Gauhati High Court
Md. Jakir Hussain vs The Union Of India And 4 Ors on 19 July, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010234392015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6023/2015
MD. JAKIR HUSSAIN
S/O- MD. RASMAN ALI, VILL.- SOLMARI BHOIRA, P.S.- BELSOR, DIST.-
NALBARI, ASSAM.
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE GOVT. OF INDIA, NEW DELHI.
2:THE ADDL. CHIEF SECURITY COMMISSIONER
N.F. RAILWAY
MALIGAON.
3:THE ASSTT. SECURITY COMMISSIONER / RPF
N.F. RAILWAY
RANGIA.
4:THE DIVISIONAL SECURITY COMMISSIONER
N.F. RAILWAY
RANGIA.
5:GAGAN DEKA
THE INSPECTOR / RPF / RNY P N.F. RAILWAY
Advocate for the Petitioner : MR.L MOHAN
Advocate for the Respondent : SC, RAILWAY
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
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ORDER
19.07.2022 Heard Ms. D. Borgohain, learned counsel for the petitioner as well as Mr. D. K. Dey, learned standing counsel for the Railways.
2) The petitioner who was serving as constable in Railway Protection Force, was removed from service pursuant to a disciplinary proceeding vide order dated 27.08.2014.
3) The appeal filed by the petitioner was dismissed by the Appellate Authority on 31.03.2015.
4) The facts of the case is that a memorandum of charge dated 31.07.2013 was issued to the petitioner, which was to the effect that besides remaining absent from duty frequently, the petitioner was absent from duty w.e.f. 12.11.2012 till the date of filing of the memorandum of charge. The petitioner had been detailed for X- shift duty from 07.00 hours to 19.00 hours of 12.11.2012, for platform checking duty at the RNY Railway station with RPSS Staff. However, the petitioner did not turn up for his duty. The memorandum of charge also states that the petitioner had over stayed his leave and was unauthorisedly absent for long periods, totalling 582 days w.e.f. 20.02.2010 to 03.10.2012. It also stated that despite imposing several punishments under Rule 153 of the Railway Protection Force Act, 1957 (hereinafter referred to as the "1957 Act"), the petitioner did not rectify himself. It also stated that he was a habitual defaulter and frequently remained absent from duty.
5) The petitioner submitted his written statement of defence dated 30.08.2013, which was to the effect that he had sent a postal telegram to the respondents, which stated that his wife was seriously ill and had been admitted to Swahid Mukunda Kakati Civil Hospital, Nalbari. However, though the petitioner's wife had recovered, the petitioner injured his knee during an accident, due to which he could not join his post. The petitioner prayed to allow him to rejoin his duty vide the written statement of defence dated 30.08.2013.
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6) In the departmental proceeding the Enquiry Officer, in his Enquiry Report dated 26.12.2013, came to a finding that the charge against the petitioner was proved. In pursuant to the departmental proceeding the petitioner was removed from service, vide the impugned order dated 27.08.2014 and his appeal was rejected vide order dated 31.12.2015.
7) The petitioner's counsel submits that the Enquiry Officer did not consider the medical certificates submitted by the petitioner, nor did he make any finding on the medical certificates. Further, the petitioner was not allowed to cross examination the witness and neither was the statement of the witness recorded in his presence. She further submits that though the charge of the petitioner being unauthorisedly absent had been proved by the Enquiry Officer, the Enquiry officer did not make any finding as to whether the unauthorised absence had been intentional or wilful. She also submits that the charge framed against the petitioner has been found to be proved by the Enquiry Officer, only due to the fact that the petitioner had been found to be unauthorisedly absent on earlier occasions, for which he had already been punished. She thus submits that the charge against the petitioner in this case was not proved on the basis of evidence recorded, as reflected in the Enquiry Report, but due to his earlier misconduct.
8) The petitioner's counsel submits that as Rule 153.12, 153.19 and 155 had not been complied with, the departmental proceeding and the impugned order dated 27.08.2014 was vitiated and had to be set aside. In support of her submission the learned counsel for the petitioner has relied upon the judgment of the, Apex Court in the case of Krushnakant B. Parmar Vs Union Of India & Anr reported in 2012 3 SCC 178.
