JUDGMENT : Shampa Dutt (Paul), J. 1. The present Writ Petition has been preferred against an order dated June 24, 2009 passed by the Appellate Authority of Disciplinary action under The Central Industrial Security Force Act, 1968 and the Central Industrial Security Force Rules, 2001 and order dated April 14, 2009 passed by Commandant, The Central Industrial Security Force, D.T.P.S. Unit, Durgapur, imposing penalty of removal from service of the petitioner with effect from April 14, 2009 (A.N.). 2. The petitioner’s case is that:- “The Petitioner was appointed as a constable under The Central Industrial Security Force with effect from April 20, 1996 and was sent to training. After completion of training, the petitioner was appointed in regular posting as constable No. 964652686. The Respondent No. 5 under the impugned Memo No. V-15014/CISF/DTPS/DISC/Maj/NH/08-6420 dated November 3, 2008 had issued a Memorandum, inter alia, proposing to hold an enquiry against the petitioner under Rule 36 of the Central Industrial Security Force Rules, 2001. The petitioner states that subsistence of Imputation of Misconduct or indiscipline Act in respect of which enquiry is proposed to be held had been set out in the statement of Article of Charge. A list of documents by which a list of witnesses by whom the Article of Charge were proposed to be sustained had also been served upon the petitioner. The petitioner was also directed to submit a written statement within ten days from the date of receipt of the said Memorandum of the defence and was also directed to state as to whether he desires to be heard in person. It was also informed that an enquiry would be held if the Article of Charge is not admitted and the petitioner should specify regarding admission or denial of the Article of Charge. It was also stipulated therein that if the petitioner does not submit his written statement of defence on or before the date specified or if the petitioner does not appear before the inquiring authority or otherwise fails or to comply with the provisions of Rule 36 of the Central Industrial Security Force Rules, 2001 or the orders/directions issued in pursuance of the said Rules, the inquiring authority may hold the enquiry against the petitioner exparte.” 3. The said Article of Charges are as follows:- i) The abovesaid member of the force is directed to submit within 10 days of the receipt of this memorandum a written statement of his defence and also to state whether he desires to be heard in person. ii) He is informed that an enquiry will be held if the article of charge is not admitted, he should specifically admit or deny the article of charge. iii) He is, further informed, that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 36 of CISF Rules 2001 or the orders/directions issued in pursuance of the said Rules, the inquiring authority may hold the enquiry against him ex-parte. 4. The statement of imputation or misconduct and indiscipline act in respect of article of charge framed against the petitioner are as follows:- “That no. 964452686, Constable Nikhil Hembram of CISF, Unit DTPS (DVC) Durgapur was found absent from shift duty as well as regimental duties wef. 14.10.2008 to 20.10.2008 without any information or any kind of leave/medical rest and reported for duty on 21.10.2008 (FN) at his own after remaining 07 days unauthorized absence (AWL) which tantamounts to gross misconduct, indiscipline dereliction of duty and thus unbecoming of a member of a disciplined force like CISF.” 5. The petitioner further states that under the impugned Memo No. V-15014/CISF/DTPS/DISC/MAJ/NH/08-7342 dated December 11, 2008 the respondent No. 5 had passed an order, inter alia, to the effect that an enquiry under Rule 36 of Central Industrial Security Force Rules, 2001 (hereinafter referred to as the CISF Rules, 2001) was being held against the petitioner and the respondent No. 5 had considered that an Enquiry Officer should be appointed to enquire into the charge framed against the petitioner and in exercise of power conferred by sub-rule 5 (5) (a) of Rule 36 of CISF Rules, 2001, Sri R.P. Gangopadhyay Inspector/Exe. of CISF Unit DTPS, Durgapur was appointed as an Inquiry Officer to enquire into the charges leveled against the petitioner. 6. The Enquiry Officer had served notices upon the petitioner informing that inquiry would be held at 10 hours on February 19, 2009, February 20, 2009, February 21, 2009 and February 25, 2009 respectively. 7. of CISF Unit DTPS, Durgapur was appointed as an Inquiry Officer to enquire into the charges leveled against the petitioner. 