Gauhati High Court
Page No.# 1/22 vs Pradip Kumar Nandy on 27 June, 2025
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/22
GAHC010040442018
2025:GAU-AS:8786
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1749/2018
THE UNION OF INDIA AND 2 ORS.
REPRESENTED BY GENERAL MANAGER, NORTH EAST FRONTIER
RAILWAY, MALIGAON, GUWAHATI-781011
2: THE CHIEF WORK SHOP MANAGER
DIBRUGARH WORK SHOP
DIBRUGARH NORTH EAST FRONTIER RAILWAY
ASSAM
PIN-783001
3: THE WORKS MANAGER
DIBRUGARH WORK SHOP
NORTH EAST FRONTIER RAILWAY
ASSAM
PIN-78300
VERSUS
PRADIP KUMAR NANDY
EX-TECHNICIAN GRADE III, T/1718 WORKING UNDER SSE/CRS/DBWS,
PRESENTLY RESIDING AT SANKAR DEV RAILWAY COLONY, DIBRUGARH,
ASSAM.
Advocate for the Petitioner : MR. G GOSWAMI, MS B DEVI
Advocate for the Respondent : MR. S N TAMULI (FOR CAVEATOR),
Page No.# 2/22
:::BEFORE:::
Hon'ble MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 16.05.2024
Date of Judgment & Order : 27.06.2025
JUDGMENT & ORDER (CAV)
(M. Thakuria, J)
Heard Mr. Gautam Goswami, learned Standing Counsel, Railway
Department appearing for the petitioners and Mr. Santanu Nandan Tamuli,
learned counsel for the sole respondent.
2. This writ petition under Article 226/227 of the Constitution of India has
been filed challenging the legality and validity of the impugned Judgment and
Order dated 30.11.2017, passed by the learned Central Administrative Tribunal,
Guwahati Bench, Guwahati, in Original Application No. 040/00410/2015 (Shri
Pradip Kumar Nandy Vs. Union of India & Ors.), allowing the Original Application
filed by the applicant/respondent against the petitioners/Railways.
3. It is to be noted here that the learned Central Administrative Tribunal (in
short, 'CAT'), Guwahati Bench, Guwahati, while passing the judgment and order
dated 30.11.2017, had set aside the Order of Disciplinary Authority, bearing No.
E/74/DAR/5/P, dated 12.12.2008, pursuant to a Disciplinary Proceeding initiated
by it against the respondent for major penalty under Rule 9 of Railway Servant
(Discipline & Appeal) Rules, 1968 (hereinafter referred to as 'Rules of 1968') of
removal from service of the respondent for unauthorized absence from duty.
Page No.# 3/22
4. In brief, the case of the petitioners is that the respondent, herein, who
was at the relevant point of time serving as Technician Grade III in the Office of
the SSE/CRS/DBWS, N.F. Railway, was a very important and sensitive post under
the N.F. Railway, was found very irregular in his duty for a long period of time.
He was in the habit of remaining unauthorized absent from duty very frequently.
However, a lenient view was taken by the DAR to offer him scope for
improvement, but he never improved. Rather, he was repeating the same
offence of remaining unauthorized absence from his duty without any justifiable
ground. Situated thus, the Respondent Authority was left with no other option
and compelled to take disciplinary action against the respondent for his
repeated unauthorized absence from duty. Accordingly, the Departmental
Authority on 04.04.2008 had served the Memorandum of Charges upon the
respondent for major penalty under the Rules of 1968 through standard Form
No. 5 vide No. E/74/DAR/5/P, dated 04.04.2008 along with the necessary
documents annexed to it which includes a copy of letter, bearing No. CRS/1-
Leave, dated 21.03.2008, issued by the SSE/CRS/ DBWS. However, even after
receipt of the said Memorandum of Charges for major penalty under Rule 9 of
the said the Rules of 1968, the respondent did not submit his written statement
of defence to the Disciplinary Authority.
