Dr. Ashoke Bagchi vs Union Of India And Ors

AM Bujor Barua, J

Heard Mr. KN Choudhury, learned Senior Counsel for the petitioner. Also heard Mr. DK Dey, learned counsel for the respondent railway

authorities.

The petitioner, who was appointed as an Assistant Medical Officer (Adhoc) in the Maligaon Central Hospital on 28.04.1984 was subsequently

appointed to the Group A post of Assistant Divisional Medical Officer on 01.02.1985. Thereafter, he was promoted to the post of Divisional Medical

Officer in the year 1991 and subsequently promoted to the Junior Administrative Grade of Senior Divisional Medical Officer in the year 1995.

In the year 1995, the petitioner was investigated by the CBI on an allegation of acceptingconsultation fee from private patients and using his official

residence as a Nursing Home. The CBI concluded its investigation by requiring the respondent authorities to proceed against the petitioner in a

departmental proceeding. The departmental proceeding so initiated culminated in the order dated 21.06.2000 by which the penalty of compulsory

retirement was imposed on the petitioner.

Being aggrieved by the order of compulsory retirement, the petitioner preferred OANo.377/2000 before the Central Administrative Tribunal (for

short, CAT) Guwahati. By the order dated 27.02.2002, the learned CAT had set aside and quashed the order of compulsory retirement. The

respondent authorities preferred WP(C)No.6178/2002 before this Court against the order of the learned CAT dated 27.02.2002. During the pendency

of the departmental proceeding, which culminated in the order of compulsory retirement, another proceeding was initiated against the petitioner as per

the memorandum of charges dated 26.06.1999, on the allegation that the petitioner had remained unauthorizedly absent from 20.09.1996 and that he

did not comply with an order of transfer. Further allegations were also raised that by the communication dated 13.09.1996, the petitioner was required

to appear before a Medical Board on 18.09.1996, which was again deferred to 20.09.1996. But inspite of such opportunities being given, the petitioner

did not appear before the Medical Board.

The petitioner submitted his written statement against the memorandum of charges dated26.06.1999, primarily taking a stand that he was suffering

from certain illness, although the details of the illness had not been stated in the written statement. But nevertheless, the petitioner took a stand that on

09.02.1996, he was undergoing treatment in the Railway Hospital at Lumding, and, therefore, the order of transfer dated 12.02.1996 could not be

carried out. A further stand was taken that on 01.03.1996, he was referred to the Central Hospital at Maligaon and on 06.05.1996, the Central

Hospital had referred him for further treatment in the Gauhati Medical College and Hospital, Guwahati. The Department of Neurology of the Gauhati

Medical College and Hospital had advised 3(three) months rest to the petitioner w.e.f. 20.08.1996 and as the Medical Board was set up within the said

period of 3(three) months, therefore, the petitioner had informed the authorities that it was not possible for him to appear before the Medical Board.

As the subsequent departmental proceeding initiated against the petitioner was not finalized,the petitioner preferred OA No.113/2004 before the

Central Administrative Tribunal, Guwahati. The said original application was disposed of by the order dated 16.06.2004 by directing the respondent

authorities to complete the disciplinary proceeding within a period of 2(two) months. Against the order dated 16.06.2004 in OA No.113/2004, the

respondent Railway authorities preferred a writ petition being WP(C)No.9131/2004 before this Court.

The earlier writ petition being WP(C)No.6178/2002 of the respondent authorities against theorder dated 27.02.2002 of the learned CAT interfering

with the order of compulsory retirement and the later writ petition being WP(C)No.9131/2004 of the respondent Railway against the order dated

16.06.2004 requiring the disciplinary proceeding to be completed within 2(two) months were both taken up for a final consideration as per the

Judgment and Order dated 18.07.2009.

By the Judgment and Order dated 18.07.2009, the Division Bench of this Court had refused tointerfere with the order dated 27.02.2002 of the

learned CAT in OA No.377/2000 as well as the order dated 16.06.2004 in OA No.113/2004 by providing that the direction of the learned CAT to

complete the disciplinary proceeding within 2(two) months be implemented without any delay. Against the said Judgment and Order dated 18.07.2009,

an appeal was preferred by the Railway authorities before the Supreme Court which was also dismissed.

