JUDGMENT V.K. Maheshwari, J. 1. The petitioner has challenged the order dated 26.8.2009 of dismissal of services as well as the order passed on his departmental appeal dated 31.12.2009. FACTS 2. The petitioner had joined the U.P. State Road Transport Corporation in the year 1989 on the post of Conductor and after the creation of the State of Uttarakhand, he became the employee of Uttarakhand Transport Corporation, which is wholly governed and controlled by the State of Uttarakhand, therefore, he is a public servant as defined in Clause-B of Section 2 of the Uttarakhand Public Services Tribunal Act, 1976. 3. In the year 2002, the petitioner was admitted in Doon Hospital for the treatment of Jaundice and remained there w.e.f. 29.8.2007 to 10.10.2007 but after rejoining his service on 11.10.2007, he again came under the attack of Hepatitis and had to remain admitted in Doon Hospital again w.e.f. 13.10.2007 to 29.1.2008. The petitioner was declared fit to join his service on 31.1.2008, but soon after his rejoining, he again fell ill on 23.3.2008 and was again remained under treatment in Doon Hospital, Dehradun w.e.f. 23.3.2008 to 19.5.2008. Meanwhile the petitioner had sent the medical certificates on 20.5.2008 to the concerned authorities and after finally recovering from the illness, he reported to the duty. However, the departmental proceedings were initiated against him for remaining absent and after holding enquiry, the petitioner was held guilty of remaining absent which amounts to misconduct and consequently, was dismissed from the service by the impugned order. The departmental appeal preferred by the petitioner was also dismissed vide order dated 31.12.2009. Hence this petition. The petitioner had challenged the impugned order of dismissal on the following grounds:- (a) That the enquiry was conducted in haste only one day and sufficient opportunity was not afforded to the petitioner. (b) That the illness of the petitioner was not properly considered. (c) That the petitioner was not negligent or delinquent in discharging his duties, but he was prevented to perform his dues by illness. (d) That the punishment of dismissal is too harsh keeping in view the alleged misconduct of remaining absent. 4. The petition has been opposed on behalf of all the respondents and it has been stated that the petitioner almost remained absent from duties without any intimation i.e. 28.8.2007 to 21.7.2008, which is serious lapse on the part of the petitioner and subversive to discipline. 4. The petition has been opposed on behalf of all the respondents and it has been stated that the petitioner almost remained absent from duties without any intimation i.e. 28.8.2007 to 21.7.2008, which is serious lapse on the part of the petitioner and subversive to discipline. He was directed through registered letters thrice to report on duty, but all in vain. Moreover, no intimation was sent by the petitioner regarding his illness to the authorities. On the report of the station in charge, departmental proceedings were initiated and after framing appropriate charges and considering the representations of the petitioner, the impugned order was passed. It is further stated that the petitioner for the first time stated in the enquiry that he was ill. The petitioner was afforded adequate and sufficient opportunity for making defence and there is no illegality or irregularity in the departmental proceedings. The ground of illness is an after thought which cannot be accepted. The respondents Transport Corporation has to suffer financial loss because of absence of the petitioner and its not possible to permit any employee to remain absent for an indefinite period. The impugned order does not suffer from any illegality or irregularity and petition lacks merit and is liable to be dismissed. 5. A rejoinder affidavit dated 20.1.2011 has also been filed by the petitioner reiterating the facts mentioned in the main petition. A supplementary affidavit has also been filed on behalf of the respondents on 13.5.2011 by which certain documents were filed. After the judgment of the Hon'ble High Court, a fresh affidavit has also been filed by the petitioner on 3.9.2012 and supplementary affidavit was also filed by the respondents on 28.9.2012. 6. We have heard both the parties at length and gone through the record carefully. 