THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.22805 of 2012
ORDER:
1 Challenging the legality and validity of Order No.X/P.227/Appeal/VR/2012 dated 20.04.2012 passed by the 2nd respondent confirming the penalty of removal from service the petitioner filed the present writ petition. A consequential direction was also sought for to reinstate the petitioner into service with all consequential benefits.
2 Petitioner asserts that he was appointed as RPF Constable on 16.04.1995. In the month of July, 1998 while he was on duty, he fell sick and was shifted to railway hospital. When the petitioner reported to duty and waiting for the GM.3 requisition, it was refused on the ground that there was a charge memo pending against him and he was served with a copy of the ex- parte enquiry report. Thereafter, the petitioner was served with charge sheet through letter dated 15.02.2000 to which he submitted his explanation on 23.02.2000. But without taking into consideration his explanation and the reasons for overstay from sick leave, the first respondent dismissed the petitioner from service on 06.04.2000. Aggrieved thereby, the petitioner filed appeal which was dismissed on 19.07.2000 and subsequently revision petition was also dismissed on 2 27.11.2000. The petitioner filed W.P.No.365 of 2001 before this Court. The said writ petition was disposed by order dated 03.03.2011 setting aside the order dated 27.11.2000 modifying the order of dismissal to that of removal from service. Questioning the same, the respondents preferred W.A.No.483 of 2011. The appeal was allowed and the matter was remanded to the 2nd respondent for reconsideration and assessment as to the appropriate punishment that should be imposed against the petitioner on the proved misconduct. The 2nd respondent has passed the order dated 07.05.2012 stating that pursuant to the order of this Court dated 03.03.2011 in W.P.No.365 of 2011 and as per the directions given in W.A.No.483 of 2011, the order of dismissal from service has been modified to that of removal from service, vide order dated 01.08.2011.
3 The respondents filed counter stating that the petitioner reported sick at Railway Hospital, Bellamapalli on 03.08.1998. He failed to give attendance at Railway Health Unit, Bellampalli. Hence he was discharged for non-attendance with effect from 26.10.1998 vide DNA certificate dated 04.11.1998. After absenting from 26.10.1998 to 04.04.1999, the petitioner appeared before IPF/BPA on 05.04.1999 when he was directed to report to DMO/BPA for fit certificate. But he did not bring fit certificate from DMO/BPA and absented unauthorisedly from 3 05.04.1999 till date and his whereabouts are also not known. The service of charge sheet on the petitioner became futile because the petitioner avoided receiving it. Therefore, the charge sheet was pasted at his door in presence of respectable mediators of the locality. The enquiry officer made several attempts to intimate the party for participating in the D & AR enquiry but the petitioner never bothered to appear. Hence the enquiry was conducted ex parte. The petitioner also did not give the reasons for his non-attendance. The enquiry officer submitted his findings that the charges levelled against the petitioner were proved and the enquiry report was served on the petitioner. Thereafter the petitioner submitted his representation dated 23.02.2000 after a lapse of nearly one month from the date of service of enquiry report in which he mentioned that he was under treatment of DMO/BPA up to 26.10.1998 and from 26.10.1998 to 04.04.1999 where he was under treatment of private doctors and he has produced a medical certificate covering this period. In that certificate the disease was shown as jaundice with rheumatism whereas the petitioner has mentioned that he was suffering from epileptic convulsions. The Railway doctor at Bellampalli clearly deposed during D & AR enquiry that the charged employee was discharged for non-attendance with effect from 26.10.1998. The railway doctor further stated that 4 the petitioner appeared before him on 05.04.1999 with a reference from IPF/BPA on which he referred the petitioner to Railway hospital, Lallaguda and that the petitioner is not attending the hospital again from 25.10.1999. Therefore, the petitioner remained absent in an unauthorized manner from 26.10.1998 till the finalization of enquiry report and he has not bothered to intimate his superiors the reason for his absence during the period in violation of the stipulated regulations. The registered letters retuned undelivered from his residence. The petitioner neither bothered to appear in the enquiry nor bothered to intimate the Inspector or any RPF officers the reasons for his non-attendance/absence. Therefore, the disciplinary authority imposed the punishment of dismissal from service with immediate effect. The petitioner was hardly 31 years old and had put in only five years of service so far. The appeal as well as the revision preferred by the petitioner was dismissed confirming the findings of the disciplinary authority. Therefore, the 2nd respondent find no reason to interfere with the penalty imposed by the disciplinary authority which is commensurate with the gravity of charges held proved in the departmental enquiry. 4 Sri S. Rahul Reddy, the learned counsel for the petitioner vehemently contends that the respondents would have considered the genuine case of the petitioner about his 5 incapacitated condition due to convulsions which did not permit him to be present before the respondents as mandated by the rules and regulations. He further submitted that the action of the respondents in continuing the disciplinary proceedings behind his back without service of notice or giving an opportunity to the petitioner as per the known procedures and not allowing the disability certificate which entitles the petitioner for appointment in any alternative suitable post under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995 is contrary to law. He further submitted that absent from duty without proper intimation or overstay beyond sanctioned leave with sufficient cause is not per se a misconduct warranting imposition of any one of the two penalties i.e. either dismissal or removal from service and the said punishment grossly disproportionate if the absence is covered by sufficient cause and accordingly prays to set aside the impugned order by considering the case of the petitioner on sympathetical grounds. The learned counsel for the petitioner relied upon the judgment of Krushnakant B.Parmar V. Union of India1 and draws the attention of this Court to the operative portion of the judgment in that case which reads as under:
1 (2012) 3 SCC 178 6
25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The Appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the Appellant has not worked for a long time we direct that the Appellant be paid 50% of the back wages but there shall be no order as to costs.
