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2013 DIGILAW 323 (CAL)

Lalan Paswan v. UNION OF INDIA

2013-06-06

SAMBUDDHA CHAKRABARTI

body2013
Judgment : The Court: By this writ petition the petitioner inter alia prays for a writ in the nature of Mandamus commanding the respondents not to proceed with the departmental enquiry in terms of the charge-sheet dated August 24th ,2000 and the order of suspension and the entire ex parte proceeding and not to give any effect to the order of removal from service and for other reliefs. The petitioner was appointed a constable under the Railway Protection Force (hereinafter ‘RPF’ for short) in the year 1987. From December 14, 1998 to December 23th, 1998 he was on permissive leave. He had received a telegram from his village that his wife was seriously ill and proceeded towards his village. He applied for leave for 10 more days. Since the wife’s condition did not improve he applied for extension of his leave. On March 17th , 1999 he met with a serious accident and was admitted to a hospital in Bihar. He was under medical treatment till August 16th , 2000. Again he developed some complications arising from the accident and had to be admitted to the hospital wherefrom he was released on November 20th , 2000. The case of the petitioner is that on August 24th , 2000 he was served with a copy of a major penalty charge-sheet while he was still in hospital. It was alleged in the charge-sheet that for gross misconduct and negligence the petitioner was placed under suspension and was allowed to leave the headquarter with effect from December 14th , 1998 but he did not return to his headquarter after the expiry of his leave. He gave his attendance during suspension without any authority and prior permission. Call back notices were sent to him but he did not respond. He being a member of the armed forces failed to maintain the rule and the procedure. The petitioner has alleged that an Enquiry Officer was appointed in the charge-sheet and before giving any reply he started conducting the disciplinary proceeding behind his back. He had reported to his place of work immediately after he has received the fitness certificate from the hospital. He claims that his period of absence was not unauthorised and in the case of the petitioner the procedure contained in the RPF Rules has not been complied with. He had reported to his place of work immediately after he has received the fitness certificate from the hospital. He claims that his period of absence was not unauthorised and in the case of the petitioner the procedure contained in the RPF Rules has not been complied with. Ventilating his grievances he filed a writ petition being W. P. No. 3353 of 2000 before this Court. On June 6th , 2001 a show-cause notice was issued to him along with the findings of the Enquiry Officer and the petitioner has disputed the findings of the Enquiry Officer. An enquiry was conducted violating the safeguards provided in the concerned rules relating to the defence of an employee. The petitioner has variously attacked the findings of the Enquiry Officer and states that after he joined his duty on November 29th , 2000 the Senior Security Commissioner sent him to the Howrah Railway Hospital and the Divisional Medical Officer referred the case to the B. R. Singh Hospital and thereafter his case was referred to various hospitals. In the year 2001 the petitioner had moved yet another writ petition which was dismissed by this Court. Thereafter he received the final order issued by the concerned authority on July 27th , 2001 whereby his applications for extension of leave was not considered along with these applications which were sent to the concerned authority under registered post. The authorities did not properly consider the representations of the petitioner. The petitioner has referred to various rules and submits that they have been violated grossly in the present case. The petitioner has insisted that he had sent his proper applications to the appropriate authorities by registered post but they have denied the receipt thereof motivatedly. Thus he has challenged the order directing his removal from service and had prayed for the reliefs which have been mentioned earlier. The respondents have contested this petition by filing an affidavit-in-opposition. They have denied the allegations made in the writ petition. It has been denied that he sent an intimation regarding his wife’s treatment. His application for leave does not indicate that it was sent by registered post or it was received by the commanding officer. The petitioner ought to have followed the procedure laid down for the members of the RPF. It has been denied that he sent an intimation regarding his wife’s treatment. His application for leave does not indicate that it was sent by registered post or it was received by the commanding officer. The petitioner ought to have followed the procedure laid down for the members of the RPF. The respondents have vary categorically alleged how intimation was sent to him before August 24th , 2000 through Special Messenger and how the respondents had served him with various notices. They have defended the charge-sheet and mentioned that the petitioner was suspended for gross misconduct and neglect of duty and during his suspension he remained absent from headquarter for a period of 2 ½ years and considering this to be a very serious breach