SAROJ KUMAR 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., 23 -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 exparte 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 Phychotraopic 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 . B. K. Sharma, learned Senior Counsel appearing on behalf of the Respondents while controverting the submissions advanced on behalf of the appellant, has argued that a new plea, which is essentially a question of fact, i.e., whether the writ appellant was informed of his right to take the assistance of any other member of the force to defend himself in the enquiry, is being raised for the first time in the appeal. As the said defence is essentially based on the existence of a question of fact, the same ought not to be allowed by this Court. Learned counsel has further argued that even assuming that such right of the appellant was breached, the same would not ipso facto vitiate the enquiry. The real test, according to the learned counsel, would be one of prejudice caused to the delinquent employee and in the facts of the present case no prejudice can be said to have been caused as the writ appellant had taken an active part in the enquiry held against him and had led material evidence in support of his defence. Coming to the question of quantum of punishment imposed, learned counsel for the Respondents has argued that under the rules in force, the punishment imposed, i.e., removal from service, is contemplated if the charge levelled is found to be established and therefore no interference would be called for. Reliance in this regard has been placed on a Division Bench judgment in the case of Union of India v. Mithilesh Singh reported in (2000) 3 GLT 62. The rival submissions advanced on behalf of the parties on the aforesaid second question raised in the appeal have been duly considered.