JUDGMENT Arun Mishra, J. 1. Petitioner in this writ petition has assailed an order (P/1) dated 26.8.2003 of termination of services. Petitioner was initially appointed in Maharshi Vidya Mandir run by Maharshi Shiksha Sansthan as primary teacher in 1995, she was promoted as Post Graduate Teacher in January, 1998, further promoted to the post of Vice Principal as per order (P/2) dt. 21.8.2000. It is averred in the petition that for the last six years, her services were appreciated and due to excellent results, she was awarded cash prizes and letter of appreciation (P/3 and P/4). Considering the performance, petitioner was selected for Videography of English Lesson on all India basis. It is further averred that the petitioner was not getting due and proper treatment from respondents. She was marked absent for 18 days, in fact, she was present. After great struggle, salary was paid for the said period after enquiry and investigation. Reversion was ordered. She fought against it. Order was set aside. She was restored to original position. Petitioner also worked as Principal in the absence of regular Principal. All of a sudden, her transfer was ordered from Jabalpur to Rewa without any justification or need. She had applied for the post of Principal and was interviewed. Petitioner filed a writ petition assailing order of transfer, W.P. No. 3399/2003 before this Court. During the pendency of the writ petition, respondents took time to file return. Her services were terminated as per order (P/1) dated 26.8.2003. Respondents are not having any PG Teacher in the Maharshi Vidya Mandir No. 1. Thus, it is clear that the petitioner was wrongly removed and her services were terminated without any justification. She was absent from duty due to genuine reason, which was pointed out before the respondents. 2. In the return the respondents have submitted that the petitioner was promoted as Trained Graduate Teacher (TGT), thereafter as Post Graduate Teacher (PGT), and given additional responsibility of post of Vice Principal m view of her seniority. No extra emolument or remuneration were paid to her as per the agreement (R/1) executed with the petitioner. Her services could be terminated on the ground contained in Clause 6-A to 6-J in the agreement. Petitioner was posted at the relevant time in Maharshi Vidya Mandir-I, Jabalpur. She was transferred to Rewa on 28.1.2003. Petitioner has joined at Rewa in the month of February, 2003. Her services could be terminated on the ground contained in Clause 6-A to 6-J in the agreement. Petitioner was posted at the relevant time in Maharshi Vidya Mandir-I, Jabalpur. She was transferred to Rewa on 28.1.2003. Petitioner has joined at Rewa in the month of February, 2003. Videography was done as a matter of routine. It is denied that the petitioner was the only PGT in the school. Petitioner was advised to get her child admitted in the school. She was not duty bound to admit her child in Maharshii Vidya Mandir, but, was expected to act on the suggestion. Other facts have also been denied. Termination does not suffer with any infirmity. Same is justified and legal. Absence was not genuine. Hence, no interference is called for in the writ petition. Same deserves dismissal. 3. Shri S.P. Seth, learned Counsel appearing on behalf of the petitioner has submitted that the services have been terminated without conducting an enquiry into the causes of absence. Petitioner was victimized by transferring her to Rewa. Thereafter, during the pendency of previous writ petition, in which transfer order was assailed/reply was not filed, services were terminated, petitioner had filed medical certificate with leave application which has been discarded illegally. He has further submitted that the penalty of termination of the services is impermissible, bad in law in the facts and circumstances of the case. Hence, the impugned order (P/1) deserves to be quashed. 4. Shri Alok Aradhe, learned Counsel appearing on behalf of the respondents has submitted that the petitioner's services could be terminated in terms of the agreement (R/1). Show-cause notice was issued. Reply was obtained, which was not found satisfactory, as such it cannot be said that there is any violation of principles of natural justice, further enquiry was not necessary in the facts and circumstances of the case. Opportunity of hearing has been granted, which is sufficient to meet requirement of natural justice. There was no justification for unauthorized absence alter joining at the place of transfer. 5. After hearing learned Counsel for the parties, in my opinion, the impugned order suffers with several infirmities. Firstly; it is clear that the medical certificate and leave application were submitted by the petitioner, which have been discarded without conducting regular enquiry. Only a show-cause notice was given. No further enquiry was conducted into causes of absence, is not in dispute. 6. Firstly; it is clear that the medical certificate and leave application were submitted by the petitioner, which have been discarded without conducting regular enquiry. Only a show-cause notice was given. No further enquiry was conducted into causes of absence, is not in dispute. 6. The Apex Court in Uptron India Ltd. v. Shammi Bhan and Anr. 1998 (79) FLR 233 (SC), has laid down that even if there is Clause in the service condition/standing order that services are liable to automatic termination on the ground of unauthorized absence still enquiry has to be held into the causes of absence whether there was just and reasonable cause or not. In the instant case enquiry has not been conducted, as such order is illegal and bad in law. The Apex Court has laid down thus: 20. There is another angle of looking at the problem. Clause 17(g), which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination". This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays' the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstance, which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material lo enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. 