K. R. VYAS, J. ( 1 ) THE petitioner, in this petition, is challenging the impugned order of removal from service dated 26. 10. 1988 passed by the Disciplinary Authority and the order dated 26. 3. 1993 passed by the Appellate Authority converting the order of removal into compulsory retirement as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and for quashing and setting aside the same. ( 2 ) THE petitioner at the relevant time, was serving as a Constable in Railway Protection Force under the Divisonal Security Commissioner, Rajkot, the respondent no. 2 herein. The petitioner was charge-sheeted for major penalty on 13. 11. 1987 for the following misconduct:"desertion from his duty rendering Railway property unprotected and thereafter unauthorisedly absented from duty from 20. 8. 87 to 21. 8. 87. " ( 3 ) ON 29. 11. 87, the petitioner filed a reply, inter alia pointing out that he became seriously sick around 6. 00 Oclock and he was removed in a Rickshaw to a private doctor. On 22. 8. 87 when he joined the duty, he has not only produced the certificate of sickness issued by the private doctor, but the certificate of sickness issued by the Railway Medical Officer. Under the circumstances, the petitioner requested to drop the charges levelled against him. It appears that the departmental enquiry was commensed against the petitioner, wherein the witnesses were examined, however, since the petitioner did not remain present in the inquiry, the inquiry was concluded ex-parte. It is further the case of the petitioner that he was on leave as he has to attend his ailing daughter at Mumbai and, therefore, it was not possible for him to attend the inquiry. It appears that the Inquiry Officer submitted a report on 26. 10. 1988 holding that the charges levelled against the petitioner are proved. That the disciplinary authority, respondent no. 2 herein, while accepting the said inquiry report on 26. 10. 1988 passed an order removing the petitioner from service with immediate effect, Annexure-E to the petition. It appears that the petitioner instead of preferring an appeal before the Appellate Authority, filed a petition being Special Civil Application No. 2604 of 1989 in this Court. This Court on 9. 2. 2 herein, while accepting the said inquiry report on 26. 10. 1988 passed an order removing the petitioner from service with immediate effect, Annexure-E to the petition. It appears that the petitioner instead of preferring an appeal before the Appellate Authority, filed a petition being Special Civil Application No. 2604 of 1989 in this Court. This Court on 9. 2. 1993 without entering into the merits of the case, relegated the petitioner to file appeal before the Appellate Authority and the Appellate Authority was directed to dispose of the appeal in accordance with law as expeditiously as possible preferably before 31. 3. 1993. The Appellate Authority, the Chief Security Commissioner, the respondent no. 3 herein, rejected the appeal preferred by the petitioner by confirming the finding recorded by the Disciplinary Authority. However, looking to the facts that the petitioner has put in 24 years of service, the order of removal from service was modified to a compulsory retirement from service from the date of original order of removal from service which will meet the ends of justice. The said order is at Annexure-B to the petition. As stated above, the petitioner has challenged the said orders Annexures-E and B, by way of this petition. ( 4 ) MRS Sangita Pahwa, learned advocate appearing for the petitioner after inviting my attention to Rule 2/8 of the Procedure for Obtaining Leave on Medical Certificate under Indian Railway establishment Code Volume I, submitted that no inquiry could have been initiated against the petitioner for remaining absent for two days as it was not unauthorised. She further submitted that there is no question of desertion from duty rendering railway property unprotected as the petitioner has given proper justification for his absent from duty and there is no finding that the reasons are not acceptable or believable. IN the submission of the learned advocate, if the initiation of the inquiry itself is without authority of law, the order which is by way of penalty isliable to be struck down. Mr. Nakrani, learned advocate appearing for the respondent- Railway Authority justifies the decision against the petitioner by contending that the petitioner being the Constable of the Railway Protection Force, his duty was to protect the Railway property, has not only deserted from his duty and has remained unauthorisedly absent and, therefore, no interference in the matter is called for. Mr. Nakrani, learned advocate appearing for the respondent- Railway Authority justifies the decision against the petitioner by contending that the petitioner being the Constable of the Railway Protection Force, his duty was to protect the Railway property, has not only deserted from his duty and has remained unauthorisedly absent and, therefore, no interference in the matter is called for. ( 5 ) HAVING gone through the records, it appears that the petitioner was on duty for off side seal and dynamo belt checking in the shift of 00. 