JUDGMENT : 1. Heard Sri Sharad Pathak, learned counsel for the petitioner, the learned Standing Counsel for the State-respondents and Sri Pankaj Patel, learned counsel for the opposite party no. 2 to 5. By means of this petition the petitioner has prayed following relief : (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned dismissal order dated 29.07.2020, passed by opposite party number 3, contained as Annexure No. I to the writ petition; and pay the petitioner arrears of salary with interest and also pay other consequential dues. 2. The order under challenge is order dated 29.7.2020 passed by the opposite party no. 3 i.e. The Chief Executive Officer which is contained as Annexure no. 1 to the writ petition whereby the petitioner (since deceased) has been dismissed from service. It is to be noted here that the main petitioner died on 1.4.2021, during the pendency of this writ petition, therefore, his legal heirs filed substitution application which was allowed by this Court, accordingly the family members of the petitioner i.e. Lata Sharma, wife, Bhavna Sharma, daughter, Ashawani Sharma, Son, Aakash Sharma, son of Late Ravi Shankar Sharma have been substituted as petitioner nos. 1 to 4. 3. The sole contention of the learned counsel for the petitioner is that the punishment order of dismissal has been passed without conducting proper inquiry, the impugned order is non-speaking and did not record reasons upon the reply given by the petitioner, past conduct of the petitioner has been taken into consideration while passing the impugned order and the impugned punishment order is disproportionate punishment which does not commensurate with the gravity of the misconduct. 4. Therefore, the question for consideration before this Court is that if the employee does not cooperate with the departmental proceedings despite ample opportunities having been provided as to whether the punishment order could have been passed conducting departmental enquiry as per law or not. While considering this question this has to be seen as to whether the past conduct of the delinquent employee may be taken into consideration that he had committed same type of misconduct on earlier occasions. Besides, the quantum of the punishment can be evaluated by the High Court. 5. While considering this question this has to be seen as to whether the past conduct of the delinquent employee may be taken into consideration that he had committed same type of misconduct on earlier occasions. Besides, the quantum of the punishment can be evaluated by the High Court. 5. Brief facts of the case, as per learned counsel for the parties, are that the petitioner was placed under suspension in contemplation of departmental inquiry by the Chief Executive Officer / Appointing Authority vide order dated 20.9.2018 (Annexure no. 2 to the writ petition). One Deputy Chief Executive Officer, Gorakhpur, Circle Gorakhpur was appointed inquiry officer in the matter. 6. After due approval of the charge-sheet dated 1.01.2019 the same has been served upon the petitioner along with relied upon documents for seeking his defense reply. The petitioner submitted his defense reply on 14.1.2019. 7. Thereafter, in conformity of U.P. Government (Discipline and Appeal) Rules, 1999, the inquiry officer issued a letter dated 16.3.2019 fixing the matter for 18.3.2019 asking the petitioner to appear on the said date and place his defense, if any. The inquiry officer has also afforded an opportunity of personal hearing to the petitioner fixing date time and place to conclude the inquiry but the petitioner after appearing before the inquiry officer has submitted that he has already filed his defense reply so he has nothing to say more. 8. The inquiry officer has recorded the findings in the inquiry report that the charges of unauthorized absence, undisciplined attitude, violation of the employees conduct rules and negligent behaviour have been found proved. The inquiry officer has also noted that on earlier occasions the petitioner remained absent unauthorizedly and his attitude and behaviour with the superiors was absolutely unbecoming of a government servant. 9. As per the learned counsel for the petitioner only one date i.e. 18.3.2019 was fixed for personal hearing / oral inquiry, however, no oral inquiry took place in terms of the relevant Rules, 1999 and the inquiry was concluded only taking into account the defense reply of the petitioner. The learned counsel has not disputed one fact that on 18.3.2019 the petitioner had submitted his detailed representation without requesting that he wished to file any defense or witness or material or wished to cross-examine any person or material. The learned counsel has not disputed one fact that on 18.3.2019 the petitioner had submitted his detailed representation without requesting that he wished to file any defense or witness or material or wished to cross-examine any person or material. To the contrary he had given impression to the inquiry officer on 18.3.2019 that except his defense reply dated 14.1.2019 to the charge-sheet dated 1.11.2019 he has nothing to say. 10. The inquiry officer submitted the inquriy report dated 19.3.2019 before the disciplinary authority enclosing therewith the relevant evidences / material considered by the inquiry officer. 11. The Chief Executive Officer/Appointing Authority issued a show cause notice to the petitioner on 22.5.2019 (Annexure no. 11 to the writ petition) enclosing the inquiry report seeking reply from the petitioner on or before 30.5.2019. 