5. Thereafter, the Inquiry Officer (I.O.) was nominated and the enquiry was
held where the respondent accepted the charges framed against him. After
enquiry, the report was submitted by the I.O., dated 27.10.2008, wherein it was
held that the charge was established and the report was accordingly
communicated and acknowledged by the respondent. But the respondent did
not submit his statement of defence against the enquiry report, though he was
asked to file it. Thereafter, the Notice Imposing Penalty (in short 'NIP') was also
Page No.# 4/22
issued to him imposing penalty of removal from service against the respondent
by the competent authority on 12.12.2008, which was also acknowledged by
the respondent. He was also asked to prefer an appeal against the order dated
12.12.2008 within 45 days, if so desires. Accordingly, the respondent prefer an
appeal before the Appellate Authority on 23.01.2009 and after going through
the record, the Appellate Authority had upheld the punishment vide its order
dated 24.12.2009. Thereafter, as per special provision, the respondent prefered
a petition before the General Manager, N.F. Railway for revision of the order of
his punishment dated 12.12.2008. However, the Revisional Authority, vide order
dated 24.03.2010, also upheld the penalty imposed on the respondent, as
upheld by the Appellate Authority. Thereafter, the respondent, almost after 5
years, had approached the learned CAT, Guwahati Branch, Guwahati for setting
aside the order of Disciplinary Authority dated 12.12.2008. Accordingly, the
learned CAT, Guwahati Branch, Guwahati vide its Judgment and Order dated
30.11.2017 directed the Railways/petitioners to reinstate the respondent to his
service from the date of his removal, i.e. 12.12.2008, with 50% back wages
holding it to be disproportionate with liberty to pass such penalty proportionate
to the misconduct.
6. The present petitioners/Railways in O.A. have filed their written statement
contesting the claim of the applicant, respondent herein, on the ground that the
contention advanced by the applicant was false and fabricated and it is also
stated that the applicant was given every opportunity to defend himself and
after following principles of natural justice, the removal order was passed and
the same was duly intimated to him. The applicant/present respondent, also
filed his rejoinder wherein he also admitted that earlier in one occasion he was
served with Memorandum of Charges wherein it was alleged that he was
Page No.# 5/22
unauthorizedly absent from his duty.
7. It is further stated that previously also, 3 (three) Disciplinary Proceedings
were initiated against the present respondent for non-carrying out instructions
of his superiors and willfully delay on line duty to New Bongaigaon and
Guwahati. Consequently, NIP for stoppage of increment of the respondent for 2
(two) years and 11 (eleven) months was also issued vide order dated
21.05.2007. Second Disciplinary Proceeding was initiated on 05.12.2006 for
unauthorized absence from his duty and in that case also, the stoppage of
increment was passed for 30 months vide order dated 21.05.2007. Thirdly, the
Show Cause Notice for break in service was issued to the present respondent on
16.05.2008 for habitual unauthorized absence from duty. Consequently, NIP for
break in service from 17.01.2004 was issued vide order dated 01.06.2007.
8. It is further stated that the respondent accepted the charges and in
response to other questions, he raised the issue that he had to remain absent
frequently from his duty for the illness of his mother, who was a Psychiatric
Patient, which means and include that the respondent shall not be able to
attend his duty regularly until and unless his mother become fully cured.
However, it is contended that the same cannot be the legitimate ground from
absence of his duty. A responsible employee is supposed to follow the Leave
Rules while not attending their duties. But, in the present case, the respondent
never bothered to follow any such rule and instead he preferred to remain
absent from his duty on the pretext of his mother's illness. The respondent was
in habit of remaining unauthorized absence from his duty and he never
improved himself even after several scope was given from the Department,
rather he remained absent from his duty without any justifiable grounds. Hence,
Page No.# 6/22
the action on the part of the petitioners is absolutely legitimate and therefore, it
is contended that the impugned order dated 30.11.2017, passed by the learned
Central Administrative Tribunal, Guwahati Bench, Guwahati, is not sustainable in
the eye of law and the same is liable to be set aside and quashed.
9. It is further stated that while remaining absent from his duty, the
respondent never produced any medical document except photocopies of
certain medical documents. More so, the certificate which was produced before
the learned CAT, Guwahati also pertains to a period after punishment so
imposed on the respondent. Hence, those documents also cannot be taken into
consideration which was produced before the learned CAT, Guwahati.
