JUDGMENT Hon’ble Rajan Roy, J.—Heard Sri Ashutosh Tripathi, learned counsel for the petitioner and Sri Aashish Misra, learned counsel for respondents. 2. The petitioner herein was initially appointed in the subordinate judiciary as Routine Grade Clerk in 1991 and was posted as Copyist in the Judgeship of Fatehgarh. Subsequently, in the year 2003, he was promoted as Senior Clerk and since then he was discharging his duties on the post. He applied for casual leave for 9.7.2007, while posted in the judgeship of Farrukhabad. The said leave was duly sanctioned, accordingly, he proceeded to leave. However he did not return back till 19th July, 2007. 3. In the integrum on 13.7.2007, the Reader of the concerned Court, where he was deputed submitted a report about his absence to the District Judge. On 16.7.2007 petitioner;’s explanation was called regarding his absence which was submitted on 28.7.2007. The said explanation was not found satisfactory, accordingly by order dated 31.7.2007 the District Judge ordered initiation of regular disciplinary proceedings. Consequently on 9.8.2007 a charge-sheet, approved by the District Judge was given to the petitioner by the inquiry officer regarding his absence from 10.7.2007 to 19.7.2007. This was the only charge mentioned in the charge-sheet and it stated that it demonstrated lack of devotion on his part and violation of Rule 3 of U.P. Conduct Rules, 1976 read with relevant disciplinary proceedings Rules. Petitioner submitted his reply to the charge-sheet on 13.8.2007. Thereafter inquiry report is said to have been submitted on 3.9.2007. Based on the inquiry report, a show-cause notice dated 23.11.2007 was issued to the petitioner to which he submitted his reply on 23.11.2007. Thereafter, impugned order of removal from service was passed on 30.11.2007 by the District Judge Farukkhabad with reference to Rule 4 (i)(g) of U.P. Subordinate Courts Staff (Discipline and Appeal) Rules, 1976. 4. Being aggrieved the petitioner filed an appeal which was dismissed by the High Court on the administrative side on 14.6.2007. 5. Being aggrieved this writ petition has been filed. 6. The contention of the learned counsel for the petitioner was that the impugned major punishment has been imposed upon the petitioner without conducting any inquiry and without fixing any date, time and place for such inquiry. 5. Being aggrieved this writ petition has been filed. 6. The contention of the learned counsel for the petitioner was that the impugned major punishment has been imposed upon the petitioner without conducting any inquiry and without fixing any date, time and place for such inquiry. In this regard, learned counsel for the petitioner has invited the attention of the Court to Rule 5 of the Service Rules, 1976, which according to him had been violated. Even otherwise, the submission was that the Principle of Natural Justice and right of reasonable opportunity to defend had been violated as no regular inquiry was made nor was the petitioner allowed to participate in any such inquiry.. 7. The other contention of the learned counsel for the petitioner was that the punishment imposed was dis-proportionate to the charges and was too harsh. It was also contended that even the appellate authority did not apply its mind to the relevant aspects of the matter and dismissed the appeal summarily just as disciplinary authority had passed the punishment order. 8. On the other hand learned counsel for respondents invited the attention of the Court to the past conduct of the petitioner as narrated in the order of punishment dated 30th November, 2007 to submit that ever since his initial appointment, the petitioner was a habitual absentee and even was visited with several orders of punishment and adverse entries. He further submitted that absence for 9-10 days from the Court was a grave misconduct on the part of the petitioner for which he was rightly removed from service. He also invited attention of the Court to the reply dated 13.8.2007 submitted by the petitioner to submit that it contains no valid explanation for the absence. 9. I have heard learned counsel for the parties and have perused records. 10. The charge-sheet issued to the petitioner contains only one charge i.e. his unauthorized absence from duty from 10.7.2007 to 19.7.2007 i.e,. for ten days. The explanation of the petitioner for the absence was that his wife was ill and was undergoing treatment under Dr. Bajpai at Kanpur. He took his wife for treatment to Kanpur on 9.7.2007 and as her condition deteriorated in the night he was unable to come back and join on 10.7.2007, nor was he able to submit any application for leave in the office. Bajpai at Kanpur. He took his wife for treatment to Kanpur on 9.7.2007 and as her condition deteriorated in the night he was unable to come back and join on 10.7.2007, nor was he able to submit any application for leave in the office. As petitioner was the only adult person to look after her, he remained absent on account of the treatment of his wife at Kanpur. After returning back he submitted an application for sanction of earned leave for the period 10.7.2007 to 19.7.2007. 11. I have perused the inquiry report submitted by the inquiry officer. It does not disclose any date having been fixed for the purpose of inquiry, after submission of reply by the petitioner to the charge-sheet nor does it refer to any communication having been sent to the petitioner for the purpose of such inquiry. It also does not disclose as to whether petitioner was informed that if he wanted any oral inquiry in the matter a date could be fixed for the said purpose. It only require the petitioner to supply his list of witnesses as also to submit information regarding cross-examination of any witness and that if the written statement is not submitted by 10.4.2008, then it shall be presumed that he had nothing to say in his defence and the inquiry shall be concluded accordingly. 