and submits that the case of the petitioner also stands on the same facts of the above case and hence the case of the petitioner may be considered on merits as his unauthorized absence was not willful. Therefore, the petitioner's case deserves to be considered on facts, merits and law.
5 On the other the learned counsel for the respondents submitted that the respondent has never acted prejudicially, the petitioner has never bothered to intimate his whereabouts during the private sick period. It is mandatory that in terms of Rule 272.9 of RPF Rules, 1987 any member of the force on sick list shall not leave his place of treatment without the written approval of the leave sanctioning authority. During the period of his absence, the petitioner not only left his place of treatment without written approval of the leave sanctioning authority but also failed to intimate his whereabouts throughout his absent period. The petitioner has not even sent interim sick certificate of the private medical doctor from time to time, which shows that the petitioner deliberately failed to intimate about his 7 whereabouts and remained absent to his duty. The appellate authority as well as the revisional authority have rightly dismissed the appeal as well as the revision. He accordingly prayed to dismiss the writ petition.
6 For the sake of convenience, Rule No.272.9 of RPF Rules, 1987 is extracted hereunder:
272.9: A member of the Force on sick-list shall not leave his place of treatment without the written approval of the leave sanctioning authority except for such exercise as may be prescribed and notified in the order by the Railway Medical Officer.
7 As seen from the record, all the notices informing about the enquiry were affixed at the door step of the petitioner in the presence of mediators of the locality where the petitioner used to reside. To that effect, the witnesses have also spoken to about the same. Some notices were returned unserved. 8 It is born by the record as well as the proceedings before the disciplinary authority that the father of the writ petitioner has got the knowledge of the whereabouts of the writ petitioner which is corroborated by the evidentiary statement given by the father of the writ petitioner stating that his son went to a village and he does not know when he returns. Therefore, an inference can be drawn that the writ petitioner and his father are in contact with each other. Hence in any case the stated ground of convulsion is assumed to be correct, but still, it does not bar the 8 writ petitioner to intimate the commanding officers in any acceptable mode and hence the absence of the writ petitioner was willful. At no point of time, the petitioner took steps to inform his whereabouts to the enquiry officer as well as to his superiors about his absence. In spite of several attempts to serve the charge sheet on the petitioner being made and went in vain, the enquiry officer, having no other alternative, on the directions of the DSC/SC dated 26.10.1999, proceeded to conduct the enquiry ex parte. Therefore, the enquiry officer has scrupulously followed the procedure in conducting the enquiry. It is only after the enquiry was finalized and imposition of major penalty of dismissal from service was done, the petitioner came into picture and made representation for service of charge sheet and other documents. This clearly indicates the gross negligence of the petitioner.
8 The appellate authority as well as the revisional authority have in unequivocal terms accepted the findings of the disciplinary authority, which is based on sound reasoning. In State of Karnataka V. N. Gangaraj2 the apex Court has categorically stated that the Tribunal or High Court cannot interfere with the findings of fact recorded by the disciplinary authority by reappreciating evidence as if they were appellate 2 (2020) 3 SCC 423 9 authority. In the case on hand the enquiry officer has given detailed reasons for his findings that there are gross lapses committed by the petitioner. The appellate authority observed that the RPF being highly disciplined Armed Force of the Union, wherein discipline and conduct are paramount virtues, and since the petitioner is not fit to be member of the Force and in terms of 156 (b) of RPF Rules 1987, the penalty of removal is the appropriate punishment for his proven misconduct of absence from duty without intimation.
9 The facts of the case in Krushnakant B. Parmar (cited supra) relied upon by the learned counsel for the petitioner are different to the facts and circumstances of the case on hand. In that case, the charged officer participated in the enquiry. But in the case on hand, it prima facie appears that the petitioner willfully avoided participating in the enquiry though sufficient time and opportunity were given and he deliberately violated Rule No.272.9 of RPF Rules, 1987.
10 The charges levelled against the petitioner were held proved. In the earlier W.P.No.365 of 2001, this Court has already taken lenient view and modified the punishment of dismissal to that of removal.
1011 Having regard to the principle enunciated in the case cited supra and also having regard to the fact that the charges levelled against the petitioner were held proved, this Court, cannot reappreciate the evidence. Therefore, I see no merits in this writ petition and the same is accordingly liable to be dismissed. 12 In the result, the writ petition is dismissed. No order as to costs. Miscellaneous petitions if any pending in this writ petition shall also stand dismissed.
______________________ E.V.VENUGOPAL, J.
Date:03-11-2022 Kvsn