In the meantime, as the requirement of the order dated 27.02.2002 in OA No.377/2000 wasnot complied with, further petitions, including contempt

petitions were preferred by the petitioner. It is stated that ultimately sometime in the year 2010, the petitioner was reinstated following the interference

with the order of compulsory retirement and that he was also paid approximately an amount of Rs. 52 Lacs towards backwages. In the resultant

situation, the order dated 20.04.2011 was passed by the Deputy Secretary/E(O) of the Railway Board pursuant to the memorandum of charges dated

26.06.1999 by which a penalty of removal from service was imposed on the petitioner.

The order of removal from service dated 20.04.2011 was assailed by the petitioner before thelearned CAT at Guwahati in OA No.114/2012. The

said original application was given a final consideration by the learned CAT in its Judgment and Order dated 11.03.2015 by which the order of removal

from service was upheld.

Being aggrieved the present writ petition has been preferred by the petitioner. Mr. K NChoudhury, learned Senior Counsel for the petitioner urges

upon three grounds to assail the order of removal from service dated 20.04.2011 as well as the Judgment and Order dated 11.03.2015 of the learned

CAT. The first ground urged is that there is a delay of almost 11 years in disposing of the departmental proceeding and such delay by itself had

vitiated the proceeding justifying an interference. The second ground urged is that the punishment of removal from service is disproportionate to the

allegations made against the petitioner. The third ground urged is that during the stage when the enquiry was conducted against the petitioner in the

disciplinary proceeding, the communication dated 24.04.2000 informing the next date of the proceeding to be 08.05.2000 was not served on the

petitioner and, therefore, further continuance of the disciplinary proceeding ex-parte against the petitioner was not maintainable.

Mr. DK Dey, learned counsel appearing for the respondent Railway, per contra, submits that there was no delay in conducting the disciplinary

proceeding resulting in the proceeding being vitiated, inasmuch as, a parallel proceeding was pending against the petitioner in respect of the order of

compulsory retirement and the present proceeding was immediately brought to an end, after the petitioner was reinstated in service in respect of the

other proceeding.

Mr. Dey also submits that the overall conduct of the petitioner in persistently refusing to attendto his duties from the year 1996 by itself justifies the

penalty of removal from service and if a lenient view is taken in respect of such conduct, the same would be against the public interest and would send

a wrong message to the employees of the department towards their conduct in performing their duties and, hence, the penalty imposed cannot be said

to be disproportionate.

With regard to the contention that the communication dated 27.04.2000 informing about thenext date of enquiry to be held on 08.05.2000, was not

communicated to the petitioner, Mr. D.K. Dey, learned counsel submits that the communication dated 27.04.2000 was in fact a communication made

by the respondent Railway authorities informing the petitioner about the decision of the disciplinary authority to proceed ex-parte against him. A

further submission has been made that the earlier dates fixed for the purpose of the enquiry i.e. 31.01.2000, 27.03.2000 and 24.04.2000 were duly

communicated and served on the petitioner, but the petitioner on his own volition had remained absent in the enquiry. Therefore, for both the reasons,

it cannot be said that the enquiry was proceeded ex-parte against the petitioner in violation of the principles of natural justice.

Mr. K.N. Choudhury, learned senior counsel for the petitioner relies upon a decision of theSupreme Court rendered in Krushnakant B. Parmar -

vs- Union of India and another, reported in (2012) 3 SCC 178, wherein in paragraphs 16 to 19, it had been held that in a departmental proceeding, the

disciplinary authority is also required to prove that the unauthorized absence from duty was wilful and in the absence of such finding, the unauthorized

absence will not amount to misconduct. By relying upon the said decision, Mr. Choudhury, learned senior counsel for the petitioner submits that in the

instant case, no such satisfaction or conclusion had been arrived at by the disciplinary authority that the unauthorized absence of the petitioner was

wilful and hence, the order of removal from service in the absence of such satisfaction is not sustainable.

Mr. K.N. Choudhury, learned senior counsel also relies upon the decision rendered by theSupreme Court in Chairman-cum-Managing Director,

Coal India Limited and another â€"vs- Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620, wherein an unauthorized absence of six

months was held to be unduly harsh and to be grossly in excess to the allegations made.