00 hrs. to 8. 00 hrs. During the course of round by Head Constable Kantilal Dave, who was on duty for general supervision, he found that the petitioner was absent from his duty at about 6. 00 hrs. and he did not turn up for dismounting for which reports made in the post diary by General Supervision duty staff. It is not in dispute that the petitioner has remained absent from 20. 8. 87 and on 21. 8. 87 and has not given any intimation regarding his whereabout or sickness. It is also not in dispute that on 22. 8. 87 the petitioner attended the duty and produced duty certificate issued by the Medical Officer and the medical certificate of private doctor Shri Mahendra U. Vyas dated 21. 8. 87 on which remakr given by the Medical Officer of the Railway that the petitioner was suffering from hard fever. In view of these undisputed facts, the only question which is required to be decided is whether the petitioner in fact, deserted his duty and whether his absence can be treated as unauthorised for two days. S. R. 2/8 of the Rules for the grant of leave on Medical Certificate is relevant for our purpose, which reads as under:"s. R. 2/8. If a Railway servant who is under treatment of a non-Railway medical attendant fails to appear before the competent Railway doctor within 48 hours of his falling ill, or, if bed-ridden, fails to send an intimation supported by a certificate from the non-Railway medical attendant within 48 hours of his falling ill to the competent Railway doctor, he renders himself liable to be treated as absent without authority and to be dealt with under the Discipline and Appeal Rules, in addition to losing his pay for the period of absence. " ( 6 ) READING the said rule, it is abundantly clear that a Railway servant who obtained treatment of non-Railway medical attendant is required to appear before the competent Railway doctor without 48 hours of his falling ill, or, if bed-ridden, is required to give intimation together with certificate from non-Railway medical attendant to the comptent Railway doctor within 48 hours. On his failure to do the same, he is liable to be treated as absent without authority and to be dealt with under the Discipline and Appeal Rules. Before the initiation of departmental inquiry, preliminary inquiry was held against the petitioner and his statement was recorded by the Divisonal Security Commissioner on 9. 11. 1987. While recording the statement, certain questions were asked to the petitioner. Below mentioned are the questions translated in English from Hindi :-QUESTION: Why did you not inform the Posting Officer when your condition became worst and, why did you not mention about your health in the dynamo checking book?answer: I was having heavy temperature and I did not know anything as to where the dynamo belt checking book and I did not know as where I am going. QUESTION: When you have stated that because of heavy fever, you were not aware about the book was, than how did you go to Gulabnagar and why Railway doctor was not called ?answer: When I was having a heavy fever, I was not knowing anyting. Later on, I came to know that a rickshaw driver took me to the doctor of Gulabnagar. I did not know as to why I was not taken to Railway doctor. QUESTION: Before deteriorating your condition, why did you not inform the Duty Officer or Duty Constable Narendrakumar or Head Constable Kantilal ?answer: When I joined the duty in the shift from 0. 00 hrs. to 8. 00 hrs. , my health was good, however, after some time, suddenly a trouble started to my health, and I did not have any opportunity. This is my statement and I signed the same. ( 7 ) READING the statement recorded in the preliminary inquiry, it is clear that when the petitioner joined the duty, he was perfectly alright, however, suddenly he fell sick and was running high temperature. It appears that the attack of fever was severe and because of the same, he lost control over the body. ( 7 ) READING the statement recorded in the preliminary inquiry, it is clear that when the petitioner joined the duty, he was perfectly alright, however, suddenly he fell sick and was running high temperature. It appears that the attack of fever was severe and because of the same, he lost control over the body. It also further appears that he became unconscious and was taken by rickshaw driver to the doctor of Gulabnagar area. If this was the condition of the petitioner, it is too much from him to expect that he would inform the duty Head Constable and would make entry in the Dynamo Belt Checking Book and would also contact the Railway doctor. If one sees the totality of the circumstances, the same would justify the act of the petitioner in leaving the duty without informing and/or without making necessary entry in the relevant book. As stated above, there is no dispute to the fact that the petitioner was not at all sick. No sooner the petitioner resumed the duty on 22. 