JUDGMENT Sanjeev Prakash Sharma, J. - The petitioner has preferred this writ petition assailing the departmental action and the subsequent punishment order of dismissal from service dated 27.12.1999 and the Appellate order dated 10.8.2000 rejecting the appeal. 2. Facts in brief which need to be noted are that the petitioner was holding the post of constable and was transferred vide order dated 1.8.1996 from P.S. Deeg to P.S.Chiksana and was relieved on 7.8.1996. The allegation was leveled as per memorandum dated 13.7.1998 that he had failed to join duties and at the place of posting he remained wilful absent for 400 days. Thereafter he joined on 11.9.1997. The petitioner submitted his reply to the charge-sheet and pointed out that he had over stayed his joining period on account of having suffering from severe illness for which he was undergoing treatment. Thereafter his wife also suffered severe illness and due to same, he could not join the duties. It is submitted that upon joining the duty on 11.9.1997, he had submitted relevant medical documents and also gave his explanation to the S.P. stating therein to allow him to join duties and he was performing his duties when the charge-sheet was issued in the year 1999. The petitioner appeared before the Enquiry Officer who conducted the inquiry and submitted his inquiry report dated 23.9.1999, copy of which was made available to the petitioner. The petitioner submitted his report to the inquiry report, and the Disciplinary Authority after noticing that the medical certificates were available on record for the period of 168 days as the petitioner was remained absent from duty for 108 days and considering it as a major misconduct, proceeded to pass an order of dismissal from service vide order dated 27.10.1999. An appeal was preferred in terms of Section 23 of the Rules of 1958 wherein the petitioner raised certain grounds, same were considered and the appeal was rejected by the Appellate Authority holding that the petitioner was guilty of remaining willful absent from duty for 400 days. 3. Learned counsel for the petitioner submits that the inquiry report itself speaks of petitioner having not submitted his reply and Enquiry Officer has failed to take notice thereto despite the fact that the reply was on record. 3. Learned counsel for the petitioner submits that the inquiry report itself speaks of petitioner having not submitted his reply and Enquiry Officer has failed to take notice thereto despite the fact that the reply was on record. It is stated that in initially part of report, Enquiry Officer mentions of petitioner having submitted his reply, but at the time of giving his finding, he has failed to take notice of the reply and the explanation given therein as the document mentions therein. Thus the inquiry was vitiated in law. Learned counsel further points out that in the inquiry report, there is mention of fact of petitioner having been removed from sedrvice vide order dated 13.3.1997. However, it remains unexplained that the petitioner was allowed to join after submitting his joining report on 11.9.1997 and has remained continuously performing his duties thereafter. Thus viewed, it is apparent that there was pre-determined approach and there was already a decision taken earlier to remove him from service. 4. Learned counsel has also pointed out that in the inquiry, Enquiry officer has taken into consideration the certificates showing the petitioner to be unwell for 108 days and his wife is unwell for 58 days which has prevented the petitioner from joining his duties. However said aspect has not been discussed further and petitioner was held guilty for remaining willful absent for 400 days from duties. Learned counsel further submits that the Disciplinary Authority has held the petitioner guilty of remaining willful absent from duties for 400 days and further proceeded to hold that the petitioner is still absent from duties whereas the petitioner was on duty after 1997 continuously. ON the said basis, it is submitted that the order of punishment suffers from legal prejudice as fact which was not part of the inquiry has been considered by the Disciplinary Authority for punishing him in the manner with the punishment for dismissal from service, although the petitioner has put in service for 13 years of long service. 5. Learned counsel for the petitioner has supported his arguments relying on the judgment passed by Hon'ble Apex Court in (2012) 3 SCC 178 -Krushna Kant B.Parmar v. Union of India and anr wherein it has been held as under: "17. 5. Learned counsel for the petitioner has supported his arguments relying on the judgment passed by Hon'ble Apex Court in (2012) 3 SCC 178 -Krushna Kant B.Parmar v. Union of India and anr wherein it has been held as under: "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. 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 behaviour unbecoming of a government servant. 18. 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 the absence of such finding, the absence will not amount to misconduct." 6. Learned counsel also relies on the judgment reported in (2009) 15 SCC 620 -Chairman-cum-Managing Director, Coal India Limited and anr. v. Mukul Kumar Choudhari and ors ., and submits that it was necessary for the Disciplinary Authority and the Appellate Authority to examine whether punishment of dismissal was required to be awarded taking into consideration the doctrine of proportionality. He also relies on the judgment reported in (1997) 7 SCC 463 - Union of India and anr. v. G.Ganayutham. 7. Per contra, counsel appearing for the respondents submitted the orders passed by the Disciplinary Authority as well as Appellate Authority and submits that the absence of 400 days is factually proved. Sufficient opportunity was given to the petitioner to defend himself but he has failed to avail the same. His illness was not satisfied from the Medical Board and, therefore, it cannot be said that his absence was not willful. 