is that the petitioner did not comply with the Railway Medical Rules while remaining under medical treatment either of private or railway doctors. However, it stands undisputed rather admitted that the petitioner was withheld for remaining absent from duty as a result of his sickness which certainly had been beyond his control and therefore, in my opinion, his absence from duty for the period in question cannot be held to be wilful so as to penalise by compulsorily retiring him and even for not observing the medical rules. 7. As regards non-observance of the Medical Rules in the present case, the petitioner has provided on record that he was posted at Mathura Junction where as per evidence of Diwan Singh there is no Western Railway Hospital nor any Rojnamcha has been maintained at Mathura Junction for Western Railway Protection Force Staff nor there is medical facility having been provided to the Western Railway employees. Despite this the petitioner informed as to his sickness to the respondents railway authorities within 24 hours by post as provided under GM Circular No. 4 which has not been disputed by the respondents. Thus, it stands proved that the petitioner had timely informed as to his sickness to his superiors and in support of his case, he had produced under posting certificates of various intimations. Therefore, findings of the inquiry officer as well as disciplinary authority being perverse are not sustainable on this aspect of the matter as to the observation of the medical rules and, therefore, deserve to be set aside. 8. Therefore, findings of the inquiry officer as well as disciplinary authority being perverse are not sustainable on this aspect of the matter as to the observation of the medical rules and, therefore, deserve to be set aside. 8. Moreover, the respondents Railway administration in their reply admitted at sub-paras (d) and (h) to para 8 that the period of absence in dispute was treated as period of absence which is subject matter of inquiry has been regularised by treating it leave without pay, the petitioner cannot be held to be unauthorisedly absent for the period in question and, therefore, the action of the respondents by compulsorily retiring the petitioner as punishment in the inquiry is totally against the well settled service law on the subject and the constitutional mandate. Therefore, impugned order of punishment and consequential orders passed in appeal and revision petition deserve to be set aside and the petitioner is entitled to the reinstatement in service with consequential benefits but with notional benefits along with arrears of pay with 50% back wages besides interest. 9. As a result of above discussion, this writ petition is allowed. The impugned order of punishment dated 21.3.1990 (Ann. A3) and consequential orders in appeal and revision are quashed and set aside. The respondents are directed to reinstate the petitioner forthwith if he has not attained the age of superannuation. The petitioner will be entitled to consequential benefits such as fixation of pay revised after the order of punishment till date, seniority, promotion, and arrears of pay with interest @ 12% per annum thereon from the date of accrual till the date of payment, which stand accrued as a result of the quashing of the impugned order of punishment of compulsory retirement subject to the condition that as against the back wages for the period from the date of order of impugned punishment of compulsory retirement till today, the petitioner be paid 50% of the back wages by calculating the same as if he was throughout in service during the interregnum. The compliance of aforesaid direction under this order shall be made by the respondents within a period of six weeks from the date of receipt of certified copy of this judgment, otherwise the petitioner will be entitled to the interest on the payable monetary benefits at the higher rate of 18% per annum instead of 12%. No order as to costs.Petition allowed. No order as to costs.Petition allowed. *******