10. It is also stated that the respondent never demanded for any relevant
documents during the Departmental Proceeding, though he took the plea of
non-supplying of the relevant documents and hence, the findings of the learned
CAT, Guwahati amounts to error of law and therefore is liable to be set aside
and quashed. More so, the respondent approached the learned Tribunal after
lapse of 5 years, but without going into these issues, the Order was passed by
the learned Tribunal on 30.11.2017, which is not sustainable and liable to be
dismissed. Further, the order of reinstatement of the respondent from the date
of removal with 50% back wages is in contradiction to well settled principle of
"no work no pay" which is now the law of the land as held by the Hon'ble
Supreme Court and various High Courts. As such, if the impugned Judgment
and Order passed by the learned CAT, Guwahati if not set aside, in that event
the petitioners would suffer irreparable loss and injury and would have a
cascading effect on the fiscal prudence of the country and for this reason also,
the Judgment passed by the learned Tribunal is liable to be set aside and
Page No.# 7/22
quashed. It is stated that the learned Tribunal failed to consider the fact that
previously on several occasion, the respondent was warned by DAR for his
unauthorized absence from duty, but he was in the habit of remaining
unauthorized absence and did not improve himself even after the lenient view
taken by the DAR. The Disciplinary Authority found that the respondent failed to
rectify himself in spite of ample opportunity from the department and therefore
had to initiate the Departmental Proceeding against the present respondent.
11. The order of punishment by way of removal from service of the
respondent was imposed by the petitioners as per the law and the respondent
was given every opportunity to defend himself and after following the principles
of natural justice, the Order of removal was passed which was also duly
intimated to him. No illegality has been committed in the Order passed in the
Departmental Proceeding and hence, reinstatement of the present respondent
with 50% back wages cannot be entertained and is not sustainable under the
eye of law. The petitioner submitted that the punishment from removal of
service was proportionate in comparison with the offence committed by the
respondent.
12. The petitioners further stated that the Railway Department has a strong
prima facie case and balance of convenience also lies in favour of the
petitioners. If the impugned order is allowed to be sustained, the Railway
Administration would be seriously prejudiced and same shall cause irreparable
loss and injury to the department and as such, the impugned order is liable to
be set aside and quashed in the interest of justice. Accordingly, it is prayed by
the petitioners that the order passed by the learned CAT, Guwahati, dated
13.11.2017, is liable to be interfered with by this Court.
Page No.# 8/22
13. Mr. Goswami, learned Standing Counsel, Railway Department, appearing
for the petitioners, submitted that during the Departmental Proceeding, the
Register was called for and on verification, it was found that in some days, the
respondent attended the first half and in some days, he attended the second
half of the office and on the other days, he was absent for the full day without
any leave application which can be considered as unauthorized leave and thus,
it was the opinion of the Inquiry Officer that the respondent had accepted the
charges framed against him and it was observed that from the attendance sheet
submitted by the office that he was irregular and remained absent. Further,
from the report received from the OS/P/Bill, it also reveals during enquiry that
he had not submitted any leave application for his unauthorized absence except
the commuted leave from 12.03.2008 to 17.03.2008.
14. It is further submitted by Mr. Goswami that all the charges framed against
the respondent was duly served/intimated to him and he also accepted the
charges brought against him before the Inquiry Officer. He preferred the appeal
before the learned Tribunal after 5 years and till that period, he was sitting
ideally and hence, he cannot claim for his back wages for the period wherein he
was sitting ideal without even preferring any appeal for revision. However, he
was reinstated in service on 04.04.2018 and since then, he was getting his
regular salary till his superannuation on 31.03.2020. Mr. Goswami further
submitted that considering the offence committed by the respondent, the
penalty imposed on him is proportionate and hence, the view of the learned
Tribunal is not sustainable under the eye of law wherein it has been held that
the penalty was highly disproportionate in comparison to the offence committed
by the employee/respondent.
