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2021 DIGILAW 207 (ORI)

Kalyan Ranjan Sahoo v. Union Of India

2021-04-26

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S. K. Mishra, J. - Admit. 2. By filing this writ petition, the Applicant/ Petitioner, a former employee of the East Cost Railways, assails the final order dated 11th August, 2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as 'the Tribunal' for brevity) dismissing his Original Application i.e. O.A. No.437 of 2012 mainly on the ground of delay and being barred by law of limitation. In the aforesaid Original Application, the Applicant/ Petitioner being the Applicant had assailed the order of punishment dated 04.02.2004 imposing punishment of removal from service passed by the Respondent/ Opposite Party No.3- Production Engineer and Disciplinary Authority, Office of the Chief Workshop Manager, Carriage Repair Workshop, East Coast Railway, Mancheswar, Bhubaneswar, District-Khurda (hereinafter referred to as 'the Disciplinary Authority' for brevity) on the ground of gross violation of Rules, violation of principle of nature justice and the punishment being highly disproportionate to the gravity of the charge. The charge against the Applicant/ Petitioner was that he remained unauthorizedly absent from duties for about 2 ^ years i.e. from 12.12.2000 to 12.05.2003. 3. The facts, mostly undisputed in this case, are as follows: The Applicant/ Petitioner was appointed as a Khalasi by the Respondents/ Opposite Party Nos.1 to 3 on 04.04.1983. In the year 1985, he was promoted to the post of Junior Clerk. While continuing as such, it is alleged that he remained absent unauthorizedly, without any intimation to the authorities regarding his whereabouts with effect from 12.12.2000 to 12.05.2003. Accordingly, charge-sheet under Section 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the Rules' for brevity), vide Memorandum No.Mesw/M/D&A/KRS-74/1571 dated 12.05.2003 was issued to the Applicant/ Petitioner. He submitted his written statement of defence denying the allegations leveled against him. But, the Disciplinary Authority without giving much weightage to the said written statement of defence, appointed the Inquiring Officer to conduct a domestic inquiry into the matter. The Inquiring Officer without giving any notice to the Applicant/ Petitioner, concluded the enquiry and submitted his report holding him guilty. The Disciplinary Authority without supplying him a copy of the report of the Inquiring Officer, as required under the Rules, vide order dated 04.02.2004 imposed the punishment of removal from service. The Applicant/ Petitioner preferred an appeal on 18.03.2004, but no decision was communicated to him. The Disciplinary Authority without supplying him a copy of the report of the Inquiring Officer, as required under the Rules, vide order dated 04.02.2004 imposed the punishment of removal from service. The Applicant/ Petitioner preferred an appeal on 18.03.2004, but no decision was communicated to him. He sent several reminders, but, it did not yield any result. He submitted the last reminder on 12.09.2010, but no order was communicated to him. Finally, he filed Original Application No.437 of 2012 before the Tribunal on 30.05.2012. 4. The Respondents/ Opposite Party Nos.1 to 3 submitted that after taking resort to initiate a Disciplinary Proceeding, Memorandum of charge under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the Rules' for brevity), was framed and sent to the applicant in his address available in the service record but the same was returned undelivered. As such, as per the Rules, in presence of witnesses the same was pasted in the notice board. Thereafter, the Inquiring Officer was appointed to enquire into the matter and letter was sent to the applicant in that regard but the same was returned undelivered with postal remark that 'addressee always absent'. As notices were returned unserved repeatedly, the Inquiring Officer proceeded with the enquiry and submitted its report holding the charge as proved. The same was sent to the applicant but again it was returned unserved. In view of the above, as there was no other option for the Disciplinary Authority, he considered the report and other materials available on record and vide order dated 04.02.2004 imposed the punishment of removal from service with immediate effect. The Respondents/ Opposite Party Nos.1 to 3 denied to have received any appeal dated 18.03.2004, but have stated that one mercy appeal dated 01.12.2007 was submitted by the Applicant/ Petitioner which was duly considered, but the same was rejected and communicated to the Applicant/ Petitioner by registered post with AD vide letter dated 21.03.2008. The Respondents/ Opposite Party Nos.1 to 3 claimed that there was delay and laches on the part of the Applicant/ Petitioner. Hence, they prayed to dismiss the Original Application. 