JUDGMENT : 1. Heard counsels for the parties. 2. The present writ petition has been filed for quashing of the order dated 28.05.2011 passed by the Disciplinary Authority and order dated 19.12.2011 passed by Appellate Authority as well as order dated 21.06.2013 passed by Revisional Authority wherein the petitioner had been dismissed from the service. 3. As per the pleading, the petitioner had been appointed as a constable on 07.03.1977. During the course of service he had been promoted to the post of Hawaldar. On division of State, the petitioner had been allocated the cadre of Jharkhand. The petitioner had been served with a Memo of Charge dated 01.02.2011, wherein the allegation had been made regarding unauthorised absence from the duty since 14.02.2010. 4. On the basis said charge-sheet, an enquiry officer had been appointed and enquiry had been conducted ex-parte and charge against the petitioner had been found proved. On the basis of proved charge under the enquiry, the petitioner had been punished by Original Authority vide order dated 28.05.2011, wherein the punishment of dismissal had been inflicted upon the petitioner. The original order had been affirmed by the Appellate Authority vide its order dated 19.12.2011, and by revisional authority vide order dated 21.06.2013. 5. It has been argued by learned counsel for the petitioner that from mere perusal of the enquiry report, it is evident that the only finding had been recorded regarding the absence of the petitioner but the reasons of the absence of the petitioner had never been considered. No effort had been made rather enquiry officer has not gone into the arena of possible reason for non-reporting on the duty by the petitioner. 6. It has been submitted that as the matter was regarding unauthorised absence, it was incumbent upon the authority to know the reason by making appropriate enquiry. Petitioner has further relied upon the Annexure-A dated 15.04.2011, annexed in counter affidavit wherein it has been reported that the petitioner is not present from very long period in the Police Line, Godda. 7. In such situation, it was incumbent upon the respondents to enquire about the petitioner. Merely absence from the duty is not a misconduct, it has to be voluntary. Involuntary absence cannot be termed as a misconduct. 8. Learned counsel for the petitioner has also relied upon Para-19 of the judgment reported in 2017 (4) SCC 507 . 7. In such situation, it was incumbent upon the respondents to enquire about the petitioner. Merely absence from the duty is not a misconduct, it has to be voluntary. Involuntary absence cannot be termed as a misconduct. 8. Learned counsel for the petitioner has also relied upon Para-19 of the judgment reported in 2017 (4) SCC 507 . It has been submitted that on the ground of proportionality also, the order of dismissal is highly disproportionate. Para-19 of the judgment is quoted hereinbelow :- “19. Though we are of the view that the High Court ought not to have interfered with the order passed by the disciplinary authority, the penalty of dismissal from service is not commensurate with delinquency. The respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from the service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the appellant that the respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period.” 9. Petitioner has also relied upon Para-6 of the judgment of this Court reported in 2017 (3) AJR 453. Para-6 of the said judgment is quoted hereinbelow:- “Rule 826. Discrimination necessary in awarding punishments.- The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. (III) The Appellate Authority vide order dated 10.03.2004, as per Annexure-2 to the writ petition, has passed the order in a very cryptic manner without due consideration of the grounds taken in the appeal. (III) The Appellate Authority vide order dated 10.03.2004, as per Annexure-2 to the writ petition, has passed the order in a very cryptic manner without due consideration of the grounds taken in the appeal. The impugned order passed by the Appellate Authority being cryptic and non-reasoned and non-speaking is liable to be set at naught, in view of the decision of the Hon’ble Apex” 10. As per the mandate of Rule-826 of Jharkhand Police Manual, the order of Revisional Authority is bad in law as because of Revisional Authority has travelled beyond the memo of charge. 11. So far as, the Appellate Authority is concerned the order of Appellate Authority is bad in law due to non-consideration of the points raised by the petitioner in the memo of appeal. 12. Thus, the order of Appellate Authority is totally unreasoned and it is without considering the points raised by the petitioner in memo of appeal. 13. Counsel for the respondents submits that the procedure required in the law has been followed. Notice has been issued. Since, he has not participated in the enquiry and accordingly ex-parte proceeding has been conducted and after finding the petitioner guilty by the enquiry officer, the order of punishment had been passed. This order of punishment was in accordance with law and as such it had been upheld by the Appellate as well as Revisional Order. 14. From the pleading and the arguments made by the parties, it is evident that the absence of the petitioner from the duty is an admitted position. But, it is also admitted that respondents-authorities were of the knowledge that petitioner was not present even in the Police Line, Godda. 15. In view of above factual information before the respondents it was incumbent upon them to enquire where about of the petitioner. Absence from the duty is not ipso-facto misconduct unless and until it is voluntary. In-voluntary action cannot be turned as misconduct. The authority who has conducted the enquiry ex-parte, had not gone into the arena at all, “whether the action of the petitioner was voluntary or involuntary.” 16. Reference may be made to the judgment (2012) 3 SCC 178 in the case of Krushnkant B. Parmar Vs. Union of India & Anr. 17. Thus, the law settled that voluntary absence is a misconduct. Absence may be due to death or being missing. In that situation, dismissal/removal cannot be passed. Reference may be made to the judgment (2012) 3 SCC 178 in the case of Krushnkant B. Parmar Vs. Union of India & Anr. 17. Thus, the law settled that voluntary absence is a misconduct. Absence may be due to death or being missing. In that situation, dismissal/removal cannot be passed. The employee may be in need of medical help from the employer due to medical emergency (mental or physical), in such situation removing an employee instead of giving medical assistance is not expected from a model employer. Being a model employer, the State has to act keeping in mind the welfare of the people as well as employee. 18. Further, this fact has been taken by the petitioner before the Appellate Authority giving details of reason about his absence. Appellate Authority has not considered the same at all. Further, the Revisional Authority has gone into the arena and considered something more which was not there in the memo of charge. 19. Thus, it is evident that the Original Authority, Appellate Authority as well as Revisional Authority has conducted enquiry in totally unauthorised manner deviating from the established principle of law. 20. Rule 826 of the Jharkhand Police Manual (Supra), it clearly mandates that while awarding the punishment the charge which has not been included in memo of charge cannot be considered. This rule had been violated by the Revisional Authority. The order of Appellate Authority is without jurisdiction as Appellate Authority has tailed to exercise its jurisdiction by not considering the points raised by the petitioner in the memo of appeal. The Original Authority has also not exercised its jurisdiction properly by not enquiring into the facts that whether the absence of the petitioner was voluntary or involuntary. In the matter of absence from the duty, this fact is necessary to bring the absence from the duty under the umbrella of misconduct. 21. Rule 843 of the Jharkhand Police Manual is quoted hereinbelow:- “843. Punishment for absence without leave. Wilful overstayal of leave or absence from duty without leave shall be treated as misbehaviour and after obtaining the explanation of the officer concerned proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the rules at his own will, he can be inflicted with any punishment as provided in rule 824. The Police Officer who shall be absent from duty without permission shall be liable under section 29 of Act V of 1861, as amended by section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. As a rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent/Commandant within one week from the S.P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule.” 22. Enquiry report as well as order of Original Authority is contrary to Rule 843 (Supra). 23. In view of above discussion, this Court finds that the enquiry report as well as impugned order of punishments passed by the Disciplinary Authority, Appellate Authority as well as Revisional Authority suffers from error of law. 24. Accordingly the same is, hereby, quashed. 25. Petitioner is entitled for consequential benefits.