JITENDRA SRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE following reliefs have been sought in the G.A.:

(2.) A detailed Counter Affidavit has been filed on behalf of the answering respondents saying that the applicant was found to be indulging in various irregularities like absenting himself unauthorizedly, reporting sick by submitting certificate from Private Medical Doctors without following the Railway Medical Rules, not taking prior permission for appearing in Civil Services Examination, appearing in MBA entrance test etc. For these reasons his probation of the applicant was terminated by the Railway Board vide order dated 7.11.1994, which was upheld by Central Administrative Tribunal, Allahabad. But, from the Hon'ble High Court, Allahabad the applicant got relief. Nevertheless, the respondents were given liberty to pass order afresh after affording an opportunity of hearing to the petitioner. It has been admitted that fresh memorandum dated 13.3.2001 was issued inviting his representation, if any, against the termination order dated 7.11.1994. The representation was submitted by the petitioner on 10.4.2001 and he was also granted personal hearing on 7.6.2001. Finally, the Competent Authority uphold the decision of termination issued earlier. The applicant again filed a writ petition before the Hon'ble High Court for quashing the termination order dated 31.8.2001. The Hon'ble High Court allowed the petition saying that the termination order was illegal as neither any charge sheet was given nor any inquiry was held. However, the Hon'ble High Court left it open to the respondents to give a charge sheet to the applicant and hold a full fledged enquiry against him after giving full opportunity of hearing with the condition that if the charge sheet was not given within six weeks from the date of order, the petitioner would be reinstated immediately. Consequently, under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 proceedings were initiated against the applicant under Charge Memorandum dated 13.5.2002 containing the following charges; -

(3.) IN parawise comments, it has been specifically denied that he was on sanctioned leave from 13.1.1993 to 11.4.1993. He sent a telegram dated 20.1.1993 saying that "Mother critical, extend leave till 31st January". In response thereof, he was advised by the Senior Professor (Traffic Training) vide letter dated 29.1.1993 to report to Railway Staff College. But, he utterly failed to report to the Railway Staff College till 11.4.1993. Thereafter, he submitted an undated application and sought for regularization of his leave right from 13.1.1993 to 9.4.1993. Since, he failed to get his leave sanctioned in advance, the entire period of his absence was treated as' Leave without pay'. It is further said that Phase -II training review was from 12.4.1993 to 14.5.1993 and not up to 11.6.1993 as averred in the O.A. From 17.5.1993 upto 18.6.1993 he was supposed to report to the Railway Staff College at Vadodara for the Induction Course No. 1 -3 from 21.6.1993 to 30.7.1993. But, the applicant failed to undergo project work and remained absent from 17.5.1993 onwards. He also failed to seek permission from the Competent Authority for appearing in the Civil Services Examination, 1993. His antedated application dated 18.1.1993 was received by the Senior Professor (Traffic Training) on 27.7.1993. The alleged application dated 15.2.1993 is not available on record. The applicant submitted another antedated letter dated 13.6.1993 seeking leave from 14.6.1993 to 26.6.1993, which was duly received in the office on 29.6.1993 for appearing in Civil Services (Prel) Examination scheduled on 13.6.1993 and for MBA interview about a week later on 24.6.1993. He also flouted Rule 538 & 547 of Indian Railway Medical Manual by producing medical certificate from a private Doctor. The said rule prohibits a Gazetted Officer to report sick with a Private Medical Practitioner. It has been admitted that the applicant obtained medical treatment from Medical Superintendent, Railway Hospital at Allahabad from 12.10.1993 to 14.10.1993. He was discharged on 14.10.1993 and advised rest for two weeks. But, thereafter, he neither attended the Railway Hospital nor sent any information thereafter; hence he was discharged from the sick list w.e.f. 27.10.1993. He was advised vide office letter dated 5.1.1994 that his absence after 14.10.1993 was being treated as unauthorized. He was also advised to report at Railway Hospital, Allahabad on 25.3.1994, but the applicant failed. Thereafter, he was advised vide letter dated 18.4.1994 that Railway Board was being apprised of his long absence. Vide another letter dated 24.5.1994, he was asked to report at the Railway Staff College by 6th June, 1994 failing which the Railway Board would be advised for termination of his service. But, he failed to report at the Railway Staff College, Vadodara for continuance of his training. In respect of last order of Hon'ble High Court dated 17.4.2002, it has been said that the direction was that if charge sheet is not given within six weeks from the date of order then only the petitioner will be reinstated. Accordingly the charge sheet was given within the stipulate period. Thus, there was no question of his reinstatement and payment of wages etc.