Hon'ble CHAUHAN, J.—The State of Rajasthan has challenged the judgment dated 21.4.2008 passed by learned Single Judge in S.B. Civil Writ Petition No. 2603/1995- Ten Singh vs. State and Ors., whereby the learned Judge has allowed the writ petition, has set aside the order of termination dated 21.7.1993, and has granted all consequential benefits to the writ petitioner, Ten Singh (the respondent before this Court). 2. Briefly, the facts of the case are that the respondent, Ten Singh, was appointed as a Constable in August 1979 under the Superintendent of Police, Banswara. In 1993, Ten Singh was chargesheeted; two charges were leveled against him. Firstly, that he was absent from his duty from 8.11.1992 till 12.1.1993. Secondly, that on 14.1.1993 when he was directed to keep vigil on an accused, who was hospitalized at the Mahatama Gandhi Hospital, Banswara, he left the place of duty without any information. Although Ten Singh admitted to the fact that he was, indeed, absent during the period between 8.11.1992 to 12.1.1993 and on 14.1.1993, he claimed that he left the place of his duty due to the sudden illness of his wife. 3. By order dated 21st July 1993, the Superintendent of Police, Banswara, terminated his services, but sanctioned 71 days as PL and 23 days as Half PL. Since Ten Singh was aggrieved by the order dated 21.7.1993, he filed a departmental appeal before the Deputy General of Police, Police Range, Udaipur. However, vide order dated 23.9.1993 the appellate authority dismissed his appeal. Subsequently, Ten Singh filed a review/revision petition before the Governor. However, His Excellency the Governor also dismissed his review petition by order dated 10.4.1995. Aggrieved by the order dated 21.7.1993 (The termination order), by order dated 23.9.1993 (order dismissing the appeal), and by order dated 10.4.1995 (order dismissing the review petition), Ten Singh filed a writ petition before this Court. As mentioned earlier, by judgment dated 21.4.2008 the learned Single Judge allowed the petition and quashed the order dated 21.7.1993 and directed that consequential benefits should be given to Ten Singh. Hence, this intra court appeal before this Court. 4. Mr. As mentioned earlier, by judgment dated 21.4.2008 the learned Single Judge allowed the petition and quashed the order dated 21.7.1993 and directed that consequential benefits should be given to Ten Singh. Hence, this intra court appeal before this Court. 4. Mr. I.J. Pareek, the learned counsel for the State, has vehemently raised the following contentions before this Court: firstly, the entire reasoning of the learned Single Judge is based on the case of State of Punjab vs. Bakshish Singh ( AIR 1999 SC 2626 ), wherein it was held that once unauthorised absence from duty has been regularized, the charge of misconduct does not survive. Therefore, according to the learned Single Judge, in the present case since unauthorized absence was regularized by the grant of PL and HPL, the misconduct did not survive. Secondly, the learned Single Judge has overlooked the fact that in the case of State of Punjab vs. Charanjit Singh ( AIR 2003 SC 4317 ), the case of Bakshish Singh (supra) was declared to be per incuriam. Moreover, in the case of Maan Singh vs. Union of India & Ors. ( 2003 SCC 464 ), the Hon'ble Supreme Court had gone back to the principle laid down by it in the case of State of M.P. vs. Harihar Gopal (1969 SLR (SC) 274). According to the learned counsel, since the case of Harihar Gopal is a judgment rendered by three Hon'ble Judges of the Apex Court, it holds the field even today. Therefore, the learned Single Judge has relied upon a judgment which is in conflict with the decision of the Apex Court in the case of Harihar Gopal (supra) and has been declared to be per incuriam in the case of Charanjit Singh (supra). Thirdly, according to the order dated 21.7.1993, the service of respondent. Ten Singh was terminated and subsequently the 94 days of unauthorized absence was regularized by granting him 71 days of PL and 23 days of HPL. Merely because his unauthorized absence was regularized, does not wipe out the misconduct committed by him. In fact, the leave was granted merely to maintain correct record of his service. In order to buttress this contention, the learned counsel has relied upon the cases of Harihar Gopal (supra), Maan Singh (supra) and Charanjit Singh (supra). Therefore, according to the learned counsel, the impugned judgment needs to be interfered with. 5. In fact, the leave was granted merely to maintain correct record of his service. In order to buttress this contention, the learned counsel has relied upon the cases of Harihar Gopal (supra), Maan Singh (supra) and Charanjit Singh (supra). Therefore, according to the learned counsel, the impugned judgment needs to be interfered with. 5. On the other hand, Mr. D.K. Parihar the learned counsel for the respondent, has strenuously raised the following contentions before this Court: firstly, that the stand taken by the learned Single Judge is certainly justified. For, the termination relates back to thee date of absence from service. In case, a person is terminated, then the question of regularization of his absence does not even arise. The converse of this proposition, according to the learned counsel, would equally be true: in case the absence has been regularized by grant of leave, ipso-facto it proves that the explanation offered by the delinquent officer has