Page No.# 9/22
15. Mr. Goswami further relied on the decision of Hon'ble Apex Court reported
in (2014) 4 SCC 108 (Chennai metropolitan Water Supply and
Sewerage Board and Others Vs. T. T. Murali Babu). Relying on the said
decision, it is submitted that the unauthorized absence of an employee is
considered to be misconduct and cannot be put in straitjacket formula for
imposition of punishment and it depends on the various factors. It is the duty of
the employee to perform his duty with sincerity and honesty for service of the
institution and unauthorized absence from the duty itself is considered to be
misconduct and thus, the punishment provided to the present respondent
cannot be considered as disproportionate as held by the learned Tribunal. He
basically emphasized on paragraph Nos. 4, 5, 8, 12, 15 & 16 of the said
judgment and paragraph Nos. 12 & 16 reads as under:
"12. It is not in dispute that the Inquiry Officer found that both the charges had been
proved. The disciplinary authority had ascribed reasons and passed an order of
dismissal from service. On a perusal of the order of dismissal it is vivid that the
medical certificate was belatedly submitted and he had remained unauthorisedly
absent from 28.08.1995. The question that arises is when the charges of unauthorized
absence for a long period had been proven, was it justified on the part of the High
Court to take resort to the doctrine of proportionality and direct reinstatement in
service. That apart, one aspect which has not at all been addressed to by the High
Court is that the respondent invoked the extraordinary jurisdiction of the High Court
after four years.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ
court is required to weigh the explanation offered and the acceptability of the same.
The court should bear in mind that it is exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens
but simultaneously it is to keep itself alive to the primary principle that when an
aggrieved person, without adequate reason, approaches the court at his own leisure or
pleasure, the Court would be under legal obligation to scrutinize whether the lis at a
belated stage should be entertained or not. Be it noted, delay comes in the way of
equity. In certain circumstances delay and laches may not be fatal but in most
circumstances inordinate delay would only invite disaster for the litigant who knocks at
the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant -
a litigant who has forgotten the basic norms, namely, "procrastination is the greatest
thief of time" and second, law does not permit one to sleep and rise like a phoenix.
Page No.# 10/22
Delay does bring in hazard and causes injury to the lis."
16. Mr. Goswami further cited another decision of Hon'ble Apex Court passed
in Civil Appeal Nos. 7939-7940 of 2022 (Union of India & Ors. Vs.
Subrata Nath). Relying on the said judgment, Mr. Goswami submitted that it is
not the duty of the appellate forum or the learned Tribunal to re-appreciate the
evidence or the statement recorded by the enquiry officer and the High Court
also while exercising the power under Article 226 of the Constitution of India is
not supposed to re-appreciate the evidence which were recorded by the Inquiry
Officer during the departmental proceeding. He accordingly emphasized on
paragraph Nos. 27 & 28 of the judgment which reads as under:
"27. The Division Bench went a step further and proceeded to reappreciate the
evidence and observed that it was not persuaded to conclude that such a major theft
of 800 kgs comprising of 42 bundles of copper wires could have happened 'in the blink
of an eyelid' despite holding that the view of the learned Single Judge regarding non-
production of the original Beat Book was unsustainable. The Court held that the
allegation of connivance in the theft levelled against the respondent was presumptive
and there wasn't enough evidence to conclude that theft of such a magnitude could
have happened during the duty period of the respondent alone, yet charge-I
pertaining to negligence and dereliction of duty on the part of the respondent was
sustained. At the same time, the order passed by the learned Single Judge directing
substitution of the punishment of dismissal with that of compulsory retirement was set
aside and the respondent was directed to be reinstated in service with full back wages,
while giving liberty to the Disciplinary Authority to issue a fresh order of punishment
commensurate to the negligence and dereliction of duties on his part, except for
punishment of dismissal or removal from service or compulsory retirement.
28. We are unable to commend the approach of the learned Single Judge and the
Division Bench. There was no good reason for the High Court to have entered the
domain of the factual aspects relating to the evidence recorded before the Inquiry
Officer. This was clearly an attempt to reappreciate the evidence which is
impermissible in exercise of powers of judicial review vested in the High Court under
Article 226 of the Constitution of India. We are of the opinion that both, the learned
Single Judge as well as the Division Bench, fell into an error by setting aside the order
of dismissal from service imposed on the respondent by the Disciplinary Authority and
upheld by the Appellate Authority."
