JUDGMENT M.P.MISRA, MEMBER (JUDL) - The applicant has come up with his original application challenging the order dated 25.08.2006 at Annx. 2, dismissing him from service in a departmental proceeding. 2. The case of the applicant, in short, may be described as follows: The applicant joined Govt. service as a Sepoy on 16.04.1984. While he was working as a Sepoy in O.S.A.P., 7th Battalion, Orissa a departmental proceeding was initiated against him by an order dtd. 06.07.2005 at Annx. 1 on the charge that he wilfully absconded from the battalion campus w.e.f. 11.05.2005 without any leave application or permission to leave the headquarters. The charge memo under Annx. 1 however was not served on the applicant. Hence, the applicant was deprived of an opportunity to file his written statement of defence. The respondents thereafter, proceeded to enquire into the matter ex parte. The Enquiring Officer submitted his report, holding the applicant guilty of the charge. The Enquiring Officer however did not issue any notice to the applicant to attend the enquiry on different dates. After completion of the enquiry, a copy of the enquiry report was also not communicated to the applicant, as required under the Rules. Thus, there has been clear violation of principle of natural justice without serving a copy of the enquiry report on the applicant a notice is said to have been sent to the applicant asking him to show cause why he should not be dismissed from service. This notice was also not served on the applicant and respondent No.1, by his order dtd. 25.08.2006 at Annx. 2 imposed the punishment of dismissal. After coming to know to the dismissal order, the applicant preferred an appeal against the said order by filing an appeal petition before respondent No. 2. Respondent No.2, without any application of mind, passed a cryptic order at Annx. 4 rejecting the appeal. 3. The grievance of the applicant is that the entire departmental proceeding was initiated, conducted and concluded behind the back of the applicant and, therefore, is illegal from the very outset. 4. The respondents, in their counter while challenging the maintainability of the O.A., have disclosed their case as follows: The applicant wilfully absconded from O.S.A.P., 7th Battalion campus w.e.f. 11.05.2005 without any leave application or application for permission to leave the headquarters. He did not report to duty arid did not accept the recall notice dtd. 4. The respondents, in their counter while challenging the maintainability of the O.A., have disclosed their case as follows: The applicant wilfully absconded from O.S.A.P., 7th Battalion campus w.e.f. 11.05.2005 without any leave application or application for permission to leave the headquarters. He did not report to duty arid did not accept the recall notice dtd. 30.05.2005 at Annx. A, which was offered to him. Since the charge memo was offered to the applicant by registered post and was refused to be accepted by him, service of the charge should be held to be sufficient. The applicant failed to submit his written statement of defence within the stipulated period. Hence, the Enquiring Officer and the Marshalling Officer were appointed to enquire into the charge. After refusal of the applicant to receive the charge memo along with other relevant documents, the said charge memo with documents were served on the applicant through the I.I.C., Khordha P.S. and the applicant received the same with proper acknowledgment on 14.07.2005. Therefore, the applicant could have filed his written statement of defence. Since he did not do so, the Asst. Commandant Sri P.K.Pradhan was appointed as Enquiring Officer. This was also intimated to the applicant by a notice dt. 17.08.2005 at Annx: 'C' and the applicant acknowledged the receipt of the 'same with his signature. The applicant was also requested to attend the proceeding of the enquiry by notice dtd. 19.08.2005 at Annx. B and the applicant, was asked to remain present before the Enquiring Officer on 30.08.2005. Since the applicant did not attend the enquiry, the matter was adjourned to 10.10.2005 and this was also intimated to the applicant by registered post and the applicant acknowledged receipt of the same as appears from the postal receipt at Annx. E. The applicant did not attend the enquiry on 30.08.2005, and the matter was again adjourned which was also intimated to the applicant by notice dt. 30.08.2005 at Annx. F. Since the applicant did not attend the enquiry in spite of repeated notices, the enquiry had to by conducted ex parte. The Enquiring Officer; on completi9n of the enquiry, submitted his report holding the applicant guilty of the charge. On receipt of the enquiry report the disciplinary authority (respondent No.1) agreed with the same and issued a second show cause notice to him along with a copy of the enquiry report by order dtd. The Enquiring Officer; on completi9n of the enquiry, submitted his report holding the applicant guilty of the charge. On receipt of the enquiry report the disciplinary authority (respondent No.1) agreed with the same and issued a second show cause notice to him along with a copy of the enquiry report by order dtd. 10.05.2006 at Annx. G, which was personally served on the applicant on 24.05.2006. In spite of receipt of such notice, the applicant did not give any reply arid the disciplinary authority by his order dtd. 25.08.2006 at Annx. H, directed dismissal of the applicant from service. Thus, the proceeding was initiated, conducted and concluded in a just and fair manner. The appeal filed, by the applicant was duly considered and rejected by respondent No.2, by his order dtd. 05.02.2010 at Annx. I. 4. We have heard the learned counsel for the applicant and the learned Addl. Standing Counsel at length. We have also perused the pleadings of the parties and the documents annexed thereto. 