JUDGMENT : Om Prakash Shukla, J. 1. Heard Shri Lalit Shukla, learned Counsel representing the petitioner and learned Standing Counsel representing the respondents. 2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, Jagdamba Prasad Dubey, challenging the judgment and order dated 09.10.2015 passed by the U.P. State Public Services Tribunal, (hereinafter referred to as the `Tribunal') Lucknow, whereby Claim Petition No. 754 of 2014 filed by the petitioner has been dismissed. The petitioner is also challenging the validity of order of punishment dated 27.06.2008, by which he was reverted to two stage below in the present pay-scale as well as the appellate order dated 28.06.2013, by which his appeal preferred against the aforesaid punishment order was dismissed. 3. Briefly stating, the facts of the case are that the petitioner was appointed as a Deputy Jailor in the pay-scale of Rs.9300-Rs.34500/-(Grade Pay-Rs.5400/-) and was posted in the same capacity at Central Jail, Naini, Allahabad on 14.07.1997. He remained posted at different places and worked with full devotion and satisfaction of the higher authorities during his employment. 4. Apparently, while the petitioner was posted as Deputy Jailor in District Jail, Lucknow in the year 2007, he submitted an application dated 04.04.2007 seeking to grant two days’ Casual Leave on account of the fact that he was suffering from diarrhea, however, without getting the said Casual Leave sanctioned, he left the station and also he was unauthorizedly absent from duty thereafter and as such, vide order dated 26.04.2007, he was placed under suspension in contemplation of departmental enquiry. 5. During pendency of the departmental enquiry, the petitioner joined his services on 01.05.2007 at his place of posting and has sought retrospective medical leave w.e.f. 06.04.2007 to 30.04.2007 by moving an application in this regard. Thereafter, vide order dated 20.06.2007, the services of the petitioner were reinstated and he was posted in Central Jail, Agra, however, it was directed that enquiry instituted against him would be continued as usual. 6. Pursuant to the order dated 20.06.2007, the Enquiry Officer had served a charge-sheet dated 20.06.2007 to the petitioner, containing three charges viz. Thereafter, vide order dated 20.06.2007, the services of the petitioner were reinstated and he was posted in Central Jail, Agra, however, it was directed that enquiry instituted against him would be continued as usual. 6. Pursuant to the order dated 20.06.2007, the Enquiry Officer had served a charge-sheet dated 20.06.2007 to the petitioner, containing three charges viz. (1) the petitioner had proceeded on casual leave without getting it sanctioned from the competent authority; (2) though the District Magistrate, Lucknow, keeping in mind the Assembly Election, 2007, issued direction to officer/employee not to proceed on leave or leave the headquarter, but even then the petitioner left the station without getting his leave sanctioned; and (3) the petitioner had not given any information immediately to the Jailor about his ailment along with medical certificate. 7. It seems that on receipt of the aforesaid charge-sheet, the petitioner had made an application/representation dated 23.07.2007, seeking supply of certain documents to him, but vide letter dated 12.08.2007, the Enquiry Officer refused to provide the demanded documents to the petitioner, however, opportunity was granted to the petitioner to visit the office of the Superintendent, District Jail, Lucknow in any working day and go through the demanded documents and then submit his reply within ten days. However, instead of availing the said opportunity, the petitioner moved another application/letter dated 22.08.2007, seeking again to supply him the documents as demanded vide letter dated 12.08.2007 and this time again his request was turned down. Thereafter, the petitioner had requested vide letter/representation dated 20.09.2007 to change the Enquiry Officer, which was also rejected vide order dated 08.10.2007. Ultimately, the petitioner had filed his reply to the charge-sheet on 01.11.2007, denying all the charges so levelled against him. 8. According to the petitioner, after giving reply to the charge-sheet on 01.11.2007, the Enquiry Officer had neither conducted enquiry by fixing date, time and place nor charges were proved in his presence nor any Presenting Officer was appointed for proving the charges on behalf of the department nor the authenticity of the document supplied along with the charge-sheet as evidence was ever tested during the course of enquiry by associating him or any witnesses for proving the charges against him and the Enquiry Officer had straightaway submitted enquiry report dated 29.11.2007, holding that the charges stood proved against him. 9. 9. The Disciplinary Authority, on receipt of the enquiry report dated 29.11.2007, issued a show cause notice dated 14.02.2008 along with the enquiry report to the petitioner under the provisions of Rule 9 (4) of the U.P. Government Servant (Discipline & Appeal) Rule, 1999, calling upon his explanation within fifteen days. In response thereof, the petitioner submitted his reply on 03.03.2008. Thereafter, the Disciplinary Authority had passed the order of punishment dated 27.06.2008, by which the petitioner was reverted to two stages below in the present pay-scale. 