JUDGMENT 1. - This writ petition has been filed by petitioner, Atar Singh, who was serving the respondent-Department as a Constable at Police Line, District Jaipur (Rural), Jaipur. A charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'the Rules of 1958') was served upon him, which contained four charges; the charge No.1 was to the effect that he remained wilfully absent from 09.03.1989 to 21.03.1989 i.e. for 12 days; charge No.2 was to the effect that he remained wilfully absent from 07.04.1989 to 12.04.1989 i.e. for 6 days; charge No.3 was also of his wilful absence from 29.08.1989 to 01.09.1989 i.e. for 4 days; and the charge No.4 was to the effect that he was in the habit of remaining wilfully absent and on previous 45 occasions he remained absent for a total period of 337 days; and, that for this charge i.e. charge No.4, the petitioner was served with charge-sheets at four times under Rule 17 of the Rules of 1958 and, the charges on being found proved, he was awarded different penalties; he, however, did not mend his ways and, by remaining absent again frequently, has shown his disinterest in continuing in the Government service. 2. The petitioner was awarded penalty of dismissal from the service vide order dated 16.03.1990. He filed appeal against the aforesaid penalty order, which was dismissed by the appellate authority vide order dated 31.05.1990. The petitioner thereupon filed review petition before the Governor of the State, which was allowed by order dated 31.05.1994 and the matter was remanded back to the disciplinary authority on the premise that note of disagreement should be furnished to the petitioner for the disagreement recorded by the disciplinary authority with the finding of the enquiry officer on Charge Nos.2 and 3, and thereafter a representation of the petitioner should be obtained and fresh order of penalty be imposed. It is thereafter that the disciplinary authority, who is Superintendent of Police, Jaipur (Rural), after providing note of disagreement, by his order dated 26.12.1994 again dismissed the petitioner from service, thus, in substance, affirming on the earlier order of penalty. The petitioner again filed an appeal against the dismissal order; the appeal was again dismissed by the appellate authority vide order dated 27.03.1995. The petitioner again filed an appeal against the dismissal order; the appeal was again dismissed by the appellate authority vide order dated 27.03.1995. He has now approached this Court against the order of dismissal from the service passed by the disciplinary authority as also the order dismissing his appeal by the appellate authority. 3. Shri Mahendra Sharma, learned counsel for the petitioner, has argued that the enquiry officer did not follow the procedure laid down in the Rules of 1958. The petitioner was not supplied with all the documents, which were relied upon by the department. He was not given opportunity to cross-examine the witnesses. In fact, the enquiry officer himself acted as a prosecuting officer by putting cross questions to the witnesses. No opportunity of cross-examination was given to the petitioner. It was argued that the petitioner's elder brother, who was in service of the Police Department and posted at Police Station Bajaj Nagar, met with an accident on 05.02.1989 and, as a result thereof, he died. The petitioner was saddled with extra liabilities of his widow Bhabhi (elder brother's wife), who was not keeping good health. She remained under constant medical treatment. The petitioner produced the medical certificates of her illness showing the ground of his remaining absent for that period. For his absence in the month of April, 1989, the explanation of the petitioner was that he underwent family planning operation and on account thereof he developed some post- operation trouble and he was advised complete bed rest for the period from 07.04.1989 to 15.04.1989. The petitioner produced medical certificate to this effect, which was not accepted by the disciplinary authority. The learned counsel for the petitioner submitted that in so far as the Charge No.1 is concerned, the total period of absence for all the three charges was only of 16 days for which penalty of dismissal was too excessive and harsh. 4. So far as the Charge No.4 is concerned, the learned counsel for the petitioner submitted that for the previous period for which the petitioner, as per the wording of the Charge itself, was served with four different charge-sheets at different times, as is evident from the wording of the charge itself, he was already penalized. He could not be again penalised for the same charges. This would amount to double jeopardy and would be hit by Article 20(2) of the Constitution of India. He could not be again penalised for the same charges. This would amount to double jeopardy and would be hit by Article 20(2) of the Constitution of India. The learned counsel for the petitioner in this respect relied on the judgment of this Court in S.B. Civil Writ Petition No.3109/1995, titled Sardar Singh v. State of Rajasthan & Others, decided on 07.01.2009 ; and the Division Bench judgment of this Court in Datar Singh v. State of Rajasthan & Others, RLR 1989 (1) 756 . 5. Learned counsel for the petitioner submitted that even otherwise wilful absence of 16 days, though at different times, cannot justify penalty of dismissal of the petitioner from the services. The learned counsel relied on the judgment of the Hon'ble Supreme Court in the cases of Bhagwan Lal Arya v. Commissioner of Police Delhi & Another, 2004 (2) WLC (SC) Civil 226 and Harish Chandra v. State of Rajasthan & Others, 2009 (2) WLC (Raj.) 202 . 6. Learned counsel further submitted that the appellate authority, in its order upholding the order of penalty, has also failed to address all those arguments, which were raised by him in the enquiry; and the argument about the disproportionate penalty as to the gravity of the charge. He thereby violated the mandate of Rule 23 of the Rules of 1958. 7. Shri B.S. Rajawat, learned Deputy Government Counsel, appearing on behalf of the respondents, opposed the writ petition and submitted that the petitioner was provided with all the documents; he was provided with full opportunity to cross-examine the witnesses as well as supplied all the documents he demanded. The learned counsel cited the judgment of the Hon'ble Supreme Court in State of U.P. & Others v. Ashok Kumar Singh & Another, 1996 SCC (L&S) 304 , and argued that the absence of police constable on several occasions should be viewed as a grave charge as to warrant his removal. 8. The learned counsel for the respondents further submitted that another charge-sheet was also served upon the petitioner for wilful absence on different stages, which however, was kept pending on account of the penalty order passed in the present case. It is submitted that gravity of the charge against the petitioner fully justifies order of dismissal. The writ petition may, therefore, be dismissed. 