8. 1987, he produced the certificate of the private doctor of Gulabnagar who treated him and the certificate of the Medical Officer of the Railway. With this fact, can it be said that the petitioner deserted the duty rendering railway property unprotected and remained absent unauthorisedly for two days. The answer is certainly no. I am conscious of the fact that the petitioner belongs to Armed Force and he is required to maintain discipline, but the circumstances under which the petitioner undergone were beyond his control. The Disciplinary Authority as well as Appellate Authority merely accepted the statements of the other duty constable as well as Head Constable, wherein they have stated that the petitioner was absent when the checking was made and he has not handedover the dynamo checking book and that the petitioner never reported his sickness to any of the duty constable. No authority has considered the circumstances under which the petitioner was required to leave the duty and the explanation which is quite plausible and, therefore, I am of the view that interference in the matter is necessary. No authority has considered the circumstances under which the petitioner was required to leave the duty and the explanation which is quite plausible and, therefore, I am of the view that interference in the matter is necessary. Considering the provisions of S. R. 2/8 of the Rules for the grant of leave on medical certificate, it is not possible for me to conclude that the petitioner has remained absent without authority as he has sent the intimation supported by the certificate from the non-Railway medical attendant within 48 hrs of his falling ill to the competent railway doctor and, in turn, the Railway doctor also issued the certificate. If the charge of remaining absent without authority is taken out, there is no question of dealing the petitioner with under the Disciplinary and Appeal Rules. If the absent of the petitioner on medical ground is justified, than there is no question of desertion of his duty. IN view of this, the respondents were not justified in dealing with the petitioner under Rule 147 (iv) and (v) of the Railway Protection Force Rules, 1987 and also under Rule 146 (2) of the Rules, which reads as under:rule 147 (iv) "withdrawing from duty of his office without permission; (V) quiting his guard, picket, party or patrol without permission. "rule 146 (2) "fail to work his beat in accordance with orders or leave the place of duty which he has been ordered or having left his place of duty for a bonafide purpose fail to return thereto without undue delay". ( 8 ) HAVING held that the petitioner was justified in withdrawing from duty, and the so-called absence was bonafide, the ingredients of Rule 147 and 146 of the R. P. F. Rules are not attracted. Unfortunately, the matter has not been viewed by the Authority with this angle and, therefore, injustice is caused to the petitioner. Curiously, the Disciplinary Authority has relied upon the subsequent conduct of the petitioner for not remaining present at the time of inquiry and absenting fromduty which are not germain in deciding the charge. Admittedly, the petitioner is notcharged for the subsequent alleged misconduct of remaining absent nor any explanation is called for and, therefore, the subsequent conduct of the petitioner assuming that to be true, cannot be a basis for passing the order of removal from service. Admittedly, the petitioner is notcharged for the subsequent alleged misconduct of remaining absent nor any explanation is called for and, therefore, the subsequent conduct of the petitioner assuming that to be true, cannot be a basis for passing the order of removal from service. Similarly, the Appellate Authority while confirming the order of Disciplinary Authority, merely modified the order of removal by imposing the penalty of compulsory retirement and, therefore, the same is also liable to be quashed and set aside. In any case, the order of compulsory retirement is also disproportionate to the so-called misconduct alleged to have committed by the petitioner. ( 9 ) IN view of this discussion, the petition is required to be allowed and is hereby allowed. The orders Annexure-B dated 26. 3. 1993 and Annexure-E dated 26. 10. 1988 are hereby quashed and set aside. The respondents are directed to reinstate the petitioner on his original post with continuity of service and other monetory benefits as if he is working continuously and uninterruptedly. The respondents shall comply with this direction within four weeks from today. Rule is made absolute with costs. .