JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred by the petitioner for quashing the order dated 06.08.2014 as contained in order No. 172, whereby the petitioner has been terminated from his service on the ground of absenteeism for the period which was already regularized by the authorities and also for a direction upon the respondents to pay the subsistence allowance for the period of suspension which was denied to the petitioner making him handicapped and unable to defend himself in his case. Further prayer has been made by the petitioner for quashing the order dated 28.03.2014 passed by DIG, Fire Service whereby the petitioner was punished and he was given two black marks which will not affect in future increment of the salary. The petitioner further prays for a direction upon the respondents to reinstate the petitioner in his service with full back wages and consequential benefits by setting aside the impugned order No. 172 dated 06.08.2014 passed by the respondent No.2. 3. The facts of the case lie in narrow compass. The petitioner was appointed as cadet in Fire Brigade on 16.02.1990 after due selection process and his medical was done by the ‘Medical Board’ on proper verification. After appointment, the respondent raised an issue that the file pertaining to selection process showed the height of the petitioner as 178 cm whereas the height of the petitioner after appointment was found to be 170 cm. though the minimum height prescribed for appointment was 165 cm. Based on the above said discrepancy, respondent held a department inquiry in 1996, but no decision has been taken. Thereafter, the petitioner’s service was transferred to State of Jharkhand on account of cadre bifurcation. Thereafter, the respondent authorities initiated the departmental proceeding No.3/10 in the year, 2010 for unauthorized absenteeism. The petitioner submitted his reply and the departmental proceeding were conducted by putting the petitioner under suspension. No subsistence allowance was paid. Further case of the petitioner is that the respondent authority filed a criminal case in, 2011 before Sachivalaya P.S. Patna against the petitioner and petitioner moved before Hon’ble High Court at Patna for anticipatory bail. The police was haunting the petitioner and the petitioner apprehending his arrest was seeking shelter of the Court at Patna; finally he got anticipatory bail from Hon’ble Patna High Court. The police was haunting the petitioner and the petitioner apprehending his arrest was seeking shelter of the Court at Patna; finally he got anticipatory bail from Hon’ble Patna High Court. However, during the intervening period the petitioner could not attend his office, for which inquiry officer held the petitioner absconder for the period, 2011. In the meantime the respondent authority again initiated inquiry 3/12 for the charge of wrongful appointment. The said proceeding was kept in abeyance. Thereafter, by order dated 28.03.2014, the respondent authority imposed punishment of two black mark i.e. stoppage of two increments with non-cumulative effect. Thereafter, the DG, Home Guard and Fire Services reviewed the aforesaid order dated 28.03.14 and passed the impugned order for termination dated 06.08.14. 4. A counter-affidavit has been filed in the instant case by the respondents stating inter alia that the departmental proceeding No. 3/10 was initiated against the petitioner on the charges of unauthorized absenteeism from service since 22.08.2010. The petitioner appeared in the said proceeding and admitted his guilt of unauthorized absent from service. The conducting officer found the petitioner guilty for the alleged charges and submitted his report. After considering the report of the conducting officer and going through concerned record, the respondent no.3 passed final order vide order no. 65 contained in memo No. 585 dated 28.03.2014 (Annexure-8) which is self explanatory. Subsequently, after passing of the aforesaid order, the respondent no.2 in exercise of powers under Rule 853(A) of the Police Manual decided to review the said order and accordingly vide memo no. 1089 dated 20.06.2014 the petitioner was directed to show cause as to why the petitioner be not terminated. In compliance thereto, the petitioner filed his show cause on 04.07.2014 through the respondent no.4 which was found unsatisfactory and ultimately the respondent no.2 passed the impugned order dated 06.08.2014 whereby the petitioner has been terminated from his service. 5. Learned counsel for the petitioner submits that the entire disciplinary proceedings should be declared ex-parte as no subsistence allowance was paid to the petitioner during his period of suspension and the memo of charge and enquiry report was never served. 5. Learned counsel for the petitioner submits that the entire disciplinary proceedings should be declared ex-parte as no subsistence allowance was paid to the petitioner during his period of suspension and the memo of charge and enquiry report was never served. It has been argued by the petitioner that on the one hand he has never been paid any subsistence allowance during his period of suspension from 5th December, 2009 and on the other hand the petitioner was not allowed to stay in the headquarters which mounted financial burden and also precluded him from making a proper defense before the concerned authority. 6. On the aforesaid submission, the learned counsel relies upon the judgment passed in the case of U.P. State Textile Corporation Vs. P.C. Chaturvedi and Ors. as reported in (2005 SCC (LS) 1108), where the Hon’ble Apex Court has held that the non-payment of subsistence allowance would itself not vitiated the proceedings rather prejudice has to be shown. He further submits that in the instant case the petitioner in his representation has categorically stated that non-payment of subsistence allowance along with fact that petitioner was not allowed to stay in the headquarters made it difficult for him to survive and he was not able to continue to stay at his place of posting. He further submits that the respondent has taken a ground that since the petitioner never came to the headquarters nor informed the respondent regarding the non-payment of subsistence allowance is not tenable in the eyes of law. In this regard he relies on Rule 851 of the Police Manual applicable of the petitioner during the suspension. 