been accepted. In case his explanation is accepted, it cannot be said that the has committed any misconduct. Hence, his services cannot be terminated. Secondly, the respondent was not given a copy of the enquiry report. The giving of enquiry report is pre-requisite sine-qua-non before the disciplinary authority can impose a punishment. Hence, a great prejudice has been caused to the respondent. Lastly, the punishment has to be proportionate to the gravity of the misconduct considering the fact that respondent's wife was gravely ill, considering the fact that there was no person in his family to look after her medical needs, considering the fact that there was no hospital in the nearby area, the respondent had no other choice, but to rescue his wife. Thus, he had ample justification for his absence. Hence, in the light of these ameliorating circumstances, a punishment of termination of service is too harsh a punishment to be imposed. Therefore, the learned Single Judge was certainly justified in quashing and setting aside the termination order. Hence, the learned counsel has supported the impugned judgment. 6. In rejoinder, Mr. Pareek, the learned counsel for the State, has contended that since the respondent had himself admitted his unauthorised absence from duty, since he did not submit any reply to the show cause, no prejudice was caused to him by non-giving of the enquiry report. Hence, the learned counsel has supported the impugned judgment. 6. In rejoinder, Mr. Pareek, the learned counsel for the State, has contended that since the respondent had himself admitted his unauthorised absence from duty, since he did not submit any reply to the show cause, no prejudice was caused to him by non-giving of the enquiry report. Relying on the case of Managing Director ECIL, Hyderabad vs. B. Karunakar (JT 1993 (6) SC 1), the learned counsel has pleaded that merely because the enquiry report has not been submitted to the delinquent officer, ipso facto, it would not vitiate the order of punishment. The delinquent officer is required to show that a prejudice has been caused to him due to the non-supply of the enquiry report. However, in the present case, since the respondent had admitted his absence, no prejudice was caused to him. Moreover, even the learned Single Judge has concluded that no prejudice was caused to the respondent. Therefore, the respondent cannot raise this contention. After all, he has not challenged this judicial finding. 7. The moot question before this Court is whether the services of a delinquent officer can be terminated on the ground of his unauthorised absence especially when his unauthorized absence has been regularized by grant of leave, or not? This question is no longer res-integra as it has been settled by the Apex Court as far back as in 1969 in the case of Harihar Gopal (supra). In this case, Harihar Gopal had remained absent from his duty on two different occasions. Therefore, he was served with a chargesheet. Two orders were passed on March 9, 1962. By the first order, his services were terminated by way of punishment. By the second order, for the period of his unauthorised absence, leave was granted. The High Court of M.P. observed as under: "...When the leave was granted even though belatedly, it had the effect of authorising with retrospective effect the petitioner's (respondent's" absence from duty during the period for which it was sanctioned. By the second order, for the period of his unauthorised absence, leave was granted. The High Court of M.P. observed as under: "...When the leave was granted even though belatedly, it had the effect of authorising with retrospective effect the petitioner's (respondent's" absence from duty during the period for which it was sanctioned. Having thus authorised the petitioner's (respondent's) absence from duty, it was not open to the State Government to proceed on the basis that his absence was unauthorised." Disagreeing with the reasoning of the Hon'ble M.P. High Court, the Apex Court observed as under: "These observations proceed upon a misconception of the sequence in the orders passed by the State Government and the true effect of the order granting leave. The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularising his absence from duty. Our attention has not been invited to any rules governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment has the effect of invalidating termination. Both the orders, one terminating the employment of the respondent, and the other granting leave are made "by order and in the name of the Governor of Madhya Pradesh", and they are signed by L.B. Sarje, Deputy Secretary to the Government of Madhya Pradesh General Administration Department. We are unable to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning leave so that the respondent was to be deemed not to have remained absent from duty without leave duly granted." 8. In the case of Bakshish Singh (supra), the services of Bakshish Singh were also terminated on the ground of his unauthorized absence from duty. He filed a suit before the trial Court. The trial Court decreed the suit and set aside the termination order on the ground that as the Government had regularized and had treated the period of his absence from duty as a period of leave without pay, the Government was not justified in claiming that he had committed a misconduct. The decision of the trial Court was challenged in appeal before the District Judge. The decision of the trial Court was challenged in appeal before the District Judge. The appeal was dismissed and the judgment and decree of the learned trial Court was affirmed. The Apex Court also confirmed the judgment and decree passed by the trial Court. 