TILAK RAJ HANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner joined service in the Northern Railway as a Gangman on 14-5-1953 and was appointed a Clerk on 21-10-1954. He was transferred from Bikaner Division to Delhi Division on 21-2-1964. The petitioner absented from duty with effect from 26-9-1968. He was advised by a letter of 24-10-1968 to resume duty at once. The letter was sent by registered post at the Railway quarters occupied by him which was received by him on 26-10-1968. The petitioner wrote back on 2-12-1968 requesting for grant of leave from 28-9-1968 to 30-6-1969. He was informed on 3-1-1969 that he cannot be granted leave up to 30-64969 : that it is in his interest to resume duty without any further delay ; that the period of unauthorised absence from 26-9-1968 was treated as leave without pay: and that disciplinary action will be taken if he continued to be absent from duty any more. This intimation was also sent by registered post on the same address but this time it was returned undelivered with the remarks that the addressee has gone out and it was not known when he would return. As he did not join duty even up to March, 1969, he was charge-sheeted on 31-3-1969 by the Assistant Divisional Personnel Officer. The memorandum of chargesheet was sent at the same address. His place was visited by the Postman on several days but he failed to deliver the letter. On receipt of the undelivered memorandum, an enquiry officer was appointed. Intimation regarding the appointment of an enquiry officer was sent to the petitioner on 14-5-1969 again by registered post. He was also intimated that the first sitting of the enquiry will be held. on 28-5-1969. Two days before, the petitioner sent a letter on 26-5-1969 that he was suffering from fever probably Typhoid for the last five days and that on medical advice he was not in a position to move at least for a period of one and a half month, and, therefore, will not be in a position to attend the enquiry on 28-5-1969. He was asked to submit a medical certificate from a Railway Doctor. Since he had also compalined that the memo of charge sheet was not received by him. it was supplied to him. But he failed to attend or send any medical certificate till 26-5-1969. The second sitting of the enquiry was fixed on 4-7-1969 but was adjourned to. 10-7-1969." Though he was informed that the disciplinary enquiry will be conducted in his absence, yet the enquiry was postponed to 30-7-1969 for the 4th time. On 30-7-1969 a letter was received from the petitioner in which he informed that he could not attend the enquiry on 30-7-1969 again on medical advice. As he was also advised a change of climate, he wanted to go to a Hill Station. The certificate produced by him was of a private practitioner and that only said that he was suffering from summer diarrhoea. The enquiry was, however, adjourned to 16-8-1969. The petitioner sent a telegram stating that he could not attend on that date and wanted another enquiry officer. He wrote another letter on 29-8-1969 requesting withholding of further proceedings- In all five chances were given to the petitioner, but he failed to attend the enquiry and failed to produce medical certificate in support of his sickness.. The enquiry there proceeded ex parte. The enquiry officer reported on 16-9-1969 that the charges of unauthorised absence from 26-9-1968 stand substantiated. He was issued by the Divisional Personnel Officer a show cause notice on 23-10-1969. It was cancelled, and a fresh memorandum was issued by the General Manager on 23-11-1970. Later on, be was removed from service by the General Manager by his order dated 19-12-1971. He appealed to the Railway Board but his appeal was dismissed by the Board on 28-8-1971. The petitioner has challenged these orders in this writ petition.

(2.) Mr. A. B. Saharya made four submissions in .support of the petition. Firstly, the petitioner was unable to attend duty and enquiry because of his illness, and the petitioner cannot be punished for such inability. It has been pointed out that the petitioner lived near the Railway Hospital and it was easier for him to have treatment in the said hospital and obtain proper certificate or his absence. The only certificate on record is of one Dr. B. D. Attani. of 27-7-1969 in which 'the petitioner is stated to have been suffering from diarrhoea. There is no other certificate on record. This certificate provides no jlistification For absence.

(3.) The second submission is that the petitioner was charged for unauthorised absence from 26-9-1968 onwards. This charge is wrong because his absence has been regu- larised as leave from 26-9-1968 to 3-1-1969. He. therefore, could not be charged for the period for which the absence has been regularised. I do not think that this argument has any force because the charge only says that he absented himself from duty without any authority from 26-9-1968. He did not come to join even after 3-1-1969. No fault or resultant prejudice can be found in regard to the charge which is substantially correct. The charges in a departmental enquiry cannot be scanned in a hyper-critical manner.