MIHIR KUMAR JHA, J.:–In this writ application the petitioner has assailed the order of punishment of reduction in rank dated 23.10.1998/ 27.11.1998, as contained in Annexure 1, and its affirmance in the appellate order dated 17.5.2004, as contained in Annexure 2 to the writ application, whereby and whereunder the petitioner had been permanently reverted from the post of Naiyak to Sepoy (Sipahi) while serving Indian Army. 2. The facts giving rise to this writ application lie in a very narrow compass. The petitioner was recruited in Indian Army as a Sepoy on 12.12.1979 (Army No. 4259332K) and was subsequently promoted from the post of Sepoy to the post of Nayak in the month of August, 1991. It is the case of the petitioner that while working as a Nayak he was superseded in course of next promotion on the post of Havildar while several others including one Satyendra Kumar Singh, who was allegedly junior to the petitioner in the rank of Nayak were promoted. It is said that the representation filed by the petitioner on 7.11.1995 to the Lieutenant Colonel, the Commanding Officer of 16 Bihar Regiment, did not evoke any response but ultimately by a communication dated 12.1.1996 the Brigadier, Bihar Regiment, Danapur Cantonment had informed him that he had not been promoted because he did not meet the requisite ACR criteria for promotion on the post of Havildar. It is also said that on receipt of this communication dated 12.1.1996 the petitioner had sought information as with regard to nature of adverse entry in his ACR so that he could either move the higher authority or to a Court of Law but according to the petitioner, he was given no reply and thus, out of disgust he had filed his application for his voluntary retirement from service on 28.11.1997 which also was allowed by the competent authorities of the Indian Army with effect from 31.8.1998 and in pursuance of which the petitioner had submitted his pension papers. 3. According to the petitioner, while he was continuing in service in preparation to voluntary retirement, he had proceeded on 20 days Casual Leave for the period 16.3.1998 to 4.4.1998 during which he had gone to his native village. 3. According to the petitioner, while he was continuing in service in preparation to voluntary retirement, he had proceeded on 20 days Casual Leave for the period 16.3.1998 to 4.4.1998 during which he had gone to his native village. It is the case of the petitioner that on 1.4.1998 he fell ill with acute pain in his abdomen and vomiting and when he had gone to Danapur Military Hospital on 2.4.1998 for his treatment he was refused such treatment on the ground that his leave was going to expire on 4.4.1998. The petitioner thereafter is said to have consulted a local doctor, Dr. Ram Naresh Yadav, posted at Patna Medical College and Hospital and remained under his treatment from 2.4.1998 to 26.6.1998 and in this period he is said to have sent information both by telegram to his unit stationed at Assam on 4.4.1998 as also an application on 5.4.1998 under Certificate of Posting seeking extension of leave. In the writ application the petitioner has stated that when he did not receive any response either to his telegram dated 4.4.1998 or to the application sent by under Certificate of Posting on 5.4.1998 he had also sent his application to the Commanding Officer of Bihar Regiment on 1.5.1998, 5.5.1998 and 10.6.1998, all under Certificate of Posting with a prayer for grant of annual leave of 30 days and C.L. of 20 days of year 1999-2000 as also for an advance of Rs. 10,000/- for his treatment. The petitioner claims that he had also made a prayer for recall of his order of voluntary retirement and that he should be attached with Bihar Regimental Centre at Danapur during the period of his illness instead of being asked to report to his Unit stationed in the State of Assam. 4. The petitioner has also stated in the writ petition that he had subsequently reported on duty on 30.6.1998 but the authorities did not accept his joining and had subjected him to a court of enquiry proceedings on the charge of over staying on leave without sufficient cause for the period 4.4.1998 to 30.6.1998. 4. The petitioner has also stated in the writ petition that he had subsequently reported on duty on 30.6.1998 but the authorities did not accept his joining and had subjected him to a court of enquiry proceedings on the charge of over staying on leave without sufficient cause for the period 4.4.1998 to 30.6.1998. The petitioner has admitted that in such course of enquiry proceedings held on 11.9.1998 the three witnesses, namely, D.N.Singh, Brajesh Kumar and S.N.Thakur were examined and eight documents were also exhibited and after the court of enquiry had held him guilty a summary court martial proceeding was also held on 23.10.1998 wherein on the basis of materials on record and on account of his pleading guilty to the charge he was subjected to the order of punishment of being reduced in rank and his appeal against the said order was also rejected by an order dated 14.5.2004. 