JUDGMENT By the Court.—Heard Shri Rahul Agrawal, learned counsel for the petitioner. Shri S.C. Misra, Additional Standing Counsel has appeared for the respondents. 2. The petitioner was appointed on 3.1.1998 as a regular member of Central Reserve Police Force (C.R.P.F.) as Assistant Commandant. During the training period, he was posted to various Battalions of the CRPF. While he was posted with 28th Battalion CRPF deployed at Hallo Majra, Chandigarh in the year 2001, he applied for and was granted 29 days earned leave w.e.f. 8.9.2001 to 6.10.2001 with permission to avail 7.10.2001 being Sunday by the Commandant of the Battalion and was due to rejoin duties on 8.10.2001. It is alleged that the petitioner could not rejoin on 8.10.2001, as his wife was pregnant and was seriously ill. He sent an application on 4.10.2001 requesting for 15 days extension of the leave on the ground of serious illness of his wife. His request however was not accepted by the Commandant and that he was directed to rejoin duty forthwith by telegram dated 9.10.2001. The petitioner rejoined on his own on 6.1.2003. The details of the extension of leave, sought by the petitioner from time to time and action taken thereon detailed in the order of the Union Public Service Commission dated 29.1.2006, are given below in the chart : CO’s letter dt. Reason for extension Status of action taken Leave sought of leave by Office 1. 4.10.2001 Serious illness of wife The CO was informed 15 days vide telegram dt. 8.10.01 leave not extended. Report forthwith. 2. 15.10.2001 Wife’s condition The CO was directed to critical due to report forthwith for duty complication in due to his detailment for pregnancy Parade contingent for 62nd CRPF Anniversary Parade vide Regd. Letter dt. 9.10.2001 and telegram dt. 10.10.2001 and 13.10.2001 3. 26.10.2001 Wife’s condition not The CO was again Extension of leave for improving due to directed vide regd. letter another 15 days complication in dt. 18.10.2001 to report pregnancy. for duty immediately. The CO was informed vide letter dated 24.10.2001 that his request was rejected and he was directed to report for duty immediately. 4. 5.11.2001 & Wife’s condition is The CO was informed 5.12.2001 continuing with same vide letter dt. 13.11.2001, Extension of leave for complication 5.12.2001, 10.12.2001 & another one month & accompanied by severe 5.1.2002 that his request further one month. domestic problem. 4. 5.11.2001 & Wife’s condition is The CO was informed 5.12.2001 continuing with same vide letter dt. 13.11.2001, Extension of leave for complication 5.12.2001, 10.12.2001 & another one month & accompanied by severe 5.1.2002 that his request further one month. domestic problem. was rejected and the CO was advised to report for duty immediately. 5. 5.11.2001 @ & @ Charges levelled The CO was once again *5.12.2002,5.3.2002& against him are directed vide letter dt. ** 3.4.2002 absolutely false and 10.4.2002 to report for Extension of leave for fictitious having wrong duty immediately one month and further notion against him. otherwise disciplinary for 30 days. * Wife’s condition action would be initiated persist with same against him. complication accompanied by severe domestic problem. ** His wife gave birth to a cesarean child whose condition are stated to be critical due to post surgical complications. 6. 6.5.2002 Wife’s condition The CO was once again Extension of leave for persists with post directed vide letters dt. another 30 days. surgical complications 16.5.2002 & 24.5.2002 whose conditions are and telegram dt. stated to be critical. His 25.5.2002 to report for presence with her is duty immediately. must. 7. 5.6.2002 & Wife’s condition The CO was once again 7.7.2002 persists with post directed vide registered Extension of leave for surgical complications mail dt. 8.11.2002 to another 30 days and accompanied by report for duty on or further for 30 days jaundice whose before 30.11.2002 condition is stated to be otherwise disciplinary critical. His presence action will be initiated with her is must. against him. Besides he is facing acute domestic problem. 3. For the purposes of classification, control and appeal, the CRPF personnel are regulated by the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (in short the CCS (CCA) Rules, 1965). 4. His presence action will be initiated with her is must. against him. Besides he is facing acute domestic problem. 3. For the purposes of classification, control and appeal, the CRPF personnel are regulated by the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (in short the CCS (CCA) Rules, 1965). 4. An enquiry against the petitioner under Rule 14 of CCS (CCA) Rules, 1965 was initiated by serving upon him a Memorandum dated 30.8.2004 with an Article of charge, alleging that while he was posted and functioning as Assistant Commandant, 28th Bn CRPF deployed at Hallo Majra, Chandigarh during the year 2001, committed a serious misconduct in that having proceeded on 29 days earned leave with effect from 8.9.2001 to 06.10.2001 with permission to avail 7.10.2001 being Sunday, failed to report back for duty on due date i.e. 8.10.2001 and continued to remain absent from duties till his rejoining at his own on 6.1.2003 without any sanction/permission of the competent authority and despite repeated directions to rejoin duty forthwith. Thus the said Shri Virendra Kumar, AC failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Government servant thereby violated the provisions contained in Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964. 