JUDGMENT : Mohammad Yaqoob Mir, J. Vide impugned order No. 26 of 2003 dated 11.01.2003 issued by Director General of Prisons, petitioner has been reverted to the lower rank of Selection Grade Warder. The period of absence w.e.f 22.10.2002 has been directed to be treated as on leave whatever kind due to him. Dissatisfied therewith instant writ petition has been filed. 2. It is projected that the order impugned has been passed in haste. No enquiry has been held nor has any reasonable opportunity been granted to the petitioner to explain his absence w.e.f 22.10.2002 3. Allegedly petitioner had remained unauthorizedly absent w.e.f 22.10.2002 Show cause notice had been served upon him, informing him as to why for unauthorized absence he be not discharged from service. He had submitted a detailed response stating therein that he had applied for leave w.e.f 22.10.2002 and Superintendent District Jail, Kathua declined to accept the application, then he had sent it to the Director General of Prisons. He has placed a copy of leave application along with postal receipts on the records. 4. In the order impugned at Para 8, it has been noticed that the reply to the show cause notice was considered/examined but was not found based on facts. It is nowhere mentioned, as to how the reply was not found to be based on facts. No enquiry has been conducted, even petitioner has not been heard in support of his response. 5. In the memo of petition, petitioner has specifically pleaded that his son at that time studying in 6th standard was suffering from heart and mental disease, so was advised by the local doctor to consult the specialist at Jammu and it is in the same background he had applied for leave. Same was not sanctioned by the Superintendent District Jail, Kathua, then he had sent the same to Director General Prisons, had no time to wait for sanction of the leave, therefore, proceeded on 15 days leave with a genuine expectation that same will be sanctioned under said compelling circumstances. In the application for leave, copy of which is placed on records, same position has been made mention of. 6. Under such circumstances before taking a harsh step of imposing punishment, the petitioner should have been heard. 7. In the application for leave, copy of which is placed on records, same position has been made mention of. 6. Under such circumstances before taking a harsh step of imposing punishment, the petitioner should have been heard. 7. Learned AAG appearing for the respondents vehemently contended that when an employee has chosen to remain absent unauthorizedly, the authority has the power to disengage under Article 128 of J&K CSR, as has been done, for exercising such power, there is no question of affording any opportunity to the delinquent of being heard only requirement is to serve the show cause notice. Such submission cannot be accepted. 8. Various articles and regulations when read together leave no scope to say that there is no requirement of affording opportunity of being heard. In this connection, under Article 113 of the CSR, an employee if remains absent continuously for a period of five years after expiry of leave, is considered to be out from employment. But even in such case affording delinquent an opportunity is imperative. Issue has been settled by the Division Bench of this Court in the judgment “Mushtaq Ahmad Khan v. State of J&K” 2004 (3) JKJ 10 . While referring to Article 14 of the constitution, it has been observed that rules of natural justice have to be followed. There can't be any strait-jacket formula to be adopted. Its application varies from case to case. 9. When the petitioner was served a show cause notice, response was received, then as a necessary corollary petitioner was required to be heard, that too in the background of the special facts as he had projected in the leave application i.e ailment of his son, studying in 6th standard. 10. If absence is willful there can be no substitute but for awarding the punishment, if it is established that the absence is due to compelling circumstances and not willful then the disciplinary authority has to be careful in awarding the punishment. The authorities could say that the stand taken by the petitioner or explanation tendered by the petitioner is not acceptable, provided they would have enquired into it and found that to be baseless. 11. The authorities could say that the stand taken by the petitioner or explanation tendered by the petitioner is not acceptable, provided they would have enquired into it and found that to be baseless. 11. From the judgment rendered by the Apex Court in case “Krushnakant B. Parmar v. Union of India” decided on 15.02.2012, 2012 Law Suit (SC) 110, para 16 to 20 are advantageous to be quoted:- “[16] The question whether ‘unauthorized absence from duty’ amounts to failure of devotion to duty or behavior 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. 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 behavior 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. [20] In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorizedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.” 12. In the reported judgment enquiry had been held but it was not established that the absence was willful. On this count alone, the order providing punishment was set aside. 13. In the case in hand, no enquiry at all has been held. The question of saying willful absence or otherwise is beyond imagination. The respondent-authorities were under legal obligation to hear the petitioner in support of the reply, filed in response to the show cause notice. Ignoring and sidelining the same has given rise to violation to the principle of being heard. The question of saying willful absence or otherwise is beyond imagination. The respondent-authorities were under legal obligation to hear the petitioner in support of the reply, filed in response to the show cause notice. Ignoring and sidelining the same has given rise to violation to the principle of being heard. The principle of natural justice mandates action only after hearing, that too when a delinquent is unable to satisfactorily account for his absence. 14. Nothing has been said by the respondent-authorities about the position of the leave, which the petitioner had applied for. In haste, order has been passed, which by no means stands the test of law, as such has to be quashed, therefore, is quashed. Leaving it open to the respondent-authorities, if they so choose to hold the enquiry afresh and to hear the petitioner in support of his defence then to pass appropriate orders as shall be permissible under rules. In case respondent-authorities will opt to hold the enquiry same shall be initiated and completed within a period of two months, otherwise position of the petitioner shall be restored and he shall be given all consequential benefits, as shall be admissible under rules. 15. Disposed of as above along with connected MPs.