5. Learned counsel for the petitioner while assailing the two impugned orders has submitted that the order of punishment passed against the petitioner cannot be sustained, inasmuch as the petitioner was not afforded opportunity to cross-examine any of the three witnesses, namely, D.N.Singh, Brajesh Kumar and S.N.Thakur. He has further submitted that once the voluntary retirement of the petitioner had already been accepted which was to come into force with effect from 31.8.1998, the authorities had no jurisdiction to either continue with the court of enquiry or pass the impugned order of punishment. He has further assailed the proceedings of the Summary Court Martial Proceeding on the ground that the petitioner had never admitted the charge. 6. When this case was heard on 22.4.2011 this Court had felt the necessity of looking into the records of Summary Court Martial proceeding and as such, a direction was given to the counsel for the respondents to produce the records of the Court of Enquiry and Summary Court Martial Proceeding. It is interesting to note here that after this order was passed and the records were produced, the conducting counsel on behalf of the petitioner on the next day had sought to withdraw his Vakalatnama taking a plea that the petitioner no longer wanted him (his counsel) to continue with the case and as such, the case should be adjourned for a period of four weeks to enable the petitioner to engage a new counsel. This Court in the interest of justice had allowed such prayer and subsequently when the new counsel had appeared, he again had taken adjournment on 21.6.2011 and 30.6.2011 to file rejoinder to the counter affidavit but ultimately he had submitted that he would proceed to make his submission even without filing of the counter affidavit. The case thereafter was heard on 14.7.2011 and in course of making his submissions when he could not find the Medical Certificate of Dr. Ram Naresh Yadav, P.M.C.H which according to him was Exhibit-8 to the Summary of Evidence recorded in the Court of Enquiry held against the petitioner, he had undertaken to produce the aforesaid medical certificate of Dr. Ram Naresh Yadav, the consulting doctor of the petitioner at P.M.C.H. Thus the judgment was reserved on 14.07.2011 and the medical certificate was later on actually sent by the petitioner himself by registered post in November, 2011 which on its receipt in December, 2011 had been kept on record of this case and also taken into consideration while passing this order. 7. The main plea that the petitioner was not allowed to cross-examine the three witnesses stands totally belied from the perusal of the records of enquiry proceedings. D.N.Singh, P.W.1, was examined on 11.9.1998 and he had stated that the petitioner in the month of March, 1998 was allowed to proceed on C.L. of 20 days with effect from 16.3.1998 to 4.4.1998 but he did not rejoin the duty after expiry of his leave on 4.4.1998, whereafter P.W.1 had reported as with regard to over stay of the petitioner to his Company Commander Major M.R.Rana. He had further stated that on 5th April he had received a telegram from the petitioner for extension of leave and this matter was also brought to the notice of the Company Commander who had directed that reply telegram should be sent to the petitioner asking him to rejoin the duty immediately. He had further stated that a telegram was sent to the petitioner on 8.4.1998 informing the petitioner with regard to refusal of his leave. The petitioner was offered cross-examination of the said witness but he had declined to cross-examine P.W.1. 8. He had further stated that a telegram was sent to the petitioner on 8.4.1998 informing the petitioner with regard to refusal of his leave. The petitioner was offered cross-examination of the said witness but he had declined to cross-examine P.W.1. 