High Court · 2012

This writ petition was disposed of by order dated 22.05.2007. By the sai d order, the writ petition was dismissed. Being aggrieved by the said order of d ismissal, the petitioner had preferred an appeal being WA No. 111/2008. The writ appeal was disposed of on 15.05.2008 with the following order: (cid:28)When the matter was taken up, the learned counsel for the appellant submitted t hat some of the questions raised by the petitioner at paragraph-9 of the writ pe tition were not considered by the learned Single Judge. Learned counsel for the appellant has categorically argued and asserted that those issues were not cons idered by the learned Single Judge. In the circumstances, we find it proper that the court records be remand ed back to the learned Single Judge for recording the appropriate findings on th ose issues raised in paragraph-9 of the writ petition. (cid:29) In view of the above order, now the Court is required to record the find ings in respect of the issues raised in paragraph-9 of the writ petition. In paragraph-9 of the writ petition it is stated thus: (cid:28)9. That it is submitted that in the list of witnesses the names of the witnesse s were not written and the documents on which the department relied upon were no t furnished to your humble petitioner. the petitioner was also not given any def ence assistant for the defence although the Enquiry Officer has written that the petitioner was permitted to engage a defence assistant but he refused to do so. It is submitted that this is not a fact. The petitioner could not even understa nd the menacing of the defence assistance and the purpose for which a delinquent ought to engage a defence assistant is engaged. It is submitted that the provis ion dealing with the engagement of a defence assistant is not an empty formality and this provision ought to be understood by the Enquiry Officer in letter as w ell as in spirit. It is the sacrosanct duty of an Enquiry officer to make the de linquent understand the purpose of utility of defence assistant in a proceeding. A Class-IV employee who has never before faced a departmental enquiry in his li fe and has never understood the contents thereof cannot be left alone to face th e music without defending himself even in a half-hearted manner. The petitioner in the instant case has been completely kept exposed and vulnerable by the machi nation of the enquiry officer before he would neither understand the meaning and cause of defence assistant when asked by the Enquiry Officer. In a most casual manner to fill up the formalities nor could he defend himself and as a result of tha the petitioner has neither been able to cross-examine any of the witnesses by putting even one single question nor has been able to put forth his own case in his defence. The E.O. has taken a partisan attitude by not asking even one qu estion from the prosecution witnesses and by cross-examining the petitioner by a valley of questions; partisan attitude of the E.O. has resulted in the illegal punishment that has been illegally and arbitrarily inflicted upon the humble pet itioner. The petitioner was not even given proper time for defence and no person al hearing was given to him by the disciplinary, appellate or by the revisional authority. (cid:29) In the counter affidavit filed by the respondents, the contention raised in the paragraph-9 of the writ petition has been denied. It has been stated tha t since the charge against the petitioner was unauthorised absence from duty, s ame was required to be proved on the basis of the records maintained in the offi ce. It has been stated that the petitioner was served with the memorandum of cha rge sheet alongwith the list of documents and the witnesses. The petitioner duly acknowledged the same and never raised any grievance in respect of the pleas ra ised in the said paragraph. As regards the plea of denial of defence assistant, the counter affidavi t states that the petitioner was duly intimated about his entitlement to get the defence assistant. However, he declined to have defence assistant. The counter affidavit further states that the entire proceeding was concluded following fair procedure as prescribed by law. The aforesaid pleas of the petitioner mentioned in paragraph-9 of the wr it petition will have to be understood in the touchtone of any prejudice caused in the defence of the petitioner. As recorded in the judgment and order dated 22 .05.2007, the petitioner duly participated in the enquiry proceeding and to the specific query made as to whether he had on earlier occasion also overstayed his leave, he admitted the same. Such admission of fact amounts to admission of gui lt (Refer AIR 1972 SC 72). The charge against the petitioner was unauthorised absence from duty an d that he was in the habit of overstaying leave as he had already overstayed in 10 different occasions and was punished for twice. Mr. S. Chokraborty, learned CGC, submits that the charge being unauthori sed absence and overstaying of leave on different occasions and the same having been admitted by the petitioner in the departmental proceeding, the contentions raised in paragraph-9 of the writ petition have no bearing. He further submits t hat the test in the departmental proceeding is as to whether any prejudice is ca used to the delinquent or not As has been held by the this Court in Union of India vs. Mithilesh Singh reported in 2000 (3) GLT 62 and affirmed by the Apex Court in Mithiles Singh V s. Union of India reported in (2003) 3 SCC 309, unauthorised absence from duty b y a member of disciplined force may entail penalty of removal from service. In t he instant case, the petitioner has been imposed with compulsory retirement from service. In view of above, I do not find any merit in the writ petition. Accordin gly, it is dismissed.