Mr. D.K. Dey, learned counsel for the respondent Railways on the other hand relies upon thedecision of the Supreme Court rendered in Chennai

Metropolitan Water Supply and Sewerage Board and others â€"vs- T.T Murali Babu, reported in (2014) 4 SCC 108, wherein in paragraph 33, it had

been held that the employees are expected to maintain discipline, act with responsibility, perform their duties with sincerity and serve the institution

with honesty and that a contrary conduct cannot be countenanced as it creates a concavity in the work cultures and ushers in indiscipline.

With regard to the contention raised by the petitioner that the departmental proceeding isvitiated inasmuch as, it took more than 11 years to

conclude, it is taken note of that even the Division Bench of this Court in its Judgment and Order dated 18.07.2009 in WP(C) No.6178/2002 and

WP(C) No.913/2004 had taken note of the fact that the respondent authorities had failed to bring about a conclusion to the disciplinary proceeding in

spite of there being orders from the learned CAT to conclude the same within a period of two months. To that extent, the Division Bench had also

expressed its distress at the conduct of the respondent Railway authorities that in spite of there being no interim order in the consequential

proceedings, the direction to conclude the disciplinary proceeding within a period of two months, was not complied with. The Division Bench while

taking note of the aforesaid facts had ultimately required the respondent Railway authorities to implement the orders without any further delay.

The Division Bench having not provided that the disciplinary proceedings stood vitiated on theground of it not being brought to its conclusion in

spite of there being orders from the learned Central Administrative Tribunal, it would be improper for this Court to take a contrary stand in this

proceeding that the disciplinary proceedings stood vitiated only on the ground of there being a delay in bringing the same to its conclusion. Apart from

raising a bland contention that the delay had vitiated the disciplinary proceeding, no further materials have been brought on record by the petitioner nor

any relevant provision of law is being relied upon to justify that the delay caused in the facts and circumstance of this case, warrants a conclusion that

the delay by itself had vitiated the disciplinary proceeding.

With regard to the other contention that the penalty of removal from service is highlydisproportionate, no reasons have been stated nor any

materials produced, other than relying upon the decision of the Supreme Court in Chairman-cum- Managing Director, Coal India Limited (supra) to

substantiate that the penalty is highly disproportionate or the penalty of removal from service in the facts and circumstance of the present case shocks

the conscience of the Court so as to warrant an interference.

The factual circumstance in which the decision was rendered by the Supreme Court inChairman-cum- Managing Director, Coal India Limited

(supra) is distinguishable from the facts and circumstance of the instant case, inasmuch as in Chairman-cum- Managing Director, Coal India Limited

(supra), the delinquent official was firstly absent from duty for a period of six months in contradistinction to the facts of the present case, where the

petitioner remained unauthorisedly absent continuously from 20.09.1996 till the memorandum of charges was issued on 26.06.1999. Secondly, in the

Chairman-cum- Managing Director, Coal India Limited (supra), the delinquent official had tendered his resignation from service, on the ground of

there being some personal inconvenience to him, which was not accepted. But, in the instant case, no material is available on record, which would

indicate any reason as to why the petitioner remained unauthorisedly absent continuously from 20.09.1996 up to the date of issuing the memorandum

of charges. In his reply dated 16.06.2000 against the enquiry report, all that the petitioner stated was that he was advised rest by the Gauhati Medical

College and Hospital for a period of three months up to 20.11.1996. Beyond that, there is no further explanation by the petitioner at any stage as to

why he remained unauthorisedly absent, at least from 20.11.1996 up to the date of issuing the memorandum of charges. On the basis of the aforesaid

factual background, which are distinguishable from each other, the contention of the petitioner that the penalty of removal from service is

disproportionate by relying upon the decision of the Supreme Court in Chairman-cum- Managing Director, Coal India Limited (supra), cannot be

accepted.

As regards the other contention of the petitioner that the communication dated 27.04.2000having not been served upon him, further continuance of

the enquiry of the disciplinary proceeding ex-parte against the petitioner is unsustainable, would have to be looked into in the background of the

mitigating factors that are available in the present proceeding.

When the communication dated 27.04.2000 is looked into, it is noticed that the saidcommunication not only informs the petitioner that the further

proceeding of the enquiry would be held on 08.05.2000, but it also informs of the decision arrived at by the disciplinary authority that in view of the

conduct of the petitioner in not appearing before the enquiry on the earlier dates on 31.01.2000, 27.03.2000 and 24.04.2000, the further proceeding

would be conducted ex-parte.