8. Similarly, P.W.2, Brajesh Kumar, was also examined on the same day and he apart from the facts stated by P.W.1 had also stated that when the petitioner despite being informed of refusal of extension of his leave by return telegram dated 8.4.1998 and confirmatory letter of the said telegram dated 13.4.1998 did not report for duty, a letter was sent to the Superintendent of Police, Patna on 25.4.1998 for arresting the petitioner and producing him before the Army Authorities and when the petitioner did not report the duty nor was produced by the Superintendent of Police, Patna, he was declared deserter on 16.6.1998 with effect from 5.4.1998. P.W.2 was also offered for his being cross-examined by the petitioner but the petitioner had declined to cross-examine him as well. 9. On the same day in course of Court of Enquiry, Major S.N.Thakur was examined as P.W.3 and he apart from the facts stated by P.Ws. 1 and 2 had also stated that when on 30.6.1998 the petitioner had reported to the Unit voluntarily, he on being asked the reason for over stay had informed him (P.W.3) that he had been admitted in P.M.C.H. for treatment of his Gastritis as a result of which he could not report to the Unit. He had also stated that the petitioner had claimed that in a certificate signed by a Medical Practitioner, namely, Dr. R.N.Yadav it was stated that the petitioner had undergone his treatment from 2.4.1998 to 26.6.1998. P.W.3 in his deposition had also stated that in order to verify the fact as with regard to the claim of the petitioner being treated in P.M.C.H. enquiries were made in P.M.C.H. through the Officers of Bihar Regimental Centre wherein no documentary proof could be found as with regard to petitioner being treated in P.M.C.H. P.W.3 also was not cross-examined by the petitioner. 10. 10. From the records it also appears that on opportunity given to the petitioner to lead evidence in his defence in terms of Army Rule 23(3) was also declined by him and when he had refused to put his signature on the proceedings a memo regarding his refusal was prepared by the Commanding Officer which was also signed by the three Officers attending the Court of Enquiry. 11. A question would thus arise as to whether the grievance of the petitioner of being not afforded a reasonable opportunity in course of enquiry proceedings has any merit? There is no denial to this fact that a Court of Enquiry was held in terms of Army Rules, inasmuch as the petitioner also admits in paragraphs 34 and 35 of the writ application that such an enquiry was held in his presence in which three witnesses were examined and eight documents were exhibited. It is, however, his case, that he was not given an opportunity to cross-examine the three witnesses. As noted above from the recordings made by the Officers holding the Court of Enquiry preserved and presented before this Court it is clear that the petitioner had himself declined to cross-examine any of the three witnesses and in fact had also refused to record his own statement in defence in terms of Rule 23(3) by way of leading defence evidence. In this background the said plea of the petitioner raised in this writ application as with regard to non-affording of any opportunity to cross-examine the three witnesses, is completely belied when one examines the averments made by him in his memo of appeal filed on 25.2.2002 wherein after being communicated with the order of punishment of his reduction in rank and in course of assailing the same he had not said a word as with regard to any procedural infirmity in course of enquiry proceedings including the issue of non affording of an opportunity to cross-examine the three witnesses and his entire criticism of the enquiry proceeding in the Memo of Appeal had read only as follows:– <span class="Hfont"><span class="Hfont"> ^^vius fcekjh ls LoLF; gksus ds mijkar eSaus 30.6.98 dks ;wfuV esa fjiksVZ fd;kA LohÑr vodk'k dh vofèk ls nsj ls ykSVus ds dkj.k iwoZ eas LohÑr ,sfPNd lsok fuo`fr dh frfFk dks voSèkkfud :i ls 31.8.98 ls c<+kdj 31.10.98 dj fn;k x;k ,oa esjs fo:¼ voSèkkfud :i ls dksVZ ek'kZy dh dkjZokbZ pykdj eq>s uk;d ls flikgh ds in ij fnukad 31.10.98 dks izHkko ls inkour dj eq>s lsok fuo`r dj eq>s ?kj okil Hkst fn;k x;kA dksVZ ek'kZy ds dkjZokbZ ds nkSjku eSaus vius liQkbZ esa Vsyhxzke dh jlhn fnukad 4.4.98 dks Hkstk Fkk] nkukiqj lSfud vLirky ds MkDVj dk fy[kk nok dk iphZ rFkk iVuk esfMdy dkWyst ds MkDVj jke ujs'k ;kno dk fuxZr izek.k&i=k] fnukad 26.6.98 dk tks dksVZ ek'kZy ds nkSjku bl lcwrksa ij è;ku ugha fn;k x;k vkSj uk gh eq>s okfil fd;k x;kA** 12. Thus, from the aforesaid statement of the petitioner in his Memo of Appeal it becomes clear that the plea of being not afforded an opportunity to cross-examine the three witnesses is only his subsequent innovation created for the purposes of this writ application. It is by now well settled that no new plea can be entertained in a writ proceeding under Article 226 of the Constitution of India which has not originally been raised before the competent final fact finding authorities. In this case the petitioner having failed to even raise the issue of his not being allowed to cross-examine the three witnesses in the Memo of Appeal cannot now be permitted to assail the impugned order at least on this ground. 