9. It is submitted that gravity of the charge against the petitioner fully justifies order of dismissal. The writ petition may, therefore, be dismissed. 9. I have given my anxious consideration to the rival submissions and perused the material on record. 10. Although, it is true that at the initial stage when the note of disagreement was not served upon the petitioner, the Governor of the State, by accepting his review petition, remanded the matter to the disciplinary authority, who thereupon served upon him the note of disagreement and passed the fresh order of penalty, but the charges against the petitioner nevertheless remained the same i.e. first three charges for wilful absence respectively for 12, 6 and 4 days and 4th charge for his habit of remaining frequently absent on earlier occasions for as many as 337 days, for which he was, on four occasions, subjected to different disciplinary proceedings and awarded penalties. 11. I shall deal with the argument of the learned counsel for the petitioner with regard to the fourth charge in the first place. 12. The learned counsel in this connection has relied on the judgment of this Court in Sardar Singh's case (Supra), wherein reliance was placed on the judgment of Datar Singh v. State of Rajasthan & Others, RLR 1989 (1) 756 . The Division Bench of this Court, while dealing with the case where charge was for absence on various dates; period of all such absence had already been regularised by grant of extraordinary leave in respect of such absence much prior to issuance of the charge-sheet. It was held that granting leave due of whatever nature, tantamounts to regularising absence. After such regularisation, no action could be taken afresh. This argument was upheld even in Sardar Singh's case (supra) and penalty order was found to double jeopardy and would hit by Article 20 (2) of the Constitution of India. 13. There is additional factor in the present case. In the charge-sheet itself reference is made to the fact of subjecting the petitioner to disciplinary proceedings on as many as four different occasions and also award of penalties therein. When the petitioner was already subjected to such disciplinary action for the absence of previous period, he could not again be penalised for the same period of absence by making that period as part of the charge-sheet in the present case. When the petitioner was already subjected to such disciplinary action for the absence of previous period, he could not again be penalised for the same period of absence by making that period as part of the charge-sheet in the present case. This appears to have been done only with a view to justify the penalty of dismissal. 14. Viewed, however, independently, the absence of the petitioner for first three charges would be only for 16 days can hardly justify so grave and harsh a penalty as the order of dismissal is. The judgment of Supreme Court in Shri Bhagwan Lal Arya (Supra), provides sufficient guidelines, facts of which case are somewhat akin to the facts of the present case. Supreme Court noted that when the period of absence of the Constable in that case was regularised by sanctioning the leave, the employee's legitimate expectation would be that no stern action should be taken against him. In the present case too, the impugned-order of penalty indicates that while the order of dismissal would be effective from the date it was passed on 19/1/2000, petitioner was granted extraordinary leave for the period of absence. Furthermore, Supreme Curt in the above referred to case also noted that it was not the case of the respondents that appellant therein was habitual absentee. Their lordships therefore observed that punishment of dismissal/removal from service should be awarded only for acts of such grave nature which has cumulative effect of continued misconduct proving incorrigibility or complete unfitness from police service. Mere one incident of absence and that too because of bad health on valid and justified grounds/reasons, cannot become basis for awarding such a harsh punishment. It was observed that appellant in that case did not have any other source of income and will not get any other job at this age and with the stigma attached to him on account of the impugned punishment, as a result of which, not only he but also his entire family, which totally depended on him, will be forced to starve. Thus, the Supreme Court observed that according to the mitigating circumstances, it was warranted that punishment order of the disciplinary authority be set-aside. At the same time, Supreme Court directed that intervening period from the date of dismissal till the delinquent reported back to duty, would not be counted as a period spent on duty. Thus, the Supreme Court observed that according to the mitigating circumstances, it was warranted that punishment order of the disciplinary authority be set-aside. At the same time, Supreme Court directed that intervening period from the date of dismissal till the delinquent reported back to duty, would not be counted as a period spent on duty. In my considered view, the ratio of the aforesaid case where delinquent was Constable in police force and was dismissed from service on charges for absence from duty for 2 months and 7 days, is fully applicable to the facts situation of the present case where the petitioner was dismissed from services of the police force on charges of having remained absent for 16 days. 15. The disciplinary authority has, in my view, acted wholly illegally in awarding penalty of dismissal. The appellate authority also as per the mandate of Rule 30 of the Rules of 1958 was under an obligation to address the question of proportionality of dismissal or removal for wilful absence of 16 days, which can hardly be justified. 16. In the result, this writ petition is allowed. The order dated 26.12.1994 of penalty of dismissal from the services (Annexure-6) passed by the disciplinary authority and the order dated 27.03.1995 of dismissal of his appeal (Annexure-7) passed by the appellate authority dismissing the appeal, are both set aside. The matter is remanded back to the disciplinary authority for awarding any other penalty except the penalty of dismissal or removal. The petitioner shall, however, be deemed to be under suspension for the intervening period, which shall be regularised in terms of Rule 54 of the Rajasthan Service Rules, and for which appropriate order under Rule 54 shall be passed by the disciplinary authority with the fresh order of penalty, which he shall pass within a period of three months from the date a copy of this order is served upon him for making compliance thereof. Petitioner shall, however, be entitled to all the consequential benefits. 17. The writ petition is accordingly allowed.Writ Petition Allowed. *******