JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Arvind Kumar Goswami, learned counsel for the respondents. 2. It is submitted by the learned counsel for the petitioner that the petitioner was working on the post of Constable in RAF/CRPF, Allahabad. Petitioner was granted leave by respondents from 20th July, 2015 to 29th July, 2015 for attending Eid festival with family at his native place and petitioner was required to report for duty on 29th July, 2015 (A/N). 3. When petitioner was on leave, a first information report dated 21st July, 2015 being Case Crime No.453 of 2015 was lodged at Police Station Nawabganj under Section 302, 201 of Indian Penal Code against unknown persons. In pursuance to the aforesaid first information report, investigation was carried out by the police authorities and the petitioner was found to have been involved in the criminal case. A warrant of arrest was issued against the petitioner on 25th July, 2015. Petitioner was placed under suspension by the respondents for having been indulged in a criminal case and warrant being issued against him. Petitioner being afraid of arrest did not report back to his place of employment after the sanctioned leave was over. It is submitted that petitioner was searching for legal remedies in criminal prosecution. 4. On 10th September, 2015, petitioner has surrendered before the court of Chief Judicial Magistrate and was sent to Naini Central Jail, Allahabad on the same day. Petitioner was initially placed under suspension by order dated 25th July, 2015. On 18th August, 2015 a notice was issued to the petitioner to immediately join his duties. Suspension of petitioner was cancelled by respondents on 20th August, 2015. On 21st August, 2015 an order was passed by respondent no.4 to stop payment of salary and allowance of petitioner. 5. On 17th October 2015 and 4th January, 2016, petitioner informed the respondent authorities that he is confined in jail in respect of the abovementioned first information report. Thereafter, petitioner was again placed under suspension on 8th November, 2015. Subsequently, petitioner has remained in jail and was enlarged on bail on 28th March, 2017 by this Court. 6. Inquiry Officer was appointed by respondents and a charge sheet dated 4th February, 2016 was served on petitioner levelling two charges against him in departmental proceedings. Thereafter, petitioner was again placed under suspension on 8th November, 2015. Subsequently, petitioner has remained in jail and was enlarged on bail on 28th March, 2017 by this Court. 6. Inquiry Officer was appointed by respondents and a charge sheet dated 4th February, 2016 was served on petitioner levelling two charges against him in departmental proceedings. First charge against petitioner pertains to petitioner was granted leave from 20th July, 2015 to 29th July, 2015 and was required to report back for duty on 29th July, 2015 (A/N), however, he has not reported for duty after completion of his sanctioned leave. In the meantime, the petitioner has been arrested in a criminal case and is in jail since 10th September, 2015. The aforesaid is a misconduct under section 11(1) of the CRPF Act. The second charge against the petitioner pertains to the petitioner being arrested in a criminal case and was in jail for an offence under Section 302 and 201 of Indian Penal Code which is a misconduct under section 11(1) of the CRPF Act. 7. On 23rd May, 2016 and 27th May, 2016, Inquiry Officer came to Naini Jail and recorded the statement of petitioner. On 17th August, 2016 statement of petitioner was recorded by Inquiry Officer in jail. Inquiry Officer submitted his report dated 29th August, 2016 before the respondent authorities. Petitioner accepted the Charge no.1 as he has remained unauthorisely absent from duty as he was detained in jail in a criminal case but denied the Charge no.2. Inquiry Officer in his report dated 29th August, 2016 concluded that the Charge no.1 against the petitioner stands proved and in respect of Charge no.2, Inquiry Officer held that the criminal case is pending consideration before the criminal court as such any decision in respect of Charge no.2 can be taken after completion of criminal case before the court concerned. 8. Thereafter, respondent no.4 has passed the impugned order dated 30th September, 2016 imposing major penalty of removal from service against the petitioner. Petitioner being aggrieved by order dated 30th September, 2016 passed by respondent no.4, preferred an appeal from jail under Rule 28 of the Central Reserve Police Force Rules before the Deputy Inspector General of Police, R.A.F/C.R.P.F, R.K. Puram, Sector-1, East Block-02, New Delhi. Appeal of petitioner was rejected by respondent no.3 by order dated 25th January, 2017. Petitioner being aggrieved by order dated 30th September, 2016 passed by respondent no.4, preferred an appeal from jail under Rule 28 of the Central Reserve Police Force Rules before the Deputy Inspector General of Police, R.A.F/C.R.P.F, R.K. Puram, Sector-1, East Block-02, New Delhi. Appeal of petitioner was rejected by respondent no.3 by order dated 25th January, 2017. Petitioner being aggrieved by the above-mentioned order dated 30th September, 2016 and 25th January, 2017 preferred revision before respondent no.2. The aforesaid revision was rejected by order dated 25th April, 2017 by respondent no.2. 