5. A statement of imputations of misconduct or misbehaviour in support of article of charge was appended to the Memorandum dated 30.8.2004. Shri Surendra Choudhary, Dy. Commandant, CRPF was appointed as the Presenting Officer by the Additional DIGP (Pers, I) on 25.10.2004. The petitioner submitted his written statement of defence on 17.9.2004 stating that during his leave period his wife was seriously ill, due to complicated pregnancy. His presence became a compulsion as she required his personal care. He could not leave her alone in that situation and requested for extension of leave. He further submitted in paragraph-5 of his written statement that during this period he had been facing severe domestic problems and that his parents at Allahabad could not take care of his wife in that condition as they were too old and that there was no one else to look after her in that traumatic condition of pregnancy. The doctors had advised her to take complete bed rest and not to take journey. They stayed at his in-laws house. The doctors had advised her to take complete bed rest and not to take journey. They stayed at his in-laws house. His father-in-law is a Government servant and was posted out of station and brother-in-law was engaged in his hectic business schedule. His mother-in-law was suffering with severe backache problems. In these circumstances there was no body to look after his wife. She gave birth to a child by cesarean operation and was too weak and required to be looked after with extreme care as both mother and the baby were in critical stage of health. The condition of his wife further deteriorated due to an attack of jaundice which relapsed after sometimes. Under these circumstances he was under extreme stress and strain and was not able to decide as the matter was that of life and death. However, he kept on requesting the Commandant for considering his case for grant of leave. 6. A preliminary hearing was held on 15.1.2005 by the enquiry officer in which the petitioner admitted that he had received the memorandum of charge, and had understood the same. On question No. 3, he pleaded guilty and on question No. 4 the petitioner answered : ‘No Sir. I do not want to add anything at this stage, however, I will adduce oral and written evidence during the course of enquiry. Sir, I wish to have Shri L.N. Mishra, Deputy Commandant of 101 Bn. RAF as my Defence Assistant during the D.E.’. 7. The department examined Shri Harsharanjit Singh, 2 I/c 108 RAF as prosecution witness No. 1, and ASI (M) C.S. Narayanan as prosecution witness No. 2. These witnesses proved the facts that the petitioner had proceeded on leave to return on 8.10.2001. His application of extension of leave by 15 days was not accepted and he was asked to report forthwith. He was also detailed for 62nd Anniversary Day Parade and was communicated with the order telephonically. The witnesses also proved the record and stated that the officer has tendency to overstay leave. The petitioner did not ask any question in cross-examination to either of the witnesses produced by the department. He was also detailed for 62nd Anniversary Day Parade and was communicated with the order telephonically. The witnesses also proved the record and stated that the officer has tendency to overstay leave. The petitioner did not ask any question in cross-examination to either of the witnesses produced by the department. The Presenting Officer in his presentation to the enquiry officer dated 29.4.2005 stated in the end that after recording the statements of both the prosecution witnesses, the delinquent officer was asked to provide list of witnesses and documents/evidence in support of his defence within 15 days of the receipt of the letter. In reply the delinquent officer submitted a letter enclosing photocopy of medical documents in his defence which were earlier submitted to his battalion. He did not produce any defence witnesses and the statement of defence. The enquiry officer submitted his report to the disciplinary authority with the findings that the charged officer had overstayed leave without proper extension sanctioned by the competent authority and acted in a manner in becoming of a Government servant and thereby the provisions contained in Rule 3 (1) (ii) and (iii) of CCS (Conduct) Rules, 1964 and that the charge under Article-1 was proved. The Union Public Service Commission, by its letter dated 29.1.2006 to Secretary of the Government of India, Ministry of Home Affairs, endorsed Commission’s approval to the penalty of reduction by three stages in the time scale of pay for a period of three years with stipulation that the officer will not earn any increments of pay during reduction and that the reduction would have effect of postponing his future increments. 