25. In view of the above, we are of the positive opinion that any Clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "production" in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically. 7. In Lakshmi Precision Screws Ltd. v. Ram Bahagat 2002 (95) FLR 43 (SC), law to the similar effect has been laid down. In the facts and circumstances of the case, in my opinion, when there was leave application, supported by medical certificate, it could not have been discarded without holding regular enquiry. 8. It is also not in dispute that the petitioner secured promotion from Primary Teacher to Trained Graduate Teacher then to the Post Graduate Teacher. She was also appointed as Vice Principal and given the charge of post of Principal. Her performance has been commended as apparent from certificate (P/4), Cash award was also given. Order of promotion (P/2) indicates that performance of the petitioner was satisfactory. The petitioner was transferred to Rewa, it is not in dispute that the petitioner had joined at Rewa in February, 2002 and has assailed the order of transfer in this Court. It appears that in order to get rid off of the petitioner's services a show-cause notice was issued and services were terminated during the pendency of previous writ petition relating to transfer. Without holding due and proper enquiry. 9. Agreement (R/1) has been relied upon by the respondents which provides dismissal/termination in the following exigencies: Dismissal/termination 6. The services of an employee after signing the agreement may be terminated by the Board of Directors under any of the following clauses: (a) When the employee's presence is detrimental to the discipline of the organization. (b) When the employee is found involved in moral turpitude. (c) Employee's involvement in financial embezzlement. (d) Breach of trust by the employee. (e) When the employee does not accomplish the given goal and target of the organization in continuity. (f) Employee's involvement in anti-organisational activities. (b) When the employee is found involved in moral turpitude. (c) Employee's involvement in financial embezzlement. (d) Breach of trust by the employee. (e) When the employee does not accomplish the given goal and target of the organization in continuity. (f) Employee's involvement in anti-organisational activities. (g) If the employee is jailed for more than 2 days as punishment due to any litigation or case. (h) Any other or further act, work and conduct of the employee which is not at all in the interest of the organization. (i) On violating/breach of any Clause of the agreement. (j) Whilst committing any offence with criminal intent. Conduct of the petitioner was not such to call for termination of her services in the facts and circumstances of the instant case. 10. In Bhagwan Lal Arya v. Commissioner of Police, Delhi and Anr. 2004 (101) FLR 193 (SC) : 2004 (17) AIC 604 (SC), the Apex Court has laid down that for the absence based on medical ground alongwith application for leave, it cannot be said that it was a case of grave misconduct rendering Bhagwan Lal Arya, appellant unfit for rendering public service. Dismissal was set aside. It was held that the removal from service was disproportionate punishment. The salary was denied to the employee and the period of absence was ordered not to be treated as spent on duty. The Apex Court has laid down thus: 10. In the instant case, the appellant had absented himself for 2 months, 8 days and 17 hours on medical grounds. The above two Rules 7, 10 provide that penalty of removal can be imposed only in cases, if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as weft as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service. 11. The order dated 16.1.1995-passed by the respondents was produced by the respondents themselves in their reply to C.W.P. before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. 11. The order dated 16.1.1995-passed by the respondents was produced by the respondents themselves in their reply to C.W.P. before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rules 8(a) and 10 of the Delhi Police (Punishment and Appeals) Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside. 14. Thus, the present one is a case wherein, we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. 14. Thus, the present one is a case wherein, we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily, we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment. 11. In my opinion, in the facts and circumstances of the case punishment of termination of service cannot he said to be justified at all. Even if it is held that the petitioner was absent, as there was leave application submitted with medical certificate, termination cannot be said to be justified and in accordance with law. Penalty is extremely harsh, beside imposition was not in accordance with due procedure required to be adopted. In the fact and circumstances of the case the order (P/10) is hereby quashed. Petitioner be reinstated with backwages. The period for which the petitioner had remained absent, is ordered to be treated as without pay. 12. Writ petition is allowed. Impugned order (P/1) is hereby quashed. Costs on parties.