12. The petitioner has not submitted his explanation on or before 30.5.2019 but submitted on 12.6.2019 (Annexure no. 12 to the writ petition). Thereafter, the disciplinary authority has fixed the date on 16.7.2019 for personal hearing of the petitioner so that the petitioner could submit his defense, if any. 13. Again a letter was issued to the petitioner on 27.8.2019 seeking explanation and in compliance of the aforesaid letter dated 27.8.2019 the petitioner filed a representation dated 16.9.2019 pleading his bona fide but the disciplinary authority did not find such representation satisfactory, therefore, the disciplinary authority issued another letter dated 16.10.2019 to the petitioner fixing the next date for personal hearing on 22.10.2019. The petitioner again submitted his explanation on 22.10.2019 but the same was not found satisfactory as the substantial pleadings of bona fide of the petitioner were missing. 14. As an abundant precaution and in conformity with the rules of natural justice the disciplinary authority again issued a letter dated 26.11.2019 fixing another date i.e. 4.12.2019 for personal hearing of the petitioner. Again on 3.3.2020 the explanation of the petitioner has been sought apprising him that in case of not submitting proper reply / explanation, the major penalty may likely to be imposed against the petitioner. Considering the pandemic situation of Covid-19 the authority has issued another notice dated 6.5.2020 (Annexure no. 16) calling upon the explanation along with evidences, if any which the petitioner wishes to produce. The petitioner submitted his reply on 27.5.2020 in a sheer mechanical manner without providing any relevant material corroborating his bona fide. 15. Considering the pandemic situation of Covid-19 the authority has issued another notice dated 6.5.2020 (Annexure no. 16) calling upon the explanation along with evidences, if any which the petitioner wishes to produce. The petitioner submitted his reply on 27.5.2020 in a sheer mechanical manner without providing any relevant material corroborating his bona fide. 15. Lastly, on 2.7.2020 a letter was issued by the disciplinary officer to the petitioner fixing the final date for personal hearing on 6.7.2020 and the said date was extended on 7.7.2020. However, on 8.7.2020 the petitioner submitted a written reply but like his earlier explanations he could not provide any material or evidence enabling him not guilty. However, as a matter of fact the material/evidence available with the department the petitioner was guilty of the charges. Therefore, considering the entire material on record and after providing opportunity of personal hearing as maintained above the impugned order dated 29.7.2020 has been passed dismissing the petitioner from service. 16. As per learned counsel for the petitioner no proper departmental inquiry was conducted against the petitioner and no cogent reasons have been recorded by the disciplinary authority while awarding the punishment of dismissal. The past conduct of the petitioner has been taken into consideration whereas the past conduct should have not been considered and the impugned punishment is disproportionate inasmuch as even if on the charge of habitual, unauthorized and deliberate absence the most severe punishment of service jurisprudence i.e. dismissal should not have been provided to the petitioner. 17. On the other hand Sri Pankaj Patel, learned counsel for the opposite parties no. 2 to 5 has submitted that in the charge-sheet there was specific charge against the petitioner that he was habitual absentee and on earlier occasions he proceeded on unauthorized leave. Not only the above after having been confronted on such misconduct he behaved with the superior authorities in gross indisciplined manner and his misconduct as such is misdemeanor / misdeed, delinquency, the improper behaviour and dereliction from duty, therefore, the punishment of dismissal has been rightly awarded. Hence, the present writ petition is liable to be dismissed. 18. Not only the above after having been confronted on such misconduct he behaved with the superior authorities in gross indisciplined manner and his misconduct as such is misdemeanor / misdeed, delinquency, the improper behaviour and dereliction from duty, therefore, the punishment of dismissal has been rightly awarded. Hence, the present writ petition is liable to be dismissed. 18. Sri Pankaj Patel has drawn attention of this Court towards the dictum of Hon'ble Apex Court in re: Om Prakash vs. State of Punjab and others reported in (2011) 14 Supreme Court Cases 682 by submitting that the Hon'ble Apex Court has held that charge of repeated absentism or habitual absentism without leave would be sufficient to provide major punishment of dismissal to the employee. The delinquent was himself fully conscious and aware of his absence from the duty and the said charge was mentioned in the charge-sheet, therefore, the said employee does not deserve any sympathy. In re: Om Prakash (supra) the Apex Court has considered the earlier dictum of Apex Court i.e. State of M.P. vs. Harihar Gopal, 1969 SLR 274 (SC) and Maan Singh vs. Union of India, (2003) 3 SCC 464 holding that the habitual absentee without leave does not deserve any sympathy from the Court. 