Ashis Kumar Sarkar vs Divisional Security Commissioner, R.P.F. (Howrah-I), Eastern Railway and Others

Pranab Kumar Chattopadhyay, J.—The appeal is directed against the judgment and order passed by the Learned Single Judge in CO. No. 2437(W) of 1992 whereby and whereunder the Learned Single Judge dismissed the writ petition. The appellant / writ petitioner challenged the order of removal from service issued by the disciplinary authority in connection with the disciplinary proceeding and the subsequent order of the appellate authority (sic)ming the said order of the disciplinary authority.

Learned Advocate for appellant submitted that Learned Single Judge did not consider any of the grounds on which the writ petition was filed and in spite of violation of the prescribed rules and procedures during the course of the disciplinary proceeding, the writ petition has been dismissed by the learned Single Judge only on the ground that the appellant did stay away from duty for 10 months. The relevant portion of the order passed by the Learned Single Judge is reproduced below:

"It is patent from the records that the petitioner did stay away from duty for ten months. In such circumstances. I am not minded to grant the writ petitioner discretionary relief in this jurisdiction. On this ground alone, I am not inclined to deal with the legal submissions of the learned Counsel for the petitioner.

The writ application is, accordingly, dismissed."

The appellant/writ petitioner challenged the order of removal from service passed by the disciplinary authority and subsequently confirmed by the appellate authority, in the writ petition on the ground that the disciplinary proceeding was not conducted in the manner as provided under the Rules and major penalty of removal from service was imposed upon the petitioner, on the basis of charge which does not attract the imposition of major penalty under the Rules applicable to the departmental proceeding.

Factual matrix of the case may be highlighted for proper appreciation of the stand taken by the learned advocate for the petitioner. The appellant/writ petitioner was working as Constable tinder the Railway Protection Force. He was charge sheeted for gross misconduct, as he absented himself from duty as well as from headquarter with effect from 01-10-1988 without any authority and failed to attend his duty as directed. Subsequently the disciplinary proceeding was conducted ex parte as the writ petitioner did not contest the same. On consideration of evidence and materials placed during the disciplinary proceeding, the Enquiry Officer found that the charge against the delinquent Constable A. K. Sarkar has been well established. The report of the Enquiry Officer was considered by disciplinary authority, who is Divisional Security Commissioner Howrah-I and the said disciplinary authority upon accepting the finding of the Enquiry Officer held that the delinquent employee (writ petitioner) is guilty of the charge and imposed the penalty of removal from service with immediate effect. The writ petitioner submitted written representation before the Appellate Authority and the same was duly considered by Additional Chief Security Commissioner, RPF Eastern Railway. Calcutta. On consideration of the grounds taken in the said representation submitted by the writ petitioner and also on consideration that there was no procedural flaw and that the departmental proceedings was conducted in accordance with the rules, the Appellate Authority by a reasoned order dated 03-12-1990 rejected the appeal and confirmed the punishment imposed by the disciplinary authority. The matter went up to the Chief Security Commissioner and the petitioner submitted representation and prayed for reinstatement. However, the said authority also rejected his prayer for review and communicated the same, Thereafter, the writ petition was filed by the appellant herein,

Learned advocate for appellant seriously contended that the writ petition was dismissed by the Learned Single, Judge without assigning any reason inspite of the fact that several legal issues were raised by the writ petitioner. It is clear that the learned, Single Judge did not deal with the legal submissions of the learned counsel for the petitioner as is reflected in the order under challenge.

It may be pointed out that it is the duty of the Court to examine the grounds in order to ascertain whether the concerned authority followed the rules prescribed for conducting departmental proceeding. We however, propose to deal with this aspect of the matter as argued by the learned advocate for the appellant.

The following points were advanced by learned advocate for appellant:

Whether the imposition of major penalty of removal from service can be imposed on consideration of charge as framed against the appellant.

Whether there were violation of statutory rules in conducting the departmental proceeding.

Learned advocate for the appellant strenuously argued that the charge as framed against the petitioner" did not attract the major penalty as prescribed under clause 156 of the Railway Protection Force Rules, 1987 (hereinafter called the Rules).

The following charge was framed against the appellant:

''Article of charge : For gross misconduct in that he absented himself from duty as well as from Hd. Quarter w.e.f. 01-10-1988 without any authority and failed to attend his duties as directed."

