JUDGMENT RAVI NATH TILHARI,J. - Heard Sri K. Pavan Kumar, learned counsel for the petitioners and Sri Mallampalli Srinivas, learned Central Government Counsel for the respondents. 2. I.A.No.3 of 2023, is for setting aside the order dated 03. 07.2023 dismissing the writ petition for want of prosecution. 3. The cause for non-appearance on the date fixed 3/7/2023, is sufficient. The order dtd. 3/7/2023 is recalled. The petition is restored to its original number. 4. With the consent of the parties counsels, we have heard on the merits of the writ petition today itself. 5. The writ petition under Article 226 of the Constitution of India has been filed for the following relief:- "It is therefore prayed that this Hon"ble Court may be pleased to issue writ of certiorari by calling for the records from the respondents and set-aside the order passed in OA.No.372 of 2011 on the file of the Central Administrative Tribunal Hyderabad Bench on 7/11/2014 pass such other order or orders as this Hon"ble Court may deem fit and proper in the circumstances of the case." 6. The petitioner No.1 is the deceased applicant, in O.A.No.372 of 2011, who died during pendency of O.A before Central Administrative Tribunal. The petitioner Nos.2 and 3 are the substituted heirs of the petitioner No.1. The deceased petitioner No.1 shall be referred as Applicant". 7. The Applicant was appointed on the post of helper/Kasim (Class IV) in the year 1992 on compassionate ground. With respect to his unauthorized absence for different periods, during 1/1/2005 to 31/8/2007, (1/1/2005 to 10/1/2005 = 10, 14/7/2005 to 21/7/2005 = 8, 29/9/2005 = 1, 2/10/2005 to 4/10/2005 = 3, 21/4/2006 to 26/4/2006 = 6, 6/9/2006 to 12/9/2006 = 7, 10/11/2006 = 1, 20/11/2006 to 31/12/2006 = 42 and 1/1/2007 to 31/8/2007 = 243) in total for 321 days, charge memo dtd. 17/9/2007 was prepared. It was served to the Applicant on 6/10/2018. The Applicant acknowledged the charge memo but did not submit any reply/explanation. The enquiry officer after concluding the enquiry submitted its report dtd. 17/9/2007 to the disciplinary authority against which the Applicant submitted representation on 20/10/2008. The disciplinary authority decided to impose the penalty of removal from service for which that disciplinary authority Coaching Depot Officer (CDO)/Bezawada (BZA) was not competent under the rules to impose such punishment. The enquiry officer after concluding the enquiry submitted its report dtd. 17/9/2007 to the disciplinary authority against which the Applicant submitted representation on 20/10/2008. The disciplinary authority decided to impose the penalty of removal from service for which that disciplinary authority Coaching Depot Officer (CDO)/Bezawada (BZA) was not competent under the rules to impose such punishment. He referred the matter to the competent disciplinary authority under Rule 10 (3) of the Railway Servants (Discipline and Appeal) Rules, 1968 (in short, the Rules 1968). The Senior Divisional Mechanical Engineer (DME)/Bezawada (BZA) passed the order of removal dtd. 23/12/2008. The applicant"s departmental appeal was dismissed on 6/4/2009 by Additional Divisional Railway Manager (ADRM)/ Bezawada (BZA) and his review was also dismissed by the Chief Rolling Stock Engineer (CRSE) by order dtd. 29/6/2009. The applicant, thereafter filed representation before the Senior Divisional Personnel Officer of the Divisional office for reappointment on Merciful Consideration, which was also rejected on 6/7/2010. 8. The applicant then filed O.A.No.372 of 2011 before the Central Administrative Tribunal (CAT), Hyderabad, which was dismissed by order dtd. 07/11/2014. 9. Challenging the order of the CAT dtd. 07/11/2014, the writ petition was filed. 10. Learned counsel for the petitioners submits that the order of removal does not record that the applicant"s unauthorized absence was willful. He submits that in the absence of such a finding, the unauthorized absence will not amount to any misconduct under Rule 3(1)(ii) of the Railway Services (Conduct) Rules 1966 (in short, the Rules 1966). He places reliance in the case of Krushnakant B. Parmar vs. Union of India,Civil Appeal No.2106 of 2012. 11. Learned counsel for the petitioners further submits that the disciplinary authority did not consider the applicant"s representation on its merit nor in the correct perspective. It observed illegally that "whatever may be the reasons, mere absenting for duties was not acceptable". He submits that there were compelling circumstances, as the applicant"s wife died untimely in the year 2004 after prolonged illness, the applicant had to look after his widowed mother & the petitioner Nos.2 and 3, the then minors. The applicant becomes mentally and physically unwell. For those reasons, there was unauthorized leave, on different occasions, under unavoidable circumstances. 12. He submits that there were compelling circumstances, as the applicant"s wife died untimely in the year 2004 after prolonged illness, the applicant had to look after his widowed mother & the petitioner Nos.2 and 3, the then minors. The applicant becomes mentally and physically unwell. For those reasons, there was unauthorized leave, on different occasions, under unavoidable circumstances. 12. Learned counsel for the petitioners further submits that the punishment of removal from service of a Class-IV employee for unauthorized absence under aforesaid circumstances is highly disproportionate to the charge, particularly when the applicant had completed almost 16 years of his service. 