JUDGMENT T. Nandakumar Singh, J. 1. By this writ petition, the petitioner is assailing the order of the Dy. Inspector General of Police (AP-I) being No. H-2/AP-I/PHQ/2004 dated 8.6.2006 for dismissing the writ petitioner from service only on two grounds; (i) that the impugned order dated 8.6.2006 had been issued without giving an opportunity of filing show cause or without notice, as a result thereof the impugned order was passed in infraction of the principles of natural justice; and (ii) the Dy. Inspector General of Police (AP-I), even though he is the appellate authority against the order passed by the Commandant, 3 IRB dated 3.5.2006, the impugned order cannot be passed interfering with the order of the Commandant, 3 IRB dated 3.5.2006 in absence of appeal filed by the writ petitioner. 2. Heard Mr. L. Sharat Sharma, learned Counsel appearing for the petitioner as well as Mr. Jagjit, learned G.A. appearing for all the respondents. Factual Matrix 3. The petitioner was appointed as Rifleman in the 3 IRB, Government of Manipur and after such appointment he underwent compulsory military as well as commando trainings at Manipur Police Training School, Pangei and spent for more than 14 months in getting and completing the said training courses and after completion of the training course, he was posted at IRB post attached to the Pallel Police Out Post, Thoubal District Manipur. Thereafter, he had been posted at different posts of the 3 IRB. 4. It is stated that the petitioner fell ill seriously, while he was posted at Pangei post, from "infective Hepatitis with jaundice" and he was under medical treatment by Dr. Melory, Senior Medical Officer, J.N. Hospital and it is also alleged that he was advised to take complete bed rest for a period of one month w.e.f. 2.2.2005. On medical ground, the petitioner applied for one month's leave w.e.f. 2.2.2005 to the competent authority, but he was granted 15 days' leave due to serious nature of his illness, the petitioner proceeded to his home Tarao Laimanai Village, Chandel District and as there was no transport facility, he had to go on foot for about 12-15 kms. It is further alleged that after reaching his home, his illness became serious and worsen and accordingly he had to remain indoor for a number of days consecutively. 5. It is further alleged that after reaching his home, his illness became serious and worsen and accordingly he had to remain indoor for a number of days consecutively. 5. While he was in service as a Rifleman, a departmental enquiry was initiated against him for his unauthorized absence from his place of duty at Pangei w.e.f. 17.2.2005 to 24.5.2005 (97 days) without any leave or permission from the competent authority. Articles of charge as well as statement of imputation of the articles of charge, list of witness were also served to the petitioner on 7.6.2005 personally. On receipt of his written statement of defence, one Shri T. Iboyaima Singh, Assistant Commandant, 3 IRB, was appointed as enquiry officer for the said departmental enquiry against the petitioner. It is stated that in spite of several notices to the petitioner at his home address through the concerned police station asking him to appear before the Enquiry Officer, he (petitioner) failed to appear before the Enquiry Officer and absented himself from the enquiry. The Enquiry Officer examined three PWs and submitted his finding on 28.3.2006 stating that the charge leveled against the petitioner mat he absented himself from his place of duty at Pangei without any leave or permission from the competent authority w.e.f. 17.2.2005 to 24.5.2005 (90 days) held proved without any shadow of doubt. As there was a finding by the Enquiry Officer that in spite of repeated notices to the petitioner at his home address through the concerned police station asking him to appear before the Enquiry Officer, he failed to do so, this Court, in order to ascertain as to whether the Enquiry Officer had really sent the notices to the petitioner asking him to appear before him or not, had directed Mr. Jagjit, learned G.A. appearing for the respondents to produce the relevant file of the said departmental enquiry. As directed by this Court, Mr. Jagjit, leaned G.A. made the D.E. file bearing No. 74/2005-3 IRB, available before this Court for perusal. This Court also carefully peruses the day today order sheets of the Enquiry Officer in the said departmental enquiry against the petitioner and also the copies of the notices sent to the petitioner asking him to appear before the Enquiry Officer. Jagjit, leaned G.A. made the D.E. file bearing No. 74/2005-3 IRB, available before this Court for perusal. This Court also carefully peruses the day today order sheets of the Enquiry Officer in the said departmental enquiry against the petitioner and also the copies of the notices sent to the petitioner asking him to appear before the Enquiry Officer. On such careful perusal of the concerned file, it appears that the number of notices had been sent to the petitioner asking him to appear before the Enquiry Officer and the petitioner also acknowledged the said notices. But, as stated above, the petitioner opted to absent himself from participated the enquiry. 