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2016 DIGILAW 1283 (GUJ)

Kishorebhai Y. Sonar v. State of Gujarat

2016-07-11

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred, inter alia, with a prayer to issue an appropriate writ, order or direction, quashing and setting aside the impugned order dated 02.08.2011, passed by the District Superintendent of Police, Surat Rural (respondent No. 4), whereby, the application of the petitioner for the grant of compassionate pension has been rejected, as well as the order dated 02.06.2010, passed by the Appellate Authority, Inspector General of Police, Surat Zone (respondent No. 3), whereby the punishment of dismissal from service has been reduced to that of compulsory retirement, as also the order dated 09.03.2011, passed by the revisional authority, Director General of Police, Gujarat State (respondent No. 2), whereby, the order dated 02.06.2010, passed by the Appellate Authority has been confirmed. 2. The brief factual background of the case is to the effect that the petitioner was appointed as a Constable in the Police Department on 01.05.1989. He was promoted as Unarmed Head Constable on 14.12.2004. During the course of service, he was posted in Surat Rural Zone. It is the case of the petitioner that his father suffered a fall and sustained fractures, in the year 2006. He was, therefore required to be admitted in a hospital. He was operated upon on 23.12.2006, by implanting a plate in his leg. It is further the case of the petitioner that his mother had already passed away, therefore there was none except the petitioner to look after his father. The petitioner's father underwent another operation on 10.08.2007 and a third one on 17.06.2008. He was completely bed-ridden and unable to walk during the aforesaid period of more than two years. The petitioner, being the only son and having no other means, could not afford to engage a nurse or a ward-boy. Hence, he himself attended to his ailing father. Ultimately, the petitioner's father died on 23.01.2010. The petitioner remained absent from duty without permission for various periods between 2006 to 2007 on account of the illness of his father. He was served with a Chargesheet on 28.08.2009 for his unauthorised absence for the periods mentioned therein. The Chargesheet also mentioned various notices issued to the petitioner to report for duty that remained unresponded, as the petitioner did not turn up. He was served with a Chargesheet on 28.08.2009 for his unauthorised absence for the periods mentioned therein. The Chargesheet also mentioned various notices issued to the petitioner to report for duty that remained unresponded, as the petitioner did not turn up. A departmental inquiry was conducted against the petitioner and the Inquiry Officer, vide his Report dated 28.12.2009, found that the charges against the petitioner were proved. On the basis of the Inquiry Report, a Show Cause Notice came to be issued to the petitioner by respondent No. 4, to show cause why the petitioner should not be removed from the post of Unarmed Head Constable. The petitioner submitted his reply, stating that he was attending to his ailing father, therefore, he could not attend his duties. The petitioner requested the concerned authorities to take a sympathetic view of the matter and impose a lesser punishment. However, respondent No. 4, vide the impugned order dated 31.03.2010, dismissed the petitioner from service. Against the aforesaid order, the petitioner preferred an appeal to respondent No. 3, requesting the said respondent to impose a lesser punishment as, according to him, the punishment already imposed was disproportionate to the gravity of the misconduct. Respondent No. 3, taking a lenient view, reduced the punishment from dismissal to compulsory retirement, by the impugned order dated 02.06.2010. The petitioner found this punishment to be harsh, as well. He preferred a revision application before respondent No. 2, which has been rejected by the impugned order dated 09.03.2011. Hence, the petitioner is before this Court. 3. Mr. Dipen A. Desai, learned advocate for the petitioner, has submitted that the only plea that the petitioner made before the authorities is that a lesser punishment be imposed upon him, as he has a family of four children to maintain and has no other source of income. In a similar case, the Appellate Authority had set aside the dismissal of another Police Constable and placed him at the bottom of the lowest pay-scale, for one year. In that case as well, the concerned constable was absent for one year as he was undergoing treatment. In a similar case, the Appellate Authority had set aside the dismissal of another Police Constable and placed him at the bottom of the lowest pay-scale, for one year. In that case as well, the concerned constable was absent for one year as he was undergoing treatment. In the case of the petitioner, though leniency has been shown by the Appellate Authority by reducing the punishment of dismissal to that of compulsory retirement, however, the application made by the petitioner for the grant of compassionate pension has been rejected by the impugned order dated 02.08.2011, which has rendered the order of compulsory retirement redundant. The said rejection amounts to maintaining the order of dismissal, in effect. The petitioner would be entitled to be considered for compassionate pension under the order of compulsory retirement. However, even this has been denied to him. The so-called leniency shown by the Appellate Authority has been rendered inoperative and infructuous by the denial of compassionate pension. 