13. Learned Central Government counsel for the respondents submits that the applicant was habitual absentee on different occasions during the charged period in total of 321 days, as is evident from the charge memo. The applicant did not submit reply to the charge memo and the charge of unauthorized absence was duly proved. The order of removal is justified. Previously also for unauthorized absence, for different period penalty was imposed on the applicant. He further submits that the unauthorized absence of the applicant was willful. He places reliance in Ch. Purushotham vs. The Senior Divisional Commercial Manager, South Central Railway, Vijayawada and others, 2007 (3) ALT 342 . 14. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 15. In view of the submission advanced the point for determination which falls for consideration is as follows:- i) Whether the charge that the applicant failed to maintain devotion to duty and thereby contravened Rule 3 (1) (ii) of Railway Service (Conduct) Rules, 1966 is proved/established or in other words whether mere unauthorized absence for the periods even if proved would constitute failure to maintain devotion of duty under Rule 3 (1) (ii) of the Railway Service (Conduct) Rules, 1966 ? ii) If the answer to the 1st question is in affirmative, whether the punishment of removal from service after 16 years of service on such ground to the Class-IV employee is shockingly disproportionate to the proved charge ? 16. ii) If the answer to the 1st question is in affirmative, whether the punishment of removal from service after 16 years of service on such ground to the Class-IV employee is shockingly disproportionate to the proved charge ? 16. The applicant was served with the charge memo for his unauthorized absence for 321 days with effect from 1/1/2005 to 31/8/2007 in different spells as mentioned above in para No.7 and based thereon the imputation was that the applicant failed to maintain devotion to duty and thereby contravened Rule 3 (1) (ii) of the Rules, 1966. 17. So far as the finding of the Enquiry Officer and the disciplinary authority that there was unauthorized absence for the aforesaid period, the same is not disputed. So the petitioner"s unauthorized absence is proved but the point is if based on such unauthorized absence it can be said that the petitioner contravened Rule 3 (1) (ii) of the Rules, 1966 so as to render himself liable for imposition of punishment under the Rules, 1966. 18. At this stage, it is apt to refer Rule 3 (1) (ii) of the Railway Service (Conduct) Rules, 1966 which is as under:- "3. General:- (1) Every railway servant shall at all times- (i) Maintain absolute integrity; (ii) Maintain devotion to duty; and (iii) Do nothing, which is unbecoming of a railway or government servant. (2) (i) Every railway servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all railway servants for the time being under his control and authority; (ii) no railway servant shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior; (iii) the direction of the official superior shall ordinarily be in writing, and where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter; and (iv) a railway servant who has received oral direction from his official superior, shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing. Explanation I:- A railway servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in the duty within the meaning of clause (ii) of sub-rule (1). Explanation II:- Nothing in clause (ii) of sub-rule(2) shall be construed as empowering a railway servant to evade his responsibilities by seeking instructions from or approval of a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities." 19. A bare reading of Rule 3 (1), shows that every railway servant shall at all times maintain absolute integrity; maintain devotion to duty; and do nothing, which is unbecoming of a railway or government servant under clauses (i), (ii) and (iii). The charge under Clause (ii) is failure to maintain devotion to duty. 20. In Krushnakant (supra), Rule 3 (1) (ii) and Rule 3 (1) (iii) of the Central Civil Services (Conduct) Rules, 1964 came for consideration with reference to the unauthorized absence of the government servant therein. The said rule was the same as the present Rule 3 (1) (ii). The question for consideration was whether unauthorized absence from duty" amounts to failure of devotion to duty or under Clause (iii), a behavior unbecoming of a Government servant. The Hon"ble Apex Court held that such question cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 21. The Hon"ble Apex Court further 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 wilful. Absence from duty without any application or prior permission may amount to unauthorized 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 its control like illness, accident, hospitalization, etc. but in such case, the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant. 22. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond its control like illness, accident, hospitalization, etc. but in such case, the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant. 22. In Krushnakant (supra), the Hon"ble Apex Court further held that in a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. In the said case, the disciplinary authority though recorded that the appellant was unauthorizedly absent from duty but failed to hold that the absence is wilful, it was held that the disciplinary authority as also the Appellate Authority wrongly held the Government servant guilty. The order of dismissal in that case and all the subsequent orders of affirmation were set aside by the Hon"ble Apex Court. 23. It is apt to refer Paragraph Nos.14 to 20 of Krushnakant (supra) as under:- "14. Rule 3(1) (ii) and Rule 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows: "Rule 3 - General. (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant." 15. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behavior was unbecoming of a Government servant. 