6. After the Enquiry Officer submitted his report stating that the charge levelled against the petitioner held proved beyond shadow of doubt to the disciplinary authority, the disciplinary authority issued last show cause notice being No. 75/2005-3 IRB/0809 Imphal 29th March, 2006 along with the copy of the enquiry report asking him to submit his reply in writing to the disciplinary authority within two weeks of the receipt of the notice as to why stringent action should not be taken against him. The petitioner, on receipt of the last show cause notice dated 29.3.2006, submitted his written reply to the last show cause notice dated 29.3.2006. In his last show cause notice, petitioner is not denying the absence of 97 days from duty, but, the only explanation in his show cause reply was that the absence of 97 days from duty was not intentional and due to unavoidable circumstance and his illness he was at his home till recovery. 7. The disciplinary authority, after considering the written reply to the last show cause as well as the enquiry report submitted by the Enquiry Officer, it appears, had passed the order dated 3.5.2006 by taking a very lenient view for imposing minor penalty of (i) imposition of penalty of stoppage of increment of pay for one year without cumulative effect, (ii) the period of his unauthorized absence from 17.2.2005 to 12.4.2005, i.e. 55 days, is treated as EOL and (iii) the remaining period, i.e., from 13.4.2005 to 24.5.2005 and from 16.2.2006 to 14.4.2006, i.e. 100 days is converted to earned leave on humanitarian ground and by the said order the petitioner had been reinstated into service. After passing that order, i.e. order dated 3.5.2006 by the Commandant, 3 IRB imposing the said minor penalty to the petitioner, as stated above, the appellate authority, i.e. the Dy. Inspector General of Police (AP-I) interfered with the said order of the Commandant, 3 IRB dated 3.5.2008 and imposed the major penalty of dismissal from service to the petitioner by passing the impugned order dated 8.6.2006 which reads as follows: ORDERS BY THE DY. INSPECTOR GENERAL OF POLICE (AP-I), MANIPUR Imphal June 8, 2006 No. H-2/AP-I/PHQ/2004.-Whereas a departmental enquiry initiated ex-parte against Rfm. No. 132001688 Kh. Sanatomba Tarao of 3rd India Reserve Battalion, Imphal for his unauthorized absence from his place of duty at Pangei w.e.f. 17.2.2005 to 24.5.2005 i.e. 97 (ninety seven) days was disposed off by the Commandant, 3rd IRB vide his order No. A-3/6/2002-3RB/1135 dated 3.5.2006 by awarding the Rifleman the penalty of (i) stoppage of annual increment for 1 (one) year without cumulative effect, (ii) treating his unauthorized absence w.e.f. 17.2.2005 to 12.4.2005 i.e. 55 (fifty five) days as EOL and (iii) converting the period of his unauthorized absence w.e.f. 13.4.2005 to 24.5.2005 and 16.2.2005 to 14.4.2005 i.e. 100 (one hundred) days into earned leave on humanitarian ground; Whereas, Commandant, 3rd IRB was asked to furnish the D.E. file and the service book of the Rifleman vide this office signal No. H-l/AP-l/PHQ/2004/3280 dated 2.6.2006 which the Commandant furnished vide his letter No. A-3/6/2002-3IRB dated 5.6.2006; Whereas, on perusal of the DE file it is seen that the DE was ordered against Rfm. Kh. Sanatomba Tarao vide the then Commandant 3rd IRB order No. A-3/6/2002-3IRB/1116 dated 19.4.2005 for his unauthorized absence w.e.f. 17.2.2005 till the day of issuance of the order i.e. 62 (sixty two) days without any leave or permission from the competent authority; And whereas, the delinquent was served memorandum, statement of article of charge, statement of imputation of misconduct in support of the article of charges etc. framed against him on 7.6.2006 wherein the rifleman was charged for unauthorized absence w.e.f. 17.2.2005 to 24.5.2005 i.e. 97 (ninety seven) days (not the initial charge of unauthorized absence of 62 days). The delinquent had submitted his written statement of defence on 19.6.2005 and the DE was proceeded by appointing Enquiry Officer. framed against him on 7.6.2006 wherein the rifleman was charged for unauthorized absence w.e.f. 17.2.2005 to 24.5.2005 i.e. 97 (ninety seven) days (not the initial charge of unauthorized absence of 62 days). The delinquent had submitted his written statement of defence on 19.6.2005 and the DE was proceeded by appointing Enquiry Officer. Whereas, on further perusal of the DE file it is seen that the Enquiry Officer in his findings had held the charge levelled against the delinquent proved and it is also clear seen that Rfm. Kh. Sanatomba Tarao never rejoined from the unauthorized absence w.e.f. 17.2.2005 till 14.4.2006 i.e. the