By means of this writ petition & Ors. v. Mithilesh S ingh & Ors.

By means of this writ petition, the petitioner has challenged the order dated 22.12.1997 (Annexure-VI to the writ petition), by which he was removed fro m service pursuant to a departmental proceeding. The writ petition having been f iled on 22.11.2010, there is delay of 13 years in making the challenge. There is no explanation for the delay. The charge against the petitioner was that of unauthorized absence from 2. duty from 9.9.1996 onwards. The fact of unauthorized absence from duty is an ad mitted one and will be evident from the own statement of the petitioner made in paragraph 3 of the writ petition, which is quoted below. 3. That the petitioner had to leave Dimapur on 08.09.96 (being the rest day ) on verbal permission of SS/DMV as the petitioner had been informed that his wi fe at Lumding was seriously ill. On arrival at Lumding the petitioner had to tak e his wife hurriedly to Visakhapattanam as there was none to look after his wife . At Visakhapattanam the wife of the petitioner was under long treatment and the n the petitioner came back to Lumding with his sick wife. The wife of the petiti oner was again became sick very seriously and she had to be hospitalized again a t Lumding Railway Hospital where she had lost her newly born baby. The petitione r in dire trouble and also face immense financial hardship and practically he ha d absolutely no money to treat his sick wife as well as to feed the little child ren. The petitioner had to go here and there for borrowing money for the treatme nt of his wife as well as to feed his little children. (cid:29) In paragraph 4 of the writ petition, the petitioner has stated that alth 3. ough he had received notice of the departmental enquiry, but due to reasons ment ioned in paragraph 3 of the writ petition, he could not attend the same. On conc lusion of the enquiry, the petitioner was imposed with penalty of removal from s ervice. As noted above, there is no explanation for long 13 years delay in appr oaching this Court. In paragraph 11 of the writ petition, the petitioner has sta ted about sending a letter on 20.12.2008 to the Divisional Railway Manager, Lumd ing. However, nothing has been stated as to what he did after the aforesaid orde r of removal passed in the year 1997.

#4. The respondents have filed their counter affidavit, in which, it has bee n stated that the petitioner was unauthorizedly absent from duty with effect fro m 9.9.1996. As regards the stand of the petitioner that he had taken his wife t o Visakhapattanam for treatment and coming back to Lumding etc., the respondents have stated that at no point of time, he had ever informed the Railway about th e same. The respondents have stated that the petitioner had intimated about his purported treatment from 9.9.1996 to 15.10.1997. Such statement on the part of t he petitioner itself brings contradiction to the stand that he was absent from d uty because of his wife’s illness.

#5. In the departmental enquiry, the petitioner was advised to attend the sa me, but the petitioner in spite of receipt of notice, did not attend the same. Consequently, the enquiry had to be held ex parte. In paragraph 5 of the affidav it, it has been stated that the petitioner had received notice of enquiry on 2.8 .1997, but he did not attend the enquiry. The petitioner was also furnished with the intimation regarding fixation of subsequent date. In spite of receipt of no tice, he did not attend the enquiry.

#6. I have heard Ms S. Sarma, learned counsel appearing for the petitioner a s well as Ms B. Devi, learned counsel representing the Railway. I have gone thro ugh the departmental proceeding file.

#7. From the materials on record, what has transpired is that the petitioner remained unauthorizedly absent from duty and that he also did not respond to th e enquiry proceeding in spite of receipt of notice. For a disciplined Force pers onnel, unauthorized absence from duty is a serious misconduct, about which the D ivision Bench of this Court has discussed in Union of India & Ors v. Mithilesh S ingh, reported in (2003) 3 GLT 62. As in the instant case, in the said case also , the petitioner was imposed with penalty of removal from service on the ground of unauthorized absence from duty. When the order of penalty was interferred wit h by the learned Single Judge with the direction to impose a penalty other than that of dismissal, removal etc., on appeal, the Division of this Court interferr ed with the same and held that the order of removal from service was an appropri ate penalty. The matter was carried on appeal to the Supreme Court and the Supre me Court by its decision reported in (2003) 3 SCC 309 (Mithilesh Singh v. Union of India & Ors), while upholding the judgment of the Division Bench held that th e penalty of removal from service for unauthorized absence was an appropriate pe nalty.

#8. As in the said case, in the instant case also, the petitioner has himsel f admitted his unauthorized absence from duty and now, after long 13 years has a pproached this Court challenging the order of removal passed in the year 1997 an d that too, without any explanation. In Ratan Chandra Sammanta v. Union of India & Ors, reported in AIR 1993 SC 2276, it has been held that the delay itself fr ustrates the cause of action. As observed above, there is no explanation in the writ petition as to why the petitioner could not come to the Court for long 13 years. The petitioner, in absence of any explanation, cannot be permitted to mak e a challenge to the impugned order of removal from service passed against him w ay back in 1997. Be that as it may, even on merit also, the petitioner does not have any case.

#9. Ms B. Devi, learned counsel representing the Railway, referring to the t yped copy of the order of removal from service (Annexure-6 dated 22.12.1997 anne xed to the writ petition), submits that there is omission on the part of the pet itioner to produce full text of the impugned order. On perusal of the original c ase records, such plea raised by her is found to be correct. However, this aspec t of the matter need not detain us in view of the findings recorded above.

#10. all be no order as to costs. For all the aforesaid reasons, the writ petition is dismissed. There sh