9) Mr. D. K. Dey, learned standing counsel for the Railways submits that though the petitioner had taken a stand in his written statement of defence dated 30.08.2013 that the petitioner was unauthorisedly absent due to the serious illness of his wife, the evidence of the petitioner recorded before the Enquiry Officer, was to the effect that the petitioner was unauthorisedly absent due to domestic problems and that the petitioner himself was suffering from several problems. He also submits that the fact that the petitioner had declined to cross examine the witness, as recorded by the Enquiry Officer, showed that the evidence had been Page No.# 4/8 recorded in his presence. The counsel for the Railways further submits that as the petitioner was a habitual absentee for long period of time, without any authorisation, his removal from service was justified and in this regard he has relied upon the judgment of the Apex Court in Mann Singh Vs. Union Of India & Anr reported in (2003) 3 SCC 464.
10) I have heard the learned counsels for the parties. 11) The memorandum of charge dated 31.07.2013 issued to the petitioner shows that
the petitioner had been charged with being absent from duty, w.e.f. 12.11.2012 till the date of filing of memorandum of charge dated 31.07.2013.
12) The written statement of the defence submitted by the petitioner is basically to the effect that he was unauthorisedly absent due to his wife suffering from serious illness. In the said written statement of defence, the petitioner has also mentioned various medical certificates. In his written statement of defence the petitioner has stated that he had sent a postal telegram to the respondent authorities, regarding his wife suffering from serious illness and treatment being taken in Swahid Mukunda Kakati Civil Hospital, Nalbari.
13) The learned counsel for the petitioner has taken me through the various postal receipts with respect to sending of postal telegram by the petitioner after his initial unauthorised absence, which is at page Nos. 72, 73 & 74 of the writ petition. All the dates of the postal receipts relating to sending of postal telegrams in page Nos. 72, 73 & 74 of the writ petition are prior to the date of absence of petitioner i.e. 12.11.2012. The last postal receipt in page No. 74 is 03.08.2012, while the petitioner was absent w.e.f. 12.11.2012. The above facts imply that no postal telegram had been sent to the respondents by the petitioner and the same gives a lie to the averment made by the petitioner in his written statement of defence.
14) A perusal of the various medical certificates which is reflected in the written statement of the defence does not indicate that the petitioner's wife was suffering from any serious illness. There is also nothing to show that the petitioner's wife was admitted to any Page No.# 5/8 hospital. In fact, the medical examination reports dated 30.12.2012, mentioned in the written statement of defence pertains to examination of the ears of petitioner's wife. The petitioner's wife's medical certificate nearest to the date of the petitioner's date of unauthorised absence, is the petitioner's wife's medical certificate dated 15.11.2012, which states that there was i. A feeling of heaviness in chest ii. Abdominal discomfort iii. Unwell being iv. Palpitation The doctor in the medical certificate dated 15.11.2012 had prescribed 4 different types of tablets to the petitioner's wife, who was being treated as an outdoor patient.
Besides the medical certificate, which does not indicate that the petitioner's wife suffered from any serious illness, the other medical certificates annexed to the writ petition have been made with respect to the petitioner on 12.03.2010, 03.06.2010 and 07.02.2011 etc. by one doctor Khaibar Ullah, whose letter pad also states:-" Gold Medallist Awarded as Mother Teresa".
15) Rule 153.12, 153.19 and 155 of the 1957 Act states as follows:
153.12. All evidence shall be recorded, in the presence of the party charged, by the Inquiry Officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness, as the case may be, shall also be recorded. The statement of each witness shall be read over to him and explained, if necessary, in the language of the witness, whose signature shall be obtained as a token of his having understood the contents. Statement shall also be signed by the Inquiry Officer 79 and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself. The Inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party charged.
153.19. At the conclusion of the inquiry, the Inquiry Officer shall prepare a report of the inquiry recording his findings on each of the charges with reasons therefore. The findings must be of "guilty" or "not guilty" and no room shall be allowed for "benefit of doubt" or personal surmises. A charge shall be deemed to have been proved if after Page No.# 6/8 considering the evidence before him, the Inquiry Officer believes the ingredients constituting the charge to exist or considers their existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they exist.
