RADHEY SHYAM SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed by the petitioner Radhey Shyam Sharma, who was serving the respondent-Railway Protection Force on the post of Naik. A charge-sheet was issued to him under Rule 153 of the Railway Protection Force Rules, 1987 on 15.12.1994 which contained two charges. Charge No. 1 was to the effect that he was under treatment of the Divisional Medical Officer, Reengus since 10.3.1994, but he disappeared from the hospital on 5.4.1994, and continued to remain absent from his duty without any intimation upto 30.5.1994. He then again remained absent from 6.4.1994 to 27.9.1994. His such willful absence was misconduct under Rule 146.2(i)(iii) and 147(ii)(vi) of the Railway Protection Force Rules. Second charge was hat he unauthorisedly occupied the railway quarter No. L/325/B, which was allotted to one Kishan Lal, Head Clerk and despite specific order by Divisional Security Commissioner, Railway Protection Force, to vacate such quarter, he failed to vacate said quarter and thereby committed a misconduct under Rule 146.3(i) of the Rules of 1987. Petitioner denied the charges and' filed reply. The Enquiry Officer however in his report found all the charges proved against the petitioner. The Disciplinary Authority on that basis by order dated 27.4.1995 imposed penalty of compulsory retirement on the petitioner. Mis appeal filed there against was rejected by the appellate authority by order dated 27.10 .1995 and thereafter the revision petition was also rejected by the Revisional Authority by order dated 25.1.1996. Hence, this writ petition.

(2.) Shri Reashm Bhargava, learned Counsel for the petitioner has argued that the charge-sheet itself contained explanation of the petitioner for his absence and, therefore, absence of the petitioner could not be said to be willful. In the statement of allegations, it was clearly mentioned that petitioner was issued sickness certificate by Divisional Medical Officer on 10.3.1994 and that his name was removed from the records of indoor patients of the hospital by discharge certificate dated 5.4.1994 and that the petitioner by letter dated 6.6.1994 send on application under U.P.C. letter for extension of his medical leave, which was accompanied by a medical certificate for a period of 15 days issued by a private medical practitioner Shri Moti Lal Verma, Bandikui dated 31.5.1994. Thereafter, petitioner submitted such similar applications for subsequent period on-15.6.94 to 29.6.94 and then on 5.7.94, 19.7.94, 4.8.94, 19.8.94, 2.9.94 and 16.9.94. Each of these applications were accompanied by medical certificates of 15 days. The Disciplinary Authority did not either reject the leave applications of the petitioner, nor sanctioned the leave. In the circumstances, therefore, application of the petitioner remained undecided. When the charge-sheet was sent to the Enquiry Officer for proceeding, number of documents were forwarded to him including the sickness certificate of the petitioner dated 10.3.1994, discharge certificate dated 5.4.94 and duty certificate dated 27.9.1994, but none of those applications, despite being referred in the statement of allegations, was forwarded to the Enquiry Officer. When this issue was specifically raised by the petitioner before the Enquiry Officer, which reference to the fitness certificate dated 27.9.1994, he merely brushed aside the arguments by observing that this issue did not concern the Enquiry Officer and therefore did not require his comments. It is contended when a charge-sheet is issued to the delinquent and he files reply there to and take a particular stand to explain his conduct, the Enquiry Officer is duty obliged to consider such explanation and give his finding, one way or the other. The Enquiry Officer having not decided this issue, has failed to discharge his duties under the rules. Learned Counsel in support of his arguments relied on the judgments of this Court in Avadh Behari Panchauri v. State, 2004 2 WLC(Raj) 549, Ram Singh v. Union of India and Ors.,2002 3 RentLR 106 and judgment of Andhra Pradesh High Court in Mohd. Akhter Ali v. Andhra Pradesh Electricity Board, Hyderabad and Ors.,1987 3 SLJ 178. Learned Counsel also submitted that the Enquiry officer was to perform his function fairly and reasonably. He has to give his reasoning for accepting or not accepting any material put forward by the delinquent. The Enquiry Officer has prepared an absolutely cryptic and non-speaking report and that issues, which were referred to him for adjudication, have not been actually decided by him. Learned Counsel for the petitioner in support of his arguments relied on the judgment of Supreme Court in Anil Kumar v. Presiding Officer and Ors., 1985 3 SCC 378, Union of India and Ors. v. Prakash Kumar Tandon, 2009 1 SCC(L&S) 394 and judgment of Bombay High Court in P.A. Karkhanis v. UCO Bank, Mumbai and Ors., 2009 5 MhLJ 444.

(3.) Learned Counsel for the petitioner raised the argument that while the charge against the petitioner was of absence under intimation, whereas the Enquiry Officer has recorded a finding of willful absence of the petitioner. The Enquiry Officer could not have travelled beyond the scope of charge while giving his finding and if there is no charge of willful absence, no such finding could be recorded him.