5. The contention of the learned counsel for the applicant that the charge memo was not served on the applicant and the entire proceeding was conducted behind his back without affording any opportunity to him to take part in the enquiry appears to be false from the facts on record. The respondents have filed postal receipts, which indicate that the applicant refused to accept the charge memo, which was sent to him by registered post. It also appears from the record that the applicant received the charge memo along with the connected documents, which was served, on him by Constable Bhagaban Sahu on 14.07.2005 and the applicant acknowledged receipt of the same under Annx. 'B'. Annexure-C also shows that the appointment of the Enquiring Officer was intimated, the applicant by a notice dtd. 23.08.2005, which was served on him personally under acknowledgment. It is, therefore, not open to the applicant to say that the charge memo was not served on him and the proceeding was conducted behind his back. The applicant did not file any rejoinder to the counter denying the averments made in the counter in this regard and challenging the correctness of the documents at Annxs. A to C. 6. The Enquiring Officer, by his order dtd. 18.08.2005, fixed the enquiry to 30.08.2005 and this was also intimated to the applicant which he received on proper acknowledgment at Annx. A to C. 6. The Enquiring Officer, by his order dtd. 18.08.2005, fixed the enquiry to 30.08.2005 and this was also intimated to the applicant which he received on proper acknowledgment at Annx. D. In spite of such notice the applicant did not appear before the Enquiring Officer and the enquiry had to be adjourned twice to enable the applicant to take part in the enquiry. All subsequent dates, to which the enquiry was fixed, were also intimated to the applicant in his permanent address and he was found absent in his address. His family members refused receive such notice as appears from Annx. F. In his appeal petition, the applicant did not say that the notices were not served on him. On the other hand, he mentioned in his appeal petition that he was unable to recollect if any notice was served on him as on 11.05.2005 he suffered from a minor stroke and was taken to hospital for treatment. Since repeated notices were served on the applicant, he could have raised this plea any time during pendency of the enquiry before the Enquiring Officer, but he did not do so, the reasons, being best known to him. The applicant, in his appeal petition, claimed that he could not attend the enquiry because of his illness and in support of such claim he produced some outdoor patient tickets. In case the applicant was really ill he could have produced these documents before the Enquiring Officer. He also did not do that the reasons being best known to him. 7. We are, therefore, of the clear opinion that the applicant was duly served with the charge memo along with the documents and though sufficient opportunity was given to him, he did not take part in the inquiry. Since the applicant, as he claims, regularly attended the hospital as an out-patient register nothing prevented him to intimate his illness to respondent No.1 by registered post. We are, therefore of the opinion that the plea of illness is the result of an afterthought. 8. A copy of the inquiry report was furnished to the applicant along with a second show cause notice as appears from Annx. G. The applicant received the copy of the enquiry report along with the second show cause notice and acknowledged the same on 24.05.2006 under his own signature. 8. A copy of the inquiry report was furnished to the applicant along with a second show cause notice as appears from Annx. G. The applicant received the copy of the enquiry report along with the second show cause notice and acknowledged the same on 24.05.2006 under his own signature. It, is, therefore, no more open to the applicant to say that the proceeding was concluded behind his back. After giving repeated opportunity to the applicant, respondent No. 1 passed the final order dtd. 25.08.2006 at Annx. 6 (also Annx. H), which was served on the applicant on 26.08.2006 and he acknowledged the same under his own signature. We are, therefore of the opinion that there as no illegality or irregularity committed by the respondents in initiating, conducting and concluding the departmental proceeding. 9. The learned counsel for the applicant submitted that the applicant had already rendered 23 years of satisfactory service and the penalty of dismissal is unduly harsh and disproportionate to the nature of delinquency. There appears to be sufficient force in this contention. Dismissal of the applicant will cause hardship not only to the applicant but also to his family members as he will be deprived of pension and other retiral benefits. Keeping in view the nature of delinquency, we are of the clear opinion that the impugned penalty of dismissal is unduly harsh and is liable to be quashed. For the self-same reason the appellate order at Annx. 4 rejecting the applicant's appeal, also appears to be unreasonable and is accordingly quashed. Respondent No.1 shall however be at liberty to pass any other penalty including the order of compulsory retirement instead of dismissal. The matter is, therefore, remitted back to respondent No.1 to pass appropriate order of punishment within a period of two months from the date of receipt of a copy of this order. Till final orders are passed, the applicant shall be deemed to be continuing under suspension from the date of his dismissal. 10. The O.A. is accordingly disposed of. Send copies. Dr. S.N.DASH, MEMBER (ADMN.) I agree. O.A. disposed of.