of discipline the administration had to take disciplinary action against him and issued charge-sheet in accordance with the provisions laid down in the concerned rules. There is nothing on record to show that the respondents had received the letters which have been allegedly sent by the petitioners. Under Rule 153 of the RPF Rules there is no provision for giving reply against the charge-sheet before enquiry. He did not participate in the disciplinary proceeding in spite of receiving several notices for which the Enquiry Officer had to proceed ex parte. The respondents have very strongly alleged that the petitioner was imposed with penalty in accordance with RPF Rules, 1987 after conducting a regular departmental proceeding which had had evaded on the pretext of illness. After meticulously examining the file, the enquiry report etc. the disciplinary authority agreed with the findings of the Enquiry Officer and imposed penalty as per the concerned rules. The petitioner was charge-sheeted under Rule 153 and not under Rule 81.1 of the RPF Rules as alleged. The respondents have further relied on Rule 272 of the RPF Rules which says that no member of the force who is on leave out of his headquarters shall be taken on sick-list for a period exceeding seven days without procuring sick memo from the Controlling Officer of such member of the force and such sick certificate for a member has to be issued by a Railway Medical Officer. The notices were sent to his residence but he refused to accept the same. Finding no other alternative the Enquiry Officer had to send the same to his residential address. The notices were sent to his residence but he refused to accept the same. Finding no other alternative the Enquiry Officer had to send the same to his residential address. The respondents have denied that any rule of the concerned RPF Rules have been violated. The disciplinary authority strictly followed the provisions of the rules. The facilities claimed by the petitioner are not provided in the rules. The respondents have prayed for the dismissal of the writ petition. In the affidavit-in-reply the petitioner has largely reiterated the stand taken in the petition. He has refuted the allegations of the respondents that sending intimation and leave application was an afterthought and asserted that the postal receipts are with the writ petitioner. He has reiterated that the charge-sheet is bad as it was served upon him while he was in hospital. The question of unauthorised absence does not arise as the authorities had full knowledge about the petitioner’s illness. The enquiry was conducted ex parte after being fully aware of the illness of the petitioner. The petitioner has asserted that the notice was sent to his residential address while they were aware that the petitioner was in Howrah where his treatment was going on as per the advice of the Divisional Security Commissioner. The petitioner has particularly submitted that the name of the Enquiry Officer was mentioned in the body of the charge-sheet before he had given reply to the same which is a very serious lapse. In support of his contention the petitioner has relied on the case of State of Punjab –Vs.- V. K. Khanna and Others, reported in AIR 2001 SC 343 for a proposition that the authority has to apply its mind upon receipt of a reply to the charge-sheet or show-cause whether a further enquiry was called for. In the event upon deliberation and due considerations it is in the affirmative the inquiry follows but not otherwise. It was held that where even before the reply was filed by the delinquent the Chief Minister made an announcement appointing an Enquiry Officer to go into the charges thus indicating the mindset that the enquiry shall proceed irrespective of the reply it cannot be said that the attitude of the authorities towards the delinquent was free and fair. Mrs. It was held that where even before the reply was filed by the delinquent the Chief Minister made an announcement appointing an Enquiry Officer to go into the charges thus indicating the mindset that the enquiry shall proceed irrespective of the reply it cannot be said that the attitude of the authorities towards the delinquent was free and fair. Mrs. Ghosh, the learned Advocate for the petitioner has also submitted that the enquiry was conducted ex parte when the petitioner was under treatment at the B. R. Singh Hospital. According to her the authorities proceeded with the enquiry at a time when the doctors had not declared the petitioner fit for resumption of his duties and the notices sent to the residential address of the petitioner with full knowledge that he was undergoing treatment at the B. R. Singh Hospital, Kolkata, were really meant not to provide the petitioner with opportunity to contest the same. A further limb of the petitioner’s submission is that the charge-sheet was vague. For the period of suspension the petitioner is entitled to get the substance allowance which have been given to the petitioner till the date of his removal. But in his case the entire period from December 24th , 1998 till he was removed from service was treated as leave without pay and the entire period of leave was also treated as under suspension which is illegal and arbitrary action on the part of the respondents. The petitioner is further aggrieved by the order passed by the appellate authority which was disproportionate as he was under treatment in a railway hospital and he was sent for such treatment by the authorities themselves. The appellate authority had mechanically passed the order without applying its mind and without assigning any reason for its conclusion. The petitioner has also relied on the case of Union of India and Others –Vs.