17. On the other hand, Mr. Tamuli, learned counsel appearing on behalf of the
Page No.# 11/22
sole respondent, submitted verbally as well as by filing his written argument
that basically the allegation against the present respondent is that he was most
irregular in his duty and was in habit of remaining absent from his duty very
frequently which is considered to be a serious misconduct as the same was in
violation of Rule 3.1(ii) & (iii) of Railway Services (Conduct) Rules, 1966 and for
such misconduct or unauthorized absence of the respondent, the Departmental
Proceeding was initiated against him on several occasion. But in every occasion
the lenient view was taken for the respondent and he was also provided a scope
of improvement in the earlier proceedings. However, as there was no
improvement in his conduct and he used to repeat the same act, the
Departmental Proceeding was accordingly initiated and finally it is held by the
Inquiry Officer that the charges against the respondent is established and
thereafter the disciplinary authority vide order dated 12.12.2008 has imposed
penalty of removal from his service with immediate effect.
18. Against the aforesaid order of dismissal, the respondent preferred an
appeal before the Appellate Authority, i.e. the Chief Workshop Engineer, N.F.
Railway. But his appeal was dismissed upholding the penalty imposed by the
Disciplinary Authority. Thereafter, the respondent also preferred a revision
before the Revisional Authority which was also dismissed and the penalty
imposed by the Disciplinary Authority was upheld and confirmed vide order
dated 24.03.2010.
19. After dismissal of the revision petition, he approached the learned CAT
vide O.A. No. 401/2015 where there was a delay in approaching the learned
Tribunal. However, the delay was condoned by the learned Tribunal. But the
present petitioner never challenged the order of condoning the delay by the
Page No.# 12/22
learned Tribunal and hence, they cannot take the plea of delay in filing the O.A.
at this stage. He took the plea before the learned Tribunal that the Disciplinary
Authority, while confirming the charges, relied upon the report dated 21.03.2008
submitted by SSE/CRS wherein the respondent was declared to be absent from
his duty between 01.01.2008 to 21.03.2008 and other part of the allegation that
the respondent was absent from his duty on earlier occasion was vague and
there was no valid foundation for the same. He also clarified before the learned
Tribunal that his absence from duty was placed earlier in one occasion due to
his sickness and the said period was later on regularized on production of
medical certificate from railway doctor. Further, the Disciplinary Authority did not
frame any definite and distinct charge against each allegation. It is evident that
the enquiry was conducted against the present respondent for the period of
absence from 01.01.2008 to 21.03.2008 and the respondent had admitted only
that part of charge, though it is claimed by the petitioner that he admitted his
charge before the Disciplinary Authority. More so, the Disciplinary Authority had
failed to consider the fact that under the compelling circumstances only, he had
to remain absent from his duty and he never remain absent willfully or
negligently from his duty.
20. Mr. Tamuli further raised the following issues in his written argument as
well as in his oral submission:
(i) The petitioners failed to formulate distinct and definite charges
against the respondent as mandated under Rule 9)6)(i) of the
Railway Servants (Discipline and Appeal) Rules, 1968.
(ii) The period for which the applicant was unauthorized absent was not
distinct and definite.
Page No.# 13/22
(iii) The past conduct of the respondent which was taken into
consideration was also vague
(iv) The service particulars are produced for the first time in the writ
petition. As there was no detail of the earlier misconduct, the
respondent could not respond to such allegations which cause
serious prejudice to the present respondent and only on this count,
the memorandum of charges can be quashed.
(v) Along with the Memorandum of Charges the petitioners have
provided only the report of the SSE/CRS dated 21.03.2003, wherein
it was shown that the respondent remain absent from his work place
only on few occasions. There was no document except a vague
statement of imputation of misconduct or misbehavior.
(vi) From the order passed by the Disciplinary Authority as well as the
Appellate Authority and the Revisional Authority, it is seen that they
have considered the absence of the present respondent only for the
period between 01.01.2008 to 21.01.2008 and not his earlier period
of absence as claimed by the petitioners in their departmental
proceeding.
(vii) The respondent remain absent from his duty only for few days in
between 01.01.2008 to 21.03.2008 as per the report of SSE/CRS and
it reveals that the respondent remain unauthorized absent from his
work place for 10 days in full, for 19 days in half, i.e. either in first
half or second half, and hence, such penalty of removal of service is
shockingly disproportionate considering the gravity of the offence of
unauthorized absence.