Clause 156 of the said Rule prescribes imposition of punishment of dismissal, etc. The said Rule 156 is reproduced below:

Imposing of punishment of dismissal, etc. : Before coming to any lower punishment, the disciplinary authority with a view to ensuring the maintenance of integrity in the Force shall consider the award of punishment of dismissal or removal from service to any member of the Force in the following cases, namely;

(a) Dismissal:

(i) Conviction by a criminal Court;

(ii) Serious misconduct or indulging in committing or attempting or abetting an offence against railway property;

(iii) Discreditable conduct affecting the image and reputation of the Force;

(iv) Neglect of duty resulting in or likely to result in loss to the railway or danger to the lives of persons using the railways:

(v) Insolvency or habitual indebtedness; and

(vi) Obtaining employment by concealment of his antecedents which would ordinarily have debarred him from such employment.

(b) Removal from service :

(i) any of the misconduct for which he may be dismissed under clause (a) above;

(ii) repeated minor misconducts;

(iii) absence from duty without proper intimation or overstay beyond sanctioned leave without sufficient cause.''

Sub clause (b) of Rule 156 provide the grounds for imposition of major penalty of removal from service. So far as the case of appellant is concerned, clause (b)(iii) will be applicable as if is evident from the charge framed against the appellant that he absented himself from duty from head quarter with effect from 01-10-88 without any intimation to the appropriate authority.

Learned Advocate of the appellant urged before (his court that the respondents concerned should not have'' awarded major punishment by removing the said appellant/writ petitioner from service on the basis of the findings of the Enquiry Officer. It has been submitted on behalf of the appellant that the concerned respondent wrongfully and illegally imposed major punishment by removing the appellant/writ petitioner from service on the alleged charge of absence from duty without proper intimatio ignoring the fact that the appellant/writ petitioner duly informed the concerned respondent from time to time about the reasons of his absence from duty due to his own illness and on account of the serious illness of his parents. The learned Advocate of the appellant also submits that the Enquiry Officer did not serve proper notices or even informed the appellant/ writ petitioner after fixing the dates for holding enquiry in connection with the charge as mentioned in the charge-sheet. It has also been submitted on behalf of the appellant that the allegations levelled against the writ petitioner should have been dealt with u/s 17 of the Railway Protection Force Act, 1957 instead of Rule 156(b)(iii) of the Railway Protection Force Rules, 1987. We are unable to accept the aforesaid contention of the learned Advocate of the appellant as it is evident that the said appellant absented himself from duty without proper intimation and did not even inform the appropriate authority at the time of leaving the duty place on 01-10-1988. Provision of Section 17 of the Railway Protection Force Act, 1957 cannot, prevent the competent authority from awarding punishment to any member of the Farce under Rule 156(b)(iii) upon holding proper disciplinary proceeding on the charge of. absence from duly without proper intimation as has been done in the instant case.

In this connection, it may be pointed out that appellant did not participate in the departmental proceeding before the Inquiry Officer and he only submitted written representation before the appellate authority after conclusion of the departmental proceeding and imposition of major penalty of removal from service by the disciplinary authority.

The said written representation submitted before the Additional Chief Security Commissioner, CCC. R.P.F., E. Rly is set out below:

The Additional Chief Security Commissioner, CCC, R.P.F. E. Rly.

New Koilaghat, Calcutta.

(Through the proper channel)

Sub: My prayer application dt. 29-11-1989 for the withdrawal of removal notice.

Ref: No. HWH (1)/CS/153/11/89, Howrah, dt. 04-01-1990 from the office of the Divl. Security Commissioner, RPF/HWH (I) received by me on 24-03-1990 directing resubmission of prayer application to my appellate authority, Hon''ble Addl., CSC.

Respected Sir,

Inviting your kind attention on the above subject and reference, I beg to inform you the following fact for your sympathetic consideration and kind action in my favour.

That Sir, I (Shri A. K. Sarkar. C/4389 of RKAE post) am a constable in your department. My family members include my old ailing parents, wife and three minor children. My old bed ridden parents very-often suffer from diseases and other complicacies.

Receiving an urgent message of my mother''s serious illness, 1 could not join my duty on and from 01-10-1988 and the matter was intimated to the Inspector, RPF, Ramkrishnapur (HWH-1) by post (Copy of certificate of my mother''s illness is enclosed herewith). From 15-11-1988 I myself became ill and informed the matter to the Inspector, RPF, Ramkrishnapur, HWH-1 by post.