7. The present petition was decided by this tribunal on 14.10.2011. A writ petition was preferred against the judgment passed by this Tribunal before the Hon'ble High Court and the Hon'ble High Court was pleased to set aside the order of the Tribunal and further to remit back the claim petition to the Tribunal for de-novo consideration vide its order passed in Writ Petition No. 56 of 2012 (S/B) Uttarakhand Transport Corporation & Others vs. Pramod Singh & Another. After this direction, a fresh opportunity was afforded to the parties for adducing additional evidence, if they so desire. Some evidence was adduced by the parties. After this direction, a fresh opportunity was afforded to the parties for adducing additional evidence, if they so desire. Some evidence was adduced by the parties. 8. It is admitted that the services of the petitioner were governed by the Uttar Pradesh State Road Transport Corporation Employees (other than officers) Service Regulation 1981 which is applicable to the State of Uttarakhand also. Rule 62 of the abovementioned Regulations provides that absence without leave or over staying the sanctioned leave without sufficient grounds or proper or satisfactory explanation amounts to misconduct. Rule 63 provides for minor and major penalties. Removal from service and dismissal from service comes within the purview of major penalty. Major penalty of dismissal from service has been imposed upon the petitioner, on the ground of absence without sanctioned leave. 9. The impugned order of imposing penalty has been challenged on behalf of the petitioner firstly on the ground that enquiry officer has not afforded sufficient and adequate opportunity of making defence to the petitioner. The enquiry has been concluded in haste within a period of one day, which vitiates the enquiry. Moreover even the important witnesses have not been examined and enquiry officer had acted as prosecutor. In support of this contention, the petitioner drawn our attention towards the principle laid down by the Hon'ble Supreme Court in the following cases:- (i) Roop Singh Negi vs. Punjab National Bank & Others, (2009) 1 SCC (L&S) 398, the Hon'ble Supreme Court has held that the departmental enquiry is quasi judicial in nature and the orders of disciplinary authority must be based on recorded reasons. (ii) Union of India & Others vs. Prakash Kumar Tandon, (2009) 1 SCC (L&S) 394. The Hon'ble Supreme Court has held that in case the disciplinary proceedings have not been conducted fairly, presumption can be drawn that this caused prejudice to the charged employee and it is also important to examine the important witnesses. (iii) Moni Shankar vs. Union of India and Another, (2008) 1 SCC (L&S) 819, the Hon'ble Supreme Court has held that asking leading question by the enquiry officer is improper and the enquiry officer turns to be prosecutor in such event. (iv) The State of West Bengal & Others vs. Sri Sanjib Roy and Another, 2001 (4) SLR 612. (iii) Moni Shankar vs. Union of India and Another, (2008) 1 SCC (L&S) 819, the Hon'ble Supreme Court has held that asking leading question by the enquiry officer is improper and the enquiry officer turns to be prosecutor in such event. (iv) The State of West Bengal & Others vs. Sri Sanjib Roy and Another, 2001 (4) SLR 612. The Hon'ble Supreme Court has held that terminating the services without initiating any proceedings and without following any procedure prescribed under law is not sustainable. 10. On the other hand, it has been contended on behalf of the respondents that the petitioner had absented himself from duties without any intimation or without leave being sanctioned and it amounts to misconduct. The petitioner was intimated thrice to join duties, but all in vain. Consequently, departmental proceedings were initiated, proper charges were framed and after affording sufficient opportunity to the petitioner, enquiry was concluded. There is no illegality or irregularity in the enquiry. The order of dismissal in the above circumstances is justifies and it requires not interference. In support of this contention, the learned counsel for the respondents relied upon on the principle laid down by the Hon'ble Supreme Court in the following cases:- (i) Delhi Transport Corporation vs. Sardar Singh, 2004 (102) FLR 1031 (ii) Usha Breco Mazdoor Sangh vs. Management of M/s. Usha Breco Ltd. & Another, 2008 (LLR) 619 (iii) M/s. L&T Komatsu Ltd. vs. N. Udayakumar, 2008 (LLR) 113 Apart from the above cases, Harbajan vs. Delhi Transport Corporation, 2009 (LLR) 1142, Kannam Nageswara Rao vs. Rashtriya Ispat Nigam Ltd. Visakhapatnam, 2009 LLR 491 and Puratchi Talaivar MGR Transport Corporation Lt. vs. I.T. 2004 (100) FLR 1174 have also been referred. In all the abovementioned cases, dismissal of any employee has been upheld on the ground of his being habitual of remaining absent without the leave sanctioned. 