12. Rule 5 of the Service Rule of 1976 contains the provision for holding disciplinary proceedings, which reads as under— “5. Procedure in respect of major punishments.—(1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order (other than an order passed on facts which had led to his conviction in a criminal Court or by a Court martial) of dismissal, removal or reduction in rank (which includes reduction to lower post or time-scale, or to a lower stage in a time-scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on any person unless he had been informed in writing of the grouds on which it is proposed to take action and had been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged. The charge or charges shall be so clear and definite as to give sufficient indication to the charged Government servant of the allegations against him. He shall be required within a reasonable time to put in a written statement of his defense and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record or evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also separately from these proceedings, make his own recommendations regarding the punishments to be imposed on the Government servant charged. Explanation-I—The procedure laid down in this sub-rule shall not apply where the person concerned has absconded or where it is, for any other reason to be recorded in writing impracticable to communicate with him. All or any of the provisions of this sub-rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of this sub-rule and those requirements can in the opinion of the Enquiring Officer be waived without injustice to the person charged. Explanation-II—This sub-rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant, must conform to the conditions of his service, will be sufficient. In such cases a simple notice of termination, which in the case of a temporary Government servant, must conform to the conditions of his service, will be sufficient. (2) Where the punishing authority itself inquires into any charge or appoint an enquiring officer for holding an inquiry into such charge, the punishing authority, if it considers it necessary to do so, may by an order, appoint a Government servant or a legal practitioner, to be known a “Presenting Officer” to present on its behalf the case in support of the charge. (3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstance of the case, so permits, (4) After the inquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the report of the enquiring officer prepared under sub-rule(1) together with the recommendation if any, in regard to punishment, made by the officer conducting the inquiry and be given a notice stating the penalty proposed to be imposed on him and calling upon him to submit a particular date which affords him reasonable time, such representation as he may be to make on the proposed penalty, provided that such representation shall be based on the evidence during the inquiry. Provided that, if for sufficient reasons, the punishing authority disagrees with any part or whole of the report of the enquiring officer above mentioned; the point or points of such disagreement together with a brief statement in the grounds there of shall also be communicated to the Government servant charged” 13. There are a catena of judgments of this Court as well as the Apex Court on the issue of procedure required to be followed before imposing major punishment. One of the mandatory requirements is to hold an oral inquiry and to give opportunity to the delinquent employee to appear in such an inquiry by fixing a date, time and place for the said purpose. One of the mandatory requirements is to hold an oral inquiry and to give opportunity to the delinquent employee to appear in such an inquiry by fixing a date, time and place for the said purpose. It is also required that the evidence adduced, by the department in support of the charges be adduced in presence of the delinquent employee and he be given an opportunity to rebut the same. 14. Specific averments have been made in paragraphs 18 and 19 of the writ petition regarding no date, time and place having been fixed for inquiry and an ex parte report having been submitted by the inquiry officer without issuing any notice to the petitioner to appear in such inquiry. The contents of paragraphs 18 and 19 have not been specifically and categorically denied by the respondents in their counter-affidavit. 15. In para 15 of the counter-affidavit while replying to the aforesaid paragraphs of the writ petition bald and vague averments have been made, unsupported by any documentary proof to bely the contents of paragraphs 18 and 19 of the writ petition. The inquiry report refers to the deposition of the Munsarim but it is not clear as to when he was examined, as, no date, time and place was fixed for the said purpose neither any date is mentioned in the inquiry report nor in the counter-affidavit. 16. No opportunity was given to the petitioner for cross-examination of the said Munsarim, thus there was a clear violation of Principle of Natural Justice. 17. The aforesaid averments in the writ petition are accordingly accepted as true and it is held that no regular inquiry was conducted by the inquiry officer before imposing a major punishment of removal from service of the petitioner. 