4. It is vehemently submitted that in the Chargesheet dated 02.08.2009, different periods of absences of the petitioner have been shown in a tabular form, beginning from 20.10.2006, upto 07.03.2007. This period comes to about 226 days. In the impugned orders passed by the Disciplinary Authority, the Appellate Authority and the Revisional Authority, the period of absence has been taken to be two years four months and eight days. It is submitted that the period with effect from 24.11.2007, upto the filing of the Chargesheet, has not been included in the Statement of Imputation in the Chargesheet, therefore such period cannot be counted and has wrongly been considered by the respondent authorities while passing the impugned orders. 5. That, while rejecting the application for compassionate pension preferred by the petitioner by the order dated 02.08.2011, respondent No. 4 has simply stated that the petitioner is not eligible as per Rules. However, he has not stated in what manner the petitioner is not eligible. The petitioner has been punished for unauthorised absence, which constitutes misconduct. As per Rule 78 of the Gujarat Civil Services (Pension) Rules, 2002 ("the Pension Rules"), the ground of misconduct has been included as one of the grounds available to an employee while requesting for compassionate pension. However, he has not stated in what manner the petitioner is not eligible. The petitioner has been punished for unauthorised absence, which constitutes misconduct. As per Rule 78 of the Gujarat Civil Services (Pension) Rules, 2002 ("the Pension Rules"), the ground of misconduct has been included as one of the grounds available to an employee while requesting for compassionate pension. That the intention of the Appellate Authority in reducing the punishment from dismissal to compulsory retirement is to show leniency to the petitioner, looking to his family circumstances, as is clearly indicated in the order. However, the only avenue of compassionate pension open to the petitioner has been closed by the rejection of his application. The Revisional Authority has upheld the order of the Appellate Authority, meaning thereby, that the intention of the Appellate Authority in taking a lenient view has also found favour with the Revisional Authority. The rejection of the application for compassionate pension would mean that for all intents and purposes, the petitioner is a dismissed employee. Only a change in nomenclature has been made. This amounts to injustice to the petitioner and deserves to be rectified. 6. It is next submitted that the punishment of compulsory retirement is also disproportionate to the misconduct committed by the petitioner. Taking into consideration the reason for which the petitioner remained absent, that is to look after his ailing and bed-ridden father, a lenient view is called for. The petitioner did not intentionally remain absent but could not attend his duties due to circumstances beyond his control. The petitioner has served in the Police Department for a period of seventeen years and his entire service has been washed away by the impugned order. 7. In support of the above submissions, reliance has been placed upon the following judgments: "(1) Girish Bhusan Goyal v. B.H.E.L. And Another, (2014)1 SCC 82 (2) S.R. Tewari v. Union of India And Another, (2013)6 SCC 602 (3) Inderjit v. Punjab and Haryana High Court And Another, (2010)12 SCC 530 (4) Chairman-cum-Managing Director, Coal India Limited And Another v. Mukul Kumar Choudhuri And Others, (2009)15 SCC 620 (5) Gujarat State Road Transport Corporation v. Vijaykumar N. Raval, 2002(3) GLH 57, and (6) Gujarat State Road Transport Corporation Limited v. Ranjitsinh Bhaijibhai Padhiyar - Special Civil Application No. 5081 of 2004, decided on 30.04.2004 (Coram: Jayant Patel, J.)" 8. The petition has been strongly opposed by Mr. The petition has been strongly opposed by Mr. Niraj Ashar, learned Assistant Government Pleader, by submitting that it is incorrect to state that the period of absence indicated in the Chargesheet served to the petitioner is only with effect from 20.10.2006 to 07.03.2007. That is the period shown in the table, indicating the period of absence before 24.11.2007, till the date of the issuance of the Chargesheet, as mentioned in the second paragraph of the Chargesheet. Hence, the actual period of absence of the petitioner that has been mentioned in the Chargesheet, is from 20.10.2006 upto 28.08.2009. This period adds upto two years four months and eight days, as correctly indicated by the authorities in their respective orders. It is submitted that just because the period from 24.11.2007 till the issuance of the Chargesheet is not included in the table, does not mean that this period of absenteeism is not a part of the Chargesheet. It is clearly indicated in Paragraph-3 of the Chargesheet that the periods of absence shown in the table are those periods that have occurred before 24.11.2007, therefore, the submission on behalf of the petitioner that the period of absence indicated in the Chargesheet is only 266 days, whereas the period considered by the authorities is two years four months and eight days, is incorrect. 9. It is further submitted that the petitioner has admitted the Charges before the authorities but has only asked for leniency. The petitioner did not produce any medical certificates of his father before the Inquiry Officer but produced the same before the Appellate Authority, which reduced the punishment. The Revisional Authority has correctly maintained the order of the Appellate Authority and the order of dismissal has been converted into compulsory retirement. 10. It is further submitted the only benefit that the petitioner would have derived under the order of compulsory retirement is to apply for compassionate pension under Rule 78 of the Pension Rules. However, whether to grant compassionate pension, or not, is the discretion of the concerned authority and in this case, taking an overall view of the misconduct of the petitioner, the application has been rightly rejected. 