5. The Applicant/ Petitioner filed a rejoinder denying the allegations made by the Respondents/ Opposite Party Nos.1 to 3. He specifically stated that except bald assertions, no material has been placed in support of the averments that notices were returned unserved. Hence, they prayed to dismiss the Original Application. 5. The Applicant/ Petitioner filed a rejoinder denying the allegations made by the Respondents/ Opposite Party Nos.1 to 3. He specifically stated that except bald assertions, no material has been placed in support of the averments that notices were returned unserved. He further stated that the order imposing punishment of removal from service has been passed behind his back which is not sustainable in the eye of law. 6. The Tribunal taking into consideration the reported judgments of the Honble Supreme Court in the cases of P.K. Ramachandran -vrs.-State of Kerala and Another: reported in AIR 1998 SC 2276 , Basawaraj & Another -vrs.- Spl. Land Acquisition Officer: reported in AIR 2014 SC 746 , Chennai Metropolitan Water Supply and Sewerage Board and Others -vrs.- T.T. Murali Babu: reported in AIR 2014 SC 1141 and Brijesh Kumar and Others -vrs.- State of Haryana and Others: reported in AIR 2014 SC 1612 , held that the Original Application is time barred and, therefore, dismissed it on the ground of delay and laches. 7. Mr. P.K. Bhuyan, learned counsel for the Applicant/ Petitioner submits that the impugned order passed by the Tribunal is erroneous and is liable to be set aside on the ground that the delay caused in this case can be attributed to the inaction of the Respondents/ Opposite Party Nos.1 to 3-authorities for not having considered his appeal. He also submits that the Court and Tribunal should do substantive justice instead of hiding behind technicalities. Learned counsel for the Applicant/ Petitioner further submits that the Respondents/ Opposite Party Nos.1 to 3 have admitted in their counter affidavit that notices were not served on the Applicant/ Petitioner because of his long absence. In such situation, Mr. P.K. Bhuyan, learned counsel for the Applicant/ Petitioner would argue that a public proclamation in the shape of a Newspaper notification or proclamation should have been issued. Moreover, he further points out that no document has been annexed to the counter affidavit before the Tribunal and the Tribunal has not relied on any such document to come to the conclusion that notices were sent to him as claimed by the Respondents/ Opposite Party Nos.1 to 3 in their counter affidavit. Moreover, he further points out that no document has been annexed to the counter affidavit before the Tribunal and the Tribunal has not relied on any such document to come to the conclusion that notices were sent to him as claimed by the Respondents/ Opposite Party Nos.1 to 3 in their counter affidavit. Learned counsel for the Applicant/ Petitioner, therefore, prays that since the Applicant/ Petitioner has been dismissed from service with effect from 04.02.2004, no useful purpose will be served by remanding the matter to the Tribunal and substantive justice can only be done if this Court in exercise of its jurisdiction issues a writ of certiorari under Articles 226 and 227 of the Constitution of India and disposes of the writ petition on merit. 8. Mr. A. Pal, learned counsel for the Railways appearing on behalf of the Opposite Party Nos.2 and 3 would submit that the delay in filing the Original Application is fatal to the case of the Applicant/ Petitioner and, therefore, the writ petition should be dismissed only on that ground. He also submits that even if it is pleaded by the Respondents/ Opposite Party Nos.1 to 3 before the Tribunal that notices were not served upon the Applicant/ Petitioner, as the postal notices were returned unserved, still there cannot be any violation of natural justice. He would further submit that even if there is a violation of natural justice, the writ petition should not be allowed quashing the order of punishment and the basis of such punishment as there is an enquiry report, but the matter should be remanded back to the Disciplinary Authority and the Enquiring Authority to afford reasonable opportunity of hearing to the Applicant/ Petitioner to participate in the Disciplinary Proceeding. 9. At the outset, we would like to take note of the reported and off-quoted judgment passed in the case of Collector, Land Acquisition, Anantnag and another -vrs.- Mst. Katiji and others: AIR 1987 SC 1353 , wherein the Honble Supreme Court has laid down the guidelines for considering the application for condonation of delay under Section 5 of the Limitation Act, 1963. The Honble Supreme Court has laid down that: legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act, 1963 in enabling the court to do substantial justice to the parties by disposing of the matters on merit. The Honble Supreme Court has laid down that: legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act, 1963 in enabling the court to do substantial justice to the parties by disposing of the matters on merit. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the court to apply the law in a meaningful manner, which subserves the ends of justice that being the life purpose for the existence of the institution of the courts. The Honble Supreme Court further observed that it has been making a justifiably liberal approach in matters instituted before it, but observed that the message does not appear to have percolated down to all other courts in a hierarchy. Such a liberal approach is adopted on principle as it is realized that: 'xx xx xx. 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. Xx xx xx.' 10. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. Xx xx xx.' 10. We particularly rely upon the principle no.6 wherein the Honble Supreme Court very categorically held that the Court exists for their authority to dispense justice to the litigant and not for hiding behind technicalities. As our discussion in the succeeding paragraphs would demonstrate, this is a classic case of pure and simple violation of principle of natural justice by a very big organization like Indian Railways. The Indian Railways is stated to be the 3rd biggest employer in the whole world. An entity of such a large magnitude is awe aspiring so far as it employees are concerned and a single employee who was appointed as a Khalasi and promoted to the rank of Junior Clerk has hardly any bargaining capacity with such a big employer. 11. We also take note of the off-quoted judgment passed in the case of Tukaram Kana Joshi -vrs.- Maharashtra Industrial Development Corporation: reported in (2013) 1 SCC 353 , wherein the Honble Supreme Court has held as follows: 'No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Applicant/ Petitioners.' 12. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Applicant/ Petitioners.' 12. So, in spite of all delay in this case, we are inclined to condone the same and hold that there is justification for the Applicant/ Petitioner to file the Original Application at a belated stage. Moreover, the Respondents/ Opposite Party Nos.1 to 3 have remained evasive regarding filing of the appeal by the Applicant/ Petitioner against the order of removal from service on 18.03.2004. The Applicant/ Petitioner has submitted his last reminder on 12.09.2010. However, it appears that no document in support of sending notices through post or any communication to the Applicant/ Petitioner about dismissal of his appeal has been filed in the counter affidavit. Moreover, the Tribunal in its order has not mentioned any of these documents at paragraph 2 of the order as Annexures, though such Annexures have been noted while the case of the Applicant/ Petitioner was discussed in the first paragraph of the impugned order. Therefore, we are led to believe that in this case, the Respondents/ Opposite Party Nos.1 to 3 have not established that notices were sent to the Applicant/ Petitioner as claimed by them. 13. We take into consideration the very case of the Respondents/ Opposite Party Nos.1 to 3 raised before the Tribunal. It has been pleaded that xx xx xx 'Memorandum of Charge under Rule 9 of the Rules was framed and sent to the Applicant/ Petitioner in his address available in the service record, but the same was returned un-delivered. As such, as per Rules, the same was pasted in the notice board. The Inquiring Officer was appointed to enquire into the matter. Letter was sent to the Applicant/ Petitioner this regard but the same was returned un-delivered with postal remark that 'addressee always absent'. As notices sent repeatedly were returned unserved, the Inquiring Officer proceeded with the enquiry and submitted his report holding the charge as proved. The same then was sent to the Applicant/ Petitioner. But it was again returned unserved. In that view of the matter, there being no other option, the Disciplinary Authority, considered the report and other materials available on record and vide order dated 04.02.2004 imposed the punishment of removal from service with immediate effect' xx xx xx. 14. The same then was sent to the Applicant/ Petitioner. But it was again returned unserved. In that view of the matter, there being no other option, the Disciplinary Authority, considered the report and other materials available on record and vide order dated 04.02.2004 imposed the punishment of removal from service with immediate effect' xx xx xx. 14. Section 27 of the General Clauses Act, 1897 provides as follows: 'Meaning of service by post.Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.' 15. As observed earlier, the Respondents/ Opposite Party Nos.1 to 3 have not annexed any document to show that the notices were sent to the Applicant/ Petitioner through post. In order to have a service effected properly, the parties asserting the same must show that the notice through post was properly addressed, pre-paid and posted by Registered Post, a letter containing the document. 16. In this case, bald assertion made by the Respondents/ Opposite Party Nos.1 to 3 that they have sent the documents to the Applicant/ Petitioner which were returned unserved will not establish that the service of notices by post is effected properly. 