9. The present writ petition is filed challenging the order dated 30th September, 2016 passed by respondent no.4, order dated 25th January, 2017 passed by respondent no.3 and order dated 25th April, 2017 passed by respondent no.2. 10. Learned counsel for the petitioner urges that during the disciplinary proceedings, petitioner was in jail and petitioner participated in disciplinary proceedings from jail itself. On 4th February, 2016 a chargesheet was submitted against petitioner with two charges. The first charge against the petitioner was that the petitioner has remained for unauthorize absence on duty from 30th July, 2015 till initiation of the disciplinary proceedings. The second charge against the petitioner was to the effect that petitioner was involved in a criminal case and has surrendered before law and is in jail which is a misconduct. Statement of petitioner was recorded by Inquiry Officer, which is at page 66 of the writ petition, where the petitioner has explained to the Inquiry Officer, the circumstances under which petitioner was alleged to be involved in the criminal case, how petitioner has surrendered before court of Chief Judicial Magistrate. Inquiry Officer, after completion of inquiry proceedings, has submitted inquiry report on 29th August, 2016 wherein Charge no.1 against petitioner was found to be proved. However, in respect of the Charge no.2, Inquiry Officer recommended that since the matter pertains to criminal case against petitioner, decision on the aforesaid may be taken after the decision of the court concerned. 11. Inquiry Officer, after completion of inquiry proceedings, has submitted inquiry report on 29th August, 2016 wherein Charge no.1 against petitioner was found to be proved. However, in respect of the Charge no.2, Inquiry Officer recommended that since the matter pertains to criminal case against petitioner, decision on the aforesaid may be taken after the decision of the court concerned. 11. The disciplinary authority-respondent no.4 by order dated 30th September, 2016 has thereafter, proceeded to consider the inquiry report and, on Charge no.1 has directed removal of the petitioner from service and further the disciplinary authority has directed the period from 10th September, 2015 till the passing of the order i.e. 30th September, 2016 be treated as the period under suspension and only subsistence allowance would be paid to the petitioner. Petitioner's medal and other honours have also be confiscated by the respondents by means of impugned order. 12. It is submitted by the learned counsel for the petitioner that petitioner has been removed from service on Charge no.1, which is unauthorized absence from duty. The punishment of removal from service is disproportionate in the facts and circumstances of the case, specifically when the petitioner, who went on leave was subjected to criminal proceedings while on leave and as such the petitioner being involved in a criminal case could not join back his duties nor could inform the respondent-authorities, which the petitioner has admitted in the inquiry proceedings. It is submitted that in respect of criminal proceeding petitioner surrendered before the court concerned and was sent to jail. The impugned order of removal from service has been passed against the petitioner as the petitioner has admitted the Charge no.1 during inquiry proceedings. 13. It is further submitted by learned counsel for the petitioner that admission of charge by petitioner in respect of Charge no.1 would not ipso facto amount to admission of quantum of punishment imposed by the respondents. He submits that the respondents in the facts and circumstances of case ought to have considered the peculiar facts and circumstances, which has visited the petitioner while he went on leave and thereafter, considering the statement of petitioner during inquiry proceedings ought to have passed the order against the petitioner. 14. In support of his submissions, learned counsel for petitioner has placed reliance upon following judgments:- 1. Jai Bhagwan Vs. Commissioner of Police and others, AIR 2013 SC 2908 2. 14. In support of his submissions, learned counsel for petitioner has placed reliance upon following judgments:- 1. Jai Bhagwan Vs. Commissioner of Police and others, AIR 2013 SC 2908 2. Krushnakant B. Parmar Vs. Union of India and others, 2012 (3) SCC 178 3. Mirja Barkat Ali Vs. Inspector General of Police, Allahabad and others, 2002 (2) UPLBEC 1871 . 15. On the strength of aforesaid judgments, learned counsel for petitioner submits that unauthorize absence from duty in all cases will not warrant removal from service, specifically when the employee can show from facts and circumstances that unauthorized absence was not wilful. He submits that unauthorized absence has been duly explained in the statement made to the Inquiry Officer. The aforesaid statement of the petitioner has not been considered by the punishing authority while passing the impugned order. It is further submitted that criminal prosecution against petitioner is not in respect of occurrence connected with service of the petitioner. 