8. By the order dated 5.4.2007, Shri Ranjit Singh, Additional DIG (Pers-I) by order and in the name of President, found after discussion and consideration of original papers that the charges were proved and in the light thereof the officer was awarded punishment as above, reducing his pay to the stage of Rs. 8,550/- w.e.f. 1.4.2007 in the time scale of pay Rs. 8000-275-13,500 for a period of 3 years. This order dated April 5, 2007 is under challenge in this writ petition. 9. 8,550/- w.e.f. 1.4.2007 in the time scale of pay Rs. 8000-275-13,500 for a period of 3 years. This order dated April 5, 2007 is under challenge in this writ petition. 9. Shri Rahul Agrawal, learned counsel for the petitioner submits that Rule 11 of CCS (CCA) Rules, 1965, Government of India instructions, para (5) 2 provides for a time frame for initiation of disciplinary proceedings for overstayal of leave, laying down that the delinquent should be proceeded against immediately and should not be put off, till the absence exceeds the limit prescribed in Rule 32 (2) of the CCS (Leave) Rules, 1972. The enquiry in this case was time barred as it was proceeded with almost two years after the period availed by the petitioner with request for consideration of leave. He submits that in his written statement of defence on 17.9.2004 in the preliminary hearing on 15.1.2005 the petitioner requested for Sri L.N. Mishra, Deputy Commandant, 101 Bn. RAF as “Defence Assistant” as per provision of Rule 14 (8) (a) of the CCS (CCA) Rules, 1965 but the same was denied to him in violation of the principle of natural justice. Lastly he contends that the critical situation and the circumstances in which the petitioner overstayed leave was not taken into consideration by all the authorities. The petitioner was in continuous correspondence with his concerned office and yet the punishment was meted out to him. The respondents have treated him harshly for awarding excessive punishment. Instead of allowing leave in the extraordinary circumstances, which was denied to him arbitrarily he has been punished for having stayed with his wife and child in a critical situation. The punishment is too severe and will remain attached to him throughout his career marring all future prospects in the career of the petitioner. 10. Shri S.C. Mishra, Additional Standing Counsel, Government of India contends that the petitioner overstayed the leave without justification. As a member of disciplined force, he could not have ignored the orders, after he was refused leave and was asked to join duties. The petitioner overstayed the leave granted to him from 8.10.2001 to 5.1.2003. 10. Shri S.C. Mishra, Additional Standing Counsel, Government of India contends that the petitioner overstayed the leave without justification. As a member of disciplined force, he could not have ignored the orders, after he was refused leave and was asked to join duties. The petitioner overstayed the leave granted to him from 8.10.2001 to 5.1.2003. On the question of defence assistance, it is stated that initially the petitioner made a request at the time of preliminary hearing for availing the defence assistance but that he did not apply in writing or insist upon such assistance during the course of the enquiry. He did not choose to cross-examine the witnesses and did not take up this point in his reply to the report of the enquiry officer. 11. A public servant cannot claim leave as of right. He has to apply for leave in accordance with the service rules to the authority competent to grant the leave. The leave may be sanctioned subject to fulfilment of the requisite formalities. Every leave has a commencement date and a termination date unless it is extended. An employee, who remains absent after the end of the leave, exposes himself to penal consequence. If the leave is not allowed by the competent authority, it amounts to unauthorised absence and is a misconduct. But merely because a public servant has overstayed the leave the employer would not be entitled to punish unless the disciplinary proceedings are initiated against the employee in accordance with the service rules applicable to him. The principles of proportionality, in a case where an employee is punished, will get attracted, if an unduly harsh punishment is given for such overstayal. 12. In Union of India and others v. Girraj Sharma, 1994 Supp (3) SCC 755, the services of employee were terminated on account of overstaying of period of leave by 12 days. The High Court directed reinstatement with all monetary and other service benefits. The Supreme Court found that the employee had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. The Supreme Court dismissed the appeal making it open to the department to visit the respondent-petitioner with a minor punishment. 13. The Supreme Court found that the employee had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. The Supreme Court dismissed the appeal making it open to the department to visit the respondent-petitioner with a minor punishment. 