19. Sri Patel, learned counsel has also submitted that in view of the facts and circumstances and misconduct of the petitioner no other punishment except the punishment of dismissal could have been provided, therefore, the quantum of punishment may not be tested or examined in the present case. 20. However, Sri Sharad Pathak, learned counsel for the petitioner while pressing his ground regarding proportionality of the punishment and defective departmental enquiry has cited various dictums of the Apex Court i.e. Sri Bhagwan Lal Arya vs. Commissioner of Police, Delhi & Ors. (2004) 4 SCC 560 , Ram Kishan vs. Union of India & Ors. (1995) 6 SCC 157 , Rama Kant Misra vs. State of U.P. and others (1982) 3 SCC 346 , Collector Singh vs. L.M.L. Ltd. Kanpur (2015) 2 SCC 410 , S.K. Giri vs. Home Secretary, Ministry of Home 1995 Supp (3) SCC 519, Ved Prakash Gupta vs. Delton Cable India (P) Ltd. (1984) 2 SCC 569 , Surendra Prasad Shukla vs. State of Jharkhand & Ors. (2011) 8 SCC 536 , Girish Bhushan Goyal vs. B.H.E.L. & Anr. (2011) 8 SCC 536 , Girish Bhushan Goyal vs. B.H.E.L. & Anr. (2014) 1 SCC 82 , State of Uttar Pradesh and others vs. Saroj Kumar Sinha (2010) 2 SCC 772 , S.N. Mukherjee vs. Union of India (1990) 4 SCC 594 and State of Mysore vs. K. Manche Gowda (1964) 4 SCR 540 . 21. In all the aforesaid judgments the Hon'ble Apex Court has held that on account of the charge of unauthorized absence the incumbent should have not been provided the major punishment i.e. dismissal. 22. So as to press his another ground that the impugned punishment order has been issued without conducting the proper disciplinary inquiry Sri Pathak has placed reliance on the judgment of State of U.P. & Ors. vs. Saroj Kumar Sinha (supra). 23. Pressing his another ground that the explanation of the petitioner was not considered properly, Sri Pathak has placed reliance in re: S.N. Mukherjee vs. Union of India (supra). 24. Lastly pressing his ground that the past conduct of an employee should not be taken into account Sri Pathak has referred the dictum of Apex Court in re: State of Mysore vs. K. Manche Gowda (supra). 25. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that before passing the impugned order of dismissal the inquiry officer must have conducted the departmental inquiry strictly in accordance of law and the disciplinay authority must have passed the order of dismissal after affording sufficient opportunity of hearing to the petitioner. The impugned order cannot be said as non-speaking order if the reply so given by the petitioner has been considered properly. Not only the above since the charge regarding past conduct was indicated in the charge-sheet and departmental inquiry was conducted on that charge also, therefore, considering the past conduct of the petitioner by the inquiry officer may not be said to be any illegality. Lastly, considering the findings of inquiry officer and order of punishment being issued by the disciplinary authority, I do not find that the punishment order of dismissal was disproportionate. 26. The Apex Court in re: B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749 , Union of India vs. G. Ganayutham (1997) 7 SCC 463 , Union of India vs. Mohd. 26. The Apex Court in re: B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749 , Union of India vs. G. Ganayutham (1997) 7 SCC 463 , Union of India vs. Mohd. Ibrahim (2004) 10 SCC 87 , State of U.P. vs. Sheo Shanker Lal Srivastava (2006) 3 SCC 276 , North-Eastern Karnatak Roadways Corporation vs. Ashappa (2006) 5 SCC 137 and Man Singh vs. State of Haryana (2008) 12 SCC 331 has consistently held that the High Court should be very slow in interfering with the quantum of punishment unless it is found to be shocking to one's conscience. 27. The Apex Court has followed the 'Wednesbury Test[ (1948) 1 KB 223 in adjudicating the issue engaging attention as to whether the Court should interfere in the quantum of punishment. As per aforesaid test the point is to be seen as to whether the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on material before him and with framework of law have arrived at ...Whether the decision was absurd or perverse. The Court would not, however, go into the gravity of choice made by the authority nor could the Court substitute its decision. As a matter of fact the Court can only test the decision making process whether adopted correctly or not but not the decision. 28. In the present case the inquiry officer has not only considered the defense reply of the petitioner but has afforded an opportunity of personal hearing on 18.3.2019 for conducting oral inquiry but the petitioner has categorically submitted that except his defense reply he has nothing to say nor does he want to examine any material / witness. Thereafter the inquiry officer has examined all relevant material relating to the charges leveled against the petitioner and arrived on the conclusion that all the charges leveled against the petitioner are found to be proved. Not only the above the appointing authority issued couple of letters / notices to the petitioner after receiving the findings of inquiry report dated 19.3.2019, as considered above, for affording sufficient number of hearing to the petitioner seeking any material or evidence which could establish that the petitioner was not guilty, but the petitioner could not produce any material or evidence showing his bonafide, however, he has preferred couple of explanations before the disciplinary authority. In