JUDGMENT Hon’ble Vikram Nath, J.—Heard learned Counsel for the petitioner, and learned Standing Counsel. 2. The petitioner has been dismissed from service as a constable in the P.A.C. only on the ground of 87 days of over stay of leave. The petitioner was sanctioned five days leave from 15.1.1998. Upon expiry of the same, he was to report back on 21.1.1998. The petitioner failed to report back for duty whereupon it is admitted that he sent letters seeking further leave on medical grounds. It is alleged that these letters were not accompanied by medical certificate. The petitioner reported for duty on 17.4.1998. At the time of reporting back, the petitioner submitted medical certificates in support of his illness (hepatitis), which was the reason for his absence and over stay of the leave. 3. The respondent authorities have not completely disbelieved the medical certificates, but what has been stated in the impugned order is that the treatment slips are of out door patient and not of admission in any hospital and therefore, the petitioner could have reported back to the battalion where also he could have been medically treated. The petitioner at the relevant time was posted at Allahabad and admittedly had gone on leave to Ghazipur. It would be difficult to accept that merely because the petitioner was getting out door treatment at the Government hospital, it should be presumed that the petitioner was in a position to travel to Allahabad and stay at the battalion. It is possible that the petitioner may not get adequate help and support at the battalion and may not be comfortable at the battalion, but more comfortable at his native place where his family members would take his care. Patient suffering from jaundice (hepatitis) may not necessarily require admission in hospital, but necessarily requires complete rest and regulated diet which could be better taken care of at his native place where his family was staying. 4. Learned Counsel for the petitioner has submitted a large number of decisions in support of his contention that over stay of leave alone is not a charge serious enough to call for punishment of dismissal. It is contended that the punishment of dismissal is too harsh and disproportionate, considering the charge levelled against the petitioner and, therefore, even assuming that the charge is proved some lesser punishment may be awarded. It is contended that the punishment of dismissal is too harsh and disproportionate, considering the charge levelled against the petitioner and, therefore, even assuming that the charge is proved some lesser punishment may be awarded. The following cases have been relied upon in this context : (i) Bhagwan Lal Arya v. Commissioner of Police, Delhi, 2004(4) ESC 520 (SC). (ii) Shamsher Bahadur Singh v. State of U.P. and others, (1993) 1 UPLBEC 488. (iii) Mirza Barkat Ali v. Inspector General of Police and others, (2002) 3 ESC 256. 5. In the first case of Bhagwan Lal (supra), the absence of the delinquent employee was of 67 days. The contention of the petitioner is that in the said case, the Supreme Court having held that the punishment of dismissal from service on the ground of unauthorised absence was too harsh and disproportionate. The said case also related to medical leave of the delinquent employee, which had been discarded by the authorities. The Supreme Court set aside the punishment of removal and instead directed the appellant therein to be reinstated in service subject to certain condition. 6. In the other two cases of Shamsher Bahadur Singh (supra) and Mirza Barkat Ali (supra) also this Court held that punishment of dismissal in case of over stay of leave/unauthorised absence was too harsh and disproportionate and it required some lesser punishment. 7. Considering the facts and circumstances and in particular the fact that the only charge is of over stay on leave of 87 days for illness, which is alleged to be Hepatitis (commonly known as jaundice). It is common knowledge that such illness takes a couple of months for recovery and requires care and attention and strict diet control. In my view, the punishment awarded is too harsh. The writ petition accordingly deserves to be allowed, however, with some rider. 8. The Counsel for the petitioner has made a statement upon instructions from the petitioner that in case the petitioner is reinstated in service, he will not claim any. arrears of salary for the period he has not worked. In case, the petitioner submits an undertaking before the authority concerned, appropriate orders for reinstatement of the petitioner shall be passed within a period of six weeks from the date of furnishing a certified copy of this judgment along with the undertaking by the petitioner before the disciplinary authority. arrears of salary for the period he has not worked. In case, the petitioner submits an undertaking before the authority concerned, appropriate orders for reinstatement of the petitioner shall be passed within a period of six weeks from the date of furnishing a certified copy of this judgment along with the undertaking by the petitioner before the disciplinary authority. However, pay of the petitioner shall be protected and he shall be treated in continuous service, but will not be paid any arrears of salary. Further the period of absence will be treated to be leave without pay. In this view of the matter, the matter is not being sent back for awarding lesser punishment. 9. Writ petition is accordingly allowed. The impugned orders awarding punishment of dismissal and the orders confirming the same are set aside. No order as to costs. Petition Allowed. ———