17. Moreover, it is the case of the Respondents/ Opposite Party Nos.1 to 3 that notices were sent to the Applicant/ Petitioner which were returned unserved. In such situation, the duty of the Disciplinary Authority or the Enquiring Officer is to see that the notices were published in a local Newspaper which must be in a vernacular language which the Applicant/ Petitioner understands. It is not the case of the Respondents/ Opposite Party Nos.1 to 3 that they proclaimed notices to the Applicant/ Petitioner through any paper proclamation. As per their own case that such notices were pasted in the notice board. Such a plea is conspicuously absent in their pleading. It is not the case of the Respondents/ Opposite Party Nos.1 to 3 that they proclaimed notices to the Applicant/ Petitioner through any paper proclamation. As per their own case that such notices were pasted in the notice board. Such a plea is conspicuously absent in their pleading. This is important more so because the Respondents/ Opposite Party Nos.1 to 3 themselves have stated that on their framing of charge against the Applicant/ Petitioner they sent the notices and the notices returned unserved, and as per the Rules, the notices were pasted in the notice board. However, there is no such pleading or averment by the Respondents/ Opposite Party Nos.1 to 3 regarding pasting of notices of the Inquiring Officer and the second show cause. 18. Section 9 of the RS (D & A) Rules provides procedure for imposing major penalties. The relevant portions are quoted below:- '9. Procedure for imposing Major Penalties - (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof. (3) Where a Board of Inquiry is appointed under subrule (2) it shall consist of not less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held and none of whom shall be subordinate to the other member or members as the case may be, of such Board. (4) xx xx xx xx xx xx (5) xx xx xx xx xx xx Explanation - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub rules (14) to (25), to the inquiring authority shall be construed as a reference to the disciplinary authority. (4) xx xx xx xx xx xx (5) xx xx xx xx xx xx Explanation - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub rules (14) to (25), to the inquiring authority shall be construed as a reference to the disciplinary authority. (6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up - (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain - (a) a statement of all relevant facts including any admission or confession made by the Railway servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow. Note: - If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person. (8) xx xx xx xx xx (9) xx xx xx xx xx (10) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority - (i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour; (ii) a copy of the written statement of defence, if any, submitted by the Railway servant; (iii) a copy of the statement of witnesses, if any, referred to in sub-rule (6); (iv) evidence proving the delivery of the documents referred to in sub-rule (6) to the Railway servant; (v) a copy of the order appointing the Presenting Officer, if any; and (vi) a copy of the list of witnesses, if any, furnished by the Railway servant. (11) The Railway servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the order appointing him as such, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the inquiring authority may allow. (12) The inquiring authority shall, if the Railway servant fails to appear within the specified time, or refuses or omits to plead, require the Presenting Officer if any, to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Railway servant may for the purpose of preparing his defence, give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Railway Administration but not mentioned in the list referred to in sub-rule (6). Note: The Railway servant shall indicate the relevance of the documents required by him to be discovered or produced by the Railway Administration. (13)(a) The Railway servant may represent his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement) working under the same Railway Administration, subject to whose jurisdiction and control he is working. (13)(a) The Railway servant may represent his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement) working under the same Railway Administration, subject to whose jurisdiction and control he is working. He cannot engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority having regard to the circumstances of the case, so permits. If the Railway servant is employed in the office of the Railway Board, its attached office or subordinate office, he may present his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement), employed in the office of the Railway Board, attached office or subordinate office, as the case may be, in which he is working. (b) The Railway servant may also present his case with the assistance of a retired Railway servant, subject to such conditions as may be specified by the President from