10. Aggrieved by the aforesaid order of punishment dated 27.06.2008, the petitioner preferred an appeal on 03.10.2008, which was dismissed by the Appellate Authority vide order dated 28.06.2013. Significantly, in the interregnum vide order dated 03.09.2008, medical leave w.e.f. 06.04.2007 to 30.04.2007 sought by the petitioner was sanctioned by the competent authority. 11. Consequently, the petitioner dissatisfied with the aforesaid order of punishment dated 27.06.2008 as well as appellate order dated 28.06.2013, preferred Claim Petition No. 754 of 2014 before the Tribunal. The learned Tribunal, after hearing the parties, dismissed the claim petition vide order dated 09.10.2015. It is this order dated 09.10.2015, which has been challenged in the instant writ petition. 12. Assailing the impugned judgment/order passed by the learned Tribunal, the learned Counsel representing the petitioner has contended that on 04.04.2007, while the petitioner was on duty as Deputy Jailor in District Jail, Lucknow, he became seriously ill on account of diarrhea and as such, he immediately moved an application seeking to grant him two days’ Casual Leave. As his health was deteriorating and he felt acute sickness, he took treatment from the Medical Officer posted in District Jail, Lucknow, but despite that his health was not improving, hence in that peculiar situation and assuming that his Casual Leave might have been sanctioned by the department, he firstly went to Primary Health Centre, Sarojini Nagar, Lucknow for his better treatment, but when his health was not improving there, then, he went to his home town i.e. district Pratapgarh, from where he took his treatment at Primary Health Centre, Ramganj, Sultanpur. Subsequently, after becoming fit, he immediately reported for duty on 01.05.2007 along with application for grant of medical leave i.e. w.e.f. 06.04.2007 to 30.07.2007, however in the intermittent period, he was placed under suspension vide order dated 26.04.2007 in contemplation of inquiry. 13. Subsequently, after becoming fit, he immediately reported for duty on 01.05.2007 along with application for grant of medical leave i.e. w.e.f. 06.04.2007 to 30.07.2007, however in the intermittent period, he was placed under suspension vide order dated 26.04.2007 in contemplation of inquiry. 13. It has been contended by the learned Counsel for the petitioner that the absence from duty w.e.f. 06.04.2007 to 30.04.2007 was not willful or deliberate but his absence from duty for the aforesaid period was on account of medical issue faced by the petitioner and that too the department was fully aware about his serious ailment. The said medical leave w.e.f. 06.04.2007 to 30.04.2007 was later sanctioned by the competent authority vide order dated 03.09.2008. Thus, according to him, if medical leave of 24 days was sanctioned by the competent authority itself, the very imposition of the impugned punishment was unwarranted and illegal. The learned Counsel has also submitted that in any case, the said punishment has been awarded without giving a proper opportunity of hearing to the petitioner. The disciplinary authority did not consider the reply submitted by the petitioner against the show cause notice wherein it had specifically been submitted that opportunity of hearing was not afforded to the petitioner during the enquiry proceedings as no date, time and place was fixed nor any documents demanded by him were supplied to him, hence the enquiry itself stood vitiated, and it was merely in a mechanical manner, the disciplinary authority had passed the impugned punishment order, which remained disproportionate to the proved delinquency. 14. The learned Counsel has further submitted that Appellate Authority, while confirming the order of punishment, also did not consider the plea of the petitioner that the impugned punishment order has been awarded to the petitioner in utter violation of principle of natural justice. According to him, though the learned Tribunal, while passing the impugned judgment/order, appreciated the facts that the medical leave w.e.f. 06.04.2007 to 30.04.2007 was sanctioned by the competent authority vide order dated 03.09.2008, but the Tribunal has failed to give any finding on this aspect of the matter. The learned Tribunal has also erred in not considering the Circular dated 19.04.1996, which says that the staff of the Jail were exempted from election duty, a fact which has not been denied by the respondent. The learned Tribunal has also erred in not considering the Circular dated 19.04.1996, which says that the staff of the Jail were exempted from election duty, a fact which has not been denied by the respondent. Thus, it has been argued that the Tribunal has erred in dismissing the claim petition and as such the writ petition deserved to be allowed. 15. Per contra, learned Standing Counsel representing the State of U.P. has opposed the writ petition contending that the petitioner had been the member of a disciplined force. Indiscipline therein, amounts to a very serious misconduct. Therefore, it is intolerable. Once the charge of absence stood proved, the matter does not deserve to be considered by this Court. The writ petition lacks merit and is liable to be dismissed. 