13. In this case the petitioner having failed to even raise the issue of his not being allowed to cross-examine the three witnesses in the Memo of Appeal cannot now be permitted to assail the impugned order at least on this ground. 13. Admittedly the petitioner was present in the entire enquiry proceedings and has stated that the certificate produced by him treating doctor at Patna, namely, Dr. Ram Naresh Yadav was not taken into consideration. Though such certificate of his treating Doctor at Patna is not on record of the enquiry proceedings the same having been produced in the manner indicated above before this Court is being taken into consideration. The crucial question, however, would be that the defence of the petitioner was of his illness. Such illness on the part of the petitioner being his own defence had to be proven by him in terms of Rule 23 of Army Rules and he could have also produced Dr. Ram Naresh Yadav but the petitioner had made no such effort to prove his illness. The certificate of Dr. Ram Naresh Yadav which actually now has been produced by the petitioner by sending a copy thereof by registered post and is not on record of enquiry proceeding had merely read that the petitioner was suffering from pain and vomiting due to severe gastritis and was under his treatment from 2.4.1998 to 26.6.1998. The said certificate was not enclosed or accompanied with any other report of pathological test or even any prescription or voucher/ cash memo of purchase of medicine by the petitioner. The one page medical certificate easily procurable by any person even if produced by the petitioner therefore, could not have proved his plea of illness. The fact however remains that even this medical certificate also was not produced by the petitioner in course of enquiry proceedings in as much as he had declined to record his own evidence in defence. 14. Thus on perusal of the materials on record, this Court is satisfied that the charge of unauthorized absence from duty by overstayal beyond the sanctioned leave on the basis of evidence was proved against the petitioner. 15. The petitioner at the relevant point of time was still continuing in the services of Indian Army and was supposed to maintain discipline. Thus on perusal of the materials on record, this Court is satisfied that the charge of unauthorized absence from duty by overstayal beyond the sanctioned leave on the basis of evidence was proved against the petitioner. 15. The petitioner at the relevant point of time was still continuing in the services of Indian Army and was supposed to maintain discipline. When the petitioner’s request for extension of leave sent through telegram dated 4.4.1998 was immediately answered by the Army Authorities on 8.4.1998 in negative informing him of refusal of extension of his leave, he had no option but to report on duty. A patient suffering from Gastritis, pain in stomach and vomiting having not been hospitalized, as is now the case of the petitioner himself, should not have violated the orders of the Army Authorities. The plea of the petitioner that he had sent applications for extension of leave even after sending of telegrams is not at all substantiated, inasmuch as all such applications have been surprisingly sent under the Certificate of Posting which can be easily created by any person. Thus, the story of the petitioner that he had sought extension of leave after sending of telegram by also sending his applications was also not sought to be established by the petitioner in course of enquiry proceedings. As a matter of fact this aspect has been also clarified in the counter affidavit that the petitioner himself, on return from leave had orally informed PW-3 that he had been admitted in Patna Medical College and Hospital for his treatment and it was in view of his own statement that the enquiry was also made from the authorities of P.M.C.H whereafter his claim of being admitted in P.M.C.H. was found to be false. This part of the statement in the counter affidavit has also not been controverted by the petitioner by filing any rejoinder affidavit and therefore, the statement of P.W.3 to this aspect in course of enquiry proceedings also gets fully substantiated in the light of facts recorded in Exhibit-8. 