JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the order dated 19.05.2010 passed by the respondent No.4 (Annexure-4); whereby the petitioner has been dismissed from service and also the order dated 16.01.2013 passed by respondent No.3, whereby the appeal preferred by the petitioner has been rejected. The petitioner has further challenged the order dated 02.03.2015, whereby the memorial preferred was also rejected. 3. The facts of the case lie in a narrow compass. The petitioner was appointed as constable on 19.08.2004. Just few months before, his father who was also a police constable, was killed by the extremists on 26.04.2004, while posted in Bishunpur Police Station, Gumla and resultantly the petitioner was mentally disturbed. From the averments made in the writ application it further transpires that the mother of this petitioner was also suffering from mental illness after the death of her husband. In the year, 2007 the petitioner has taken leave on 06.02.2007 for the purpose of his marriage in which the petitioner was to rejoin his duty on 13.02.2007, but the petitioner could not join on the said date. It has been stated that during period of leave the petitioner was suffering from mental disorder. Due to the aforesaid incidence, a charge-sheet was issued to the petitioner on 11.06.2008; however, no reply was filed. It has been stated in the writ application that the charge-sheet has not been received by the petitioner. During course of departmental proceeding the brother of the petitioner appeared before the authorities and submitted a detailed note of reply and also informed the department that the petitioner was suffering from mental disorder. However, the said reply was not considered and the order of termination has been passed by the disciplinary authority. The petitioner has also preferred appeal and memorial, respectively; but could not succeed. 4. Mr. A.K.Sinha, learned senior counsel for the petitioner while referring to the impugned order (Annexure- 4) submits that there is no finding in the impugned order that it is a wilfull absence and the Hon’ble Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another, reported in (2012) 3 SCC 178 has held that the disciplinary authority has to give a finding that it was a wilfull absence. Para 16 and 17 of the said judgment is quoted hereinbelow:- “16. Union of India and Another, reported in (2012) 3 SCC 178 has held that the disciplinary authority has to give a finding that it was a wilfull absence. Para 16 and 17 of the said judgment is quoted hereinbelow:- “16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful 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 wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.” 5. The next limb of argument of learned senior counsel is that the reply/information was filed by the brother of the petitioner itself proves that the petitioner was suffering from mental disorder. He further draws attention of this Court that the father of the petitioner who was killed in an extremist’s activity was also a police constable and the petitioner was badly affected by that incident and the disciplinary authority for the reason best known to him just rejected the reply filed by his brother by simply saying that it is not acceptable. He further submits that the disciplinary authority was duty bound to give finding on the reply/information given by his brother that the petitioner was suffering from mental disorder which was supported by several medical documents. He further contended that for unauthorized absence in this factual background; the order of termination is highly excessive. In this regard learned senior counsel relied upon the judgment passed in the case of Anil Kumar Singh @ Anil Kumar Vs. State of Jharkhand & Ors., reported in 2016 (2) JBCJ 512. Para 7 and 8 is quoted hereinbelow:- “7. He further contended that for unauthorized absence in this factual background; the order of termination is highly excessive. In this regard learned senior counsel relied upon the judgment passed in the case of Anil Kumar Singh @ Anil Kumar Vs. State of Jharkhand & Ors., reported in 2016 (2) JBCJ 512. Para 7 and 8 is quoted hereinbelow:- “7. The question of choice of punishment and the quantum of punishment are within the jurisdiction and discretion of the Departmental Authority, however it is also well recognized that the punishment should not be so disproportionate to the misconduct alleged as to shock the conscience of the Court. While dealing with the punishment imposed in Court Martial, in Ranjit Thakur Vs. Union of India, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court observed that “the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune form correction”. Though, we find substance in the contention of the learned counsel for the respondents that being a members of the disciplined force, the appellant was required to maintain absolute discipline and devotion to the duty, the learned Single Judge has failed to advert to the quantum of punishment vis-a-vis misconduct of the appellant and accordingly, the impugned order dated 02.12.2015 warrants interference. Ordered accordingly. 