7. Learned counsel further contended that the punishment awarded to the petitioner is grossly disproportionate to the offence committed and the order passed under Rule 853 A is contrary to law. He further submits that the Hon’ble Apex Court in a plethora of cases have held that the Courts could only be obliged to interfere with the order of punishment if it is such that it shocks the conscience of the Court. In the instant case the punishment so meted out to the petitioner and order of the Reviewing Authority is gravely disproportionate to the order. He further submits that Rule 826 of the Police Manual gives the governing principle regarding the imposition of punishment in case of delinquency. In the instant case the punishment so meted out to the petitioner and order of the Reviewing Authority is gravely disproportionate to the order. He further submits that Rule 826 of the Police Manual gives the governing principle regarding the imposition of punishment in case of delinquency. He contended that now it is well settled principle that punishment shall depend upon the gravity of the misconduct. He further contended that the petitioner was never served the second show cause notice or even the enquiry report was not given to him before passing of the order by the reviewing authority. The disciplinary authority had imposed two black marks on the petitioner and as per Rule 834 deals with the imposition of black marks and Rule 835 deals with the effect of black marks which categorically states that whatever be the number of black marks in any one act of delinquency, that shall still count one major punishment as such, on this score alone the order of punishment is bad in law. He concluded his argument by submitting that on the one hand he is not been paid any subsistence allowances and on the other hand, the order impugned passed by the Reviewing Authority is non-speaking order and as such the same shall be quashed and set aside. He relied upon the judgment passed in the case of Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Ors as reported in (2004) 4 SCC 560 , wherein the Hon’ble Apex Court has held as under; “7. We have perused the pleadings and the orders passed by all the authorities including the High Court and the medical certificate and the fitness certificate issued by the medical officer of the government department of Gwalior, M.P. On the above pleadings, the following questions of law arise for consideration:- (a) Whether the punishment of removal from service is grossly disproportionate to the alleged acts of misconduct can be awarded to an employee of the police organization as government departments/organizations are supposed to be model employees? (b) Whether the major penalty of removal from service inflicted on the appellant is grossly disproportionate to the misconduct alleged against him and, therefore, is totally unjust, unfair and inequitable as contended? (b) Whether the major penalty of removal from service inflicted on the appellant is grossly disproportionate to the misconduct alleged against him and, therefore, is totally unjust, unfair and inequitable as contended? (c) Whether the punishment imposed is in breach of the relevant Rules 8 and 10 of the Delhi Police (Punishment and Appeal Rules, 1980) which provide that the penalty aforementioned can be imposed only in cases of grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police servants? 12. The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of appellant’s service under Temporary Service Rules did not materialize. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government Doctors as grave misconduct in terms of Delhi Police (Punishment & Appeal Rules, 1980). Non-application of mind by quasi-judicial authorities can be seen in this case. The very fact that respondents have asked the appellant for re-medical clearly establishes that they had received applicant’s applications with medical certificate. This can never be termed as wilful absence without any information to competent authority and can never be termed as grave misconduct. 13. In B.C. Chaturvedi v. Unnion of India MANU/SC/0118/1996 : (1996) ILLJ 1231 SC, (…three Judges Bench) the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case, at para 18, this Court has observed as under:- “A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 8. He further relied upon the judgment passed by the Hon’ble Apex Court in the case of Chairman cum Managing Director, Coal India Limited and ors. Vs. Mukul Kumar Choudhari and ors. as reported in (2009) 15 SCC 620 , where the Hon’ble Apex Court has law laid down the law as under; “29. 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 excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 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. 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. 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. 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.” 9. Relying upon the aforesaid judgments the petitioner argued that his case should be considered since the order of termination is not proportionate to the offence committed by the petitioner. 10. Learned counsel for the respondents submits that the petitioner is the habitual offender even though his all previous absenteeism were regularized by the department, but even then he remained absent from 20.01.2009 to 04.12.2009 for 319 days. As a matter of fact, the petitioner was under impression that since every time he was pardoned by the respondent-Authority, as such, this time again he will be pardoned. 