11. In the light of the principles laid down in the above mentioned cases, we have to see whether proper enquiry was conducted or not? In this regard, the enquiry report is important which is available in the enquiry file of the department, which has been submitted by the respondents. The report reveals that the petitioner has been treated absent continuously w.e.f 28.8.2007 to 21.7.2008, while the charge framed against the petitioner reveals that the petitioner was not absent w.e.f. 11.10.2007 to 13.10.2007, 30.1.2008 to 22.3.2008 and 20.5.2008 to 27.5.2008. The report reveals that the petitioner has been treated absent continuously w.e.f 28.8.2007 to 21.7.2008, while the charge framed against the petitioner reveals that the petitioner was not absent w.e.f. 11.10.2007 to 13.10.2007, 30.1.2008 to 22.3.2008 and 20.5.2008 to 27.5.2008. The above mentioned facts become clear from the charge. The relevant portion of the charge is reproduced as under:- ^^;g fd vkidh fu;qfDr ifjogu fuxe esa ifjpkyd in ij fuxe ds fgr esa dh x;h Fkh fdUrq vkidh mifLFkfr ,oa dk;Z vR;Ur vlarks”k&tud jgk gSA izk;% vki viuh M;wVh ls fcuk fdlh lwpuk ds vuqifLFkr jgrs gS tcfd foHkkx esa bl vk’k; ls vodk’k vkfn dh O;oLFkk dh xbZ gS ;fn dksbZ deZpkjh viuh fu/kkZfjr M;wVh ij mifLFkr gksus esa vleFkZ gS rks og vodk’k vkfn ys rFkk Hkfo”; dh vko’;drk dks /;ku esa j[krs gq, mfpr vodk’k ds fy, vkosnu djsaA lgk;d egkizca/kd o fMiks }kjk vius i=kad 1740@vuq’kklu@leiz@c@08 fnukad 22-7-2008 ds }kjk fjiksVZ izsf”kr dh x;h fd vki fnukad 28-8-2007 ls 10-10-2007 rd rFkk 14-7-2007 ls 29-1-2008 ,oa fnukad 23-3-2008 ls 19-5-2008 ,oa fnukad 28-5-2008 ls 21-7-2008 ls yxkrkj fcuk fdlh iwoZ lwpuk ds vius dk;Z ls vukf/kd`r :i ls vuqifLFkr py jgs gSA tcfd muds }kjk vkidks vius dk;Z ij mifLFkr gksus gsrq iathd`r Mkd ls i= Hkh izsf”kr fd;k x;k ijUrq fQj Hkh vki vius dk;Z ij mifLFkr ugh gq,A ftlls fuxe dks vkfFkZd gkfu gq;h rFkk lapkyu dk;Z Hkh ckf/kr gqvkA vkidk bl izdkj dk vkpj.k dnkpkj dh Js.kh esa vkrk gSA ,rn~}kjk vkids Åij vius in ds drZO; ,oa nkf;Roksa dk fu”BkiwoZd ikyu u djus] fcuk lwpuk ds vukf/kd`r :i ls vuqifLFkr jgus] vuqifLFkr vof/k ds fy, fdlh izdkj dh vodk’k dh ekax u djus] M;wVh ls vuqifLFkr ls vuqifLFkr jgdj foHkkx dks vkfFkZd gkfu igqapkus ds fy, deZpkjh lsok fu;ekoyh dh /kkjk 6 ¼d] [k] x] ³] p½ ds izfrdwy vkpj.k djus ,oa /kkjk 62 ds mifu;e 5] 7] 9] 20] 21 esa mfYyf[kr O;pkjks ds izfr nks”kh gksus ds vkjksi yxk;s tkrs gSA** 12. But the enquiry officer has treated the petitioner absent continuously w.e.f. 28.8.2007 to 21.7.2008, which cannot be said to be justified. But, in our opinion it is of no help to the petitioner as the disciplinary authority while punishing the petitioner has corrected this mistake and he hold the petitioner guilty for remaining absent for the period he actually absented himself from duties. But, in our opinion it is of no help to the petitioner as the disciplinary authority while punishing the petitioner has corrected this mistake and he hold the petitioner guilty for remaining absent for the period he actually absented himself from duties. Therefore, we do not find any force in the contention of the petitioner. 13. It has further been contended that the enquiry officer had asked leading questions from the witnesses. It has further been contended that the important witnesses have not been examined which vitiates the proceedings. But the perusal of the enquiry record, reveals that no leading question were put to the witness by the enquiry officer and no witness have been mentioned on behalf of the petitioner, which was important and has not been examined, so we do not find any force in this contention. 