13. In the present case, we find that the enquiry officer in his report after considering the evidence of overstayal of leave and consequent misconduct did not consider the circumstances in which the petitioner could not join duties and had requested for extension of leave on 4.10.2001, 15.10.2001, 26.10.2001, 5.11.2001 and 5.12.2001 and then on 5.3.2002, 3.4.2002, 6.5.2002, 5.6.2002 and on 7.7.2002. The circumstances relating to his wife’s illness and the fact that there was no one else to look after her and the child born by cesarean operation and that his presence near his wife was must, have not been denied. The enquiry officer in his finding and opinion of the enquiry in respect of the charge observed : “5. FINDINGS AND OPINION OF THE E.O. IN RESPECT TO THE CHARGE. From the above statements of PWs and the documentary evidences produced by them and the defence made by the CO, it has been established that charged official, Shri Virendra Kumar, A/C was sanctioned 29 days EL w.e.f. 8/9/2001 to 6/10/2001 with permission to avail Sunday on 7/10/2001 and requested for 15 days extension which was not granted to him by the Commandant. He did not join duty on expiry of leave and remained absent from leave without any proper permission on ground of pregnancy of his wife and thereafter illness of his new born baby. Though the charged official remained in regular correspondence with regard to his extension of leave this is a serious misconduct and Shri Virendra Kumar Asstt. Comdt failed to maintain absolute devotion to duty by overstaying leave without proper extension sanction by competent authority, and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964.” 14. Comdt failed to maintain absolute devotion to duty by overstaying leave without proper extension sanction by competent authority, and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964.” 14. We find that the enquiry officer has, in his report; the Union Public Service Commission in the order of its endorsement, and the punishing authority, have failed to consider the circumstances in which the petitioner was unable to report for joining and continued in correspondence with his Commandant seeking further leave. Apart from these special circumstances in which the petitioner could not join, he had also requested for pardon for his unintentional mistake. The enquiry officer did not make any comment upon the conditions in which the petitioner could not join. The condition of his wife and the child and the circumstances in which the petitioner could not leave them have not received any comments from the enquiry officer or the disciplinary authority. They have instead observed that the charged officer holding rank of Assistant Commandant in a disciplined force should have served as a role model for his jawans/subordinates; his misconduct has set a bad precedence and that overstayal of leave without prior sanction for such a long period even on serious domestic problems cannot be justified. These observations were made in a ritualistic manner, without mentioning or considering the reasons for overstayal of leave. 15. There may be various circumstances which may justify the overstayal of sanctioned leave. If an employee, even if he is a member of a disciplined force, offers an explanation, coupled with his conduct in which he continued to inform the causes of his absence, it is necessary to examine such case before an opinion can be formed, on the justification of his overstayal of leave. In this case we find that the authorities refused his first application, for overstaying the leave on 4.10.2001, and for 15 days further leave. The Commanding Officer did not respond to his applications in which he explained the circumstances and requested for extensions of period of leave. The reasons for his absence were not examined and that the overstayal of leave by itself was treated to be a misconduct. 16. The Commanding Officer did not respond to his applications in which he explained the circumstances and requested for extensions of period of leave. The reasons for his absence were not examined and that the overstayal of leave by itself was treated to be a misconduct. 16. In our opinion unless the reasons for the absence of the petitioner were examined and a finding was recorded that the petitioner was not justified for overstayal of leave, the overstayal by itself could not be treated as misconduct on the ground that the petitioner is a member of disciplined force. The reply of the petitioner does not show that he had any intention to disobey the orders, or had overstayed for unjustified reasons. His wife was pregnant and that the child was born by cesarean operation. The wife thereafter suffered jaundice, which relapsed. The petitioner informed his Commandant and was keeping in touch with him by making applications intimating about the serious medical condition of his wife and child with request for extension of leave. The Commanding Officer did not reject his applications and that no proceedings were initiated against him during his absence. It was only when he joined the duties that the Commandant, without considering the reasons for his absence, assumed that overstayal of leave by itself without considering the reason, is a misconduct for which the petitioner should be proceeded with and punished. The order of punishment, assuming that the petitioner had committed misconduct for his absence, is thus arbitrary, unreasonable and irrational. Unless the reasons were examined, his absence from duties could not be treated as misconduct as contained in Rule 3 (1) (ii) and (iii) of the CCS (Conduct) Rules, 1964. 