SAROJ KR BHATTACHARYYA Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant, at the relevant point of time, was working as a Havildar in the Railway Protection Force. On 16.1.1992, the appellant was granted sick leave for a week until 23.01.1992. As the appellant did not report for duty after the expiry of the leave granted to him, the name of the appellant was removed from the sick list. On 23.1.1992 itself the appellant submitted a medical certificate from a private medical practitioner with regard to his illness. Thereafter by orders dated 6.3.1992 and 23.4.1992, the appellant was asked to report to the Railway Doctor. The appellant, however, did not carry out the aforesaid orders of the authority and continued to remain unauthorisedly absent from duty with effect from 23.01.1992. Accordingly, a chargesheet dated 13/14.07.1992 was issued levelling the following charge against the appellant: "Gross neglect of duty and violation of orders is that Sri S.K. Bhattacharjee, Hav/Fire/ GHY has been remaining absent from duty at his own accord without any authority w.e.f. 13.1.92 violating the orders for reporting to the Railway Medical Authority." As no response was forthcoming to the charge levelled against the appellant, an ex-parte enquiry was held in respect of the charge in question and on the basis of the findings recorded by the Enquiry Officer, the disciplinary authority thought it proper to impose the punishment of dismissal from service on the appellant (writ petitioner). The appellant filed an appeal before the appropriate authority and in the said appeal, for the first time, it was Stated that during the period of sick leave granted to the appellant, he was under the treatment of one Dr. P.P. Roy, a private medical practitioner and on the advice of the said doctor, he had proceeded to Calcutta for better treatment on 9.3.1992. According to the appellant (writ petitioner) immediately on his arrival at Calcutta on the next day, i.e., on 10.3.1992, he was arrested in connection with a case under the Narcotic Drugs and Psychotropic Substances Act and he continued to remain in jail custody until 16.11.1992 on which date he was released on bail. The appellate authority, on consideration of the Statements made in the memo of appeal by the appellant, found that the conduct of the enquiry ex- parte against the appellant, in the facts and circumstances noted above, was in violation of the principles of natural justice and as reasonable opportunity was not afforded to the appellant to defend himself in the enquiry, the order of dismissal deserved to be set aside and the matter remanded for a de novo enquiry. On the basis of the aforesaid order passed by the appellate authority, a de novo enquiry was initiated and the same was concluded by the Enquiry Officer. On the basis of the findings arrived at in the enquiry, by order dated 9.8.1994 the appellant was found guilty of the charges levelled. Consequently the punishment of removal from service was imposed. Aggrieved, the appellant (writ petitioner) had instituted the writ proceedings, out of which the present writ appeal has arisen.

(2.) The learned Single Judge after considering the cases of the respective parties found that there was no explanation whatsoever forthcoming on the part of the appellant for his absence from duty unauthorisedly with effect from 23.1.1992 till the date of his arrest, i.e., 10.3.1992 and the said unauthorised absence being virtually admitted, the writ petition deserved to be dismissed. The learned Single Judge also considered the question of proportionality of the punishment imposed and for the reasons recorded in the impugned order held the present case not to be appropriate for interference with the quantum of punishment imposed.

(3.) Mr A.K. Bhattacharyya, learned senior counsel arguing the case of the appellant, has advanced two primary grounds in support of the challenge made in the present appeal. Learned counsel has argued that the charges against the appellant is of unauthorised absence from duty from 23.1.1992 till the date of the charge. Memo i.e. 13/14.7.1992. As from 10.3.1992 onwards the appellant was admittedly in police custody, and the said fact having been taken due note of by the appellate authority while remanding the case for de novo enquiry, in the course of such de novo enquiry, the charge against the appellant ought to have been re-framed and the same not having been done, the enquiry as a whole stands vitiated. It is next argued by the learned counsel appearing on behalf of the appellant that under Rule 153.8 of the Railway Protection Force Rules, 1987, the delinquent employee has a right to take the assistance of any member of the force to defend himself in the enquiry. It is argued that the said right of the appellant has been breached in the present case as he was not made aware of the same either by the disciplinary authority or by the enquiry officer. Learned counsel has argued that there is a mandatory duty cast on the disciplinary authority/enquiry officer to apprise the delinquent employee of such right and any breach of the same would vitiate the conduct of the enquiry. Reliance in this regard has been placed on two decisions of the Apex Court in the cases of C.L. Subramaniam Vs The Collector of Customs, Cochin reported in AIR 1972 Supreme Court 2178 and Bhagat Ram- Vs- State of Himachal Pradesh reported in AIR 1983 SC 454. Reliance has also been placed on a judgment of Division Bench of this Court reported in (1989)1 GLR 233 (Amulya Chandra Das Vs Assam Administrative Tribunal & Ors.) Lastly, it has been argued by the learned counsel for the appellant that the materials on record amply demonstrate that the unauthorised absence of the appellant from duty, even if the same is held to be proved, would be for the period from 23.1.1992 to 10.3.1992 and that the appellant had a justifiable reason for such unauthorised absence. The appellant was advised to proceed to Calcutta for better treatment of his illness and the appellant had a right to obtain treatment of a doctor of his choice. On the aforesaid basis, it is argued that even assuming the charge to be proved, unauthorised absence for the period in question, in the light of the reasons furnished by the delinquent employee, ex-facie demonstrates the punishment of removal from service to be shockingly disproportionate thereby calling for necessary intervention of this Court.