JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. N. Dhar, learned Counsel appearing for the petitioner. Also heard Mr. H. Rahman, learned Asstt. Solicitor General of India, who represents the respondents. 2. The present petition has been filed by the writ petitioner, who is the mother of late Ashim Mazumder, who was serving as a rifleman in the Assam Rifles, a Para-military force under the Central Government. The prayer made in the writ petition is to quash the order dated 29.7.1998 (Annexure 11), whereby it is declared that the claim for pensionary benefits are not admissible as the son of the petitioner was declared a deserter and his service stood automatically terminated. Further direction is sought to provide family pensionary does to the writ petitioner, as the mother of the deceased rifleman Ashim Mazumdar. 3. The rifleman son of the petitioner joined service on 30.04.1987. He was sanctioned leave by the Commandant of 17th Battalion of Assam Rifles for 60 days with effect from 23.7.1991 to 20.9.1991. It is pleaded that just before Ashim Mazumdar was to report back for his duty, he fell sick and applications were submitted seeking extension of his leave. Copies of such leave extension applications sent under certificate of post, are enclosed to writ petition. However, it is averred on behalf of the respondent that such applications have not been received by the Assam Rifles Authorities. 4. Eventually the son of the petitioner was detected to be suffering from tuberculosis and he died of the disease on 14.5.1998, without being able to resume his duties with the Assam Rifles. The petitioner informed about the death of her son by communication dated 6.7.1998, addressed to the Director General, Assam Rifles (Annexure-10) and requested for payment of all dues of her deceased son. 5. In response to the said communication of the petitioner, the Director General of Assam Rifles issued the impugned letter dated 29.7.1998, conveying the decision that as Ashim Mazumdar did not rejoin his duty on expiry of leave and remained absent for more than 5 years, he was declared as a deserter and since he died while declared as a deserter from the force, no pensionary benefits are admissible to his account. The claim for family pension made by the petitioner was also rejected by communication dated 24.3.1999 (Annexure-15), issued by the Assam Rifles Directorate to the petitioner. 6. Mr. The claim for family pension made by the petitioner was also rejected by communication dated 24.3.1999 (Annexure-15), issued by the Assam Rifles Directorate to the petitioner. 6. Mr. N. Dhar, learned Counsel appearing for the petitioner submits that the petitioner's son was granted 60 days leave and while availing the said leave, he fell ill and requested for extension of leave prior to expiry of the leave period. But there was no response to such leave applications. However, due to his continued illness, the son of the petitioner could not resume his duties for which further extension of leave was prayed and eventually he died of his illness on 14.5.1998 without being able to resume his duties at all, after expiry of his leave on 20.9.1991. Accordingly, it is contended that the petitioner's son did not have any intention to desert the force though he admittedly remained absent from duty. Since the absence was for his illness, it is submitted that such absence cannot be treated in the same manner as in the case of desertion and deliberate absence from the force. The learned Counsel further contends that even though the Rules may permit automatic termination of service of a declared deserter, such termination cannot be ordered without affording an opportunity to the affected person and if no opportunity is made available, the impugned decision to declare termination of service, is a legally unsustainable decision and the same is liable to be interfered with by this Court. 7. In support of the aforesaid contention, the learned Counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court reported in (1966) II LLJ 140 SC in the case of "Jai Shankar v. State of Rajasthan", wherein the five judges Bench of the Apex Court hold as follows: The regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done, the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here. 8. The aforesaid decision of the Supreme Court in "Jai Shankar v. State of Rajasthan" (supra) was followed in (1975) II LLJ 110 SC, State of Assam and Ors. v. Akshya Kumar Deb, where the Supreme Court followed its earlier decision to conclude that there can be no escape from affording an opportunity to a person whose service are sought to be terminated on the ground of over staying of leave and unless such opportunity is provided the impugned decision of termination cannot be sustainable in law. 9. Learned counsel for the writ petitioner had also referred to the decision reported in (1971) I LLJ 557 SC, Deokinandan Prasad v. State of Bihar and Ors., where the Supreme Court held that even for continuous absence from duties for over 5 years, when an adverse decision of disentitlement of pensionary benefits are sought to be taken, the compliance of the requirement of giving an opportunity envisaged under Article 311 of the Constitution of India is mandatory and in the absence of such opportunity, the impugned decision gets vitiated in law. In this decision, it is further held by the Apex Court that pension is not to be treated as a bounty payable on the sweet-will and pleasure of the Government and the right of pension is a valuable right vesting in a Government servant. 10. The decision of the Supreme Court reported in (2003) 12 SCC 578 , State Union of India v. Ram Saran, has also been cited to contend that the punishment of termination of service only for over staying of leave is a harsh punishment. 