16. It is further submitted that it was imperative on part of disciplinary authority while considering punishment against petitioner on Charge no.1 to have considered statement of petitioner recorded during inquiry proceedings and the case of petitioner that he was involved in a criminal case and was searching for legal remedies in furtherance whereof has surrendered before court of Chief Judicial Magistrate. Such facts have not been considered by disciplinary authority while passing the impugned order and as such the impugned order is not tenable under law. 17. Learned counsel for the petitioner submits that the proportionality of punishment has to be considered by the disciplinary authority after taking into consideration the stand of petitioner even though, petitioner has admitted the charge. However, explanation given by petitioner for unauthorized absence ought to have been considered while imposing punishment. He submits that such process has not been adopted in present case and as such the impugned order is liable to be set aside. 18. Sri Arvind Kumar Goswami, learned counsel appearing on behalf of respondents submits that the petitioner was unauthorisely absent from duty. Petitioner was granted ten days leave to visit his native place. However, he did not return back and thereafter, communications were sent to the petitioner for joining his duty. 18. Sri Arvind Kumar Goswami, learned counsel appearing on behalf of respondents submits that the petitioner was unauthorisely absent from duty. Petitioner was granted ten days leave to visit his native place. However, he did not return back and thereafter, communications were sent to the petitioner for joining his duty. However, he has not honoured those communications and, thereafter, he has been found to be involved in a criminal case and was in jail as such he has been placed under suspension and disciplinary proceedings were initiated against the petitioner. 19. It is further submitted by learned counsel for the respondents that the chargesheet was submitted against the petitioner for two charges and Inquiry Officer has submitted the inquiry report where the Charge no.1 is proved against the petitioner and in so far as Charge no.2 is concerned, Inquiry Officer has recommended that any action may be taken after decision of the court concerned. 20. It is further submitted by learned counsel for the respondents that the disciplinary authority thereafter considering the report of the Inquiry Officer and admission of petitioner that he was absent from duty in an unauthorized manner, has passed the order of removal from service. 21. Learned Counsel for the respondents further submits that the petitioner belongs to a disciplined force and was required to join back his duty after the leave period was over. Once he has not joined his duties, after completion of leave disciplinary authority was justified in taking disciplinary action against the petitioner. 22. Learned counsel for the respondents submitted that the disciplinary authority has passed the order of removal under Section 11 of the Central Reserve Police Force Act, 1949 and as such there can be no fault in passing of the impugned order. 23. It is to be noted that the petitioner was posted as a Constable in the RAF/CRPF, Allahabad. He proceeded on leave for his native place from 20th July, 2015 to 29th July, 2015. When the petitioner reached his native place, a first information report was lodged on 21st July, 2015 under Section 302 and 201 I.P.C. Petitioner was not named in first information report. However, his name was surfaced during the investigation and a warrant of arrest was issued against petitioner on 25th July, 2015. When the petitioner reached his native place, a first information report was lodged on 21st July, 2015 under Section 302 and 201 I.P.C. Petitioner was not named in first information report. However, his name was surfaced during the investigation and a warrant of arrest was issued against petitioner on 25th July, 2015. According to petitioner, he was searching for legal remedies and evading the arrest and ultimately surrendered before the court of Chief Judicial Magistrate on 10th September, 2015. 24. It is also to be noted that the petitioner had informed respondents about the criminal case and his arrest on 17th October, 2015. On account of pendency of the criminal case against petitioner, petitioner was initially placed under suspension on 25th July, 2015 and thereafter, aforesaid suspension order was thereafter, revoked on 20th August, 2015. However, when petitioner surrendered before the court of Chief Judicial Magistrate and was sent to jail, he was again placed under suspension on 8th November, 2015. 