18. A perusal of the inquiry report, the punishment order and the appellate order reveals that though the explanation/reply of the petitioner has been referred but the same has not been ‘considered’ nor any finding has been recorded at any stage, whether during the inquiry, or while passing the punishment order or in the appellate order that the said explanation was not acceptable nor any reason has been given in this regard. The non acceptance of the reply as mentioned in the show-cause notice dated 5.9.2007 is of no relevance as the punishment order has to be passed subsequently and the disciplinary authority is required to record a finding in this regard while passing the punishment order i.e. after considering the reply of the petitioner to the show-cause notice. 19. As the only charge in the charge-sheet was regarding absence from 10.7.2007 to 19.7.2007, therefore, it was incumbent upon the respondents to record a finding as to whether the said absence was unauthorized and willful. The inquiry report reveals that the inquiry officer has merely referred to the absence of the petitioner without permission i.e. unauthorized absence, but has no where considered the explanation submitted by him nor recorded his finding thereon as to whether the same was acceptable or not. There is no finding that the absence was willful. 20. It is undisputed that the petitioner was sanctioned leave for 9.7.2007, and the absence on the said date was not unauthorized. It is only w.e.f. 10.7.2007 that the absence was unauthorized for which petitioner submitted his explanation, as already noted herein above. Considering the facts and circumstances of the case, if the charge against the petitioner was proved punishment of reduction in rank or such other punishments would have sufficed. 21. So far as the past conduct of the petitioner is concerned the same would be relevant only after a finding of unauthorized and willful absence had been recorded by the inquiry officer and the same is affirmed by the disciplinary authority. In any case past conduct of the petitioner would only be relevant for determining the “quantum of punishment” and not for holding him guilty of the charge levelled against him as habitual absence was not the charge levelled. 22. Moreover the punishment order does not indicate the period for which the petitioner had absented himself on the earlier occasions. The period of absence is a relevant factor. Long period of unauthorized and willful absence will certainly entail severe punishment but short periods of absence which have either been condoned or have lost their relevance on account of subsequent promotions etc. will have no bearing on the “quantum of punishment”. The period of absence is a relevant factor. Long period of unauthorized and willful absence will certainly entail severe punishment but short periods of absence which have either been condoned or have lost their relevance on account of subsequent promotions etc. will have no bearing on the “quantum of punishment”. The petitioner having been promoted as senior clerk in the year 2003, the alleged period of absence prior to 2003, could not be made a basis for awarding the punishment in question. 23. In the facts and circumstances of the case, in my view, the punishment of removal from service is harsh. The petitioner in his appeal has mentioned that his wife was suffering from depression and was undergoing treatment. The petitioner has two daughters and one son. He is the only earning member of the family. The petitioner while replying to the show-cause notice had assured the authorities that he would not repeat such action in future. 24. I have perused the appellate order and I find that the appellate authority has failed to consider the various pleas raised by the petitioner in appeal. A specific plea was raised by the petitioner in para 10 and 11 of the appeal regarding no date, time and place of inquiry having been fixed, but the same has also not been considered by the appellate authority. The said order is not in conformity with the provisions contained in Rule 7 of the Service Rules of 1976, which require the appellate authority to consider-whether the fact on which the order was passed have been established; whether the facts established offered sufficient ground for taking action and whether penalty is excessive, adequate or inadequate, and after such considerations the appellate authority shall pass such orders as appear to it to be just and equitable, having regard to the circumstances of the case. 25. In view of the above discussion, the impugned orders cannot be sustained. The same are accordingly quashed. The petitioner shall be reinstated forthwith with continuity of service, from the date of removal to the date of reinstatement. 25. In view of the above discussion, the impugned orders cannot be sustained. The same are accordingly quashed. The petitioner shall be reinstated forthwith with continuity of service, from the date of removal to the date of reinstatement. It shall however be open for the respondents to proceed afresh by holding a fresh inquiry and to take a fresh decision in accordance with law, in the light of the observations made herein above, within a period of six months from the date a certified copy of this judgment is produced before the disciplinary authority. The petitioner shall not be entitled to arrears of salary for the period he was out of service. 26. Subject to the above, the writ petition is allowed. —————