these circumstances the disciplinary authority has passed the impugned order dated 29.7.2020 dismissing the petitioner from service. I do not find any infirmity or illegality in the inquiry report dated 19.3.2019 and in the impugned order of punishment dated 29.7.2020. Since the past conduct of the petitioner was absolutely unbecoming of a government employee, therefore, the specific charge to that effect was framed in the charge-sheet and after departmental inquiry the said charge was found to be proved, therefore, considering the past conduct of the petitioner by the inquiry officer would not vitiate the inquiry proceedings. So far as the argument of the learned counsel for the petitioner that the gravity of misconduct does not commensurate with quantum of punishment, I am of the considered opinion that after considering the entirety of the facts and circumstances of the issue in question, perusing the findings of inquiry officer and material available on record viz. a viz. explanations of the petitioner given at the stage of inquiry proceedings the disciplinary authority has properly awarded the punishment of dismissal against the petitioner. As per impugned order itself it has been indicated that the petitioner was placed under suspension on 22.1.2000 and after conclusion of the inquiry the lenient view was adopted against the petitioner awarding him serious warning with censure entry. On that point of time more or less similar charges were leveled against the petitioner i.e. unauthorized absence, mis-behaviour with the officials / officers etc. As per impugned order the petitioner was not able to type even half of page within three days whereas he was discharging his duties of clerk / typist. The petitioner was again suspended on 14.8.2003 more or less on the same charges i.e. careless and irresponsible behaviour, indisciplined behaviour, habitual absentee, mis-behaviour with superior officers and not following the direction of superior authorities. After conclusion of second inquiry two increments of the salary of the petitioner has been withheld with adverse entry. Some letters of the department were also considered by the disciplinary authority which indicates that immediate superior of the petitioner has indicated that the petitioner did not take any interest in discharging his official duties and had got a lot of work pending. Some letters of the department were also considered by the disciplinary authority which indicates that immediate superior of the petitioner has indicated that the petitioner did not take any interest in discharging his official duties and had got a lot of work pending. Again, the petitioner was placed under suspension on 24.9.2018 more or less on the same charges and after conclusion of the departmental inquiry the inquiry officer submitted his findings before the disciplinary authority on 19.3.2019 recommending for major penalty. Since the disciplinary authority was conscious about the fact that before passing the order of major punishment the petitioner must have been afforded sufficient number of hearing, therefore, the disciplinary authority has admittedly issued so many letters / notices / show cause notices seeking explanation from the petitioner asking for production of relevant material / evidence which could show the bonafide of the petitioner but no such material / document has been produced before the disciplinary authority, therefore, the disciplinary authority has passed the order of dismissal which is contained as Annexure no. 1 to the writ petition. 29. Considering the entirety of the facts and circumstances in issue, I do not find that the impugned order of punishment is excessive or does not commensurate with the gravity of mis-conduct inasmuch as the petitioner was in a habit of habitual absentism, unauthorized leave, indisciplined behaviour with superior officers / officials and not discharging the duties as per parameters befitting for the government employees, therefore, on earlier occasions he was awarded censure entry for the year 1997-98, 1998-99 vide order dated 20.7.2000 with serious warning. Again vide order dated 31.5.2004 he was awarded adverse entry and his two increments of salary has been withheld. Despite the serious warning having been given to the petitioner time and again by the authorities concerned from the very beginning but instead of improving his behaviour he indulged in mis-behaviour and indiscipline with the superior officers / officials and continued habitual absentism and proceeded on unauthorized leave without caring the directions of officers. Therefore, the severe most punishment of the service jurisprudence i.e. dismissal which was awarded to the petitioner does not shock the conscience of the Court. Therefore, the severe most punishment of the service jurisprudence i.e. dismissal which was awarded to the petitioner does not shock the conscience of the Court. So far as the decision making process awarding major punishment to the petitioner is concerned, I do not find any flaw or infirmity in such process and I do not find that such decision was absurd or perverse. Therefore, I do not incline to interfere the punishment awarded to the petitioner. 30. Accordingly, the writ petition is dismissed being misconceived. 31. No order as to costs. 32. Before parting with, I put a note of appreciation for Ms. Shama Parveen, Law Clerk, for making thorough research on the case laws.