11. In the background of the above submissions, the judgments relied upon by learned counsel for the petitioner may now be noticed. All the judgments are on the point of imposition of disproportionate punishment. 12. 11. In the background of the above submissions, the judgments relied upon by learned counsel for the petitioner may now be noticed. All the judgments are on the point of imposition of disproportionate punishment. 12. In Girish Bhusan Goyal v. B.H.E.L. And Another (supra), the Supreme Court has held as below: "13. The major punishment which is awarded to the appellant through the order of dismissal dated 18.3.2009, is covered under Rule 23(i) of BHEL Conduct Rules considering that the appellant had reached the age of superannuation. However, the order of termination does not mention any form of criminal charges against him, which is necessary to attract penalty under Rule 23(i) of BHEL Conduct Rules amounting to dismissal from service. On the other hand, the nature of charges leveled against the appellant was such that he omitted from performing his duty of being a responsible vigilant officer which amounted to being negligent as against being an active participant in colluding with the employees against his employer and acting against the interest of the Company. The consequence of the dismissal order served on him at the end of his service tenure not only results in inflicting disproportionate punishment on him in terms of bad name and reputation, but also deprives the appellant of his retiral benefits for which he has got statutory entitlement for rendering three decades of service to the Company whereas his negligence attracts minor penalty under Rule 23 of the BHEL Conduct Rules. 14. It is pertinent to mention the observation made on this issue by this Court on the premise of similar facts and circumstances. In the case of Surendra Prasad Shukla v. State of Jharkhand & Ors., at paras 9-10, this Court held as under: (SCC p.538) "9. There was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant had served the Government as a Constable and thereafter as a Head Constable from 7-8-1971 till he was dismissed from service on 28-2-2005 i.e. for 34 years, and for such long service he had earned pension. In our considered opinion, the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for 34 long years was shockingly disproportionate to the negligence proved against him. 10. We accordingly, allow this appeal in part and modify the punishment of dismissal from service to compulsory retirement. The LPA and the writ petition filed by the appellant before the High Court are allowed in part. There shall be no order as to costs." 15. Therefore, in view of the principle laid down by this Court in the above referred case, we are of the opinion that dismissal order served on the appellant just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct particularly, because he was not involved in active collusion with the other employees of the Company who were involved in this incident, for causing financial loss to the respondent-Company but was negligent by an act of omission. We also should not lose sight of the fact that the appellant took steps to retrieve the materials which were due against the Bill from the suppliers which rectified the error. Accordingly, the order of dismissal served on him is liable to be quashed and is accordingly, quashed. However, we cannot lose sight of the fact that his negligence has caused financial loss to the respondent-Company. Therefore, keeping at par with the punishment awarded to Shri B.S. Rana on ground of misconduct in terms of demotion to lower grade for 3 years as per letter dated 6.6.2011 from Central Public Information Officer, we award the similar punishment of deduction of one year increment on the appellant as per Rule 23(b) of the BHEL Conduct Rules since the appellant already reached the age of superannuation when the order of dismissal was served on him. Accordingly, the Civil Appeals arising out of SLPs (C) Nos. Accordingly, the Civil Appeals arising out of SLPs (C) Nos. 30883-84 of 2012 are allowed." In that case, the Supreme Court held that the order of dismissal was served upon the appellant therein just six days prior to his retirement, therefore, it was found to be exorbitant and disproportionate to the gravity of the misconduct. It was also found that the appellant therein was not involved in active collusion with the other employees of the Company who were involved in the incident for causing financial loss to the respondent Company but was negligent by an act of omission. 13. In S.R. Tewari v. Union of India And Another (supra), which is also regarding the quantum of punishment, the Supreme Court has held as below: "23. The Court must keep in mind that judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay v. Udaysingh, AIR 1997 SC 2286 ; State of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214 ; and Union of India & Ors. v. Manab Kumar Guha, (2011) 11 SCC 535 ). 24. The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386 , this Court observed as under: "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. *** *** *** 27. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (See also: Union of India & Anr. v. G. Ganayutham (dead by Lrs.), AIR 1997 SC 3387 ; State of Uttar Pradesh & Ors. v. J.P. Saraswat, (2011) 4 SCC 545 ; Chandra Kumar Chopra v. Union of India & Ors., (2012) 6 SCC 369 ; and High Court of Patna v. Pandey Gajendra Prasad & Ors., AIR 2012 SC 2319 ). 25. In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC 484 , this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the Court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. 26. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the Court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. 26. In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417 , this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. 27. In State of Meghalaya & Ors. v. Mecken Singh N. Marak, AIR 2008 SC 2862 , this Court observed that: (SCC p.584, paras 13-14) "13.... A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. 14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases.... The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review." (See also: A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681 ). 28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553 ; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783 ). 29. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053 , this Court explained the observations made in Ranjit Thakur observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. 30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805 ; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677 ; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805 ; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677 ; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589 ; and Babu v. State of Kerala, (2010) 9 SCC 189 ). 31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible." 14. Another judgment relied upon is of the Supreme Court in the case of Inderjit v. Punjab and Haryana High Court And Another (supra), wherein it has been held as below: "6. We heard the learned counsel for the parties at length. On the basis of the charge that the appellant was absent from duty and the finding of the enquiry officer that he was guilty of the charge, we are of the opinion that the punishment of dismissal as well as the proposed punishment of compulsory retirement in the notice, would be wholly disproportionate to the misconduct of which the appellant is found guilty. We find no substance in the contention of the respondents that "he was not only absent from his duty but had also allowed outsiders to take liquor in the court premises and, therefore, was guilty for negligence and dereliction in performing his official duties and allowing an outsider to take liquor in the court premises which amounts to grave misconduct" as that was not the charge against the appellant." 15. In Chairman-cum-Managing Director, Coal India Limited And Another v. Mukul Kumar Choudhuri And Others (supra), the Supreme Court has dwelt upon the doctrine of proportionality at length after discussing various judgments on the point and has held as below: "19. The doctrine of proportionality is, thus, well-recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which 19 is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations." 16. In Gujarat State Road Transport Corporation v. Vijaykumar N. Raval (supra), this Court (Coram: Jayant Patel, J.) held as below: "10. Considering overall facts and circumstances of the case, I am of the view that the Labour Court has of course exceeded in exercise of the jurisdiction by substituting the penalty, but at the same time the misconduct is not such which calls for the serious penalty. It is also reported by Mr. Dagli that though the opportunities were given even after the award to the workman concerned to join the duty, he has not joined the duty and, therefore, in the submission of Mr. Dagli, it is apparent that the workman is not interested in the work and he is only interested in taking undue fruits of the litigation, namely, backwages. Dagli that though the opportunities were given even after the award to the workman concerned to join the duty, he has not joined the duty and, therefore, in the submission of Mr. Dagli, it is apparent that the workman is not interested in the work and he is only interested in taking undue fruits of the litigation, namely, backwages. Considering the facts and circumstances of the case, I am of the view that the ends of justice would be met if a simple reinstatement without any backwages is made with the penalty of withholding five increments with future effect with the further clarification that the Corporation shall call upon the workman to join the duty within a period of six weeks and if the workman does not offer himself for the job, the Corporation shall not require to reinstate him in service." 17. In Gujarat State Road Transport Corporation Limited v. Ranjitsinh Bhaijibhai Padhiyar (supra), this Court (Coram: Jayant Patel, J.) held that the punishment of dismissal from service deserves to be modified to a punishment of withholding five increments with future effect on the facts and in the circumstances of that particular case. 18. In the present case, all the concerned authorities have counted the unauthorised period of absence from duty of the petitioner as two years four months and eight days. A contention has been raised on behalf of the petitioner that the period mentioned in the Chargesheet is only 266 days and not two years four months and eight days, as mentioned in the impugned orders. According to the learned counsel for the petitioner, the only imputation of charge regarding misconduct on the ground of unauthorised absence is contained in the table below Paragraph-3 and, therefore, only the period indicated therein ought to be counted. On the other hand, the learned Assistant Government Pleader has drawn the attention of the Court to Paragraph-2 of the Chargesheet, wherein it is mentioned that the petitioner has remained absent without permission from the Competent Authority from 24.11.2007 till the serving of the Chargesheet. It is submitted that Paragraph-3 of the Chargesheet is to be read in continuation wherein it is clearly mentioned that even before the date mentioned in Paragraph-2, the petitioner had remained absent on various dates included in the table. It is submitted that Paragraph-3 of the Chargesheet is to be read in continuation wherein it is clearly mentioned that even before the date mentioned in Paragraph-2, the petitioner had remained absent on various dates included in the table. The dates included in the table under the third paragraph of the Chargesheet indicate the periods of absence of the petitioner prior to 24.11.2007 (which date has already been mentioned in the opening paragraph of the Chargesheet), till the issuance of the Chargesheet. The entire period, therefore comes to two years four months and eight days and has rightly been considered by the authorities. 