25. It is also to be noted that the petitioner was granted bail by this Court on 28th March, 2017. Respondents initiated disciplinary proceedings against the petitioner and chargesheet was issued against petitioner on 4th February, 2016. Against petitioner two charges were framed in disciplinary proceedings. Charge no.1 pertains to unauthorized absence from duty from 30th July, 2015 and Charge no.2 pertains to the pendency of a criminal case and as such the same was construed to be a misconduct by disciplinary authority. When the disciplinary proceedings were being carried out petitioner was in jail. However, his statement was recorded by the Inquiry Officer, which is at page 66 of the paper book. When the disciplinary proceedings were being carried out petitioner was in jail. However, his statement was recorded by the Inquiry Officer, which is at page 66 of the paper book. Relevant portion of the aforesaid statement is extracted hereunder:- ^^ç'u 4& vki lsUVªy tsy uSuh bykgkckn esa fdl fy, ,oa dc ls dSn esa gS\ mÙkj& Jheku ?kj okyksa us dkj.k iwNk rks iqfyl us Fkkuk uokoxat bykgkckn esa gqà nks gR;k esa vkjksih crk;kA ftl le; iqfyl ?kj vkà eSa vkSj esjk Hkkà lqcg ?kj ls ckgj Vgyus x;s FksA rFkk çkFkhZ ds ?kj ij [kM+h lQkjh xkM+h iqfyl mBk ys x;h vkSj gR;k esa 'kkfey fn[kk;kA tcfd çkFkhZ dk bl gR;k ls dksà ysuk&nsuk ugha gSA çkFkhZ ds cM+s Hkkà ekså ulhe [kku tks dsUæh; fjtoZ iqfyl cy ls goynkj@thMh in ls fjVkMZ Fks fd gR;k lqcg 06-00 cts ds djhc lewg dsUæ lhåvkjåihå,Qå bykgkckn ds utnhd mn;pUniqj xk¡o esa ce ,oa xksyh ls ekj dj gR;k dj nh x;hA çkFkhZ us vius Hkkà ds gR;k esa 'kkfey nks yksxksa dks uke tn vkjksih cuk;k Fkk iIiq iq= vktkn o iIiq mQZ vuoj iq= yrhQ o rhu vKkr ds f[kykQ Fkkuk lksjkWo esa eqdnek ntZ djk;kA eqdnes dh foospuk esa iqfyl us jkedqekj mQZ foey dks vkjksih cuk;k FkkA ftu O;fDr;ksa dh Fkkuk uokcxat esa gR;k gqà muesa ls ,d jkedqekj mQZ foey ;kno FkkA iqfyl us esjs Hkkà dh gR;k ls tksM+dj e>s ,oa esjs Hkkà dks nks gR;kvksa esa vkjksih cuk;k tcfd esjk bl gR;k ls dksà lEcU/k ugha gSA eSa mijksDr dkj.kksa ls dkQh Hk;Hkhr gks x;k Fkk vkSj iqfyl dh fxjQrkjh ls cpus ds fy, fNi jgk Fkk vkSj vodk'k ls M;wVh ij le; ls mifLFkr ugha gks ldkA eSa o esjs Hkkà us vius dks funksZ'k 'kkfcr djus ds fy, fnuk¡d 10@09@2015 dks lhåthå,eå dksVZ bykgkckn esa ljs.Mj fd;k vkSj lhåtså,eå dksVZ bykgkckn us eq>s fnuk¡d 10@09@2015 dks lsUVªy tsy uSuh bykgkckn esa Hkst fn;kA vkSj eSa fnuk¡d 10@09@2015 ls vHkh rd lsUVªy tsy uSuh bykgkckn esa dSn esa py jgk gw¡A ç'u 5& lHkh vfHk;kstu xokgksa dk c;ku vkidh mifLFkfr esa fy;k x;k gS vkSj vki vfHk;kstu xokgksa ds c;kuksa dks iढ+ vkSj le> fy;k gSA D;k vki dek.MsaV dk;kZy; ds Kkiu la[;k&ihåvkB&01@2016 LFkk&nks&101 fnuk¡d 04@02@2016 esa yk;s x;s vkjksiksa ds en ,d vkSj nks ds fy, vius vki dks nks"kh ekurs gSa\ mÙkj& Jheku dek.MsaV dk;kZy; ds Kkiu la[;k&ihåvkB&01@2016&LFkk&nks&101 fnuk¡d 04@02@2016 esa yk;s x;s vkjksiksa ds en ,d esa yxk;s x;s vkjksi ds fy, vius vki dks nks"kh ekurk gw¡A Jheku en nks esa yxk;s x;s vkjksi ds çfr eSa vius vki dks nks"kh ugha ekurk gw¡ D;ksafd iqfyl }kjk esjs fo:) yxk;s x;s vkjksi fujk/kkj gSA bl lEcU/k esa ekeyk U;k;ky; esa fopkj gsrq yfEcr gSA** 26. Inquiry Officer after conducting inquiry has submitted inquiry report dated 29th August, 2016 and concluded that the Charge no.1 against the petitioner is proved. So far as Charge no.2 is concerned, Inquiry Officer has recommended that proceedings may be undertaken after decision of court concerned where criminal case is pending against petitioner. The disciplinary authority thereafter, has passed impugned order dated 30th September, 2016 and has recorded finding that the Inquiry Officer has found Charge no.1 as correct against the petitioner and aforesaid charge has been admitted by the petitioner and as such has inflicted the punishment of removal from service. Petitioner being aggrieved by the aforesaid order dated 30th September, 2016, had preferred an appeal before the Appellate Authority which has been rejected by order dated 25th March, 2017. Thereafter, petitioner has preferred a revision before the revisional authority and same has also been rejected by order dated 25th April, 2017. 27. In Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 :- "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. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct." 28. It is to be seen that the petitioner has remained on unauthorized absence from duty primarily on account of pendency of criminal case against petitioner. It is to be seen that the petitioner has remained on unauthorized absence from duty primarily on account of pendency of criminal case against petitioner. When petitioner went to his native place after duly sanctioned leave being obtained, a first information report was lodged on 21st July, 2015 and, thereafter, a warrant of arrest was issued against petitioner on 25th July, 2015 i.e. during the currency of sanctioned leave. After issuance of warrant of arrest, petitioner was searching for legal remedies and was evading from arrest as he was an innocent person, according to the petitioner he has been falsely implicated in the criminal case. 29. Petitioner by his communication dated 17th October, 2015 has