6. The Enquiry Officer had served notices upon the petitioner informing that inquiry would be held at 10 hours on February 19, 2009, February 20, 2009, February 21, 2009 and February 25, 2009 respectively. 7. The petitioner states that pursuant to the said enquiry notices, enquiry had been held by the Enquiry Officer, but the copy of the enquiry report has not been supplied to the petitioner till date, and as a result the petitioner has been kept in dark regarding such finding of the Enquiry Officer and as a result the petitioner could not make any representation before the disciplinary authority regarding such finding of the Enquiry Officer and thereby the petitioner had been seriously prejudiced. 8. The petitioner states that without serving the findings of the Enquiry Officer upon the petitioner, the respondent No.5 by a Memorandum dated April 14, 2009 had passed an order against the petitioner imposing penalty of ‘removal from service’ with effect from April 14, 2009 (A.N). It is further stated that the said order was passed by the respondent No.5 in exercise of power conferred upon him under Rule 32 read in conjunction with Schedule-I and sub-Rule 34 (ii) of CISF Rules, 2001. 9. Challenging the legality and validity of the said order imposing penalty of ‘removal from service’ against the petitioner with effect from April 14, 2009 (A.N), the petitioner preferred an appeal before the Appellate Authority being the respondent No. 4. 10. The Respondent No. 4, being the Appellant Authority, passed the impugned order under Memorandum dated June 24, 2009, upholding the punishment imposed upon the petitioner by the Memorandum dated April 14, 2009. 11. Hence the Writ Petition praying for the following reliefs:- a. To cancel, rescind, withdraw and/or set aside the impugned order passed by the Respondent No.4 and the impugned order of ‘removal from service’ passed by the respondent No.5 and to treat the petitioner in service all along and to render consequential service benefits in favor of the petitioner. b. And other consequential reliefs. 12. b. And other consequential reliefs. 12. By way of written note of argument, the petitioner has submitted that on the ground of absence from duty for a period with effect from 14.10.2008 to 20.10.2008 (7 days), the petitioner has been imposed with the penalty of ‘removal from service’ which is very harsh and disproportionate and as such the impugned orders are liable to be set aside and quashed with a direction upon the respondents to allow the petitioner to join his duty and with a further direction to treat him as ‘on duty’ during his period of absence and on and to pay all consequential service benefits. It is further submitted that the petitioner is supported by the declaration of law made by the Apex Court in the judgment reported in 1994 Supp (3) SCC 755. 13. The petitioner has relied upon the following judgment:- i) Union of India and Ors. Vs Giriraj Sharma, 1994 Supp (3) SCC 755, wherein the Supreme Court held:- “1. The respondent who was deputed to undergo a course as an electrician sought leave for 10 days on December 10, 1982, which was granted. While he was on leave he sent a telegram for extension of leave by 12 days which request came to be rejected. The respondent, however, joined duty on December 22, 1982 thereby overstaying the period of leave by 12 days. For this misdemeanor his services came to be terminated by an order dated May 7, 1983. His departmental appeal as well as revision were also rejected, whereupon he filed a writ petition in the High Court challenging the order of termination which writ petition came to be allowed by the order of January 3, 1989. The petitioner was directed to be reinstated with all monetary and other service benefits. It is against this order that the present appeal is preferred. 2. ……………….. Assuming Mr. Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having over-stayed the period of leave by 12 days. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been contravened in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances force him to do so. In that view of the matter the learned Counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty. If they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission. 3. In the result we see no merit in this appeal but we would modify the order of the High Court by stating that while we affirm the High Court's order quashing the order of dismissal and directing reinstatement in service with monetary benefits, it will be open to the department, if it so desires, to visit the respondent petitioner with a minor punishment…………..” 