19. Upon a careful reading of the Chargesheet dated 28.08.2009, this Court finds weight in the submission of the learned Assistant Government Pleader in this regard. The second paragraph of the Chargesheet clearly puts the imputation to the petitioner that he has remained unauthorisedly absent from 24.11.2007 till the date of the Chargesheet. The imputation in Paragraph-3 of the Chargesheet is that even before 24.11.2007, the petitioner has remained absent on various dates as indicated in the table. 20. Apart from the periods mentioned in the table which are the past absences of the petitioner, the period from 24.11.2007 till the date of the filing of the Chargesheet has been clearly included. The authorities, therefore, have rightly concluded that the total period of absence for which the petitioner has been served the Chargesheet is two years four months and eight days. In the entire period of two years four months and eight days, the petitioner has not thought it fit to apply for leave, even once to the concerned authority. 21. By its order dated 02.06.2010, the Appellate Authority has taken into consideration the submission of the petitioner for a lenient view to be taken and has reduced the punishment of dismissal imposed by the Disciplinary Authority by converting it to compulsory retirement. In the said order, the reasons for the reduction of the penalty have been indicated, which are the plea of the petitioner for leniency and the fact that the petitioner has to maintain his family. This sympathetic view taken by the Appellate Authority has been confirmed by the Revisional Authority. Had the previous order of dismissal been maintained, the petitioner would not have been eligible for any retiral benefits. This sympathetic view taken by the Appellate Authority has been confirmed by the Revisional Authority. Had the previous order of dismissal been maintained, the petitioner would not have been eligible for any retiral benefits. However, a window of hope was left open to the petitioner by the appellate and the revisional authorities as, after the reduction of the penalty to compulsory retirement, the petitioner could make an application for compassionate pension, as per Rule 78 of the Pension Rules. 22. Rule 78 of the Pension Rules reads as below: "Rule 78: Grant of compassionate pension in deserving cases by Government: (1) When a Government employee is removed or required to retire from Government service for misconduct or insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a Retiring or Superannuation Pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a Compassionate Pension. (2) A dismissed Government employee is not eligible for Compassionate Pension." Sub-rule (1) of Rule 78 indicates that a Government servant who is removed or retired from Government service for misconduct or insolvency or inefficiency before his normal date of retirement of superannuation can be considered for the grant of compassionate pension if the authority is of the view that his case is deserving of special treatment. Sub-rule (2) clearly stipulates that a dismissed Government employee is not eligible for compassionate pension. This Rule, therefore carves out a distinction between a dismissed employee and an employee who is removed or is required to be retired from Government service for misconduct for insolvency or inefficiency. The petitioner has been ordered to be compulsorily retired from Government service on the ground of misconduct, therefore, his case is governed by sub-rule (1) of Rule 78. He is, therefore eligible to apply for the grant of compassionate pension. 23. While rejecting the application for compassionate pension, the authority has stated that the petitioner has not been found eligible for the grant thereof, considering his service record. Eligibility to apply for compassionate pension flows from the Rule, whereas discretion whether to grant compassionate pension, or not, is vested in the authority. Therefore, to say that the petitioner is not eligible for the grant of compassionate pension under this Rule would be an incorrect interpretation of Rule 78. Eligibility to apply for compassionate pension flows from the Rule, whereas discretion whether to grant compassionate pension, or not, is vested in the authority. Therefore, to say that the petitioner is not eligible for the grant of compassionate pension under this Rule would be an incorrect interpretation of Rule 78. It is to be seen whether the case of the petitioner deserves special treatment so as to enable him to be considered for pension. 