In the meantime, on 04-05-1989 I received the charge sheet No. HWH(1)/CS/153/11/89, dt. 25-04-1989 from the ASC/HWH-1 and was mentally perturbed. Thereafter, I insisted on my attending. physician to issue me ''fit-certificate'' on 05-15-1989. But, again I became physically indisposed on 06-05-1989 and was under treatment and I informed the matter to the Asstt. Security, Commissioner (HWH-1) by post. During the period, my father''s condition also began to deteriorate and he expired on 29-08-1989 (copy of the death certificate enclosed).

This sad family-situation fully made me confused and I informed that also to the Assistant Security Commissioner and Inspector RKAE''. Howrah-I on 01-10-1989 by post.

With my recovery on 09-11-1989. I went on 10 11-1989 to report for duty to Ramkrishnapur (HWH-I) but I was not allowed to join rather was directed to see the R.O. No. 596/89, dt. 08-11-1989.

In the light of the facts stated above, I have to appeal before your generous-self to please intervene in the matter and kindly withdraw the removal-order to enable my joining at the earliest and this act of your generous-self will not only save my life and career but also will save my family-members (old-ailing mother, wife and three minor children) from utter ruins.

With best regards.

Yours faithfully.

Date: 16-04-1990.

(A.K. Sarkar)

C/4389 RKAE (E.Rly).

Copy to: 1. DM.- Security Commissioner, RPF/HWH(1) for kind information.

Enclo.: copies of:

Medical Certificates on my mother''s illness, father''s illness.

Four medical certificates on my illness.

Certificates on posting of letters, (under Certificate of posting.)

In the aforesaid representation the appellant categorically stated that he could not join his duty on and from 01-10-1988 after receiving an urgent message of his mother''s illness. Even though he has stated that the matter was intimated to the Inspector. RPF, Ramkrishnapur by post but no cony of the said communication was produced alongwith his representation and he only submitted a copy of the certificate of his mother''s illness.

The appellant did not participate in the proceeding before the Inquiry Officer and the Inquiry Officer conducted the proceeding ex (sic)art. The Inquiry Officer considered the document which was produced during departmental proceeding and it shows that the appellant sent a letter dt. 10-10-1988 before the appropriate authority. This fact by itself would show that while leaving the place of duty and absenting himself from duty with effect from 01-10-1988. the appellant did not intimate the authority before leaving the said place of duty.

In other words the appellant did not obtain any permission from the authority before he left his place of posting. The appellant was duty bound to follow the rules and there appears to be no explanation as to why the appellant in violation of rules led the place of duly without even obtaining prior permission.

In the proceeding before the Inquiry Officer and from the record it appears that initially the appellant was directed to report for duty but the appellant failed to comply with the said direction. He was also directed to report for treatment to any Railway Doctor or Civil Surgeon and to submit proper medical certificate but the appellant also failed to comply the said direction.

The departmental proceeding was conducted ex parte and it appears from the report of the Enquiry Officer that inspite of sending repealed communications the appellant neither attended inquiry nor gave any reply.

There is no dispute that appellant received the charge sheet on 04-05-1989 as the same is clear from the representation submitted by him before the appellate authority but the appellant is totally silent as to why he failed to participate in the departmental proceeding or even did not send written information explaining the reasons far his non-appearance in the departmental proceeding.

Under Rule 153.9 the Inquiry Officer is empowered to conduct the inquiry ex parte. The said Rule is reproduced below.

153.9 If the enrolled member charged fails to turn up on the day fixed for the start of inquiry and no reasonable excuse is offered far not being present on the fixed time and day the Inquiry Officer may commence the inquiry ex parte.

Learned advocate for the appellant specifically contended that during the departmental proceeding the authority failed to comply with the statutory rules and as such the departmental proceeding is vitiated. It is the contention of the learned advocate for the appellant that Rule 153.3, Rule 153.5 and Rule 153.19 were not complied during the departmental proceeding.

Rule 153.3 provides for application of mind by the departmental authority in order to decide whether the case was for major or minor punishment.

We have already observed that the charge against the appellant squarely attracts Rule 156 (b) (iii) Moreover, the appellant admitted in his written representation that he received a copy of charge sheet and the charge framed against the appellant was in connection with major penalty and as such he was well aware about the nature of charge framed against him.

Rule 153.5 prescribes that the delinquent member shall be given a copy of charge along with other document at least seventy-two hours before the commencement of the inquiry. There is no violation of the said Rule and the copy of charge sheet was already supplied to appellant and admitted by him in his written representation before the appellate authority.