16. This Court has also found no procedural infirmity in the Court of enquiry Proceedings or in the Summary Court Martial Proceeding. The petitioner having himself admitted in the writ application to be present both in the Court of Enquiry proceeding as also in the Summary Court Martial Proceedings cannot take any advantage of his not signing the proceedings. 16. This Court has also found no procedural infirmity in the Court of enquiry Proceedings or in the Summary Court Martial Proceeding. The petitioner having himself admitted in the writ application to be present both in the Court of Enquiry proceeding as also in the Summary Court Martial Proceedings cannot take any advantage of his not signing the proceedings. In fact when the petitioner had himself pleaded guilty before the Summary Court Martial Proceedings in presence of Major S.M.Singh, Lieutenant A.K.Dey and Subedar Major H.S.Bhatti, nothing would remain for speculation that the charges against the petitioner were admitted by him and were consequently also proved on the basis of evidence led by the army authorities. 17. The plea of the learned counsel for the petitioner that since the petitioner was to retire voluntarily with effect from 31.8.1998, no enquiry proceeding could have been conducted against him is also only to be noted for its being rejected. Once the petitioner had reported to duty on 30.6.1998 after being declared deserter, an enquiry proceeding had to be conducted before acceptance of his joining and it was for that purpose his date of retirement was extended from 31.8.1998 to 31.10.1998, which in the given situation cannot be held to bad, inasmuch as, the Respondents having declared the petitioner deserter were required to conduct a Court Enquiry followed by the procedure of Summary Court Maritial in terms of the provisions of Army Act and the Army Rules. 18. The plea of the petitioner that his leave application was not considered by the Court of Enquiry or in Summary Court Martial Proceedings in fact also is a lame plea. The petitioner had not produced the copy of the telegram in the writ petition which was sent by him on 4.4.1998 and in fact that has been found out by this Court from the original records of the Summary Court Martial Proceedings produced by the learned counsel for the Respondents. In the said telegram (Exhibit-3) all that the petitioner had said was “self illness kindly grant 10 days C.L./F.L.”. From this telegram it cannot be said that the petitioner was under treatment of any doctor or that he had been suffering from any acute disease. Thus the refusal and the order communicated to the petitioner of non-extending of his C.L. by the return telegram dated 8.4.1998 (Exhibit-4) “your Casual Leave not sanctioned. From this telegram it cannot be said that the petitioner was under treatment of any doctor or that he had been suffering from any acute disease. Thus the refusal and the order communicated to the petitioner of non-extending of his C.L. by the return telegram dated 8.4.1998 (Exhibit-4) “your Casual Leave not sanctioned. A.A. rejoin unit forthwith” receipt whereof is admitted by the petitioner had to be complied by the petitioner forthwith. As noted above, no further application for extension of leave was ever received by the authorities of Army while the Unit of the petitioner was at Tinsukiya in Assam. In that view of the matter, when the petitioner himself did not rejoin the duty even in next 10 days as originally asked by him in his telegram dated 4.4.1998 he cannot be heard to say that he was not unauthorizedly absent from duty. 19. Such unauthorized absence from duty without even after completion of leave and its not being extended any further by itself would go to show that the petitioner had actually committed an offence under the Army Act where absence without leave under section 39 is itself an offence making a person liable for imprisonment for a term which may extend to three years. In that view of the matter, if the authorities have only reduced the petitioner in rank, and have allowed his voluntary retirement to take with effect from 31.10.1998, today this Court in exercise of power under Article 226 of the Constitution of India having found no procedural infirmity in the proceeding is not required to interfere with the order of punishment and its affirmance by the appellate authority. 