time-to-time by general or special order in this behalf. Note: (1) A non-gazetted Railway servant may take the assistance of an official of a Railway Trade Union, recognized by the Railway Administration under which the Railway servant is employed, to present his case before an inquiring authority but shall not engage a legal practitioner for the above purpose except in the circumstances brought out in clause (a). An official of a Railway Trade Union shall not be allowed to appear on behalf of an alleged delinquent railway official in connection with a disciplinary case pending against that official, to present his case favourably before an inquiring authority unless he has worked as such in a recognized Railway Trade Union for a period of at least one year continuously prior to his appearance before an inquiring authority for the above purpose and subject to the condition that he takes no fees. (2) (i) Nomination of an assisting railway servant or an official of a recognized Railway Trade Union, who is a full time union worker, shall be made within twenty days from the date of appointment of the inquiring authority. (ii) The nomination shall not be accepted if the person assisting has three pending disciplinary cases on hand in which he has to assist. (ii) The nomination shall not be accepted if the person assisting has three pending disciplinary cases on hand in which he has to assist. Provided that an official of a recognized Railway trade Union may assist in more than three pending disciplinary cases. (14) After the nomination of the assisting Railway servant or the official of a Railway Trade Union and other necessary steps preliminary to the inquiry are completed, a date, ordinarily not exceeding one month from the date of appointment of the inquiring authority, shall be fixed for the inquiry and the Railway servant informed accordingly. (15) xx xx xx xx xx (16) xx xx xx xx xx (17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been crossexamined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. (18) xx xx xx xx xx (19) xx xx xx xx xx (20) xx xx xx xx xx (21) xx xx xx xx xx (22) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire. (23) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte. (24) xx xx xx xx xx (25)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain - (a) the articles of charge and the statement of imputations of misconduct or misbehaviour; (b) the defence of the Railway servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; and (d) the findings on each article of charge and the reasons therefor. Explanation - If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Railway servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include - (a) the report prepared by it under clause (i); (b) the written statement of defence, if any, submitted by the Railway servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer, if any, or the Railway servant or both during the course of the enquiry; and (e) the orders, if any, made by the disciplinary authority in regard to the inquiry.' 18.1. In this case though it is averred by the Railways that notices were sent through registered post, the same were not delivered to the Petitioner i.e. the delinquent employee and were returned. In such situation, the deeming provision of Section 27 of the General Clauses Act, 1897 which is quoted at paragraph 14 will not raise a presumption of delivery of the notices. 18.2. It is clear from a plain reading of Rule 9 of the RS (D & A) Rules that the Authorities especially the Disciplinary Authority and the Enquiring Authority are saddled with the duty to serve notice i.e. 'shall deliver or cause to be delivered to the Railway servant'. 18.2. It is clear from a plain reading of Rule 9 of the RS (D & A) Rules that the Authorities especially the Disciplinary Authority and the Enquiring Authority are saddled with the duty to serve notice i.e. 'shall deliver or cause to be delivered to the Railway servant'. The Rules do not provide the manner of delivery of such notice or copy of the article of charge and the statement of imputation of misconduct or misbehavior, date of enquiry etc. So, the general law, equity and good conscience shall govern the matter. In such cases, when it was not possible to deliver a notice on the delinquent employee through regular mode i.e. service of notice through post, a public proclamation is necessary. Though such public proclamation is not mentioned in the Rules itself, it does not also prohibit such delivery. The expression 'shall deliver or cause to be delivered to the Railway servant' appearing the articles of charge, the notices regarding appointment of the Enquiring Officer, the date of enquiry, the result of enquiry and the second show cause, makes it imperative that there should be delivery of the notices or there should be substituted delivery of the same. In this case neither has been followed. Therefore, the entire process becomes vulnerable for interference. 