16. Having regard to the rival submissions advanced by learned counsel for the parties and gone through the record available before this Court in the instant writ petition, it is required to be noted that while the petitioner was posted as Deputy Jailor in District Jail, Lucknow, he was placed under suspension in contemplation of disciplinary proceedings vide order dated 26.04.2007 on the charge of unauthorized absence from duty. However, during pendency of the enquiry, the petitioner joined the services on 01.05.2007 and thereafter, he was reinstated in service and posted in District Jail, Agra vide order dated 20.06.2007 but enquiry was ordered to be continued as usual. Pursuant to the aforesaid order dated 20.06.2007, the petitioner submitted his joining in District Jail, Agra and an enquiry was conducted against the petitioner by serving a charge-sheet dated 20.06.2007 to the petitioner containing three charges, which are reproduced hereinbelow :- 17. The record available before this Court would reveal that the petitioner, after submitting an application dated 04.04.2007 for grant of two days’ Casual Leave on the ground of sickness, proceeded on leave without getting it sanctioned from the competent authority. Thereafter, he was unauthorizedly absent from duty w.e.f. 06.04.2007 to 30.04.2007. However, it transpires that medical leave of the petitioner w.e.f. 06.04.2007 to 30.04.2007 came to be sanctioned by the competent authority vide order dated 03.09.2008 only. 18. It is settled principle of law that mere absence from duty does not per se amount to a serious misconduct unless it is held as deliberate and willful absenteeism, more particularly for a long period or frequent absenteeism. 18. It is settled principle of law that mere absence from duty does not per se amount to a serious misconduct unless it is held as deliberate and willful absenteeism, more particularly for a long period or frequent absenteeism. Therefore, the disciplinary authority requires to go into the aspects as to why and in what circumstances employee was absent, whether explanation offered by the delinquent employee was satisfactory or not or as to whether the delinquent employee is in the habit of frequently absenting from duty or as to whether the absence is for a shorter period or a longer period. Depending on the finding recorded in the departmental proceedings on the nature and period of absence, it is for the disciplinary authority to impose appropriate punishment ranging from censure to that of dismissal from service. There is no strait-jacket formulae for inflicting of punishment in a departmental proceedings and the imposition of punishment would naturally depend on the facts and circumstances of that particular case. Therefore, the basic requirement for the disciplinary authority to take a final decision to impose appropriate punishment is finding of fact on the allegation of unauthorized absence. 19. In the instant case, in response to the charge-sheet issued by the enquiry officer, the petitioner initially requested to supply documents and also requested to provide some more time to file a detailed explanation and when his request was turned down twice, then the petitioner submitted his explanation briefly explaining the reasons for absence. He has also pointed out that his absence after 04.04.2007 was on health grounds, that he applied for leave and his application for grant of two days’ casual leave were not rejected. Therefore, this particular piece of explanation offered by him was crucial to assess whether the absence of employee after 04.04.2007 was deliberate and willful. 20. It is also apparent from the record that absence of petitioner whether deliberate and willful was not established. Petitioner's absence could have been termed as deliberate and willful if the case of the department was that any of the medical prescription produced by the petitioner while joining the duty was forged, however, it is not the case of the department that they had examined these medical records during the course of enquiry and during such examination had found that the medical prescription produced by the petitioner was forged. It is also not a case of the department that the ailment complained of by the petitioner was false or that he was never suffering from any serious ailment. It is interesting to note that in the order of punishment, there is discussion on applications made by petitioner for casual leave. 21. It is borne out from the order of appellate authority that though the petitioner raised several grounds in his appeal, the appellate authority failed to consider any of the grounds and simply affirmed the decision of the disciplinary authority. Apparently, the appellate authority acted teeth less and without any application of mind. 22. It is apt to mention that no employee can remain absent from duty without permission. He can be absent from duty only by submitting leave application and only after leave is sanctioned. Without prior intimation and sanction of leave, if employee does not attend to duties, such absence may be treated as unauthorised, which may amount to misconduct and warrant disciplinary action. However, gravity of misconduct depends on period of absence and conduct of employee. Different yardsticks may apply if absence was in continuation to sanctioned leave. Thus, mere absence from duty does not automatically amount to grave misconduct. Only if absence is wilful, deliberate and without any justification, it would be a grave misconduct. Thus, it is necessary for the disciplinary authority to find out first whether the absence was deliberate and wilful. For this, enquiry is necessary. If the absence was proved to be deliberate and wilful, the next question is what punishment can be imposed. On a proved allegation of unauthorized absence punishment may vary from case to case and depending on various aspects. 