SHYAMAL PAUL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant is aggrieved against the order dated 8.3.3005 by which he was removed from service for being absent for more than 600 days. Mr. S. Dutta, learned Counsel for the applicant appeared before us. At the outset learned Counsel submitted that the order passed by Senior DME, LMG, Lumding on 8.3.2005 thereby removing the applicant with immediate effect is void ab initio. Learned Counsel invited our attention on the show cause notice dated 10.1.2005 issued against the applicant. It is signed by Sr. DME, Lumding. The chargesheet and memorandum is signed by DME(P), N.F. Railway, Lumding, who is shown as the Disciplinary Authority. There is absolutely nothing on record to indicate that the Sr. DME delegated his power to DME(P) Lumding. Next it was argued that the charge sheet is vague inasmuch as it does not indicate the actual period of absence. As per the memorandum under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 and Standard Form No. 5. Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 the charge framed against the applicant is as under:

(2.) MR . Dutta further submitted that the applicant was absent due to illness for which medical certificates were duly furnished before the concerned authorities. There exist a reasonable cause for his absence. It was alleged that the charge sheet was issued by a person who cannot act as a Disciplinary Authority qua the applicant. Admittedly, Sr. DME is the Disciplinary Authority. No other person can act as Disciplinary Authority. Reference was made to the decision of the Apex Court in the case of Narbada Prasad v. Chhanganlal & Ors., : AIR 5969 SC 395 and Hukam Chand Shyam Lal v. Union of India & Ors., : AIR 1976 SC 789, wherein it is held that it is well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all and other modes of compliance are excluded.

(3.) WE have gone through the records and considered the arguments advanced before us. It is obvious that enquiry was not conducted as per the procedure established by law. Besides the charge sheet is vague inasmuch as it does not indicate the actual period of absence. At three different spells, three different dates are given from which period of absence cannot be ascertained. The facts narrated are contrary to each other. It is the basic tenet of law canonised in the dictum Allegans Contraria Non Est Audiendus (He is not be heard who alleges things contradictory to each other), moreover, principle of natural justice was not followed inasmuch as no proper notice was issued. There is no evidence for conducting proper enquiry and examination of witnesses on the basis of which applicant was charge sheeted. Taking into consideration the entire conspectus of the facts we set aside and quash the penalty of removal from service and the order of Chief Mechanical Engineer, N.F. Railway, Maligaon dated 3.11.2006, the letters dated 13.9.2010 and 18.10.2010 issued by the General Manager (P), N.F. Railway, Maligaon rejecting the representation dated 29.7.2010 and direct the respondents to reinstate the applicant in service with all consequential benefits.