- Giriraj Sharma, reported in AIR 1994 SC 215 for a proposition that punishment of dismissal from service merely on the ground of overstaying the leave period is harsh and disproportionate. The petitioner has further relied on the case of Shri Swapan Ray -Vs.-Indian Airlines Limited & Others, reported in 1996(1) CHN 147 wherein a learned single Judge has held that punishment imposed on a delinquent employee should not be severe and disproportionate to the charges of misconduct. Mr. The petitioner has further relied on the case of Shri Swapan Ray -Vs.-Indian Airlines Limited & Others, reported in 1996(1) CHN 147 wherein a learned single Judge has held that punishment imposed on a delinquent employee should not be severe and disproportionate to the charges of misconduct. Mr. Priyabrata Mukherjee, the learned Advocate for the respondents has in turn justified the actions of the respondents. It has been admitted that the charge-sheet for major penalty was served upon the petitioner while he was in hospital. In his submission he has largely elaborated the points taken by the respondents in their affidavit. He has repeatedly mentioned that for a very long period of absence the petitioner was charged as he failed to maintain the rule and procedure under the rules. Mr. Mukherjee factually maintained that no notice was sent to the respondents and the plea of the petitioner that he had already served the notice upon the respondents is nothing but an afterthought. Mr. Mukherjee has also submitted that the petitioner ought to have followed the procedure as laid down for the members of RPF for getting sick leave. The respondents made several attempts to make the petitioner appear before the headquarters but he turned a deaf ear to the notices and the intimations sent by the administration and as such the respondents were constrained to initiate the disciplinary proceeding. The procedure laid down under Rule 153 of the RPF Rules have been strictly complied with. Mr. Mukherjee further submits that the disciplinary proceeding commenced on and from September 7th , 2001 and had continued for 8 months. He has referred to Rules 152 and 156 of the Railway Rules and submitted that absence from duty without proper intimation or overstaying the sanctioned leave without sufficient cause were bad enough and sufficient for the authority to pass an order of dismissal. As a theoretical proposition there is not much dispute that when the charge-sheet mentions the name of an Enquiry Officer in the charge-sheet itself without giving a delinquent employee an opportunity to respond to the charges a definite mindset and a pre-determined move is generally presumed and that doctrine of bias can very easily be attracted. As a theoretical proposition there is not much dispute that when the charge-sheet mentions the name of an Enquiry Officer in the charge-sheet itself without giving a delinquent employee an opportunity to respond to the charges a definite mindset and a pre-determined move is generally presumed and that doctrine of bias can very easily be attracted. This, however, does not apply to the charges which have been issued under the statutory rules and where the statutory rules do not provide for any such opportunity to be given to the delinquent employee. The stand taken by the respondents is that the proceeding followed by them was in terms of Rule 153 of the RPF Rules which do not provide for any such opportunity to be given to the employee for giving his reply. Rule 153 deals with Procedure for imposing major punishment and Rule 153.5 says: “153.5 The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at least seventy-two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Inquiry Officer. ” A close examination of Rule 153.5 suggests that in the same there is not only no provision for giving reply but it specifically says that the charges are to be delivered to the delinquent member at least seventy-two hours before the commencement of the enquiry. In such view of it the allegations of fixed mindset from before must be held to be not applicable to the RPF Rules. We must also keep it in mind that the petitioner has not challenged the RPF Rules in the present writ petition. Therefore, this agreement of the petitioner has no basis. The petitioner was a member of the armed forces which is a regimented organisation. A strict discipline was always required to be maintained by him. That he was absent for a very long time is admitted. Maybe he was undergoing medical treatment. But the question is whether he himself had intimated it to the appropriate authorities. The petitioner was a member of the armed forces which is a regimented organisation. A strict discipline was always required to be maintained by him. That he was absent for a very long time is admitted. Maybe he was undergoing medical treatment. But the question is whether he himself had intimated it to the appropriate authorities. That he was sent by the doctors of the Railways to different specialist doctors does not necessarily impute the knowledge of the authorities themselves in this regard. I also find