day of submission of his written reply to the last show cause notice dated 29.3.2006 of Commandant 4rd IRB as it is proved by the signals from CO 3rd IRB dated 15.9.2005, 21.10.2005,18.2.2006 addressed to OC/TPL P.S. asked the OC to inform the delinquent to appear before the EO and a notice to the delinquent by the EO dated 21.2.2006 wherein the EO informed the rifleman that "you have absented from BHQ w.e.f. 17.2.2005 till date without any leave or permission from the competent authority" and directing the delinquent to appear before the Enquiry Officer within 2 (two) days from the date of receipt of the notice, falling which the DE would be proceeded ex parte. Finally CO 3rd IRB served the delinquent with the last show cause notice on29.3.2006 (which the delinquent had received on the same day) informing him that the DE was conducted ex-parte and the EO had submitted his findings holding the charges levelled against him proved and to submitted his written reply within 2 (two) days of the receipt of the notice, falling which major punishment of "DISMISSAL' will be awarded to him. From the above facts, it is seen that the DE was proceeded ex-parte and the delinquent had eluded the enquiry by remaining absent the entire period from 17.2.2005 to 14.4.2006 i.e. 422 (four hundred and twenty two) days; Whereas, on perusal of the service book of Rfm. Kh. Sanatomba Tara, it is also found that the rifleman was enrolled in service on 5.12.2001 and prior to the initiation of the above DE he was awarded 281 (two hundred and eighty one) days EOL for unauthorized absence on 17 (seventeen) occasions and thus a habitual absente. Considering the facts and circumstances and the adverse records, Rfm. No. 132001688 Kh. Sanatomba Tara, it is also found that the rifleman was enrolled in service on 5.12.2001 and prior to the initiation of the above DE he was awarded 281 (two hundred and eighty one) days EOL for unauthorized absence on 17 (seventeen) occasions and thus a habitual absente. Considering the facts and circumstances and the adverse records, Rfm. No. 132001688 Kh. Sanatomba Tarao of 3r IRB will not befit to remain serving in the disciplined force like IRB and retention of the rifleman in service will affect the good morale and discipline of the Battalion. Showing leniency in awarding penalty to a person who had committed such a misconduct is also one of the causes responsible for the deteriorating discipline in MR & IR Battalions and the undersigned considered that the case is fit for award of major penalty of "DISMISSAL". Now, therefore, I, R.K. Radhesana Devi, IPS, Dy. I.G. of Police (AP-I), Manipur in exercise of the power conferred upon me under Rule 66 of the Assam Police Manual Part III do hereby "DISMISSED" Rfm. No. 132001688 Kh. Sanatomba Tarao of 3rd IRB from his service with immediate effect, Commandant, 3rd IRB should issue order to this effect with copy to all concerned. Sd/- (R.K. Radhesana Devi) IPS Dy. Inspector General of Police (AP-I) Manipur, Imphal. 8. In reply to the second ground mentioned above for assailing the impugned order dated 8.6.2006, Mr. Jagjit, learned G.A. appearing for the respondents contends that under Rule 66 (X) of the A.P. Manual Part-III, the appellate authority may even reverse the penalty imposed by the Commandant, 3rd IRB even in the absence of appeal against the order passed by the Commandant. Admittedly, the Dy. I.G. of Police (AP-I), Manipur is the appellate authority against the order of the Commandant, 3rd IRB and it appears that on conjoin reading of Rule 66(V), (VI) & (X) of the AP Manual Part-Ill, it is clear that the Dy. I.G. of Police (AP-I), Imphal has the power and jurisdiction to pass the impugned order dated 8.6.2006 for interfering with the order of the Commandant, 3rd IRB dated 3.5.2006 even in absence of appeal. Therefore, this Court is of the considered view that the second ground for assailing the impugned order dated 8.6.2006 has no force of law. 9. I.G. of Police (AP-I), Imphal has the power and jurisdiction to pass the impugned order dated 8.6.2006 for interfering with the order of the Commandant, 3rd IRB dated 3.5.2006 even in absence of appeal. Therefore, this Court is of the considered view that the second ground for assailing the impugned order dated 8.6.2006 has no force of law. 9. Before dealing with the first ground for assailing the impugned order dated 8.6.2006, it is required to note the admitted facts. On perusal of the file containing the disciplinary proceeding against the petitioner, the writ petition with its enclosures and the affidavit in-opposition filed by the respondents, it is clear that-(a) even after the reinstatement order dated 3.5.2006 with certain minor penalty as stated above, issued by the Commandant, 3rd IRB, the petitioner did not join service and continued to remain absent from his place of duty; (b) in spite of repeated notices to the petitioner asking him to appear before the