16. The question whether unauthorized absence from duty" amounts to failure of devotion to duty or behavior 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 willful. 18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. 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 willful. 18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct. 20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty." 24. In the present case, the finding has been recorded with respect to the applicant"s unauthorized absence, but the disciplinary authority has failed to record that the absence was wilful. In the absence of any such finding, following the law as laid down in Krushnakant (supra), we hold that the appellant was not guilty of the charge of failure to maintain devotion to duty under Rule 3 (1) (ii) of the Railway Service (Conduct) Rules, 1966. 25. The applicants submitted representation dtd. 20/10/2008, stating the circumstances under which his unauthorized absence occurred. The said representation finds mention in the order of removal, but there is no consideration thereof. The disciplinary authority i.e. CDO/BZA referred the case to Sr. DME/BZA, being of the opinion that the major penalty of removal was to be imposed which CDO/BZA was not competent to impose. The competent disciplinary authority, Sr. DME/BZA in the order of removal mentioned that "the undersigned agrees with the findings of I.O and that the article of charge is proved and has decided as under: "I have gone through the entire case file in detail. I fully agree with the findings of I.O holding the employee responsible for the charges. Whatever may be the reasons, mere absenting for duty is not acceptable. I fully agree with the findings of I.O holding the employee responsible for the charges. Whatever may be the reasons, mere absenting for duty is not acceptable. I, therefore, decided to impose a penalty of "Removal from Service" w.e.f. 31/12/2008 for the following charge": "That the said Sri D. Dundi Babu while functioning as C&W Helper-I/T.No.1435/476 at CDO/BZA committed serious misconduct in that he absented himself unauthorizedly for a period of 321 days during the period from 1/1/2005 to 31/8/2007 in different spells without proper sanction of leave or observing Rly. Medical attendance Rules. Thus, he has failed to maintain devotion to duty and thereby contravened Rule 3(1)(ii) of Rly. Services (Conduct) Rules 1966." 26. From the order of removal two things become evident i) the finding is recorded with respect to the unauthorized absence of 321 days and because of that the disciplinary authority held that the applicant failed to maintain devotion to duty and contravened Rule 3 (1) (ii) of the Rules 1966, and (ii) the applicants" representation and the reasons for unauthorized absence were not considered by observing that "whatever may be the reasons, mere absenting for duty is not acceptable". So in view of the disciplinary authority, the reasons were not relevant for consideration. Mere absence for duty was not acceptable. Whereas, we are of the view that it was only on consideration of the reasons assigned for unauthorized absence, that it was required to record the finding, if such unauthorized absence was wilful or not. If it was not wilful there was no violation of Rule 3 (1) (ii) i.e to maintain devotion to duty. In the absence of such consideration and absence of a specific finding that the unauthorized absence was wilful, the charge could not be said to be proved. 27. At this stage, we may also refer to the Railway Servants (Discipline & Appeal) Rules, 1968 (in short, the Rules 1968). 28. The Rules, 1968 lay down the procedure, also for holding the enquiry. Removal from service is major penalty under Rule 6 (viii). Procedure for imposing major penalty is in Rule 9. Rule 9 (25) (ii) provides that the Inquiring Authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry including as mentioned in sub-clauses (a) to (e). 29. Rule 10 provides for action on the inquiry report. 30. Procedure for imposing major penalty is in Rule 9. Rule 9 (25) (ii) provides that the Inquiring Authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry including as mentioned in sub-clauses (a) to (e). 29. Rule 10 provides for action on the inquiry report. 30. We consider it appropriate to reproduce Rule 10 (2) and (3) of the Railway Servants (Discipline & Appeal) Rules, 1968 provides as under:- "10) Action on the inquiry report:- (2) The disciplinary authority:- a) Shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any, held under sub-rule(1)(a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favorable or not to the Railway Servant; b) Shall consider the representation if any, submitted by the Railway Servant and record its findings before proceeding further in the matter as specified in sub-rules (3), (4) and (5). (3) Where the disciplinary authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as provided in these rules." 31. Rule 10 (2) (b), shows that the disciplinary authority shall consider the representation if any, submitted by the Railway Servant and record its finding before proceeding further in the matter as specified in sub-Sec. (3), (4) and (5). The consideration of the applicant"s representation was therefore required under the Rules. 32. Sub-Rule 10(3) shows that, where the disciplinary authority is of the opinion that the penalty warranted is such as not within the competence of the disciplinary authority as in Rule 10 (2) (b), he shall forward the records of the inquiry to the appropriate disciplinary authority. Such appropriate disciplinary authority shall act in the manner as provided in the Rules 1968. 33. Such appropriate disciplinary authority shall act in the manner as provided in the Rules 1968. 