155. Determination of punishment :
In determining the punishment, the character, previous bad record and punishment of party charged shall not be taken into consideration unless in a case where they are made subject-matter of a specific charge in the proceeding itself. Offences connoting moral turpitude shall be carefully distinguished from smaller lapses of conduct. It is essential that the punishment shall be inflicted keeping in view the nature of duties expected from the member of the Force and the misconduct by him. "
16) The records have been produced by the learned standing counsel for the Railways and on perusal of the same it is seen that the petitioner had declined to cross examine the witness, which implies that the evidence of the witness had been taken in the presence of the petitioner. Thus, it is the view of this Court that Section 153.12 of the 1957 Act had been complied with.
17) Though the Enquiry Officer in his Enquiry Report had not specifically mentioned that the petitioner was guilty of the charge, the Enquiry Officer stated that the charge was proved, which clearly implies that the petitioner was found to be guilty of the charge framed against him. Accordingly, this Court is of the view that there has been no violation of Rule 153.19 of the 1957 Rules, just because the Enquiry Officer did not use the word "guilty" in respect of the charge framed against the petitioner.
18) The memorandum of charge dated 31.07.2013 states that the petitioner had remained frequently absent from duty and was absent from duty w.e.f. 12.11.2012 till the date of submission of the memorandum of charge. The "allegation" portion of the memorandum of charge has also clearly reflected the previous unauthorised absence of petitioner and that he had been imposed punishment on the same. As the previous bad record of the petitioner was a part of the memorandum of charge dated 31.07.201,3 this Court does not find any infirmity in the Disciplinary Authority taking into consideration the earlier bad record of the petitioner. As such, this Court is of the view that there has been no Page No.# 7/8 violation of Rule 154 of 1957 Act.
19) In the case of Krushnakant B. Parmar (Supra), the Apex Court had held that the question whether unauthorised absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Govt. servant, cannot be decided without deciding the question whether the absence is wilful or because of compelling circumstances. The Apex Court in the above case also referred to the judgment of Apex Court in the another case, i.e., M. V. Bijalani Vs. Union of India, reported in 2006 5 SCC 88, wherein it held that although the charges in departmental proceeding are not required to be proved like a criminal trial, i.e. beyond all reasonable doubt, the Enquiry Officer who performs a quasi judicial function and arrives at a conclusion by analysing documents, must do so by taking into consideration relevant facts.
20) In the present case, there is no dispute to the fact that the petitioner was unauthorisedly absent from 12.11.2012 till the date of filing of the memorandum of charge.
The medical certificates that have been annexed by the petitioner does not show that the petitioner's wife was suffering from any serious illness and neither was she admitted to any hospital. Further, though the petitioner's counsel had referred to page Nos. 72, 73 & 74 of the writ petition, to show that the postal telegram had been sent to respondent authorities, with regard to the petitioner's unauthorised absence from 12.11.2012, none of the dates in 24 postal telegrams receipts in pages 72, 73 & 74 are beyond the date 03.08.2012, i.e. they are all prior to the date of unauthorised absence of the petitioner. There is also no representation submitted by the petitioner to the respondent authorities with regard to his unauthorised absence and neither did he apply for leave at any time. On considering all the above facts, this Court is of the considered view that the unauthorised absence of the petitioner has been wilful. In the case of State of Punjab Vs. Mohinder Singh, reported in (2005) 12 SCC 182, the Apex Court has held that policeman remaining absent from duty for 5 and a half months, without sanctioned leave or prior intimation cannot be retained in service, as his conduct as a member of a disciplined force is reprehensible.
21) The impugned order dated 27.08.2014 shows that the penalty inflicted upon the Page No.# 8/8 petitioner by the Disciplinary Authority is due to the charge of unauthorised absence being proved against the petitioner and also due to his past bad record.
22) In view of the reasons stated above, this Court does not find any reason to interfere with the impugned order dated 27.08.2014 removing the petitioner from service.
petition is accordingly dismissed.
JUDGE Comparing Assistant