14. It has further been contended that petitioner is not habitual of remaining absent. Its also true there is nothing on record by which it could be inferred that petitioner is habitual of remaining absent in the past also. 15. It has further been contended that only the willful absence from duty amounts to misconduct, if the petitioner was prevented from some justified cause, in discharging of his duties, it is not proper to hold the petitioner guilty of misconduct. The petitioner had made clear before the enquiry officer as well as before the disciplinary authority that during the period of absence, he was ill and he got treatment in the Doon Hospital, Dehradun that is a Govt. Hospital. The petitioner has also produced Medical Certificates issued from Doon Hospital to prove the factum of his illness. But neither the enquiry officer nor the disciplinary authority have considered about the fact of the illness of the petitioner or regarding the certificates submitted by the petitioner. The petitioner has been held guilty simply on the ground that he did not intimate the authorities regarding illness. Intimating the authorities is one fact while being ill is another fact. Even if, the petitioner did not intimate the authorities, though he had asserted that he given the intimation to the authorities, even then only this fact cannot be treated to be misconduct in case the petitioner was actually sick and that too with a serious disease like jaundice. Intimating the authorities is one fact while being ill is another fact. Even if, the petitioner did not intimate the authorities, though he had asserted that he given the intimation to the authorities, even then only this fact cannot be treated to be misconduct in case the petitioner was actually sick and that too with a serious disease like jaundice. It was essential for the enquiry officer as well for the disciplinary authority to look into the question of illness of the petitioner, which has not been done in the present case. The Hon'ble Supreme Court in its latest decision in Krushnakant B. Parmar vs. Union of India & Another (2012) 3 SCC 178 has held as follows:- "If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct." 16. In view of the above mentioned principle, it cannot be said in the present case that the absence of the petitioner was willful unless the medical certificates submitted by him, has been properly considered, which has not been done by the authorities concerned. 17. It has also been contended on behalf of the petitioner that the punishment awarded to the petitioner is grossly disproportionate to the charge and in support of this contention, the petitioner has relied upon the decision of Calcutta High Court in Pato Hembrahm vs. Union of India & Others, 1999 (8) SLR 770 and by Rajasthan High Court in Bhanwar Singh vs. State of Rajasthan & Others, 1999 (4) SLR 623. We have gone through these cases carefully. As the petitioner is not habitual of remaining absent. Therefore, the order of dismissal seems to be harsh in the present case. 18. We have gone through these cases carefully. As the petitioner is not habitual of remaining absent. Therefore, the order of dismissal seems to be harsh in the present case. 18. In view of the decision of the Hon'ble Supreme Court in Krushnakant B. Parmar (ibid), case, the earlier cases cited by the respective parties are not helpful to them. 19. Keeping in view that the factum of illness of the petitioner has not been considered by the enquiry officer as well as by the disciplinary authority and the punishment appears to be harsh. We think it proper to direct the respondents to reconsider the case of the petitioner after having considered the grounds mentioned by the petitioner for remaining absent and to quash the impugned order of punishment. We further think it proper that three months time is sufficient to the respondents for reconsidering the matter of the petitioner. We also think it proper to direct the respondents to afford an opportunity to the petitioner to adduce any evidence, if he so desires and to afford an opportunity of hearing to the petitioner. ORDER 20. The claim petition is allowed. The impugned orders are set aside. The respondents are directed to take fresh decision in the matter within a period of three months from today after affording opportunity to the petitioner for producing evidence and of being heard. However, quashing the impugned order will not entitle the petitioner to join service, which will be subject to the decision to be taken by the disciplinary authority. No order as to costs.