Enquiry Officer, he did not appear before the Enquiry Officer and accordingly departmental enquiry was proceeded ex parte; (c) that the charge for unauthorized absence for 97 days i.e. from 17.2.2005 to 24.5.2005 had been held proved; and (d) from the service record and the materials available in the file prior to initiation of the departmental enquiry, the petitioner was awarded 281 days EOL for his unauthorized absence on 17 occasions thus, a habitual absentee; (e) that upto the day of passing the impugned order, i.e. on 8.6.2006 petitioner absented from his duty for a period of 422 days. 10. In the background of the above admitted facts this Court is required to see as to what would be the prejudice caused to the petitioner in passing the impugned order dated 8.6.2006 without giving him (petitioner) an opportunity of show cause. In the whole pleadings of the petitioner in the writ petition, no specific plea had been pleaded regarding any prejudice caused to the petitioner in failure of giving show cause notice to him before passing the impugned order dated 8.6.2006. 11. In the given case of the writ petitioner Mr. In the whole pleadings of the petitioner in the writ petition, no specific plea had been pleaded regarding any prejudice caused to the petitioner in failure of giving show cause notice to him before passing the impugned order dated 8.6.2006. 11. In the given case of the writ petitioner Mr. Jagjit, learned G.A. appearing for the respondents submits that principle of natural justice would be an empty formality inasmuch as the petitioner had utterly failed to make out any material regarding prejudice caused to the petitioner in passing the impugned order dated 8.6.2006 without giving opportunity of being heard. Mr. Jagjit, in support of his contention, has heavily relied on the decision of the Apex Court : (a) Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 , (ii) Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Munnu Barrick and Ors. (2005) 2 SCC 237 , (iii) Bar Council of India v. High Court of Kerala (2004) 6 SCC 311 . 12. The Apex Court in Ashok Kumar Sonkar (supra) held that principle of natural justice may not be applicable in a given case unless prejudice is shown and applicability of principle of natural justice is not necessary in a given case where it would be a futile exercise. In that case, the appellant admittedly did not hold the requisite qualifications for appointing as lecturer in Tridosa Vigyan in the Department of Basic Principles, Banaras Hindu University and his appointment was cancelled without giving opportunity for the reason that he was not eligible for appointment to the post of Lecturer. The Apex Court in the given case in Asok Kumar Sonkar (supra) held that the application of principle of natural justice is not necessary as it would be a futile exercise and also that the principle of natural justice cannot be put in any straitjacket formula. For easy reference, paragraphs 26, 27 and 28 of the SCC in Asok Kumar Sonkar (supra) are quoted hereunder: 26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be affected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing. 27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise. 28. A Court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard. 13. The Apex Court, in Munnu Barrick's case (supra), held that principle of natural justice cannot be put in a straitjacket formula. It must be viewed with flexibility. In a given case, whether a deviation takes place as regards compliance with the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it. The employee must show sufferance of prejudice by non-supply of a copy of the enquiry report. A Court will refrain from interfering with an order, having regard to "useless formality theory", in a given case. Paras 17, 19 and 21 of the SCC in Munnu Barrick's case (supra) are quoted hereunder: 17. The principle of natural justice cannot be put in a straitjacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regards compliance with the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it. The principle of natural justice cannot be put in a straitjacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regards compliance with the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it. 19. In Karunakar this Court has clearly held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report. 21. Referring to a large number of decision, it was observed that a Court will refrain from interfering with an order, having regard to 'useless formality theory", in a given case. It was opined : (SCC p. 578, para 27) 27. It is to be noted that at no stage the employee pleaded prejudice. Both learned single Judge and the Division Bench proceeded on the basis that there was no compliance with the requirement of Regulation 6(18) and, therefore, prejudice was caused. In view of the finding recorded supra that Regulation 6(18) has not been correctly interpreted, the conclusions regarding prejudice are indefensible. 