19. Article 311 of the Constitution of India provides for the procedures to be followed for dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State which read as follows: 'Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply-] (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank in satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]' 20. The expression 'an employee cannot be dismissed or removed from service etc.' 'except after an enquiry in which he has been informed about the charge against him and given a reasonable opportunity of being heard......' makes imperative on the part of the authorities to serve a notice of charge levelled against the employee. There is also obligation on the authorities created by the Constitution to give reasonable opportunity of being heard. This reasonable opportunity of being heard not only means a notice to him, but in cases where he is unable to defend the charge against him because of his lack of knowledge in such matter, it is the duty of the authorities to render meaningful and effective assistance to the Applicant/Petitioner. This reasonable opportunity of being heard not only means a notice to him, but in cases where he is unable to defend the charge against him because of his lack of knowledge in such matter, it is the duty of the authorities to render meaningful and effective assistance to the Applicant/Petitioner. Even in a case where the delinquent employee does not appear, it shall be proper on the part of the authorities to appoint a defending assistant or a friend, so that the Inquiring Officer will not pass anunreasonable or arbitrary order on the basis of material not available on record or by taking a perverse view thereof. 21. Applying these principles to the case in hand, it is apparent from the record that the Respondents/ Opposite Party Nos.1 to 3 have not established the fact that notices were sent to the Applicant/ Petitioner. It could have been done by filing the documents or copies thereof as Annexures to the counter affidavit. The Respondents/ Opposite Party Nos.1 to 3 have not taken any step to make a public proclamation by publishing in a Newspaper when the notices sent to the Applicant/ Petitioner were allegedly returned unserved. The same principle should be applied to the second show cause notice and the final order of punishment. 22. So, this Court is of the opinion that there are gross violations of principles of natural justice as enshrined under Article 311 of the Constitution of India. This is a constitutional obligation on the part of the Railways Authorities and it cannot be abdicated. 23. Hence, we are of the opinion that the writ petition should be allowed by quashing the final report of the Inquiring Officer, the consequent second show cause and the final order of dismissal. 24. Mr. Avijit Pal, learned counsel for the Opposite Party Nos.2 and 3-Railways submits that the matter should be remanded back to the Disciplinary Authority for de novo hearing of the Disciplinary Proceeding. 25. We are of the opinion that since in this case order of punishment has been passed in the year 2004 and in the meantime, almost two decades have already passed, the interest of justice will not be subserved, if the matter is remanded back to the Disciplinary Authority. 25. We are of the opinion that since in this case order of punishment has been passed in the year 2004 and in the meantime, almost two decades have already passed, the interest of justice will not be subserved, if the matter is remanded back to the Disciplinary Authority. We are also of the opinion that the Applicant/ Petitioner who was aged about 49 years at the time of filing of the Original Application before the Tribunal is near the age of superannuation and there is hardly one or two years left of his active service. In such facts situation, setting aside the order of punishment and remanding the matter back to the Disciplinary Authority will render all his efforts fruitless. 26. Hence, the writ petition is allowed by issuing a writ of certiorari. The impugned order dated 11th August, 2014 passed by the Tribunal in O.A. No.437 of 2012 is hereby quashed. The order of finding of guilt, second show cause and final order of dismissal are hereby quashed. We further direct that the Applicant/ Petitioner should be re-instated in his post as Junior Clerk within a period of forty-five days from today with the salary which the other Junior Clerks are receiving at present in the same cadre. We also direct that the period from 12.05.2003 till his joining shall be considered for the purpose of his service benefits. But, the Applicant/ Petitioner is not entitled to receive any financial benefit for that period. 27. With such observations, this writ petition is disposed of. 28. As the restrictions due to resurgence of Covid-19 are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certified copy, subject to attestation by Mr. P.K. Bhuyan, learned Advocate or/and by Mr. Avijit Pal, learned Advocate, in the manner prescribed vide Courts Notice No.4587 dated 25th March, 2020 as modified by Courts Notice No.4798 dated 15th April, 2021.