10. The decision of the Supreme Court reported in (2003) 12 SCC 578 , State Union of India v. Ram Saran, has also been cited to contend that the punishment of termination of service only for over staying of leave is a harsh punishment. In the present case, deterrent punishment is not called for since the absence of the petitioner is on account of circumstances beyond his control, i.e. his illness which led to his eventual death. The Supreme Court in Ram Saran (supra) has held that deterrent punishment could not be resorted to when such absence is not deliberate and is not resorted to by a member of the disciplined force to avoid and evade undertaking a testing or trying venture or deployment and deterrent punishment is not warranted in a case of the present facts where the petitioner's son could not resume his duties because of his illness. 11. By citing the aforesaid decisions, the learned Counsel for the petitioner contends that the Assam Rifles Authority ought not to have declared the petitioner's son to be a deserter and should not have further ordered that his service is to be terminated due to continuous desertion since he was prevented by illness to resume back his duties and said illness eventually led to his demise on 14.5.1998. 12. Mr. H. Rahman, the learned Counsel appearing for the Assam Rifles Authority on the other hand submits that since the petitioner's son did not resume his duties after expiry of his leave, he was rightly declared a deserter with effect from 21.09.1991 by holding a Court of Inquiry under Section106 of the Army Act, 1950. It is also submitted that since the son of the petitioner died after being declared a deserter, no pensionary benefits are payable on his account under the provisions of Rule 27 of the C.C.S. (Pension) Rules. It is further contended on behalf of the respondents that after 5 years of continuous desertion, the service of the petitioner's son was rightly declared to have terminated by taking recourse to the provisions of Assam Rifles Act, 1941. Mr. Rahman also contends that the period of absence not covered by leave, has to be treated as 'dies non' for all purpose including for the purpose of increment, leave and pension. 13. I have considered the submissions made by the learned Counsels appearing for both the sides. Mr. Rahman also contends that the period of absence not covered by leave, has to be treated as 'dies non' for all purpose including for the purpose of increment, leave and pension. 13. I have considered the submissions made by the learned Counsels appearing for both the sides. From the facts revealed, it is clear that when the son of the petitioner did not resume back his duties after expiry of his leave on 20.9.1991, by treating the absence to be deliberate and wilful, the Assam Rifles Authority declared him a deserter with effect from 21.9.1991. Thereafter, it was decided that his service stood automatically terminated because of continuous desertion by taking recourse to the provisions of the Rules for ordering such deemed termination. 14. It is not in dispute that the petitioner's son was not afforded any opportunity by the respondent authorities before it was declared that his service stood automatically terminated because of his unauthorized absence and desertion. But having regard to the ratio laid down in Jai Shanker (supra), Akshaya Kumar Deb (supra) and Deokinandan Prasad (supra), it is clear that there can be no automatic order of termination, even in case of unauthorized absence, without affording an opportunity to the affected person. Such opportunity was not made available to the petitioner's son before order was passed to terminate his service. Under these circumstances, this Court is left with no option, but to declare the action of terminating the services of the son of the petitioner by the Assam Rifles Authority to be legally not sustainable. 15. Now to examine the quantum of punishment, inflicted for desertion, it is clearly laid down that judicial interference is called for only when the punishment inflicted shock the, judicial conscience and wholly disproportionate to the misconduct alleged. It has already been held by the Hon'ble Supreme Court in Ram Saran (supra) that over stay of leave cannot be considered to be heinous offence and could at best be treated as a less heinous offence. In the present case, the petitioner's son remained absent from duty due to his terminal illness and eventually he died of such illness on 14.09.1998. Therefore, this is a case for not reporting for duty due to exigencies beyond the control of the incumbent concerned and is obviously not a case of wilful desertion or deliberate absence from duty. 16. In the present case, the petitioner's son remained absent from duty due to his terminal illness and eventually he died of such illness on 14.09.1998. Therefore, this is a case for not reporting for duty due to exigencies beyond the control of the incumbent concerned and is obviously not a case of wilful desertion or deliberate absence from duty. 16. Under the circumstances, the impugned desertion declaration made with regard to the son of the petitioner is held to be illegal and the same is interfered with by this Court by quashing the impugned communication dated 29.7.1998 and 20.3.1999 (Annexure 11 and Annexure 15). In view of above, it is ordered that the respondent authorities shall make available all service dues including pensionary dues, as may be available under the relevant Rules on account of Ashim Mazumdar, the deceased rifleman of the Assam Rifles. However, no arrear wages would to payable for the period he remained absent from duty. While granting such dues, the case of the petitioner's son should not be treated to be that of a deserter or that of a terminated rifleman of the Assam Riffles. With the aforesaid direction, this writ petition stands allowed. No costs. Petition allowed