8. Considering the fact that the respondents have not alleged previous misconduct of the appellant nor the medical certificates/prescriptions produced by the appellant have been found forged or fabricated, the penalty order dated 12.09.2005, which was affirmed by order dated 04.11.2006 by the appellate authority and by order dated 14.02.2008 by the Revisional Authority is hereby, quashed. The matter is remitted to the Disciplinary Authority to take a fresh decision on the question of punishment to be imposed upon the appellant.” 6. His last limb of argument is that for same and similar offence, a co-employee who was also charged and punished for unauthorized absence for 1107 days; however, later on, the appellate authority has converted his punishment in lowering down two increments, as such the respondents could not discriminate and adopt pick and choose method in punishing their own employees. His last limb of argument is that for same and similar offence, a co-employee who was also charged and punished for unauthorized absence for 1107 days; however, later on, the appellate authority has converted his punishment in lowering down two increments, as such the respondents could not discriminate and adopt pick and choose method in punishing their own employees. In this regard he referred to the judgment passed in the case of Man Singh Versus State of Haryana and Others, reported in (2008) 12 SCC 331 , wherein at paragraph 19, 20 and 21 it has held as under:- “19. We have independently examined the entire material on record and find that the appellant had filed a detailed reply to the show-cause notice dated 18-3-1997 and in support of his defence, he filed statement of HC Vijay Pal dated 30-7-1996. A copy of the said statement has been placed on record as Annexure P-1, which reads as under: “I, Vijay Pal Chaudhari, s/o Madan Singh, r/o [not legible], Tehsil Jaggar, Distt. Rohtak, Haryana state that he (sic I) started journey on government duty from Panchkula to Hyderabad on 25-7-1996. I purchased [12] bottles of IMFL at ‘Kota Rajasthan’ for ‘personal consumption’ as I have to stay in Hyderabad for 15 days to attend the govt. work. I purchased [12] bottles of IMFL at the rate of Rs 80 each bottle. I kept the above IMFL bottles in the dickey of the car without the knowledge of Man Singh. The said 12 bottles of IMFL have been recovered and seized by the excise officer at prohibited Excise Check-Post ICP Bhorj on 30-7-1996 at about 7.30 a.m. I am not aware about the implementation of the Prohibition Act in the A.P. State. sd/- Vijay Pal Chaudhari 30-7-1996” In view of the factual backdrop and the above stated statement of HC Vijay Pal, we are of the opinion that the respondents cannot be permitted to resort to selective treatment to the appellant and HC Vijay Pal, who was involved in criminal case besides departmental proceedings. HC Vijay Pal has been exonerated by the appellate authority mainly on the ground of his acquittal in the criminal case, whereas in departmental proceedings he has been found guilty by the disciplinary authority and was awarded punishment for serious misconduct committed by him as police personnel. 20. HC Vijay Pal has been exonerated by the appellate authority mainly on the ground of his acquittal in the criminal case, whereas in departmental proceedings he has been found guilty by the disciplinary authority and was awarded punishment for serious misconduct committed by him as police personnel. 20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness. 21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served in the Police Department of Haryana in different capacities with unblemished record of service.” Emphasis supplied 7. Relying upon the aforesaid judgments and the factual background he concluded his argument by submitting that admittedly; the brother of the petitioner has given a reply informing the authorities that the petitioner was suffering from mental disorder; as such, the action of the respondent in ignoring that reply and dismissing the petitioner is non est in the eye of law. Moreover, there is no finding in the entire impugned order that the unauthorized absence was willful. Further, Rule 826 of the Jharkhand Police Manual clearly states that the punishment awarded should be in conformity with the gravity of offence for which the officer is charged. In the instant case when the petitioner went to join his duty after being discharged by the doctors he came to know that he has been dismissed from service. In view of the aforesaid facts and the impugned order of punishment and all other subsequent orders should be quashed and the petitioner should be entitled for consequential benefits. 8. Mr. N. Toppo, learned counsel for the respondent-State supported the impugned order and submits that the theory of parity cannot be adopted in service jurisprudence. He further submits that though in the case of Praveen Kr. Pandey; the other delinquent was on unauthorized absence for 1107 days, but his case cannot be equated with this petitioner. He further submits that the contention of the learned counsel for the petitioner that petitioner was not aware of the notice cannot be accepted, inasmuch, as the brother of the petitioner has duly filed representation pursuant to the second show cause notice. He further referred to the judgment passed in the case of State of Andhra Pradesh and Others Vs. S.Sree Rama Rao, reported in AIR 1963 SC 1723 , wherein the Hon’ble Apex Court has held that the High Court should not sit in appeal. 9. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that just four months before the joining of this petitioner in the police department; his father was killed by the extremists on 26.04.2004, which certainly have disturbed the petitioner. 9. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that just four months before the joining of this petitioner in the police department; his father was killed by the extremists on 26.04.2004, which certainly have disturbed the petitioner. It is true that the petitioner did not participate in the departmental proceeding; however, the brother of the petitioner has given a detailed representation informing about the existing scenario when the notice was received at the residential address of the petitioner. It also transpires that the representation by his brother was filed along with all supporting documents and the certificate of the doctor, who was a Neuro Psychiatrist. However, the respondent simply brushed aside the representation filed by his brother by saying that as per rule of departmental proceeding, the reply filed by the brother of the petitioner cannot be accepted. 10. By going through the impugned order it clearly transpires that there is no finding, whatsoever, on the medical certificates given by the doctor, who was a Neuro Psychiatrist of CIP, Ranchi. Further, there is also no allegation or finding of willful absence. It also transpires that no specific reply has been given by the respondent- State to paragraph 9 of the writ application, wherein the petitioner has specifically stated that the petitioner was suffering from mental disorder. 11. It further transpires from Anenxure-7 to the writ application that another employee was also terminated for unauthorized period of 1107 days; his termination was quashed by the appellate authority and the case was remitted back to the disciplinary authority to pass a fresh order. In the instant case admittedly, the petitioner was on unauthorized leave for 900 days. From the aforesaid facts, it appears that on one hand the disciplinary authority has not considered the representation filed by the brother of the petitioner on technical ground though it was supported by medical prescriptions of a Neuro Psychiatrist who was working in CIP, Ranchi which is known for mental diseases hospital; and on the other hand, in the case of other officer, the appellate authority has considered the case and quashed the termination order. Thus, the respondents have adopted a pick and choose method in awarding the punishment, which is not permissible in the eye of law. Thus, the respondents have adopted a pick and choose method in awarding the punishment, which is not permissible in the eye of law. In the case of Man Singh (supra) the Hon’ble Apex Court has held that the respondents cannot be permitted to resort to selective treatment. In the instant case, even the case of this petitioner is on better footing with that of the other employee. Thus, the action of the respondents is not sustainable in the eye of law. 12. By going through the order of appellate authority it appears that some reasoning and finding has been given on the medical certificates. However, the law is well settled that any finding of the appellate authority cannot improve the order of disciplinary authority. In the case of Oryx Fisheries (P) Ltd, Vs. Union of India, reported in (2010) 13 SCC 427 , the Hon’ble Apex Court at paragraph-41 has held as under:- “41. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order.” 13. Further, in the case of Krushnakant B. Parmar (supra) the Hon’ble Apex Court has held that 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. It is true that absence of duty without any application or prior permission amounts to unauthorized absence; but the authorities will have to see whether it is willful unauthorized absence or the absence is due to compelling circumstances. This is a fit case where the documents clearly transpire that it was not wilfull absence on behalf of the petitioner rather it was compelling circumstances that forced the petitioner to remain absent. 14. In view of the aforesaid facts and circumstances of the case and the judicial pronouncement, the instant writ application is allowed. The impugned order dated 19.05.2010 passed by Respondent No.4 (Annexure-4) whereby the petitioner has been terminated from service along with all subsequent orders, are hereby, quashed and set aside. The petitioner shall be reinstated in service. 14. In view of the aforesaid facts and circumstances of the case and the judicial pronouncement, the instant writ application is allowed. The impugned order dated 19.05.2010 passed by Respondent No.4 (Annexure-4) whereby the petitioner has been terminated from service along with all subsequent orders, are hereby, quashed and set aside. The petitioner shall be reinstated in service. However, the disciplinary authority would be at liberty to proceed in the matter from the stage of issuing a fresh show cause notice to the petitioner and after getting the reply, if any, pass a fresh order keeping in mind the grounds raised by the petitioner in his reply and the discussions made herein above. It goes without saying that the respondent will also take a decision on the question of payment of salary from the date of termination till the date of re-instatement in accordance with law. 15. With the aforesaid terms, the instant writ application stands disposed of.