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2016 DIGILAW 1686 (GUJ)

Barat Singh Rathod v. Union of India

2016-08-08

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : A.S. Supehia, J. 1. RULE. Ms. Archana Amin, learned advocate, appears and waives service of rule on behalf of the respondent authorities. With consent of the learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing forthwith. 2. Present petition is directed against the judgment and order dated 19.04.2013 passed by learned Central Administrative Tribunal, wherein and whereby the O.A No. 183 of 2012 filed by the petitioner challenging the penalty of removal is dismissed. 3. The facts of the present petition in nutshell are that a charge-sheet dated 13.05.2008 was issued to the petitioner for unauthorized absence from duty for the period from 16.11.2007 to 12.05.2008. A letter dated 08.08.2000 was handed over to the petitioner informing him to attend the first date of inquiry, which was fixed on 16.08.2008. Though acknowledged, the petitioner failed to attend the inquiry held on 16.8.2008. Another letter dated 18.8.2008 was personally handed over to the petitioner to attend the second date of inquiry, which was fixed on 23.08.2008. In spite of receipt of the said letter, the petitioner failed to appear even on the second date of inquiry. Lastly, a letter dated 05.12.2008 was personally handed over to the petitioner informing him to attend the third date of inquiry, which was fixed on 08.12.2008 specifically informing the petitioner that if the petitioner fails to attend the inquiry on 08.12.2008, a decision will be taken ex-parte. A Government witness was called for an inquiry and his statement was recorded on 19.12.2008. 4. On the basis of the available evidence on record, the Inquiry Officer had drawn his findings, which were personally handed over to the petitioner along with a letter dated 20.12.2008, wherein it was informed to the petitioner that he should submit his defence in connection with the said findings of the Inquiry Officer within a period of 10 days from the date of receipt of the aforesaid letter dated 20.12.2008. The petitioner had acknowledged the receipt of the said letter and findings of the Inquiry Officer. 5. A Notice of Imposition of a Penalty dated 11.04.2009 awarding punishment of removal from railway service was sent to the petitioner. Thereafter, the name of the petitioner was removed from the cadre of the Division Office as per the Memorandum dated 21.04.2009. 6. The petitioner preferred an appeal against the aforesaid order of punishment. 5. A Notice of Imposition of a Penalty dated 11.04.2009 awarding punishment of removal from railway service was sent to the petitioner. Thereafter, the name of the petitioner was removed from the cadre of the Division Office as per the Memorandum dated 21.04.2009. 6. The petitioner preferred an appeal against the aforesaid order of punishment. Vide order dated 18.10.2010 the Appellate Authority upheld the order of the Disciplinary Authority. Against the said order, the petitioner preferred revision petition before the Revisional Authority, who also upheld the orders of Disciplinary Authority as well as the Appellate Authority and the punishment of removal from railway service was confirmed vide order/communication dated 19.03.2011. 7. Against the aforesaid three orders, the petitioner preferred O.A. No. 183/2012 with M.A. No. 147/2012 before the learned Tribunal, which came to be dismissed, and the order of punishment of removal of the petitioner from railway service came to be confirmed. 8. Ms. Sunita Chaturvedi, learned advocate appearing on behalf of the petitioner, has submitted that the penalty of removal imposed upon the petitioner is disproportionate to the misconduct of the petitioner. She has also stated that no other penalty is imposed on the petitioner in his entire career, hence, the learned Tribunal was not justified in setting aside the penalty of removal. She has also stated that as the inquiry proceedings are conducted ex-parte, the impugned order of penalty deserves to be quashed and set aside. No other contention is raised by her. 9. Per contra Ms. Archana Amin, learned advocate appearing on behalf of the respondent authorities, has supported the judgment of the learned Tribunal. She has contended that there had been previous instances where the petitioner had been charge-sheeted for his unauthorized absence and various other disciplinary proceedings were initiated against the petitioner. She has contended that the petitioner has suppressed the said vital aspect of other disciplinary proceedings from the learned Tribunal. She has submitted that it is not true that the petitioner demanded sick/medical memo of medical treatment but the same was denied to the petitioner by the administration. 10. We have heard the respective advocates appearing on behalf of the parties. After careful scrutiny of the judgment delivered by the learned Tribunal and on examination of the documents on record, we are of the view that the learned Tribunal has not committed any error in dismissing the original application filed by the petitioner. 10. We have heard the respective advocates appearing on behalf of the parties. After careful scrutiny of the judgment delivered by the learned Tribunal and on examination of the documents on record, we are of the view that the learned Tribunal has not committed any error in dismissing the original application filed by the petitioner. 11. The learned Tribunal has examined all the contentions raised by the petitioner justifying his absence and the inquiry proceedings in detail. It is undisputed fact that the petitioner has remained unauthorized absent for the period from 16.11.2007 to 12.05.2008. No prior sanction was obtained by him nor was any application tendered by him before proceeding on leave. It is pertinent to note that the learned Tribunal has specifically recorded the penalties imposed on the petitioner for remaining unauthorized absence on various occasions. The learned Tribunal has observed that despite the issuance of the Charge sheet dated 13.05.2008, the petitioner again proceeded on unauthorized leave on 28.10.08 to 19.11.2008 during the pendency of the inquiry proceedings. This shows the recalcitrant attitude of the petitioner which deserves to be deprecated. Thus, it can be said that the petitioner was habitual in remaining unauthorized absent. Considering the overall conduct of the petitioner as well as the charge proved against him, we are of the opinion that the penalty imposed on the petitioner cannot be said to be disproportionate. So far as the contention of the petitioner about holding of the ex-parte proceedings, the learned Tribunal, after perusing the entire record, has specifically held that the petitioner was given ample opportunity for appearing in the departmental proceedings. All the dates on which the inquiry proceeding was scheduled were duly informed to the petitioner, which was also acknowledged by him. Despite the same he did not care to remain present. On the contrary he again remained unauthorized absent from 28.10.2008 to 19.11.2008. Thus, there was no other option left for the disciplinary authority but to proceed ex-parte. We may observe with profit that the learned advocate appearing on behalf of the petitioner has not raised any contention alleging violation of any particular Rule which can vitiate the disciplinary proceedings. In absence of any such contention the disciplinary proceedings cannot be interfered with. Thus, there was no other option left for the disciplinary authority but to proceed ex-parte. We may observe with profit that the learned advocate appearing on behalf of the petitioner has not raised any contention alleging violation of any particular Rule which can vitiate the disciplinary proceedings. In absence of any such contention the disciplinary proceedings cannot be interfered with. In our opinion, the order of penalty of removal imposed on the petitioner as well as the judgment of the learned Tribunal are well-founded and the same do not require interference by this Court under Articles 226 and 227 of the Constitution of India. 12. Hence, for the foregoing reasons and discussions, the petition deserves to be dismissed and is accordingly dismissed. RULE discharged. No order as to costs.