17. In the preliminary enquiry the petitioner had requested for defence assistance. He made a demand by naming Shri L.N. Mishra, Deputy Commandant of 101 Bn. RAF, as the officer to assist him as defence assistant in the enquiry. The request was not denied and therefore, there was no reason for the petitioner to have made an application in writing. The submission, that the charges were not serious and that the petitioner as an officer could have defended himself and did not choose to cross-examine the witnesses and did not lead any defence evidence, could not be a ground to reject the request. The submission, that the charges were not serious and that the petitioner as an officer could have defended himself and did not choose to cross-examine the witnesses and did not lead any defence evidence, could not be a ground to reject the request. The enquiry officer observed in his report that the petitioner participated in the proceedings regularly. He had requested for defence assistance. He did not insist on that, and rather decided to defend his case himself. These observations appear to have been made arbitrarily only to weaken petitioner’s case. When the petitioner was entitled under the Rules and the Circular Order 2006-07 dated 16.9.2005 by Director General of CRPF, to the assistance for his defence, it was incumbent upon the enquiry officer to provide the defence assistant named by the petitioner. It was open to the enquiry officer to have denied the request for good reasons, but that having asked for defence assistance by naming an officer in the preliminary enquiry, the petitioner could not be said to have acquiesced to his right, by his conduct, in the enquiry proceedings. The fact, that the petitioner did not cross-examine the witnesses and did not offer any defence evidence, except the medical certificates and that his absence inspite of his request of extraordinary circumstances was treated to be misconduct, was by itself violation of principles of natural justice. An employ is not supposed to know all the service rules applicable to him. When he requested for defence assistant, such assistance should have been provided to him, unless he expressly denied to such assistance in the course of enquiry. 18. In G.L. Subramaniam v. Collector of Customs Cochin, (1972) 3 SCC 542 the Supreme Court in a matter of termination of service found that Rule 15 (5) of the CCS (CCA) Rules 1957 provides that the Government servant may not engage a legal practitioner unless the disciplinary authority having regard to the circumstances of the case, so permits. The appellant in the said case was denied legal assistance when the case for the department was handled by a trained prosecutor. It was held that after the request by the appellant for engaging a counsel was rejected, he requested for assistance of one Abraham Curian, Clerk. The appellant in the said case was denied legal assistance when the case for the department was handled by a trained prosecutor. It was held that after the request by the appellant for engaging a counsel was rejected, he requested for assistance of one Abraham Curian, Clerk. Though the request was made after a long time, the disciplinary authority wrote to the Superintendent of Post Offices at Trichur much later to allow Abraham Curian to leave to assist appellant. The communication was not received by the Superintendent of Post Offices in time and thus the enquiry went on without the appellant having any assistance. The enquiry was found to be vitiated on the violations of the principle of natural justice and the order of punishment was struck down. 19. In the present case the petitioner had requested for defence assistance and named an officer to assist him in the enquiry. This request was neither accepted nor denied. The enquiry however proceeded in the absence of the defence assistant and concluded against the petitioner. The circumstances pleaded by learned counsel for the respondent would not, in the absence of a specific reply, amount to acquiescing to proceed in an enquiry without the defence assistance. The principles of natural justice are too precious to be acquiesced with, or compromised on the conduct of delinquent employee who had asked for defence assistance, and then proceeded without his application being rejected, to participate and cooperated with the enquiry officer. The enquiry officer was not justified in saying that the petitioner did not make any request for defence assistance subsequently in the proceedings. We therefore hold that the petitioner was denied the defence assistant in the disciplinary enquiry putting him to a serious handicap resulting in violations of principles of natural justice. 20. The writ petition is allowed. The impugned order dated 5.4.2007 passed by respondent No. 3 (Annexure-1 to the writ petition) is set aside. The petitioner will be paid full pay, and that any deductions made from his salary shall be refunded to him. He will also be entitled to all the consequential benefits of service. ————