sufficient justification in the submission of the respondents that the petitioner ought to have followed the procedure laid down in the concerned rules relating to reporting of illness. Rule 272 deals with members of the Force on sick list. Rule 272.1 says that no member of the Force shall be taken on sick listby any Railway Medical Officer unless such member comes with a written reference known as ‘Sick Memo’ from his controlling officer and also gives declaration in triplicate as per the proforma prescribed. It further says that the controlling officer shall issue Sick Memo to the member of the Force on demand, where such member is on duty or on leave at the headquarters. It also deals with the situation where due to emergency a member of the Force is not able to take Sick Memo from the controlling officer. The procedure prescribed in the relevant Rule has not been followed by the petitioner and Mr. Mukherjee has made a grievance that there is nothing on record to show that he was admitted as an indoor patient. The respondents have not denied the allegation of the petitioner that he was served with the charge-sheet while the petitioner was in hospital. But the respondents had sent intimations to him through special messenger and on different dates notices were served upon the petitioner. But the petitioner remained unmoved. In such view of it there is nothing wrong with the authorities to hold the petitioner guilty of gross misconduct and negligence of duty. The allegation that the respondents had taken a very vindictive attitude to the petitioner is nor borne by the records nor by the conduct of the petitioner. The petitioner has failed to substantiate any reason why the respondents should be particularly vindictive with the writ petitioner. The allegation that the respondents had taken a very vindictive attitude to the petitioner is nor borne by the records nor by the conduct of the petitioner. The petitioner has failed to substantiate any reason why the respondents should be particularly vindictive with the writ petitioner. The findings of the appellate authority alleging that in spite of admitting that he was under the treatment with effect from March 17th , 1999 to February 20th , 2000 at Patna and the authority practically ignored the illness of the petitioner by holding that the petitioner was not an indoor patient and the other grievance of the petitioner was that the appellate authority did not give any weightage to the fact that he had reported for duty on November 29th , 2000 and the respondents themselves had sent the petitioner to the Divisional Medical Officer, Howrah when he was advised a major surgery by the railway doctors. A careful reading of the order of the appellate authority does not, however, suggest that it had failed to address itself to the key issues involved in the order of removal by the disciplinary authority. The petitioner was given a personal hearing and he was allowed to submit his case. As such the question of lack of opportunity to defend the case of the petitioner or violation of natural justice does not arise. It also appears from the appellate order that the petitioner was given a week’s time to submit the documents relating to his medical treatment by himself and his wife. The appellate authority had held that the treatment was done as an outdoor patient and the medical certificates never revealed that he was ever taken as an indoor patient. Notwithstanding the grievance expressed by the petitioner, this is a very important index about the gravity of the petitioner. The appellate authority cannot be faulted if it takes cognizance of it. A very important factor to be considered in this connection is that the petitioner never attended the DAR proceedings despite repeated intimation and advises sent to him by his controlling officer. I find no fault with the conclusion arrived at by the appellate authority that the medical certificates produced by the petitioner do not reveal that he was so seriously ill as to be unable to attend his duties or even to send an intimation to the controlling officer. I find no fault with the conclusion arrived at by the appellate authority that the medical certificates produced by the petitioner do not reveal that he was so seriously ill as to be unable to attend his duties or even to send an intimation to the controlling officer. The appellate authority had further held that Patna has adequate railway medical facilities and as such the petitioner ought to have report to the Railway Medical Officer in terms of Rule 272 of the RPF Rules. I quite agree with the finding of the appellate authority that there was hardly any justification for him to remain absent from duty for over 2 ½ years and to ignore the call back notices issued to him. The speaking order issued by the appellate authority is well reasoned and is based on materials placed before him and I am of the vie wthat the appellate authority rightly dismissed and the appeal of the petitioner rightly declined to interfere with the order issued by the disciplinary authority. Thus the writ petition has no merit. I have found that the violation of the principle of natural justice as alleged by the petitioner is also without any substance inasmuch as he was given the sufficient opportunity to defend himself. The writ petition is dismissed. In the facts of this case, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.