With regard to alleged violation of Rule 153.19. it was the contention of learned advocate for appellant that the Enquiry Officer failed to record whether the appellant was guilty or not guilty as is the requirement of the said rule.

On perusal of the report of the Inquiry Officer we find that Inquiry Officer considered both documentary and oral evidence and specifically recorded his findings.

The report of the Enquiry Officer shows that inspite of repealed opportunities the appellant did not participate in the inquiry proceeding and not even send any reply. It is also evident that Enquiry Officer considered the oral evidence of witnesses as well as the documentary evidence and came to a positive finding that the appellant absented himself from duty as well as from the head quarter for long period and till the date of the submission of the report of Enquiry Officer dated 20-09-1989. the appellant remained absent from his duty on and from 01-10-1988. The Inquiry Officer categorically recorded on consideration of both documentary and oral evidence that the charge against the delinquent constable A. K. Sarkar has been well established.

The aforesaid finding of the Enquiry Officer is well supported by the evidence on record and other materials considered during departmental proceeding and we do not find any illegality or violation of any rule during the departmental proceeding as sought to have been argued by the learned advocate for the appellant.

In the written representation, the appellant also did not allege that the departmental proceeding had vitiated due to non-compliance of any Rules. The appellant herein admitted that he received charge sheet on 04-05-1989 and only took the plea about his illness or the illness of his parents as a ground for not attending the departmental proceeding.

In his written representation the appellant did not mention that he did not receive any intimation about the conduct of the proceeding by the Enquiry Officer and as such we do not accept the contention that enquiry proceeding was conducted in violation of Statutory Rules. The grounds taken in the writ petition about violation of Rules during the conduct of departmental proceeding is purely an after-thought and are not supported by proper materials. Even in the written representation, appellant did not mention any ground regarding violation of rules.

In view of above discussions, we are of the opinion that the departmental proceeding was conducted by following the rules and the authority after due consideration imposed major penalty of removal from service against the appellant.

The fact remains that since 01-10-1988 the appellant, who is a member of a disciplined force, left his post without proper intimation or authority and remained absent for long period and such conduct is unbecoming of a member of a disciplined force.

It may be pointed out that the authority showed restraint in dealing with the case of the appellant, as because even after he left the place of duty without any authority or intimation on 01-10-1988, the appellant was initially directed to report for duty. The charge sheet is dated 25-04-1989 and it is evident that during the entire course of departmental proceeding the appellant not only failed and neglected to attend the departmental proceeding but also did not resume his duty. Incidentally, no order of suspension was passed against the appellant and it appears totally unexplained as to why the appellant did not resume his duty.

The grounds advanced by appellant about his illness and the illness of his parents were duly considered by the appellate authority. Additional Chief Security Commissioner, RPF and it was the categorical finding of the appellate authority that the argument advanced by the appellant that he was not in a position to attend the departmental proceeding or report for duty for his self sickness is after thought as appellant failed to send the medical certificate to the Controlling Authority covering the period of his sickness in time and periodically.

The appellate authority by a reasoned order considered the representation by the appellant and also recorded that there was no procedural flaw or violation of rules in the departmental proceeding and also considered the grounds as advanced by appellant and recorded a positive finding that the grounds are nothing but after thought. We do not find any reason to interfere either with the finding of the Enquiry Officer or with the reasoned order of the Disciplinary authority and appellate authority.

Learned advocate for the appellant lastly submitted that the penalty of removal from service is too harsh as the appellant will not be getting any pension and as such his case may be sympathetically considered by this Court. The conduct of the appellant, who is a member of disciplined force, left the place of duty without proper information which warrants imposition of major penalty unless it can be shown that while conducting departmental proceeding, the authority violated the provisions of the statutory rules and for such violation the departmental proceeding had vitiated. We are unable to accept the suggestion of learned advocate of the appellant for taking a sympathetic view in this matter. Sympathetic consideration by itself cannot obliterate the gross misconduct committed by the concerned employee, namely, the appellant herein and as the penalty imposed is proportionate to the misconduct committed by the appellant, we find no reason to interfere with the order passed by the Learned Single Judge while dismissing the writ petition.

In view of the above discussions, even though we are unable to subscribe to the reasons recorded by the learned Single Judge in dismissing the writ petition but even after considering the materials both on points of law and on fact, we do not find any reason to interfere with the ultimate decision of the learned Single Judge.

This appeal therefore, stands dismissed. However, there shall be no order as to costs.

Pranab Kumar Chattopadhyay, J.

I agree.