Page No.# 14/22
21. Accordingly, Mr. Tamuli, learned counsel for the respondent, submitted that
the charge framed against the employee was vague and his period of absence
was considered only on the basis of the report submitted by SSE/CRS from the
period in between 01.01.2008 to 21.03.2008, wherein he was found to be
remain absent for 10 days in full and for 19 days he remained absent either in
the first half or second half. More so, if half day leave is granted by the authority
that cannot be considered as unauthorized absence of duty from his service. In
the departmental proceedings, it was not enquired as to whether his absence
was willful or he remained absent for some compelling situation/circumstances
and without going to any findings, the disciplinary authority had imposed the
penalty form removal of service which is a disproportionate penalty imposed on
the present respondent.
22. Mr. Tamuli further relied on the following decisions at the time of
argument:
(i) Anil Gilurkder Vs. Bilspur Raipur Kshetria Gramin Bank and
Anr., reported in (2011) 14 SCC 379, wherein it is held that " an
enquiry to be conducted against any person giving strict adherence
to the statutory provisions and principles of natural justice and
charges should be specific, definite and giving details of the incident
which formed the basis of charges and no enquiry can be sustained
on vague charges."
(ii) Surath Chandra Chakraborty Vs. the State of West Bengal,
reported in AIR 1971 SC 752, wherein the Apex Court had held
that it is not permissible to held an enquiry on vague charges, as the
same do not give a clear picture to the delinquent to make an
Page No.# 15/22
effective defence as he will be unaware of the exact nature of
allegation against him and what kind of defense he should put up for
rebuttal thereof.
(iii) Government of Andhra Pradesh & Ors. Vs. Venkata Rayudu,
reported in (2007) 1 SCC 338, wherein it has been held by the
Hon'ble Apex Court that "it is a settled principle of natural justice
that if any materials is sought to be used in an inquiry, then copies
of that material should be supplied to the party against whom such
inquiry is held."
(iv) Krushnakat B. Paramar Vs. Union of India, reported in (2012)
3 SCC 178, wherein the Hon'ble Apex Court has expressed the view
that "in the departmental proceeding, if allegation of unauthorized
absence is made, the disciplinary authority is required to prove that
the absence is willful, in absence of such finding, the absence will
not amount to misconduct."
(v) Chairman cum Managing Director, Col India Limited & Anr.
Vs. Mukul Kumar Choudhuri & Ors., reported in (2009) 15 SCC
620, wherein the Hon'ble Apex Court has held that unauthorized
absence for few days under compelling circumstances the penalty of
removal from service for unauthorized absence for 6 months was
considered not only to be unduly harsh but grossly excess to the
allegations.
23. Mr. Tamuli further relied on the decision of this Court reported in 1998 (2)
GLT 315 (Elangbam Nimai Singh Vs. State of Manipur), wherein it has
been held that the penalty of dismissal from service for unauthorized absence of
Page No.# 16/22
68 days was found to be disproportionate to the gravity of the offence.
24. Mr. Tamuli also relied on a decision of Hon'ble Gujarat High Court passed
in the case of Cargo Motora (Gujarat) Limited Vs. Kritikant Shivajirav
Jadav, decided on 07.08.2023, wherein it has been held that in case of
wrongful termination of service, 100% back wages can be provided. He further
relied on another decision of Hon'ble Patna High Court passed in case of Shri
Umesh Jha Vs. the Union of India represented through the General
Manager, N.F. Railway, Maligaon, Guwahati [2015 0 Supreme(Pat)
231], wherein it has been held that punishment for removal of service for
unauthorized absence of 27 days is found to be highly disproportionate to the
gravity of the offence.
25. Mr. Tamuli further relying on a decision of Hon'ble Apex Court passed in
the case of Jayantibhai Raojibhai Patel Vs. Municipal council, Narkhed
& Ors. (Civil Appeal No. 6188 of 2019) submitted that the present
respondent is entitled for full back wages for the period for removal of service.
26. Accordingly, it is submitted by Mr. Tamuli that the order of learned Tribunal
dated 30.11.2017 is rightly passed considering all aspects of the case directing
for payment of 50% of the back wages to the present respondent and hence,
there cannot be any reason for interference of this Court in the order passed by
the learned Tribunal.
27. We have considered the submissions made by the learned counsels
appearing on behalf of the parties and also perused the materials available on
record.
