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2010 DIGILAW 323 (CAL)

Mir Basir Ahmed v. U. O. I.

2010-03-25

DEBASISH KAR GUPTA

body2010
JUDGMENT 1. The subject-matter of challenge in this writ application is the entire disciplinary proceeding initiated against the petitioner as also the order of punishment passed in connection with the above disciplinary proceeding against him. 2. The petitioner was working for gain in the post of "Constable" in the Railway Protection Force, Eastern Railway. He was posted at the Railway Protection Force, Howrah Goods Shed, under Howrah Division-I. He was admitted in the Railway Hospital, Howrah on May 27, 2002 for his treatment, The Divisional Medical Officer, Eastern Railway issued interim sick certificate in connection with his treatment in the above hospital. The Senior Security Commissioner, Railway Protection Force, Howrah Division-I issued a memo No. G/37 dated August 8, 2003 for medical examination of the petitioner by the Board after his recovery. Pursuant thereto, the Divisional Medical Officer, Eastern Railway, Howrah submitted a medical report dated February 1, 2005 (Annexure P/3 at page 69 of this writ application) with regard to examining his physical fitness. 3. In the meantime, a chargesheet dated June 30, 2003 was issued for initiation of disciplinary proceeding against the petitioner on the ground of alleged unauthorized absence from duty with effect from May 27, 2003. The above chargesheet was not served upon the petitioner. No notice was served upon him. The Enquiry Officer conducted a purported ex parte enquiry in the above matter and submitted his report dated April 16, 2004 to the disciplinary authority recommending the major punishment. The disciplinary authority passed an order of compulsory retirement from services against the petitioner on December 22, 2004. The petitioner preferred a statutory appeal dated May 3, 2005 before the appellate authority against the above punishment. The appellate authority passed an order dated February 24, 2006 rejecting the above appeal. 4. Having heard learned Counsel appearing for the respective parties as also considering the facts and circumstances of this case I find that admittedly the petitioner was under treatment of the Divisional Medical Officer in the Railway Hospital, Howrah. It is also not in dispute that the interim sick certificates were issued in connection with the sick leave of the petitioner from May 27, 2002 to September 22, 2003. Therefore, the chargesheet dated June 30, 2002 was issued during the period of his above sick leave. It is also not in dispute that the above chargesheet was not served upon him. Therefore, the chargesheet dated June 30, 2002 was issued during the period of his above sick leave. It is also not in dispute that the above chargesheet was not served upon him. Though the above chargesheet was sent to the residential address of the petitioner as his native place. Needless to mention here that during that period the petitioner was under treatment in the Railway Hospital, Howrah. The enquiry was also conducted behind his back. No opportunity was given to him to deal with the enquiry report by way of filing report. 5. After considering the materials on record I find that due to denial of opportunity in submitting the representation to the enquiry report the petitioner could not draw the attention of the disciplinary authority to the fact of his treatment in the Railway Hospital, Howrah during the period for which the disciplinary proceeding had been initiated on the ground of his unauthorized absence from duty. The statutory appeal was also rejected without considering the above ground. These actions cannot be sustained in law. 6. In view of the above, I find that the disciplinary proceeding under reference suffered from procedural impropriety and the same is liable to be quashed and set aside. The order of punishment as also the order passed by the appellate authority is also liable to be set aside in view of the above observations. 7. The enquiry report dated April 16, 2004, the impugned order of punishment dated December 22, 2004 as also the order dated February 22, 2006 are quashed and set aside. 8. The chargesheet is also liable to be set aside on the ground of appointing the Enquiry Officer by virtue of the above chargesheet. Reference may be made to the decision of State of Punjab vs. B.K. Khanna, reported in AIR 2001 SC 343 . Therefore, the chargesheet dated June 30, 2003 also stands quashed and set aside. 9. This writ petition stands disposed of. 10. There will be, however, no order as to costs. 11. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.