33. We lay emphasis on the appropriate disciplinary authority" and who shall act in the manner as provided in these rules". In our view the appropriate disciplinary authority" under sub rule (3), has now to act in the manner provided in the Rules. The disciplinary authority" has also been defined in Rule 2 which means in relation to the imposition of penalty on a Railway Servant the authority competent, under the rules, to impose penalty. Therefore when the sub-rule (2) (b) provides that the disciplinary authority has to consider the representation, but such authority not being competent to impose penalty refers the matter to the competent disciplinary authority under Rule 10 (3), such competent Disciplinary Authority which now becomes the disciplinary authority, shall also be required by the rule to consider the representation of the applicant. But, here the applicants" representation was not considered at all by the disciplinary authority, who has passed the order of removal, on the ground that "Whatever the reasons, mere absenting for duty is not acceptable". 34. The submission of the learned counsel for the respondents that the unauthorized absence of the applicant could be only willful, deserves rejection, for the reason, that it was for the disciplinary authority to record finding if the unauthorized absence was willful or not and in the absence of such a finding it cannot be presumed to be willful. 35. In Ch. Purushotham (supra), upon which reliance is placed by learned counsel for the respondent, it is held as under in Para 51:- "51. With regards the petitioner's contention that the appellate order is bereft of reasons, it is required to be noticed that Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 requires the appellate authority to consider (a) whether the procedure laid down in the rules has been complied with, (b) whether the findings of the disciplinary authority are warranted by the evidence on record and (c) whether the penalty imposed is adequate, inadequate or severe. All these three requirements are satisfied by the order of the appellate authority. It is well settled that the appellate authority, in cases where the order of the disciplinary authority is confirmed, is not required to pass an elaborate order and it would suffice if the order reflects application of mind. All these three requirements are satisfied by the order of the appellate authority. It is well settled that the appellate authority, in cases where the order of the disciplinary authority is confirmed, is not required to pass an elaborate order and it would suffice if the order reflects application of mind. (State of Madras v. A.R. Srinivasan, AIR 1966 Supreme Court 1827; S.N. Mukherjee v. Union of India, 1990 (4) SCC 594 ; Maharashtra State Board of Secondary Education v. K. S. Gandhi, 1991 (2) SCC 716 and State Bank of India v. S. S. Koshal, 1994 Suppl. (2) SCC 468)." 36. There cannot be a dispute on the legal principle that the appellate authority in case where the order of the disciplinary authority is confirmed, is not required to pass an elaborate order and it would suffice if the order reflects application of mind. But, that is not the issue here. In order to record finding if unauthorized absence was wilful to constitute failure to maintain devotion to duty, the applicants" representation required consideration on merits of the reasons assigned for absence, by the disciplinary authority. Bereft of such consideration and finding the order of removal cannot be sustained and so the orders of appellate authority and revisional authority. The judgment in Ch. Purushotham (supra) is of no help to the respondent. 37. In view of the aforesaid discussion, we are of the considered view on point (i) and hold accordingly that in the absence of any finding that the applicants" unauthorized absence was wilful the charge of misconduct i.e. failure to maintain devotion to duty under Rule 3 (1) (ii) of the Rules, 1966 is not made out/proved. Proof of mere unauthorized absence from duty is not sufficient nor confers the power on the disciplinary authority to impose any penalty much less the penalty of removal. 38. We are of the further considered view that Tribunal erred in considering the previous absences of the 1st petitioner, which were not the subject matter of the charge memo and on such consideration in dismissing the O.A. 39. In view of what we have held on point No. (i), consideration of point No.(ii) does not arise. We however observe that, in such matters as the present one, the punishment of removal from service after long 16 years of service would be shockingly disproportionate. 40. In view of what we have held on point No. (i), consideration of point No.(ii) does not arise. We however observe that, in such matters as the present one, the punishment of removal from service after long 16 years of service would be shockingly disproportionate. 40. We allow the writ petition and quash the orders of the Disciplinary Authority order, dtd. 23/12/2008, Appellate order dtd. 6/4/2009, Revisional order dtd. 29/6/2009, and Tribunal order dtd. 07/11/2014. 41. The applicant shall be deemed to be in continuous service till his death or retirement date whichever is earlier. Since the applicant did not work actually, we award only 50% of the salary/wages to which he might have been entitled for the period as aforesaid. 42. All other monitory benefits consequent upon the quashing of the order of removal, including the retiral or death benefits as the case may be are also allowed in favour of the petitioners (substituted legal representative of the deceased petitioner No.1). 43. For all the aforesaid reasons, the writ petition is allowed. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.