11. Learned counsel for the respondent relied upon the judgment passed in the case of North-Eastern Karnataka RT Corpn. Vs. As a matter of fact, the petitioner was under impression that since every time he was pardoned by the respondent-Authority, as such, this time again he will be pardoned. 11. Learned counsel for the respondent relied upon the judgment passed in the case of North-Eastern Karnataka RT Corpn. Vs. Ashappa as reported in (2006) 5 SCC 137 as held as under; “8.Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasion. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly.” 12. Having heard learned counsel for the parties and after going through the materials available on record, it appears that the enquiry officer in his enquiry report has accepted the contention of the petitioner with regard to his absenteeism for such a long period. The defense of the petitioner was that since a criminal case was filed by the respondents and process of 82 and 83 of the Cr. P.C. was initiated as such, he was hiding and trying to procure the order of anticipatory bail from the Hon’ble Patna High Court and the moment the petitioner was granted anticipatory bail, he joined the service. P.C. was initiated as such, he was hiding and trying to procure the order of anticipatory bail from the Hon’ble Patna High Court and the moment the petitioner was granted anticipatory bail, he joined the service. The enquiry officer has accepted this contention of the petitioner by observing that; vipkjh dh nnZukd c;ku ,oa fo"ke ifjfLFkfr esa budh drZO; ij vuqifLFkfr dks iw.kZ :i ls udkjk ugha tk ldrk gSk blds ckotwn vipkjh ,d ljdkjh deZpkjh gSak drZO; LFky ls vipkjh ds fcuk vuqifLFkfr fo'ks"kdj ckj ckj vuqifLFkfr ls tgkWa foHkkx dks ijs'kkuh gqbZ gS ogh foHkkx dk vuq'kklu Hkh Hkax gqvk gSaA vipkjh us Lo;a xyrh Lohdkj djrs gw, ekQh ekaxh gSA vr eSa ftyk lekns"Vk lg lapkyu inkf/kdkjh vipkjh vfXud la[;k 66 fuyafcr of'k"B dqekj eaMy vfXu'kkeky; fleMsxk dks iw.kZ :i ls nks"kh ekurk gwWaA 13. After giving the aforesaid finding, the enquiry officer found the petitioner guilty for the offence and pursuant to that the disciplinary authority vide order dated 28.03.2014 (Annexure-8) passed the punishment order whereby, two black marks were imposed upon the petitioner and the dearness allowances of the period of absence was seized. However, it was observed that this order will not affect on the future increments of the petitioner. From perusal of the impugned order issued vide memo No. 1089 dated 20.06.2014 (Annexure-11), it appears that the Reviewing Authority under its power under Rule 843 and Rule 824 of the Police Manual has reviewed the order of punishment passed by the disciplinary authority. Interestingly, he has taken note of all the previous period of absence which was regularised by the respondent themselves as stated in para 18 of the writ application and not controverted by the respondent which would also transpire from Annexure-6 of the writ application. The ground as it appears from the impugned order that the punishment imposed by the disciplinary authority is not proportionate to the misconduct committed by the delinquent employee. It appears that the Reviewing Authority misdirected himself and considered the petitioner as absconder since 22.08.2010 till the date of order i.e. 20.06.2014. It further transpires that only ground for which the petitioner has been terminated is that he remained absent for altogether 632 days. At the cost of the repetition the respondent themselves regularized the previous absenteeism. 14. It appears that the Reviewing Authority misdirected himself and considered the petitioner as absconder since 22.08.2010 till the date of order i.e. 20.06.2014. It further transpires that only ground for which the petitioner has been terminated is that he remained absent for altogether 632 days. At the cost of the repetition the respondent themselves regularized the previous absenteeism. 14. In my considered opinion, the impugned order dated 06.08.2014 passed by the respondent No.2 has been passed with non-application of mind. It is a settled law that any previous offence cannot be taken into consideration with the present offence. The order of the disciplinary authority (Annexure-8) may be termed to be disproportionate, but certainly the impugned order of termination (Annexure-11) passed by the Reviewing authority is disproportionate to the offence for the obvious reasons that while passing the order the Reviewing Authority should have taken into consideration the finding as well as the defence of the delinquent employee inasmuch as when a criminal case was filed by the respondents and process of 82 and 83 of the Cr. P.C. was also issued , the petitioner could not join the office. 15. As a matter of fact, the impugned order of termination does not discuss any reason as to why he is not accepting the defense of the petitioner which was accepted by the enquiry officer and the disciplinary authority. I am not dealing with the other grounds as regard to handing over the copy of the enquiry report etc. However, in view of the discussions made hereinabove, I am satisfied that the punishment of removal from service imposed on the petitioner is highly excessive and disproportionate inasmuch as the reviewing authority has also taken into consideration the previous unauthorized leave which was subsequently regularized, as such, the impugned order dated 06.08.2014 (Annexure-11) is quashed and set aside. The learned counsel for the petitioner has informed this Court that the petitioner is aged about 55 years at present, as such, the instant matter is remitted back to the Reviewing Authority to pass a fresh order after giving proper opportunity to the petitioner in accordance with law and the rules of Police Manual within a period of 4 months from the date of receipt of copy of this Order. 16. As a result, this writ application stands allowed and disposed of.