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2015 DIGILAW 1165 (GAU)

Union of India v. Shyamal Paul

2015-09-10

K.SREEDHAR RAO, P.K.SAIKIA

body2015
JUDGMENT : P. K. Saikia, J. 1. This writ petition has been filed against the judgment dated 14.08.2012, passed by learned Member, Central Administrative Tribunal, Guwahati Bench (in short, CAT) in Original Application No. 225/2011 (in short OA No. 225/2011). Learned Member, Central Administrative Tribunal allowed the application in the following manner:-- “Taking into consideration the entire conspectus of the facts we set aside and quash the penalty of removal from service and the order of Chief Mechanical Engineer, N.F. Railway, Maligaon dated 03.11.2006, the letters dated 13.09.2010 and 18.10.2010 issued by the General Manager (P), N.F. Railway, Maligaon rejecting the representation dated 29.07.2010 and direct the respondents to reinstate the applicant in service with all consequential benefits.” In the result, O.A. stands allowed. There will be no order as to costs.” 2. Being aggrieved by and dissatisfied with such an order, the Union of India represented by the General Manager, N.F.Railway, Maligaon preferred this writ petition seeking quahsment of the judgment dated 14.08.2012 in OA No. 225/2011. 3. We have heard Ms. M. Das, learned counsel for the petitioner and also heard Mr. S. Das, learned Sr. counsel for the respondent. 4. The facts, as projected in the petition Under Article of the Constitution of India and which are necessary for disposal of the present petition, in brief, are that the respondent herein, a railway employee, remained absent from duty for more than 600 days without any permission whatsoever for which a Disciplinary Proceeding was initiated in accordance with the prescription of law and in that Disciplinary Proceeding, the respondent herein had participated. 5. On conclusion of the procceeding, on the basis of the report of the enquiry officer, the Disciplinary Proceeding authority had concluded that the respondent remained absent from duty for a period more than 600 days without taking proper permission from the authority concerned and as such, he was order to be removed from service vide order dated 08.03.2005 rendered by the Chief Mechanical Engineer, N.F. Railway, Maligaon. 6. 6. Being aggrieved, the respondent herein preferred a departmental appeal which was also rejected for which the private respondent has approached the learned CAT, Guwahati Bench and challenged the order of removal from service as well as the order of the appellate authority affirming the order of removal seeking quashment of those order(s) with all consequential reliefs alleging that those orders were not rendered in accordance with the prescription of law. 7. In that connection, it has been stated that the charge sheet submitted against the private respondent is absolutely vague as it does not indicate the actual period of absence. It has further been alleged that the charge sheet and memorandum was not signed by DME (P), Lumding, although there is nothing on record to show that senior DME, Lumding, who is the appropriate authority to sign those papers, had ever delegate his authority to the DME (P), Lumding to do as above. 8. Learned CAT, on hearing both the parties, was pleased to grant relief sought for in the manner quoted above. In doing so learned Tribunal observed as follows:- “4. Mr. M. K. Majumdar, learned counsel for the respondents appeared before us in this case from time to time. He was required to produce the relevant record to ascertain whether the disciplinary proceeding were initiated in a manner prescribed under the law. But he failed to produce the records. On the date of final hearing Mr. Majumdar conceded that no paper could not traced out to indicate that power was delegated to the DME for conducting the disciplinary proceeding in respect of the applicant. As such, it is abundantly clear that disciplinary proceeding was not initiated in a manner prescribed under the law. 5. We have gone through the records and considered the arguments advanced before us. It is obvious that enquiry was not conducted as per the procedure established by law. Besides the charge sheet is vague inasmuch as it does not indicate the actual period of absence. At three different spells, three different dates are given from which period of absence cannot be ascertained. The facts narrated are contrary to each other. It is the basic tenet of law canonised in the dictum ALLEGANS CONTRARIA NON EST AUDIENDUS (He is not be heard who alleges things contradictory to each other). Moreover, principle of natural justice was not followed inasmuch as no proper notice was issued. The facts narrated are contrary to each other. It is the basic tenet of law canonised in the dictum ALLEGANS CONTRARIA NON EST AUDIENDUS (He is not be heard who alleges things contradictory to each other). Moreover, principle of natural justice was not followed inasmuch as no proper notice was issued. There is no evidence for conducting proper enquiry and examination of witnesses on the basis of which applicant was charge sheeted.” 9. Learned counsel for the petitioner herein, now, contends that though there were some infirmities in the conducting of inquiry against the respondent herein, yet, fact remains that the respondent remained absent from duty for a period more than 600 days, and that too without any authorization. Therefore, the judgment of the Tribunal quashing the removal of the order as well as order of the appellate authority aforesaid are required to be set aside directing the petitioner to conduct a fresh inquiry in accordance with law, of course, in the meantime, reinstating the private respondent to service. Such a contention has not been seriously disputed by learned counsel for the sole respondent. 10. On considering both the submissions, having regard to the materials on record including the orders which were in question in OA No. 225/2011, we have found it necessary to conclude the judgment under challenge needs to be modified suitably directing the petitioner to reinstate the sole respondent to the service immediately, if he is not already reinstated in the meantime and thereafter, the petitioner, if so advised , may initiate fresh inquiry in accordance with prescription and in that event , the petitioner shall conclude such enquiry as early as possible but in no case , beyond 6 months from the date of receipt of the certified copy of this order. 11. In the result, the present petition is disposed of modifying the judgment in challenge in the following manner:- The petitioner is directed to reinstate the sole respondent to the service immediately, if he is not already reinstated in the meantime and thereafter, the petitioner, if so advised, may initiate fresh inquiry in accordance with established prescription and in that event, the petitioner shall conclude such enquiry as early as possible but in no case beyond 6 months from the date of receipt of the certified copy of this order. 12. With the above, this petition is disposed of.