In response to the aforesaid charge sheet & Ors. v. Mithilesh S 17. ingh

#5. In response to the aforesaid charge sheet, the petitioner submitted his written statement of defence, a copy of which has been annexed to the writ petit ion as Annexure-6. In the said written statement, the petitioner admitted the ch arges with the explanation that he had to leave the station getting the news of his wife being seriously ill. It was also stated that he had approached one Sri S.M. Kamini Singh, his controlling authority to allow him to go home, but the sa me was not acceded to. According to the petitioner, he had no other option than to leave his duty to attend his wife. While attending his wife, he also fell see k and eventually had to remain in authorized absence for the period in question. In the said written statement, the petitioner prayed for mercy for the commissi on of the misconduct. It was stated that his conduct amounts to insubordination and negligence of duty.

#6. It will be pertinent to mention here that in the said written statement, the petitioner categorically stated that he did not intent to inspect the docum ents and also did not desire to be heard. Be that as it may, in due course enqui ry proceeding was initiated and completed against the petitioner. In the said pr oceeding, the enquiry officer found the petitioner guilty of the charges. The en quiry report reveals that the petitioner declined to cross examine the PWs and a lso did not adduce any evidence.

#7. Upon threadbare discussion of the evidence on record including the mater ials relating to additional charge, the Enquiry Officer found that the petitione r was in habit of unauthorized absence and such period of absence had to be regu larized by granting leave without pay. The petitioner was furnished with the cop y of the enquiry report asking for his response. Accordingly the petitioner subm itted a representation dated 3.3.2004 against the said report reiterating his st and in the written statement referred to above. The plea of the petitioner was t hat he had to leave his duty under compulsion.

#8. The disciplinary authority in consideration of entire materials on recor d passed the Annexure-10 impugned order dated 19.4.2004 imposing the penalty of dismissal from service. Being aggrieved, the petitioner filed the writ petition seeking interference with the same.

#9. Mr. Pathak, learned counsel for the petitioner submits that having regar d to the facts and circumstances, the period of unauthorized absence which is on ly 72 days, may not entail extreme penalty of dismissal from service. According to him, the penalty of dismissal from service is grossly disproportionate and ac cordingly, this court exercising judicial power under Article 226 of the Constit ution of India is required to be interfered with the same providing any other le sser penalty.

#10. Mr. Pathak, learned counsel for the petitioner, further submits that Sri K.M. Singh, to whom the petitioner had reported with the prayer for granting st ation leave permission and who declined to grant such permission could not have been cited as witness. In this connection he has placed reliance on the decision of this Court reported in 2004 (2) GLT 259 (Babulal Das Vs. State of Assam & Or s.). To buttress his argument that unauthorized absence for the period in questi on may not entail extreme punishment of dismissal from service, he has also plac ed reliance on the decision of the Apex Court reported in (2004) 4 SCC 560 (Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi & Ors.). Countering the above argument, Mr. Ghosh, learned State Counsel submits 11. that the petitioner having admitted the charge of unauthorized absence following the charge of habitual absence, the disciplinary authority rightly imposed the penalty of dismissal from service in conformity with the need for enforcing disc ipline in the armed force, of which the petitioner was a member. Mr. Ghosh, lear ned State Counsel submits that any amount of leniency would be uncalled for.

#12. the parties and the materials available on record. I have considered the rival submissions made by the learned counsel for

#13. In Babulal Das (supra) it has been held that the charge against the peti tioner involved in that case being related to his conduct qua the disciplinary a uthority personally, the said authority could not have the judge in his own caus e. This decision has been pressed into service to submit that Sri K.M. Singh, wh o was the controlling officer of the petitioner to whom the petitioner had repor ted with the request to grant station leave permission, ought not to have been e xamined as PW. Referring to the enquiry report, it has also been submitted that the enquiry officer one Sri Khagen Pegu, could not have examined as witness as r eflected in the enquiry report.

#14. Suffice is to say that Sri K.M. Singh was the material witness inasmuch as it is the own case of the petitioner that he had reported to said Sri Singh w ith the prayer for leave. As regards the allegation that Sri Khagen Pegu could n ot have been witness, he himself being enquiry officer, on perusal of the enquir y report what is revealed is that the enquiry officer generally examined the cha rged officer in respect of the charge leveled against him and it was in that con text the statement was shown to be that of the enquiry officer.

#15. pplicable to the case of the petitioner. In view of the above the decision in Babulal Das (supra) is not at all a

#16. So far as the Bhagwan Lal Arya (supra) is concerned, in that case the pe nalty of removal from service was held to be disproportionate. It was so held in view of the fact that the petitioner involved in the said case was on leave on medical ground with sanction of leave permission. It was held that since the pet itioner had gone on medical leave with due sanction behind, it was not a case of authorized absence. The said case is also of no help to the case of the petitio ner. I may gainfully refer to the decisions in Union of India Vs. Mithilesh S 17. ingh, reported in 2000 (3) GLT 62 affirmed in Mithilesh Singh Vs. Union of India reported in (2003) 3 SCC 309. As in the instant, in the said also, Shri Mithilesh Singh, a member of R 18. PF had left his place of posting without any station leave permission and leave. As in the instant case, in the said case also the plea of the delinquent was th at he was forced to leave station in view of some ceremony at his home. Such con duct on the part of the member of disciplined force (RPF) was viewed seriously a nd he was imposed with punishment of removal from service. On challenge, learned Single Judge interfered with the same and directed the railway to impose a less er penalty other than dismissal or removal from service. The aforesaid decision of the learned Single Judge was reverted by the D 18. ivision Bench in the aforesaid decision in Union of India Vs. Mithilesh Singh (s upra) and on appeal by Sri Singh, the said judgment of the Division Bench has be en affirmed by the Apex Court in Mithilesh Singh Vs. Union of India (supra).

#19. Admittedly the petitioner was a member of disciplined force. In the char ge sheet apart from the charge of unauthorized absence an additional charge was also brought in respect of his earlier such unauthorized absence from duty, over stay on leave etc. In such a situation, if the disciplinary authority was of th e opinion that no useful purpose would be served by retaining the petitioner in service, no fault can be attributed to the disciplinary authority. As regards the alleged procedural irregularity, although noting on recor 20. d, but in view of the admission of the petitioner about the fact stated in the c harge, the guilt and/or misconduct attributed to the petitioner automatically st ood proved. In Channabassappa Basappa Happali Vs. State of Mysore reported in AI R 1972 SC 32, the Apex Court dealing with a departmental enquiry against a polic e constable observed that admission of fact attribute to the delinquent to the c harge amounts to admission of guilt. As in the instant case, in the said case al so, the petitioner was on leave unauthorisedly. Some other charges were also lev eled against him. The fact stated in the charges having been admitted by the pet itioner involved in that case, the Apex Court referring to the decision reported in R.V. Durham Quarter Sessions; Ex parte Virgo, (1952 (2) QBD 1) held that whe n the fact indicated in the charge are admitted by the delinquent, the same lead s to admission of guilt inasmuch the fact speaks for themselves. In the instant case, the petitioner himself having admitted his guilt in his written statement of defence cannot now turn around the same so as to call in question the departm ental proceeding initiated against him raising some untenable pleas.

#21. ion and accordingly it is dismissed. There shall be no order as to costs. For all the aforesaid reasons, I do not find any merit in the writ petit