JUDGMENT : Mansoor Ahmad Mir, J. By the medium of the present appeal, the appellant-employer (writ respondent) has questioned the judgment and order, dated 7th May, 2009, passed by the learned Single Judge of this Court in CWP(T) No.1978 of 2008, titled Mohinder Singh Malhi vs. Commissioner, Municipal Corporation and others, whereby the writ petition filed by the respondent-employee (writ petitioner) was allowed and the termination order was quashed, (for short, the impugned judgment). 2. The writ petitioner, being a regular employee of the appellant-Corporation, was serving the Corporation as Junior Engineer, applied for 42 days earned leave, which was sanctioned on 24th August, 1981, made applications for extension of leave on various dates right from 7th October, 1981 to 22nd July, 1983 and in the month of February, 1985, when he came back to join his duties, he was informed, rather told, that his services stood already terminated w.e.f. 1st November, 1983, vide office order dated 18th November, 1983, by the appellant/writ respondent. The writ petitioner made representations for re-employment and also questioned the termination order by the medium of representations, which were rejected, constraining him to file the writ petition and question the impugned termination order, on the grounds taken in the memo of writ petition. 3. Appellant-Corporation resisted the writ petition. The learned Single Judge, after appreciating the rival contentions of the parties, allowed the writ petition and quashed the termination order in terms of the impugned judgment. The learned Single Judge has held that the services of the writ petitioner were terminated without conducting a regular inquiry, and thus, the said action of the appellant-employer was held to be against the principles of natural justice and in breach of the mandate of law applicable. 4. The learned Single Judge has also discussed Section 73 of the Himachal Pradesh Municipal Corporation Act, 1979, (hereinafter referred to as the Act), which is reproduced in the impugned judgment. 5. We have gone through the impugned judgment and the material available on the record and are of the view that the impugned judgment is well reasoned and needs to be upheld for the following reasons. 6. Section 73 of the Act provides for giving a reasonable opportunity to the delinquent employee for showing cause. 5. We have gone through the impugned judgment and the material available on the record and are of the view that the impugned judgment is well reasoned and needs to be upheld for the following reasons. 6. Section 73 of the Act provides for giving a reasonable opportunity to the delinquent employee for showing cause. Section 73 of the Act also postulates that in case the competent authority is satisfied that it is not reasonably practicable to give to the delinquent employee an opportunity of showing cause, then the competent authority is required to record reasons. 7. Thus, it was obligatory for the appellant-Corporation to adopt the procedure enshrined in Section 73 of the Act, which procedure was never adopted by it. 8. The Writ Court has categorically recorded that the petitioner was never served with any show cause notice. It was for the employer-appellant to plead and prove that it was not practicable to provide opportunity to show cause and hear him, for which, the appellant-Corporation was required to record reasons. The learned Single Judge has recorded categorical finding that no material was ever placed on record to show that such reasons were ever recorded by the appellant-Corporation. 9. It is beaten law of the land that for passing removal, dismissal or termination order, inquiry is required to be conducted. However, in case the requirement of conducting the inquiry is to be dispensed with, in that eventuality, reasons have to be recorded separately. While going through the writ record and the impugned judgment, one comes to an inescapable conclusion that no such reasons have been recorded or mind has been applied by the competent Authority, while dispensing with the requirement of conducting the regular inquiry. Thus on this count alone, the impugned judgment needs to be upheld. 10. It appears that the petitioner was treated as absent from duty since his application for extension of leave was not approved. However, there is nothing on the file which can be made the basis for holding that the employer has ever communicated to the employee about the non-sanction of the leave. It was for the employer to plead and prove that the employee-writ petitioner (respondent herein) has remained willfully absent from the duty. 11. However, there is nothing on the file which can be made the basis for holding that the employer has ever communicated to the employee about the non-sanction of the leave. It was for the employer to plead and prove that the employee-writ petitioner (respondent herein) has remained willfully absent from the duty. 11. Thus, the only conclusion which can be drawn in the instant case is that the services of the employee/writ petitioner were terminated without conducting a regular inquiry, though the inquiry was to be conducted in terms of Section 73 of the Act, which fact came to the knowledge of the writ petitioner only when he came for joining his duties. No opportunity was granted to the petitioner to participate in the inquiry proceedings, not to speak of hearing the petitioner at the time of imposing the penalty. In fact, without conducting the inquiry, the termination order was passed and no such ground has been carved out for dispensing with the requirement of conducting a regular inquiry. It was for the Disciplinary Authority to record reasons that the inquiry was not practicable or there were sufficient reasons to dispense with the requirement of conducting the inquiry. No such reasons have been assigned and no reasons have been recorded therefor by the Disciplinary Authority. 12. The absence of the respondent-employee has been made the foundation for passing the termination order. However, absence itself is not misconduct unless it is pleaded and proved that absence of the employee was willful. 13. The Apex Court in case Krushnakant B. Parmar vs. Union of India and another, 2012 AIR SCW 1633, has dilated on the issue as to when absence can be said to be willful. It is apt to reproduce paragraphs 16 to 19 of the said decision hereunder: “16. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. 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. 18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. 17. 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. 18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be difference 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. 19. 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 absence of such finding, the absence will not amount to misconduct. 