24. It is an admitted position that the petitioner has remained unauthorisedly absent for two years four months and eight days. Before the authorities, the petitioner has not disputed this fact but, on the contrary, has admitted his lapse. The reason for the unauthorised absence is that he was looking after his bed-ridden father who required constant attendance, day and night. The petitioner, being the only son and his mother having predeceased his father, there was no one else in the family to look after his ailing father. The petitioner has four children. It is not the case of the respondents that the petitioner has worked anywhere else during his period of absence. Considering the nature of the misconduct, this Court is of the view that the punishment of dismissal from service imposed by the Disciplinary Authority was extremely harsh and disproportionate and has been rightly reduced by the Appellate Authority. The order of the Appellate Authority, though confirmed by the Revisional Authority, has been rendered absolutely redundant by the rejection of the application of the petitioner for the grant of compassionate pension. Such rejection amounts to upholding the order of dismissal in effect, even though it has been modified by the Appellate Authority. Only the nomenclature has changed, otherwise, the consequences of the rejection of the application for compassionate pension are the same as the consequences that would ensue had the order of dismissal remained intact. In fact, the rejection of the application amounts to rendering infructuous the orders of the appellate and revisional authorities in reducing the penalty. This has caused great injustice to the petitioner. When the Appellate Authority has consciously shown a sympathetic view and has reduced the punishment, the consequences of such reduction and the benefits that could be gained by the petitioner as a consequence of such reduction, ought not to be denied to him on technical grounds. 25. This has caused great injustice to the petitioner. When the Appellate Authority has consciously shown a sympathetic view and has reduced the punishment, the consequences of such reduction and the benefits that could be gained by the petitioner as a consequence of such reduction, ought not to be denied to him on technical grounds. 25. The impugned order rejecting the application for compassionate pension contains no reasons, except that the petitioner is not eligible, considering his service record. The consequences now suffered by the petitioner due to the rejection of the application are akin to those that would have been suffered by him had the order of dismissal remained intact. This amounts to a contradiction in terms. Once the revisional authority has upheld the order, the benefits flowing therefrom ought not to be snatched away from the petitioner by a mere stroke of pen. The effect of the rejection of compassionate pension is that the petitioner would be treated as a dismissed employee and would have to forfeit his pension and retiral benefits. Such a punishment is clearly disproportionate to the misconduct of the petitioner, in light of the judgments of the Supreme Court reproduced hereinabove. 26. Insofar as the challenge to the order of the Appellate Authority reducing the penalty of dismissal to that of compulsory retirement is concerned, this Court is of the view that the element of disproportionate punishment that existed in the order of the Disciplinary Authority has been rectified by the Appellate Authority by converting the penalty of dismissal to that of compulsory retirement. The Chargesheet contains a description of several notices that have been issued to the petitioner to report for duty. It is not as though it was beyond the control of the petitioner to have replied to the notices or to have approached the concerned authority for the grant of leave. It may be true that the petitioner was looking after his ailing father. However, that does not mean that he should neglect his duties. Though the illness of the petitioner's father may be beyond his control, however, he was not precluded from applying to the concerned authorities for leave or to reply to the notices sent to him. It may be true that the petitioner was looking after his ailing father. However, that does not mean that he should neglect his duties. Though the illness of the petitioner's father may be beyond his control, however, he was not precluded from applying to the concerned authorities for leave or to reply to the notices sent to him. Considering the conduct of the petitioner, this Court is of the view that the order passed by the Appellate Authority converting the penalty of dismissal to compulsory retirement, by sympathetically considering the case of the petitioner, does not suffer from any legal infirmity. The said order would be in consonance with the principles of law enunciated by the Supreme Court and this Court in the judgments reproduced hereinabove, relied upon by learned counsel for the petitioner. 27. The cumulative effect of the above discussion is that the challenge to the order dated 02.06.2010, passed by the Appellate Authority and the order dated 09.03.2011, passed by the Revisional Authority, must fail. However, insofar as the rejection of the application for compassionate pension preferred by the petitioner, by the order dated 02.08.2011, passed by respondent No. 4 is concerned, this Court considers it appropriate to pass the following order: "The impugned order dated 02.08.2011, passed by respondent No. 4, rejecting the application for compassionate pension made by the petitioner, is quashed and set aside. Respondent No. 4 is directed to consider the said application of the petitioner for the grant of compassionate pension afresh, in light of the principles of law laid down by the Supreme Court and the reasons stated hereinabove, after granting an opportunity of hearing to the petitioner. The entire exercise shall be completed and a fresh order made by respondent No. 4, within a period of three months from the date of the receipt of a copy of this judgment." 28. The petition is partly-allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.