20. Indiscipline in service of Army Forces including over stay on leave cannot be viewed lightly as was held by the Apex Court in the case In the case of Jai Shanker Vs. the State of Rajasthan reported in 1966 of SC 492, wherein, it was held as follows:– “…….One circumstance deserving removal may be over-staying one’s leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service……” 21. In the given set of facts and circumstances, this Court is also not impressed with the submission of learned counsel for the petitioner that the punishment of reduction in rank is disproportionate to the misconduct committed by the petitioner. In the given set of facts and circumstances, this Court is also not impressed with the submission of learned counsel for the petitioner that the punishment of reduction in rank is disproportionate to the misconduct committed by the petitioner. True it is that the punishment imposed upon the delinquent should be commensurate to the nature of misconduct and to that extent the long line of decisions of the Apex Court would indicate that the Courts in India have recognized the doctrine of proportionality as one of the ground for judicial review. The question, however, would be as to whether for misconduct of overstayal on leave of a person, whose voluntary retirement had already been allowed, could he been permitted to dupe the Army Authorities by proceeding on leave for 20 days and overstaying for nearly three months with a calculated design to show his face just in the month in which his voluntary retirement could have become operational. The petitioner was not an ordinary civilian or an employee of establishment where discipline and punctuality is not of that high order as in Indian Army. The petitioner therefore, till date of his going out of service in the Indian Army, was required to maintain his discipline but from the facts of this case it is clear that he had intentionally tried to commit an offence under Army Act which could have even led to punishment by way of rigorous imprisonment for a period of three years. Thus the lesser punishment of, not even dismissal from service but only reduction in rank in the facts and circumstances of the case cannot be said to be disproportionate to the misconduct/offence committed by the petitioner. 22. This Court in exercise of power under Article 226 of the Constitution of India can hold the punishment to be wholly disproportionate if it would shake the conscience of a prudent person. Recently the Apex Court in the case of Charanjit Lamba Vs. Commanding Officer Army Southern Command and others reported in 2010(11) SCC 314 having once again made survey of its earlier views on the doctrine of proportionality and making judicial review of the order of punishment under Article 226 had held as follows:– 19. Recently the Apex Court in the case of Charanjit Lamba Vs. Commanding Officer Army Southern Command and others reported in 2010(11) SCC 314 having once again made survey of its earlier views on the doctrine of proportionality and making judicial review of the order of punishment under Article 226 had held as follows:– 19. That the punishment imposed upon a delinquent should be commensurate to the nature and generally of the misconduct, is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality (sic) of a misdemeanour are entitled to claim but the same is recognised as being a part of Article 14 of the Constitution. It is also evident from the long line of decisions referred to above that the courts in India have recognised the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a writ court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith. 20. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with the same. 23. Thus in view of the aforementioned decision, this Court is satisfied that the punishment of reduction in rank to the petitioner inflicted 14 years ago in the year 1998 would now require no interference of this Court specially when the petitioner has taken voluntary retirement w.e.f. 31.10.1998 and has been received all post retirement benefits and is also being paid his monthly pension. Infact the Army authorities having conducted the enquiry and found the charge of unauthorized absence and over stay on leave to be fully substantiated could have easily either sentenced him to undergo imprisonment upto 3 years or dismiss him from service but considering the fact that he had already opted for voluntary retirement, the lesser punishment of reduction in rank, by virtue of which his pension was not forfeited, can also not be held to be disproportionate to the misconduct of without sufficient cause, overstaying leave granted to him which is an offence under Section 39 of the Army Act. 24. That being so, this court does not find any merit in the application and the same is, accordingly, dismissed. There would be, however, no order as to cost. 25. The original records of the Court of Enquiry and Summary Court Martial Proceedings be returned back to the learned counsel appearing on behalf of the respondents.