The reply of the petitioner dated 16.06.2000 to the enquiry report indicates that the petitionerhad been duly informed of the dates that the enquiry

would be held on 27.03.2000 and thereafter on 24.04.2000. But, in spite of being so informed, the petitioner on his own volition had not attended the

enquiry. Therefore, it cannot be wholly accepted that the petitioner was prevented from appearing in the enquiry for presenting his case nor it can be

accepted that the decision of the disciplinary authority to proceed ex-parte against the petitioner was unwarranted.

A further fact is also taken note of that in his reply dated 16.06.2000, the petitioner had merelytaken a stand that he was advised complete rest by

the Gauhati Medical College and Hospital for a period of three months up to 20.11.1996. Even if the said explanation is accepted, the petitioner had

not provided any reason as to why he remained unauthorisedly absent from duty from 20.11.1996 up to the date of issuing of memorandum of charges

in the year 1999. In the absence of any such reason being provided by the petitioner either in his representation dated 16.06.2000 or to that extent in

the present writ petition, we are of the considered view that no prejudice had been caused to the petitioner to the effect that the communication dated

27.04.2000 was not served upon him. In the absence of any reason being given by the petitioner for the absence from duty from 20.11.1996

onwards, the situation could not have been different even if the communication dated 27.04.2000 was served on the petitioner, which could have

enabled the petitioner to avail any opportunity to present any such reason.

In the aforesaid circumstance, we are unable to accept the contention of the petitioner that thedisciplinary proceeding held against him ex-parte

stands vitiated inasmuch as, the communication dated 27.04.2000 was not served upon him.

With regards to the further ground urged upon by Mr. K.N. Choudhury, learned senior counselfor the petitioner by relying upon the principles laid

down by the Supreme Court in Krushnakant B. Parmar (supra) to the effect that the allegations of unauthorized absence would also have to be

supported by proving that the absence was wilful, it is taken note of that in the order of removal dated 20.04.2011, the disciplinary authority had

arrived at its conclusion that the unauthorized absence of the petitioner from 20.09.1996 was wilful. To appreciate the situation as to whether the

absence of the petitioner was wilful or not, further reference is made to the principles laid down by the Supreme Court in paragraphs 16 to 19 in

Krushnakant B. Parmar (supra), which are as under:-

“16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his

behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or

behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling

circumstances.

If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to

be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful.

There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like

illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a

Government servant.

In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the

absence is wilful, in absence of such finding, the absence will not amount to misconduct.

In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to

hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant

guilty.â€​

In paragraph 17 of the said judgment, the Supreme Court had taken the view that although absence from duty without any application or prior

permission may amount to unauthorized absence, but it does not always mean that such absence would be wilful. The Supreme Court was of the view

that there may be different eventualities, which may require an employee to remain absent from duties, including compelling circumstance beyond his

control like that of illness, accident, hospitalization etc.

In the present case, it is noticed that apart from a statement made in the representation dated 16.06.2000 that the petitioner was advised complete

rest up to 20.11.1996, no further stand had been taken nor any material had been produced that the petitioner was prevented from attending his duties

due to any compelling circumstance beyond his control like illness, accident, hospitalization etc. In the absence of any such material, it cannot be

concluded that the unauthorized absence of the petitioner was not wilful.

Accordingly in the facts and circumstance of the present case, the principles laid down by theSupreme Court in Krushnakant B. Parmar (supra)

cannot be the basis to interfere with the order of removal from service because of unauthorized absence.

It would also be apposite to take note of that the petitioner, who at the relevant point of timewas serving in the Junior Administrative Grade of

Senior Medical Officer, was holding a responsible position in the respondent Railways and his conduct of remaining unauthorisedly absent without any

reason for a period from 20.09.1996 up to the date of the memorandum of charges on 20.06.1999 has also to be viewed in terms of paragraph-33 of

the decision of the Supreme Court rendered in Chennai Metropolitan Water Supply and Sewerage Board and others (Supra) and accordingly such

conduct on the part of the petitioner cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization.

In view of the above, the writ petition is found devoid of any merit and the same is accordinglydismissed.