14. In the given case of the present case, it appears that the petitioner, who all along absented himself from participating the departmental enquiry against him and also admittedly absented from his place of duty for 422 days on the date of passing the impugned order and also absented on 17 occasions, had utterly failed to make out any material for causing prejudice to him on the failure of the disciplinary authority to give opportunity of filing show cause or notice before passing the impugned order dated 8.6.2006 and as such this Court is of the considered view that application of natural justice in the given case of the petitioner will be an empty formality or/useless formality theory. 15. Mr. Jagjit, further, contends that the petitioner is a habitual absentee and imposition of major penalty of dismissal from service to the petitioner by the impugned order dated 8.6.2006 may not be interfered with by this Court. In order to substantiate this point, he relied on the decision of the Apex Court in the case of State of U.P. and Ors. v. Ashok Kumar Singh and Anr. AIR 1996 SC 736 . In order to substantiate this point, he relied on the decision of the Apex Court in the case of State of U.P. and Ors. v. Ashok Kumar Singh and Anr. AIR 1996 SC 736 . In that case the respondent/delinquent police constable absented himself from duty without leave on several occasions, but the High Court, while concurring the finding of the Tribunal on the facts that the delinquent/respondent is a habitual absentee/modified the punishment of dismissal from service only on the ground that it does not commensurate with gravity of offence; on appeal before the Supreme Court, the Apex Court held that the respondent/delinquent being in service of a disciplined force demanding strict adherence to rules and procedures, punishment of dismissal from service imposed on the delinquent did not warrant interference. Paragraphs 7 and 8 of the AIR in Ashok Kumar's case (supra) are quoted hereunder: 7. Strangely, the High Court interfered with the punishment of removal, while concurring with the findings rendered against the first respondent on the charges leveled against him by observing as follows: The Presiding Officer of the Tribunal has passed a very detailed order in which he enumerated the circumstances under which the inquiry was conducted. The Enquiry Officer found the petitioner to have absented from duty on several occasions, totaling 251 days during the year 1981-82 while posted at police station Ram Sanchi Ghat, 93 days in 1982 while posted at police station Safdarjang and from 28.2.1984 onwards on being subsequently posted at police station Ram Sanchi Ghat. The petitioner has submitted before the Tribunal as well as here that during all his long period he had fallen ill and he sent regular applications for grant to leave along with the medical certificates. No such proof was ever filed by the petitioner before the Tribunal. In the present case the only charge against the petitioner was that he absented himself from duty for long periods although it was his case that he applied for grant of leave. Even if it is assumed that the petitioner, against whom there appears to be no charge of misconduct of grave nature is proved his absence from duty would not amount to such a grave charge for which the extreme penalty of dismissal may be imposed. Even if it is assumed that the petitioner, against whom there appears to be no charge of misconduct of grave nature is proved his absence from duty would not amount to such a grave charge for which the extreme penalty of dismissal may be imposed. In view of the fact that the petitioner has offered not to claim arrears of salary as well as he assures this Court that he would discharge his duties faithfully and sincerely; this Court is of the view that extreme penalty imposed against the petitioner does not commensurate with the gravity of the charge, hence this writ petition deserves to succeed on its point. However, it will be open for the opposite parties to impose any minor punishment against the petitioner. In view of what has been indicated hereinabove the petition succeeds. The order of dismissal passed against the petitioner contained in Anneuxre-3 is quashed. The opposite parties will reinstate the petitioner on duty. However, it will be open for the opposite parties to impose any minor punishment upon the petitioner considering the charges. It is made clear that the petitioner will be entitled only to extent one fourth of amount as back wages. 8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that 'his absence from duty would not amount to such a grave charge.' Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out. 16. For the reasons discussed above, this Court is of considered view that there is no merit in this writ petition. Accordingly, it is dismissed. Petition dismissed.