23. In the instant case, there is no discussion in the order of punishment as to the conduct of petitioner prior to initiation of disciplinary proceedings resulting in imposing the impugned punishment, nor there is any discussion on endeavour made to secure the presence of employee nor it is the case of the department that despite repeated instructions to attend to duty, the employee refused to resume his work. It is not alleged that petitioner was in the habit of absenting from duty. It is also not placed on record that he was indulging in misconduct earlier and was imposed punishments. Perforce, application of mind to the issue and taking conscious decision is paramount. It is not alleged that petitioner was in the habit of absenting from duty. It is also not placed on record that he was indulging in misconduct earlier and was imposed punishments. Perforce, application of mind to the issue and taking conscious decision is paramount. The same is palpably missing. The whole exercise appears to be vindictive. 24. Having noticed the aforesaid, what we find from the impugned judgment/order passed by the Tribunal that the Tribunal has not recorded any finding with regard to sanctioned medical leave of the petitioner w.e.f. 06.04.2007 to 30.04.2007 by the competent authority nor any discussion has been made whether the absence of the petitioner from duty was willful or deliberate. This court would find profitable to quote the observation of the Apex court in the given facts and circumstances of the present case as was made in the case of State of Punjab Vs Dr. P.L. Singla: (2008) 8 SCC 469 , wherein the Apex Court observed: “8. Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. 9. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of days overstay is viewed very seriously. Be that as it may” 25. Apparently, in the present case, the department had condoned the act of absence by granting the sanction of leave post facto. No doubt, the department, even thereafter can take action against the petitioner, subject to reservation of its rights, however, the point to be noted is that the Apex Court has also observed in the said case, that in case the unauthorized absence is for a few days or few months and the reasons for absence is stated to be serious illness, the said request can be considered favorably by the department. This court finds that although the petitioner had given an adequate explanation for his absence of 26 days, however the same was not considered favorably by the department in a very pedantic manner. As seen from the record, the explanation of the petitioner for his absence from duty for 26 days justifies his case. Hence, in the light of the explanation submitted by the petitioner, the punishment imposed on him appears to be disproportionate to the charges leveled against him. 26. As to what kind of relief can be granted by this Court in the present matter, the Apex court at paragraph No. 18 of the judgment in B.C. Chaturvedi V/s Union of India: (1995) 6 SCC 749 has held that "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof." 27. Having regard to the aforesaid judgment passed by the Apex Court and in the peculiar facts of the present case, this Court cannot be oblivious of the fact that the present litigation is more than 15 years old and as such any direction to the disciplinary/appellate authority to reconsider the punishment imposed to the petitioner would be a travesty of justice. Thus, for the cogent reasons as explained herein above, we are of the view that the punishment imposed is wholly unfounded and is a serious error of law, therefore, the restitution of financial benefit of which the petitioner was deprived, deserved to be restored. The learned Tribunal having been approached to adjudicate the matter in its right perspective has failed to provide any solace to the petitioner. Therefore, the judgment of the Tribunal confirming the orders of the disciplinary and appellate authority calls for interference. 28. We, accordingly, allow this writ petition by setting aside the judgment and order passed by the learned Tribunal dated 09.10.2015 in Claim Petition No. 754 of 2014 and consequent punishment order passed by the disciplinary authority dated 27.06.2008 as well as appellate authority dated 28.06.2013. The petitioner shall be entitled for all consequential reliefs as per the rules. 29. It is clarified that the present order shall not be treated as precedent as the same has been rendered in the peculiar facts of the present case. 30. There shall be no orders as to cost.