informed the department with regard to pendency of the criminal case and petitioner has surrendered before the court of Chief Judicial Magistrate on 10th September, 2015. Petitioner was in jail when disciplinary proceedings were being carried out against him. Disciplinary authority while passing impugned order has taken into consideration report of Inquiry Officer and admission of petitioner to Charge no.1 as the basis for imposing the punishment of removal from service. The disciplinary authority has not recorded any independent finding with regard to wilful absence from duty while passing the order of punishment. Absence from duty without authorised leave may amount to unauthorised absence, but it does not always mean wilful absence from duty. There may be different eventualities due to which an employee may not report back to duties/abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 30. The reason explained by the employee/petitioner during disciplinary proceedings are required to be considered by the employer prior to passing order on the punishment. The reasons specified by the employee for unauthorised absence even though the unauthorised absence may have been admitted by the employee are important factors to be considered by the employer while deciding the nature of punishment to be given to the employee concerned for unauthorised absence. 31. The reasons specified by the employee for unauthorised absence even though the unauthorised absence may have been admitted by the employee are important factors to be considered by the employer while deciding the nature of punishment to be given to the employee concerned for unauthorised absence. 31. Where the circumstances are beyond the control of the employee and the employee was prevented by justifiable cause then it is the duty of the employer to weigh the circumstances and impose a punishment which is proportionate with the nature of misconduct imputed in the facts and circumstances of a particular case. 32. The proportionality of the punishment has to be considered by the disciplinary authority as the same is within the domain of the disciplinary authority. The disciplinary authority has not considered the peculiar facts and circumstances which has visited the petitioner by lodging of a criminal case where the petitioner was evading his arrest and ultimately send to jail. A person who is in judicial custody cannot be expected to join his duty unless he has been released by the court of law on bail. The employer has deferred the punishment in respect of Charge no.2 with regard to involvement of the petitioner in the criminal case. These circumstances might have mitigated the petitioner's misconduct and a different view could have been taken by disciplinary authority warranting a lessor punishment. 33. All these factors were required to be considered by the disciplinary authority while passing the impugned order. However, disciplinary authority has only taken into consideration, inquiry report and thereafter, has passed the impugned order without recording any finding whether the absence of petitioner was wilful or whether petitioner was forced by the facts and circumstances which has visited to petitioner, to remain absent from duty. Such an approach by the disciplinary authority is not warranted under law. The disciplinary authority while considering the punishment to be imposed on employee even if employee has admitted the charge is required to decide the proportionality of the punishment on the facts and circumstances of the case and a punishment which is disproportionate may entail injustice to the employee. 34. Such an approach has not been considered by the employer concerned, as such impugned order dated 30th September, 2016 is not tenable under law and is hereby set aside. 34. Such an approach has not been considered by the employer concerned, as such impugned order dated 30th September, 2016 is not tenable under law and is hereby set aside. The writ petition is allowed and the matter is remanded back to the respondent no.4 to pass appropriate order afresh after taking into account the circumstances which is visited to the petitioner, specifically the statement of the petitioner, which is at page 66 of the writ petition, after giving opportunity of hearing to the petitioner. The consequential orders dated 25th January, 2017 and 25th April, 2017 passed by the appellate authority as well as the revisional authority respectively are also hereby set aside. The disciplinary authority-respondent no.4 shall pass a fresh order within a period of four months from the date of production of a certified copy of this order. 35. Learned counsel for both the parties agree that the matter may not be remanded for fresh inquiry, however, may only be remanded for a fresh decision on the quantum and nature of punishment to be awarded by disciplinary authority. Accordingly, respondent no.4 while passing the decision a fresh, will consider on the question of the nature of punishment to be awarded considering the facts and circumstances under which petitioner was absent from duty.