14. The Apex Court in case State of Rajasthan & Anr. vs. Mohammed Ayub Naz., 2006 AIR SCW 197, has referred to various decisions in paragraphs 10, 12, 14, 15, 16 and 17, and has observed that in case the charge of willful absence is proved against a delinquent employee, he can be removed from service, of course after giving an opportunity of hearing. It is apt to reproduce paragraphs 9 and 18 of the said decision hereunder: “9. Absenteeism from office for prolong period of time without prior permission by the Government servants has become a principal cause of indiscipline which have greatly affected various Government Services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86 (3) in the Rajasthan Service Rules which contemplated that if a Government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself has admitted that he was absent for about 3 years. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself has admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after seeking of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86 (3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service. xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx 18. For the foregoing reasons, we are of the opinion that a Government servant who has wilfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retiral benefits which shall mean a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances and the admission made by the respondent himself that he was wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. The orders passed by the learned Single Judge in S. B. Civil Writ Petition No. 2239/1991 dated 24-8-2001 and of the order passed by the Division Bench in LPA No. 1073 of 2001 dated 13-12-2001 are set aside and the punishment imposed by the disciplinary authority is restored. However, there shall be no order as to costs. Order accordingly.” 15. The Apex Court in another decision in Anant R. Kulkarni vs. Y.P. Education Society and others, (2013) 6 Supreme Court Cases 515, has widened on purpose of inquiry against a delinquent. It is apt to reproduce paragraph 17 of the said decision hereunder: “17. However, there shall be no order as to costs. Order accordingly.” 15. The Apex Court in another decision in Anant R. Kulkarni vs. Y.P. Education Society and others, (2013) 6 Supreme Court Cases 515, has widened on purpose of inquiry against a delinquent. It is apt to reproduce paragraph 17 of the said decision hereunder: “17. The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity.” 16. The Apex Court in N.T.C. (WBAB and O) Ltd. and another vs. Anjan K. Saha, AIR 2004 SC 4255 , has held that the delinquent official must be given an opportunity to show cause and he should be heard on the proposed penalty. It is apt to reproduce paragraph 11 of the said decision hereunder: “11. As a result of the discussion aforesaid this appeal preferred by the employer is partly allowed. The impugned orders of the High Court to the extent they direct reinstatement in service of the respondent with full monetary dues are set aside. It is directed that in accordance with the legal position explained in the case of B. Karunakar and Ors. (supra) [in paragraph 31 as quoted above], there would be a formal reinstatement of the employee for the limited purpose of enabling the employer to proceed with the enquiry from the stage of furnishing him with the copy of the enquiry report. The employer can place him under suspension for completing the enquiry. After conclusion of the enquiry in the manner as directed in the case of B. Karunakar and Ors. (supra), if the employee is exonerated, the authority shall decide according to law how the intervening period from the date of his dismissal to the date of his reinstatement shall be treated and what consequential benefits should be granted. After conclusion of the enquiry in the manner as directed in the case of B. Karunakar and Ors. (supra), if the employee is exonerated, the authority shall decide according to law how the intervening period from the date of his dismissal to the date of his reinstatement shall be treated and what consequential benefits should be granted. If on the contrary, the employee is found to be guilty, before taking final decision he should be heard on the proposed penalty in accordance with clause 14(4)(c) of the Standing Order on the quantum of punishment.” 17. The Jammu and Kashmir High Court, in Dr. C.N. Malla vs. State of J&K, 1999 SLJ 366, wherein also the charge of overstaying the leave was framed against the delinquent employee, has held the termination, without holding inquiry, to be bad and not sustainable in the eyes of law. 18. Applying the above tests to the instant case, the employer has failed to establish on record that the absence of the employee/writ petitioner was willful. 19. The inquiry was to be conducted in view of the mandate of Section 73 of the Act and in the inquiry proceedings, notice was to be issued to the employee/writ petitioner and he was to be heard. Though it is pleaded by the employer that notice was sent to the writ petitioner, but the same was received back unserved. It has been pleaded by the appellant-employer that a notice was issued in the newspaper, which plea has been rightly turned down by the learned Single Judge on the ground that it is not clear whether the said newspaper had wide circulation in the area in which the writ petitioner was residing at the relevant point of time. What steps thereafter the Disciplinary Authority has taken, is not forthcoming. Even, to conduct the inquiry in absentia, the procedure was to be followed and it was imperative for the Authority concerned to record finding about the willful absence of the employee, whether that absence could be termed as misconduct or otherwise and in case he was found to be guilty, he was to be heard on the proposed penalty, which has not been done in the present case. Thus, the order of termination is against the principles of natural justice and came to be passed in breach of the provisions of the Act. 21. Thus, the order of termination is against the principles of natural justice and came to be passed in breach of the provisions of the Act. 21. During the course of hearing, the learned counsel for the appellant-Corporation submitted that the Corporation has initiated the regular inquiry against the respondent-employee, which is likely to be concluded within two months. Here, we may place on record that the Writ Court, vide the impugned judgment, has already granted opportunity to the appellant-Corporation to conduct a regular inquiry against the employee-respondent as per the law applicable. 22. Having said so, the Writ Court has passed a well reasoned judgment, which warrants no interference. 23. Viewed thus, the impugned judgment needs to be upheld and the instant appeal merits to be dismissed. Ordered accordingly. 24. Pending CMPs, if any, also stand disposed of.