28. From the submissions made above, it is seen that the Railway
Page No.# 17/22
Authorities/petitioners have filed the present writ petition against the order of
learned CAT, Guwahati, dated 30.11.2017, whereby the learned Tribunal passed
the order for reinstatement of respondent from the date of his removal from
service with 50% back wages. As per the petitioners, the order passed by the
learned Tribunal is in contradiction to well settled principle of "no work no pay"
which is now the law of the land as held by the Hon'ble Supreme Court and
various High Courts.
29. It is the case of the petitioners that the present respondent is in the habit
of remaining unauthorized absent from his duty very frequently. Though lenient
view was taken by the DAR to offer him scope for his improvement, but he
never improved himself. Rather, he repeated the same offence of remaining
unauthorized absence from his duty without any justifiable ground and for
which, the Railways Authorities left with no other option and compelled to take
disciplinary action against the respondent for his repeated unauthorized absence
from duty. Accordingly, the concerned authority on 04.04.2018 had served a
Memorandum of Charges on the respondent under Rule 9 of Railway Servant
(Discipline & Appeal) Rules, 1968 through the standard form dated 04.04.2008
along with necessary documents annexed to it and considering the report of the
inquiry officer, the Disciplinary Authority provided him penalty of "removal from
service".
30. On the other hand, it is the case of the respondent that he admitted the
charges framed against him only for the period of his absence from 01.01.2008
to 21.03.2008 and the other part of the allegation regarding absence from his
duty on earlier occasion was vague and do not have any valid foundation. More
so, there was no mention about the specific period of absence and there was no
Page No.# 18/22
DAR against him on earlier occasion. As per the respondent as well as from the
report submitted by SSE/CRS, from 01.01.2008 to 21.03.2008, he was remain
absent from his duty in full for 10 days and for 19 days in half, i.e. he was found
absent either first half or second half. There is no specific mention as to
whether any Departmental Proceeding was initiated against him in earlier
occasion or the penalty imposed on him. More so, the service particular, which is
annexed as Annexure-8 to the petition, is produced for the first time in the writ
petition. As there was no detail of the earlier misconduct, the respondent could
not respond to such allegations and as such, a serious prejudice was caused to
him. Further it is also the plea of the respondent that he had to remain absent
from his duty only for some compelling circumstances, particularly for the illness
of his mother, who is a Psychiatric Patient, and the Departmental Authority did
not consider his medical documents which was furnished before the authority at
the time of proceeding. More so, he was not provided with every particular
document to prepare his defence and the allegation of his unauthorized absence
in earlier occasion is also not specific and distinct for which he could not make
any respond to such vague allegation which was brought against him.
31. On perusal of the case record, it is seen that at the time of initiation of
Disciplinary Proceedings, following Articles of Charges were framed:
"Article - I
As per attendance report submitted by SEE/CRS/DBWS,, vide L/No CRS/1-Leave
Dt. 21.03.08, Shri Pradip Kr. Nandy, Tech GRIII, T/No1718 working under
SSE/CRS/DBWS is most irregular in his duty. He is in the habit of remaining
unauthorized absent from duty very frequently. This is serious misconduct in violation
to Rule 3.1(ii & iii) of Rly services (conduct) rules, 1966.
Article - II
Shri Pradip Kr. Nandy, T/No1718 while working as Tech GRIII under
SSE/CRS/DBWS is mot irregular in his duty. He is in the habit of remaining
Page No.# 19/22
unauthorized absent from duty very frequently and subsequently reports for duty
covering the period of unauthorized absence from duty under PMC. Previously, Shri
Nandy was taken up under DAR for several times for his habit of remaining
unauthorized absent from duty and lenient view was taken to offer him scope for
improvement. But, it has been seen that he has not improved at all, rather he is
repeating the same offence of remaining unauthorized absent from duty. This
persistent habit of remaining unauthorized absence from duty indicates the gross lack
of devotion and negligence to duty which is serious misconduction the part of Shri
Pradip Kr. Nandy, Tech. III, T/1718 showing himself as unbecoming of a Rly. Servant."
