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2010 DIGILAW 660 (ORI)

Pitabas Samantray v. Union of India

2010-09-21

PRADIP MOHANTY, S.K.MISHRA

body2010
ORDER 21.09.2010 — Heard Mr. Soubhagya Sunder Das, learned counsel for the petitioner, and Mr. Bijay Krishna Mohanty, learned counsel for the opposite parties 2 and 3. By means of this writ petition, the petitioner has prayed for quashing of the order dated 20.9.2006 (Annexure-4) passed by the Disciplinary Authority so also the order dated 17.11.2006 (Annexure-6) passed by the Appellate Authority dismissing the appeal of the petitioner. Facts of the case are that the petitioner, while working as Constable in the Railway Protection Force, faced a Disciplinary Proceeding under Rule 153 of the Railway Protection Force Rules, 1987 for unauthorized absent from duty. The Enquiry Officer, considering the materials available on record including the evidence of the witnesses, came to hold that the petitioner is a habitual absentee and the charges against him were established. The Disciplinary Authority, while concluding the proceeding, imposed a major penalty of compulsory retirement against which the petitioner preferred an appeal before the Appellate Authority vide Annexure-5 which was dismissed on 17.11.2006 and the order of the disciplinary authority was confirmed. The specific allega¬tion of the petitioner is that he was not provided with adequate opportunity of hearing by the Appellate Authority. Mr. Mohanty, learned counsel for the opposite parties submitted that opportunity of personal hearing was given by the disciplinary authority and thereafter, the show-cause was issued for filing representation but the petitioner did not file. Unau¬thorized absent is a serious allegation in Railway Protection Force. In appeal, there is no provision for giving opportunity of hearing and the discretion lies with the Appellate Authority. Mr. Das, learned counsel for the petitioner has placed reliance on Rule 217 of Railway Protection Force Rule, 2004 in which it has been stated that while considering the appeal, the appellate authority may, on request, grant personal hearing to the aggrieved enrolled member of the force in case it considers it in the interest of administration and justice. He further submitted that in the memorandum of appeal, the petitioner has prayed for personal hearing. From a perusal of the appellate authority’s order, it appears that admittedly the petitioner has not been provided with opportunity of personal hearing. From a bare reading of Rule 217, it is crystal clear that the appellate authority, may on request, grant personal hearing to the aggrieved delinquent. From a perusal of the appellate authority’s order, it appears that admittedly the petitioner has not been provided with opportunity of personal hearing. From a bare reading of Rule 217, it is crystal clear that the appellate authority, may on request, grant personal hearing to the aggrieved delinquent. But in fact when a person is aggrieved by an order of compulsory retirement, which is a major punishment, it is also the duty of the appellate authority to give an opportunity of personal hearing. In view of the above, this Court sets aside the order dated 17.11.2006 passed by the Appellate Authority passed under Annex¬ure-6 and remits the matter back to him to dispose of afresh within a period of four week from the date of production of a certified copy of this order after providing opportunity of personal hearing to the petitioner. The writ petition is disposed of. Issue urgent certified copy. Petition disposed of.