V. Ravinder vs Divisional Security ...
2022 Latest Caselaw 5613 Tel

          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

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

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

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

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

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

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

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

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.

11 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