32. So, from the Articles of Charges framed against the respondent, it is seen
that as per the statement of the Article-I, the attendance report was submitted
by SSE/CRS/DBWS on 21.03.2008, which is also annexed along with the
petition, and from the leave report, it is seen that the respondent was submitted
by DAR only for the period of 01.01.2008 to 21.03.2008 and apart from that,
there is no other specific mention about his unauthorized absence from the
duty. Further, as per the statement of Article-II, the respondent is in habit of
unauthorized absence from his duty very frequently and previously the
respondent was taken up under DAR for several time for his habit of remaining
unauthorized absence from duty, however lenient view was taken to offer him
scope for improvement. But, from the statement made in Article-II of the
Charge, it is seen that the statement is vague and there is no specific and
distinct charge against the present petitioner showing his unauthorized absence
from his duty.
33. Further it is the plea of the respondent that the report of DAR was never
placed before the Disciplinary Authority at the time of enquiry. However, the
respondent admitted the charge framed against him wherein he was reported to
be absent from his duty for 10 days in full and 19 days in half for the calculated
period from 01.01.2008 to 23.03.2008. But on perusal of the enquiry report as
well as the findings of the Inquiry Officer, it is seen that except report of
Page No.# 20/22
SSE/CSR dated 21.03.2008, there is no other mention about any DAR in the
report wherein some Departmental Proceeding was initiated against him.
Further it is seen that the increment was stopped on 2 occasions and there was
a service break for the respondent, but it is not supported with any particular
documents and from the report of the Inquiry Officer as well as from the Order
passed by the Disciplinary Authority, it is seen that there is no mention about
the earlier proceeding, if any, initiated against the respondent nor there is any
discussion about the earlier DAR in the report of the Inquiry Officer as well as
the Order of Disciplinary Authority. The Disciplinary Authority had passed the
order only on the basis of the enquiry report of the Inquiry Officer, wherein the
absence of the present respondent was considered for the period from
01.01.2008 to 21.03.2008 and the statement of Charge of Article-II is found to
be vague and no distinct charge was framed against the respondent. In this
regard, the respondent relied on the above referred decision of the Hon'ble
Apex Court wherein it is the view expressed by the Hon'ble Supreme Court that
the charges should be specific, definite and giving details of the incident, which
form the basis of charges and no enquiry can be sustained on a vague charge.
Thus, in absence of any particulars of the documents or the relevant records, it
cannot be held that all particulars of the documents in regards to the earlier
service record of DAR etc. was placed before the Inquiry Officer or the
documents were furnished to the present respondent to take his proper
defence.
34. Further, from the report of SSE/CSR, dated 21.03.2008, it is seen that the
respondents found to be remain absent in full for 10 days and he was on half
day leave for 19 days, which means that he either worked in the first half or in
the second half for 19 days, and on the basis of said report, the entire enquiry
Page No.# 21/22
proceeding was initiated against the respondent. Thus, the penalty of "removal
from service" imposed by the Disciplinary Authority for unauthorized absence of
10 days in full and 19 days in half cannot be considered as proportionate to the
offence committed by the delinquent official. It is also seen that the Disciplinary
Authority did not consider the ground of illness of the mother of the respondent
which was pleaded by the respondent before the Inquiry Officer at the time of
enquiry. However, it is an admitted fact that the respondent had admitted his
unauthorized absence as calculated for the period of 01.01.2008 to 21.03.2008.
But for such period of absence, the penalty of removal from service cannot be
considered as proportionate to the offence committed.
35. Coming to the delay in preferring the petition before the learned CAT,
Guwahati, it is seen that the delay has already been condoned by the learned
Tribunal and that was not challenged by the petitioners. More so, form the
submission made by Mr. Goswami, learned Standing Counsel, Railway
Department, it is seen that the respondent was reinstated in his service on
04.04.2018 and the salary was paid to him regularly till the date of his
superannuation on 31.03.2020.
36. In view of the entire discussions made above, we are of the opinion that
the learned Central Administrative Tribunal, Guwahati Bench, Guwahati, while
passing the impugned Judgment and Order dated 30.11.2017, in Original
Application No. 040/00410/2015, has not committed any error or mistake and
rightly reinstated the respondent from the date of removal of his service on
12.12.2008 with 50% back wages, which requires no interference of this Court
and therefore, the same stands upheld.
Page No.# 22/22
37. Consequently, the present writ petition, being devoid of merit, stands
dismissed.
JUDGE JUDGE
Comparing Assistant
