High Court · 2012

We have heard Mr K Paul, learned counsel for the petitioner and Ms K Dev i, learned Standing Counsel, NF Railways for the respondents. The pleaded facts in brief would be necessary to outline the rival orien tations. The petitioner at the relevant point of time was working as a Grade-IV employee under the NF Railways and was posted at Lumding as Mechanic Diesel Elec trician. As he suffered from severe pain in the abdomen in the first week of Feb ruary, 2006, he decided to take treatment at Dibrugarh where his relatives were residing and sought for leave with effect from 3.2.2006 to 12.2.2006 which was g ranted. According to the petitioner, he took his treatment in the Railway Hospit al at Dibrugarh for the period thereafter i.e. 13.2.2006 to 7.3.2006 and did inf orm the concerned respondent authority about the same. On his recovery when he w as about to join his duties, his above ailment resurfaced for which he started t aking treatment with effect from 9.3.2006 under Dr. K. Zaman, Senior Medical & H ealth Officer, Dibrugarah State Dispensary, Dibrugarh. Situated thus, according to the petitioner, he on 8.5.2006 and 11.5.2006 submitted written representation s before the concerned authority acquainting them of his continuing ailing state of health with the assurance that he would join his duties immediately on recov ery. While he was under treatment, he received a notice of imposition of penalty of removal from service with effect from 22.8.2007. According to him, admittedl y this notice was received at his residence at Dibrugarh. It was thereafter on e nquiry he could come to learn that vide Memorandum of Charges dated 27.10.2006 t he following imputations had been levelled against him: (cid:28)Annexure-I Statement of article of charge framed against Sri Subir Kr. Dey DSL/Hel per-I/Elect./LMG Article-I. That the said Sri Subir Kr. Dey D/Helper-I/Elect/LMG while functioning a s DDL/Helper-I/duty the period w.e.f 13.02.2006 & on ward has been found unautho rized duty absent from duty during the period as mentioned above in terms of par a 518(2) establishment code Vol-I within absence from duty renders as Rly. Serva nt liable to disciplinary action. This sort of activities leads in terms violati on of sub rules No. 3.1(ii) of Railway Service Conduct Rule-1966. Annexure-II That the said Sri Subir Kr. Dey, while functioning as D/Helper-I/Elect/L MG was granted & availed 10(ten) days LAP w.e.f. 03.02.2006 TO 12.02.2006 withou t joining duty on 13.02.2006. He remained unauthorized absent from duty w.e.f 13 .02.2006 to till date without Official written intimation & proper approval of c ompetent authority. As such by the aforesaid act Sri Subir Kr. Dey, DDL/Helper-I did not bot her for Rly. Service & Failed to discharge his duties as a Government Servant as he remained absent from duty unauthorisedly & willfully since long thereby exhi biting lack of devotion to duty & this violated the sub rules No. 3.1(ii) of Rai lway Service Conduct Rule-1966. (cid:29). He learnt further that an enquiry into the above charges was held therea fter in his absence without affording him any opportunity to represent against t he same. Being aggrieved, he preferred a departmental appeal before the Senior D ME/D/R.F Railway on 4.10.2007 and eventually by letter dated 19.12.2007 of the A ssistant DME/DSL/II/LMG he was informed about dismissal of the same and confirma tion of the penalty of removal from service as a disciplinary measure. He then t urned to the learned Tribunal for redress. The respondents in their written statement while expressing their reserv ation that for his illness as asserted he ought to have taken admission in the R ailway Hospital at Lumding and could have proceeded to Dibrugarh after obtaining a sick certificate and due permission of his controlling officer, did not admit his version of taking treatment at Dibrugarh. According to the respondents, as he was absent from duty without any information, a charge for imposition of mino r penalty was formulated on 29.3.2006 and finally his pay was reduced by one sta ge in the time scale of pay for a period of three years with non-cumulative effe ct with effect from 1.6.2006. They averred that the representation dated 8.5.200 6 said to have been submitted by the petitioner was an unsigned document. His re presentation dated 11.5.2006 was adjudged to be unsatisfactory. The answering re spondents further stated that as the petitioner continued to remain absent from duty unauthorisedly, a Memorandum of Charges for major penalty dated 27.10.2006 was issued. This was in supersession of the order of minor penalty previously aw arded. The respondents asserted that this Memorandum of Charges was dispatched t o the petitioner by registered post with A/D at his address at Dibrugarh which was received by him on 2.11.2006. As inspite thereof he did not submit any state ment of defence within the time allowed, an Enquiry Officer was appointed to enq uire into the charges. The respondents insisted that the Enquiry Officer as well issued several letters to the petitioner but there was no response to those from his end, wher eupon, proceedings were held ex-parte against him and a report was submitted on 10.5.2007 to the effect that the charges had stood proved. The respondents claim ed that subsequent thereto a show cause notice dated 26.7.2007 was issued to the petitioner at his home address at Dibrugarh forwarding along therewith a copy of the enquiry report requiring him to submit his reply thereto. As the petition er failed to respond to the notice, on a consideration of the materials availab le on record and other relevant aspects, the penalty of removal from service was awarded and this decision was communicated to him at his home address by letter dated 24.8.2007 by registered post with A/D. According to the respondents, the Memorandum of Charges dated 27.10.2006 , the show cause notice dated 26.7.2007 and the letter dated 24.8.2007 apart fro m being sent by registered post with A/D, were affixed on the office notice boar d in presence of two official witnesses. While endorsing the decision taken, the respondents expressed their doubt about the authenticity of the medical certifi cates dated 18.6.2006 and 2.10.2007 issued by Dr. K Zaman, Senior Medical & Heal th Officer attached to Dibrugarh State Dispensary and derided those to be an end eavour on his part to cover up his lapse of unauthorized absence from duty for t he period involved. The learned Tribunal on the basis of the pleadings of the parties, the d ocuments appended thereto and on a perusal of the official records pertaining t o the impugned disciplinary proceeding, concluded that the Memorandum of Charges , the enquiry report, the show cause notice forwarding the same as well as the o rder of penalty had been dispatched to the petitioner at his permanent home addr ess and that all these documents were served on him except the show cause notice dated 26.7.2007. The learned Tribunal noticed the absence of any document to th e effect that the petitioner at any point of time during the period involved had taken treatment in any railway hospital. On an analysis of the documents availa ble in the official records it sustained the plea of the respondents that the Me morandum of Charges and other relevant notices/ documents had been duly served o n the petitioner. Presumption in favour of validity of the official action and a uthenticity of the official records was also applied to arrive at this conclusio n. That the medical certificate dated 2.10.2007 had been obtained on the eve of the institution of the departmental appeal on 4.10.2007 was also noticed. The le arned Tribunal expressed serious doubt about the treatment said to have been und ertaken as was sought to be demonstrated by the medical certificate dated 2.10.2 007. On a cumulative consideration of all above, the learned Tribunal rejected t he petitioner’s plea of violation of the principles of natural justice. The con tention that the penalty of removal from service vis-à-vis the charge was harsh or disproportionate was also rejected construing the conduct of the petitioner t o be devoid of sense of discipline and responsibility.