8. I have heard learned counsel for the parties and perused the record. 9. A look at the inquiry report shows that the Enquiry Officer has, while noticing that the petitioner had submitted the reply to the charge-sheet, proceeded to give finding that no reply was filed inspite of several opportunities given to the delinquent. 8. I have heard learned counsel for the parties and perused the record. 9. A look at the inquiry report shows that the Enquiry Officer has, while noticing that the petitioner had submitted the reply to the charge-sheet, proceeded to give finding that no reply was filed inspite of several opportunities given to the delinquent. It is also noticed that the decision to terminate the services of the petitioner was already taken before the charge-sheet was issued to the petitioner. Thus viewed, inquiry proceedings suffer from legal bias and prejudice. The prejudice is also available from the fact that the medical certificates relating to the period of illness were produced but no findings have been given on the said aspects. The Disciplinary Authority has also noticed about the medical certificates but there is no conclusion that the medical certificates were in any manner forged or wrongful. In fact he has explained the period of illness for 168 days while the charge-sheet is for remaining absent for 400 days. Thus viewed, decision of the authorities while passing the order of punishment, has been flown while it would not be appropriate at this stage to direct the Enquiry officer to conduct the fresh inquiry. As per the submissions of the petitioner himself, it is apparent that he has for certain period remained willful absent but it is not for 400 days. In (1987) 4 SCC 611 - Ranjit Thakur v. Union of India and ors ., while discussing the likelihood of bias, the Apex Court court after considering the relevant law, held as under: "24. The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an oversimplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an oversimplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter-productive and even by itself be subversive of discipline. Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions. 25..... 26. In Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." 10. Taking into consideration the aforesaid law, if this court examines the present case, it is apparent that the decision to take the petitioner back in service was taken by the respondent in 1997 as has been noticed vide order dated 13.3.1997 which was placed on record in the inquiry as Ex.P-4 where after the charge-sheet has been issued to him on 13.7.1998. Enquiry Officer has persuaded to thus prepare the inquiry report to support the earlier action of the department and in that persuation, it has also availed to take reply and the medical documents showing the petitioner's illness. In Coal India's case (supra), discussing the theory of proportionality at length, it was held as under: 19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. In Coal India's case (supra), discussing the theory of proportionality at length, it was held as under: 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 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? 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. 22. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. 11. However, recently the Apex Court in AIR 2017 SC 200 - Central Industrial Security Force and ors. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. 11. However, recently the Apex Court in AIR 2017 SC 200 - Central Industrial Security Force and ors. v. Abrar Ali, relying upon the earlier judgment reported in AIR 2015 SC 545 - Union of India and ors. v. P.Gunasekaran, has created the said part of judgment as under: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 12. Thus viewed, this court would go into the proportionality of punishment only when it show case the conscious of the court. In the light of the aforesaid guidance of the aforesaid court, I find that the petitioner cannot be said to have been wilfully absent from duty for 400 days. Under the Rajasthan Civil Service Rules, Rule 86 for remaining willful absent for years together, charge-sheet can be issued under CCA Rules and maximum punishment is removal from service. Keeping in view the aforesaid, I find that dismissal from service was holding uncalled for and it is not appropriate and also show case the conscious of this court keeping in view the explanation given by the petitioner from remaining absent. It is also for the reason that after the petitioner rejoined his duties, he has been working with the department for two years further without there being any further delay but all these aspects were required to be considered by the concerned Disciplinary Authority and the Appellate Authority before passing the order of dismissal and his period of service rendered with the department of 13 years was also required to be considered. 13. In view of above, this court thinks it appropriate to set aside the order of punishment and the order of Appellate Authority and leave it open for the Appellate Authority to now take decision in the light whatever observed above keeping in view of all the aspects of the matter as noticed and an opportunity of hearing may be provided to the petitioner after he has been reinstated. The decision would result that the petitioner be treated back in service and any order which may be passed, still have a future effect alone. Three months time is granted for implementation. 14. Punishment set Aside-Petitioner Order Passed will have future effect.