14. The Respondent has relied upon the following Judgments:- a) Union of India and Ors. Vs. Subrata Nath, 2022 SCC OnLine SC 1617, wherein the Supreme Court held:- “28. We find ourselves in complete agreement with the findings returned by and conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate Authority and upheld by the Revisional Authority in respect of both the Articles of Charge levelled against the respondent and the punishment imposed on him. The respondent being a member of the disciplined force was expected to have discharged his duty diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs. copper wires from the spot where he was performing his duty. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and stoppage of increment for two years without cumulative effect on one occasion. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and stoppage of increment for two years without cumulative effect on one occasion. In such circumstances, the desirability of continuing the respondent in the Armed Forces is certainly questionable and the Disciplinary Authority could not be expected to wear blinkers in respect of his past conduct while imposing the penalty of dismissal from service on him.” b) In Central Industrial Security Force and Ors. Vs. Abrar Ali, (2017) 4 SCC 507 , the Supreme Court held:- “13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamount to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. 14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya reported in (2011) 4 SCC 584 , this Court held as follows: “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [ (1995) 6 SCC 749 : 1996 SCC (L&S) 80: (1996) 32 ATC 44], Union of India v. G. Ganayutham [ (1997) 7 SCC 463 : 1997 SCC (L&S) 1806], Bank of India v. Degala Suryanarayana [ (1999) 5 SCC 762 : 1999 SCC (L&S) 1036] and High Court of Judicature at Bombay v. Shashikant S. Patil.” 15. In Union of India & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610 , this Court held as follows: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 19. Though we are of the view that the High Court ought not to have interfered with the order passed by the Disciplinary Authority, the penalty of dismissal from service is not commensurate with delinquency. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the Respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period.” 15. Learned Counsel for the respondent has brought the notice of this Court to Annexure-II at Page 32 of the Writ Petition, which is the Article of Charge framed against the Writ Petitioner. 16. The said document is reproduced herein for its relevancy:- “ANNEXURE-II STATEMENT OF IMPUTATIONS OR MISCONDUCT & INDISCIPLINED ACT IN RESPECT OF THE ARTICLES OF CHARGE FRAMED AGAINST NO. 964652686 CONSTABLE NIKHIL.HEMBRAM OF CISF UNIT DTPS DURGAPUR ARTICLE OF CHARGE NO. I No. 964652686 Constable N. Hembram of CISF Unit DTPS Durgapur was derailed for ‘C’ shift duty from 2100 hrs to 0500 hrs in the intervening night of 11/12.10.2008. But the said Constable did not turn up for duty and remained absent from his duty at his own without any information or sick report. A.GD vide entry No. 360 dated 11.10.2008 has been made in the Control Room. The above act on the part of No. 964652686 Const. Nikhil Hembram amounts to gross misconduct, negligence and indiscipline being member of an Armed Force of the Union. Hence the charge. ARTICLE OF CHARGE NO. II That No. 964652686 Constable Nikhil Hembram of CISF Unit, DTPS (DVC) Durgapur was found absent from shift duty as well as regimental duties wef. 14.10.2008 to 20.10.2008. During the period in question the said Constable neither informed about the reason of his unauthorized absence to any body nor did he report sick and remained 07 days unauthorized absence (AWL). GD entries in this regard vide entry No. 448 dt. 14.10.2008, No- 470 dated 15.10.2008 and No. 507 dated 16.10.2008 have been made out in the Unit Control Room. GD entries in this regard vide entry No. 448 dt. 14.10.2008, No- 470 dated 15.10.2008 and No. 507 dated 16.10.2008 have been made out in the Unit Control Room. The said Constable reported for duty on 21.10.2001 at his own after 07 days unauthorized absence (AWL) which tantamounts to gross misconduct, indiscipline, dereliction of duty and thus unbecoming of a member of a disciplined force like CISF. Hence the charge. ARTICLE OF CHARGE NO. III That No. 964652686 Constable Nikhil Hembram of CISF Unit, DTPS (DVC) Durgapur had involved in continued acts and omission prejudicial to good order and discipline of the Force and failed to improve in that he has been awarded 06 minor punishments for various offences since the time of joining in the Force. The details of the offences and punishments awarded to him are as under:- MINOR PUNISHMENTS i) OSL for 25 days from 02.08.2004 to 26.08.2004 without any information or permission from the competent authority. “Withholding of one increment for a period of one year without cumulative effect” awarded by AC/BCCL(D) vide Final Order No. V-15014/BCCL/AC/Sec-SMD/F.O.