9. Although in the case of Maan Singh (supra), Hon'ble Supreme Court was of the opinion that the case of Bakshish Singh was not in conflict with the reasoning given in Harihar Gopal's case, but in the case of Charanjit Singh (supra), the Apex Court clearly noticed that Bakshish Singh's case was per-incuriam as it had ignored the law laid down by a Larger Bench in Harihar Gopal's case. Thus, the issue is well settled that even if leave is granted for the period of unauthorized absence, it does not wipe out the misconduct commi-tted by the delinquent officer. The grant of leave for such a period is done for the purpose of maintaining the correct record of service. By no means does the grant of leave wipe out the misconduct committed by the delinquent. 10. Since the learned Single Judge has based his entire reasoning on the case of Bakshish Singh, the very foundation of his reasoning his misplaced. 11. Undoubtedly, the respondent had admitted his absence for the unauthorized period. Once the admission had been made and enquiry officer had given his finding against the respondent, the mere non-supply of enquiry report would not prejudice the case of the respondent. In fact, the learned counsel for the respondent has not been able to show any prejudice caused to the respondent by the non-supply of the enquiry report. In the case of B. Karunakaran (supra), the Apex Court had clearly held that the Court or Tribunal should not mechanically set aside the order of punishment merely on the ground that the enquiry report was not given to the delinquent officer. In case even after furnishing of the report, no different consequence would have followed, it would be a travesty of justice to permit the employee to resume duty and to give all consequential benefits. According to the Apex Court, the delinquent officer must show that a prejudice has been caused to him. However, in the present case as the respondent himself had admitted his misconduct, even if the copy of the enquiry report had been given to him, the consequences would have been same. According to the Apex Court, the delinquent officer must show that a prejudice has been caused to him. However, in the present case as the respondent himself had admitted his misconduct, even if the copy of the enquiry report had been given to him, the consequences would have been same. Thus, the non-supply of the enquiry report does not prejudice his case. 12. Moreover, even the learned Single Judge has concluded that no prejudice was caused to the respondent by such a non-supply of the enquiry report. Since the respondent has not challenged the said finding by filing an appeal, he cannot raise this contention before this Court. 13. Undoubtedly, a punishment meted out to a delinquent officer must commensurate with the gravity of the misconduct. For, any punishment, whether under the criminal law or under the departmental enquiry, has to be proportionate to the gravity of the offence/misconduct. A disproportionate punishment would be violative of fundamental right of life and personal liberty under Article 21 of the Constitution of India. But, simultaneously in catena of cases, Hon'ble Supreme Court has expressed its opinion that ordinarily the court should not interfere with the quantum of punishment unless and until its conscious is shocked by the disproportionality of the punishment. (Ref. to (2011) 7 SCC 325 State Bank of Mysore vs. M.C. Krishnappa, (2008) 7 SCC 580 - State of Meghalaya vs. Mecken Singh N. Marak, (2006) 33 SCC 690- Maharashtra State Seeds Corp. Ltd. vs. Hariprasad Srupadrari Jadhao, (2008) 12 SCC 131 - Uttaranchal Transport Corporation vs. Sanjay Kumar Nautiyal, and 2002(10) SCC 330- Rajasthan SRTC vs. Ghansyam Sharma). The imposition of punishment ordinarily is the prerogative of the disciplinary authority. A flexibility of such a discretion, generally should not be interfered with. 14. The learned counsel for respondent has pleaded that since the respondent is no longer in service, the order of termination would adversely affect the grant of retiral benefits. Therefore, it may be in the interest of justice to reduce the punishment of termination to compulsory retirement. A similar suggestion was made to the Hon'ble Supreme Court in the case of Charanjit Singh (supra). The Apex Court left it to the discretion of the disciplinary authority to decide whether a lesser punishment of compulsory officer or not. Therefore, it may be in the interest of justice to reduce the punishment of termination to compulsory retirement. A similar suggestion was made to the Hon'ble Supreme Court in the case of Charanjit Singh (supra). The Apex Court left it to the discretion of the disciplinary authority to decide whether a lesser punishment of compulsory officer or not. In similar way, this Court leaves it to the discretion of the disciplinary authority to decide if punishment of termination can be reduced to a punishment of compulsory retirement so as to ensure that the respondent would be entitled to the retiral benefits. 15. For the reasons stated above, the impugned judgment of single bench dated 21.4.2008 is set aside. The special appeal is allowed in terms of the above noted observation.