-37/05-775 dated 09.05.2005. 2) OSL for 07 days from 20.01.2006 to 26.01.2006 without any information or permission from the competent authority. “Fine equivalent of one day pay” awarded by the Sector Commander, Lakwa Sector vide Final Order No. CISF/ONGC(N)/LKW/02/Disc/06-505 dated 17.02.06. 3) He was deployed at GGS-VII on 05.01.07. At about 1100 hrs. he was found absent from the duty post. After searching the nearby area, he was found lying in a drain of tea garden in drunken condition. “Fine equivalent of seven days pay” awarded by the AC/ONGC(N) vide Final Order No. CISF/ONGC(N)/LAKWA/02/Disc/07- 187 dated 19.02.07. 4) He was detailed for ‘B’ shift duty from 1300 hrs to 2100 hrs on 20.07.07 at WT No.- III & IV. The said Const. did not turn up for his duty and remained absent from his duty without any information/permission from the Competent Authority. “Fine equivalent to three days pay” awarded by the AC/DTPS(D) vide Final Order. No. V-15014/CISF/DTPS/Disc./NH/U/R-37/07-7293 dated 11.10.07. 5) He was detailed for ‘B’ shift duty from 1300 hrs to 2100 hrs on 20.07.07 at WT-III &IV. The said Constable did not turn up for his duty and remained absent from his duty without any information/permission from the Competent authority. “Fine equivalent to three days pay” awarded by the AC/DTPS (D) vide Final Order No. V-15014/CISF/DTPS/Disc/NH/U/R-37/07-7293 dated 11.10.07. 06. The said Constable did not turn up for his duty and remained absent from his duty without any information/permission from the Competent authority. “Fine equivalent to three days pay” awarded by the AC/DTPS (D) vide Final Order No. V-15014/CISF/DTPS/Disc/NH/U/R-37/07-7293 dated 11.10.07. 06. He was detailed for ‘B’ shift duty from 1300 hrs to 2100 hrs on 07.10.2007. But the said Const. did not turn up for duty and remained absent at his own without any type of leave, permission, information etc. “Fine equivalent to three days pay” by the AC/DTPS Durgapur vide final order No. V-15014/CISF/DTPS/DISC/NH/U/R-37/07-8044 dt. 20.11.07. Sd/- Commandant CISF UNIT DTPS DURGAPUR” 17. In the present case, the disciplinary authority, awarded 6 (six) minor punishments to the writ petitioner during the period from 2004 to 2007. (This is not denied by the Writ Petitioner). 18. The respondent granted sufficient opportunity to the Writ Petitioner to rectify his conduct but to no effect. 19. According to the guidelines in (Para 15) of Central Industrial Security Force and Ors. Vs. Abrar Ali, (Supra), this court finds that, in the present case:- (a) The enquiry was held by a competent authority; (b) The enquiry was held according to the procedure prescribed in that behalf; (c) It has been done keeping with the principles of natural justice. (d) The proceeding and the decision has been fair, keeping in mind the petitioner’s past conduct in a disciplined force. (e) The procedure and conclusion in the disciplinary proceeding has been conducted in accordance with law, there being no irregularity. 20. But keeping with the view of the Supreme Court in Union of India & Ors. v. P. Gunasekaran., (Supra), this court is of the view that the punishment for removal from service is excessive and harsh and the penalty of compulsory retirement from service would meet the ends of justice. The petitioner joined the service on 20th April, 1996 and was ‘removed from service’ with effect from April 14th 2009 (A.N) (Almost 13 years of (completed) service). 21. It is thus directed that the petitioner shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period. (Union of India & Ors. v. P. Gunasekaran., (Supra)) 22. The Writ Petition in WPA 13198 of 2009 is accordingly disposed of. He will not be entitled for payment of salary and allowances for that period. (Union of India & Ors. v. P. Gunasekaran., (Supra)) 22. The Writ Petition in WPA 13198 of 2009 is accordingly disposed of. 23. No order as to costs. 24. All connected applications, if any, stand disposed of. 25. Interim order, if any, stands vacated. 26. 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